The Bar News

A lawyer's view on the 2nd Blagojevich trial

By Robert A. Loeb The Blago nightmare is almost over. The federal jury returned a verdict of guilty on 17 of 20 counts against the former governor. Regardless of one’s personal opinion of his criminal culpability, and for that matter, regardless of the jury’s verdict -- he’s been a national embarrassment. Let’s not rehash the coverage in the news media here. We’ve already been inundated with that, and it was three whole news cycles ago. And even though he invoked Elvis once again as he waited for the verdict (“my hands are shaking and my knees are weak”), I’ll try hard to refrain from further cheap Elvis references at his expense. Even though other song titles from Elvis include “That’s what you get for lovin’me,” “Jailhouse Rock,” and “Please release me.” Rather, let’s take a look at the case and the verdict from a lawyer’s perspective. The media is asking, “how was the second trial different from the first, and did that difference help produce a different result?”  I’m not so sure they were very different. Sure, the difference between a hung jury and a conviction is great, but is the difference between an 11-1 vote and and a 12-0 vote so significant when evaluating trial tactics?  It has been reported that the government streamlined the case against Blagojevich, eliminating some counts and some evidence in an attempt to make the case clearer to the jury. Both juries seem to have been thorough and meticulous, but it still took this jury two weeks to deliberate, and an indictment with 20 remaining counts is not exactly simplified. I’m suggesting that the government did not really need to alter its case after the first trial. From the defense point of view, the fact that different lawyers represented Blagojevich in the second trial may have lessened the entertainment value, but the cross-examinations of witnesses parroted the successful moments from the first trial. The biggest difference was the fact that Blagojevich testified in the retrial. In criminal trials, the biggest decision for the defense is often whether or not the defendant should testify.  On the one hand, a defendant’s testimony is the best opportunity to humanize the defendant and to get the jury to care about him. On the other hand, a defendant’s testimony usually hurts him more than it helps. A cross-examination exposes the weak points of the defendant, both as to proof of the crime as well as to the defendant’s character. In addition, jury experts will maintain that when a defendant takes the stand, the focus of deliberations shift from a narrow look at whether or not the prosecution has proven its case beyond a reasonable doubt to a comparison of which has more weight and credibility, the prosecution’s case in its entirety or the words of the defendant. Conventional wisdom often dictates that the defense attorney should not put his client on the stand unless the case is a sure loser without taking that risk. This case is reflective of that wisdom.  In the first trial, 11 of twelve jurors supported a conviction on most counts; a different strategy was probably needed for the defense to prevail this time, so putting Blagojevich on the stand was worth the risk. The interviews of the jurors after the trial confirm this analysis.  They wanted to hear from the former governor, and some of them wanted to be persuaded by him.  Nevertheless, some jurors found that his straining to redefine the meaning of words in the English language was lame and incredulous.  Others were put off by what they felt were transparent and pandering efforts to lace his testimony with obvious references to their respective careers, backgrounds, and interests.  In the end, and probably predictably, his testimony had the unintended effect of proving the government’s case and convicting him. Speculation has begun concerning what his sentence will be.  A starting point for that discussion would probably be the sentences imposed in other official corruption cases.  Under the advisory sentencing guidelines, obstruction of justice may be an additional factor for Judge Zagel, who may take into account Blagojevich’s testimony on the stand, which was arguably rejected, and perhaps Blagojevich’s very public appearances and statements, which could also be indicative of a failure to accept responsibility.  Whether those will be direct factors in his ultimate sentence, it was clear that Judge Zagel was not enamored with the former governor’s actions outside of the courtroom. Another factor which can come into play at sentencing is deterrence of others from committing the same kind of crimes.  Corruption has been the rule for Illinois governors in the last half-century. The fact that the two most recent former governors have been convicted of federal crimes suggests that past sentences have not been successful in deterring illegal acts, and could be taken into account in determining the sentence in this case. What does all this mean for the future of the law in Illinois?  Rod Blagojevich became a lightning “rod” for attention and criticism.  At the same time, there is a bigger picture in play.  Official corruption has been exposed repeatedly.  A cynic might claim that that there has been no improvement in the conduct of public officials.  On the other hand, I might argue that the bar has been raised for the ethical expectation in our public officials.  Despite the fact that the honest services doctrine has been limited by the courts, we are holding our officials accountable for conduct that, years ago, even the law would have excused as politics as usual.  The use of public office for private fundraising and private gain, in the general sense, has diminished as statutes have been tightened up and prosecutions have been successful. However, even if we’ve come a long way from shoeboxes of cash underneath the beds of public officials (lawyers under the age of 50 can ask their senior partners about that one), and even if we are holding public officials to a higher standard now, there’s certainly a bit of room for improvement. Robert A. Loeb is a past Chair of the ISBA Criminal Justice Section and teaches classes in Criminal Law as an Adjunct Professor at DePaul University College of Law for Trial Advocacy, Advanced Trial Advocacy and Pre-trial Litigation. Click here to read his take on the 1st Blagojevich trial.  
Posted on June 30, 2011 by Chris Bonjean
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