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August 17, 2010

Former Illinois Gov. Rod Blagojevich convicted of one count

As detailed in this breaking AP report, today a "federal jury found former Illinois Gov. Rod Blagojevich guilty of one count of lying to federal agents."  Here are more details:

The judge in the case said he planned to call a mistrial on the remaining 23 counts. Immediately after the jury reached its verdict, prosecutors said they intend to retry the case against Blagojevich as soon as possible.

The jury deliberated for 14 days before arriving at the verdict.

Blagojevich had pleaded not guilty to all 24 counts, including charges of trying to sell or trade an appointment to President Obama's vacated Senate seat.  He faced up to $6 million in fines and a sentence of 415 years in prison. His brother, Nashville, Tenn., businessman Robert Blagojevich, 54, also pleaded not guilty to taking part in that alleged scheme.

When and how sentencing issues will play out for this one count of conviction is very interesting, though prosecutors' interest in a retrial might postpone getting to the Blagojevich sentencing story anytime soon.

August 17, 2010 at 06:00 PM | Permalink

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The mighty Casey (Fitzgerald) has struck out.

Posted by: Sorry 'bout That | Aug 17, 2010 9:21:52 PM

Sorry 'bout That --

Actually, he hit a sacrifice fly. And the game continues. By the way, do you regard Blago as an honest man and a faithful public servant?

Posted by: Bill Otis | Aug 17, 2010 9:38:10 PM

Folks, I continue to be puzzled about how the prosecution, having taken their best shot and failed to convince the jury of the def's guilt, can have another go at it. Says Phil Turner, former federal prosecutor, "The government has the resources to keep trying until they get a conviction, and they probably will." Doesn't that violate the basic principle upon which the double jeopardy clause is founded, that the government has the power to make the def run the gauntlet only once?

I know there will be some who will think I am committing heresy. I know about Perez and the multitude of cases which (blindly?) follow its opaque holding. But isn't it interesting that the leading double jeopardy case related to whether a def can be retried following a mistrial does not mention the words "double jeopardy" or "the Fifth amendment"


We don't really know much about the context of Perez and I'm wondering, since it was a capital case, if a hung jury back in the early 1800's resulted in a death verdict because the def had the burden of proving why he should get life instead of death. Does anyone know the factual and legal context of Perez?

I think the government has had one fair chance at convicting the the former governor and failed to satisfy the jury of his guilt. The def should be discharged.

What say you, fellow commenters? I have a nagging suspicion that, like Blockburger, the Perez case has come to stand for what the headnotes say it means, divorced from the context of the facts. (The best thing I learned in law school came from property prof John Norton Moore, who said, "If there is a discrepancy between the map and the terrain, the terrain is always right") I wonder what the Perez terrain is.

bruce

Posted by: bruce cunningham | Aug 17, 2010 9:42:58 PM

bruce,

In Yeager v. United States, 129 S.Ct. 2360 (2009), the Court's most recent pronouncement on this subject, the majority (per Stevens) extensively discussed both the Fifth Amendment and double jeopardy. It said this:

"The first interest is implicated whenever the State seeks a second trial after its first attempt to obtain a conviction results in a mistrial because the jury has failed to reach a verdict. In these circumstances, however, while the defendant has an interest in avoiding multiple trials, the Clause does not prevent the Government from seeking to reprosecute. Despite the argument’s textual appeal, we have held that the second trial does not place the defendant in jeopardy “twice.” Richardson v. United States, 468 U. S. 317, 323 (1984); see 3 J. Story, Commentaries on the Constitution §1781, pp. 659–660 (1833). Instead, a jury’s inability to reach a decision is the kind of “manifest necessity” that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled. See Arizona v. Washington, 434 U. S. 497, 505–506 (1978) ; United States v. Perez, 9 Wheat. 579, 580 (1824). The “interest in giving the prosecution one complete opportunity to convict those who have violated its laws” justifies treating the jury’s inability to reach a verdict as a nonevent that does not bar retrial. Washington, 434 U. S., at 509."

Yeager held that a hung jury mistrial prevents retrial only on those counts where the original jury returned an acquittal in factual circumstances that show it rejected the governnment's theory on the counts sought to be retried. Other than that, it certainly seemed to endorse the long-honored theory that a jury's failure to reach a verdict does not terminate the first jeopardy, and thus that there is no second jeopardy there.

Of course Blago got no acquittal of any kind. Thus, so soon after Yeager, I don't think he has any argument that would get taken seriously.

Posted by: Bill Otis | Aug 17, 2010 10:30:10 PM

Bill,

The point is that requiring unanimity in acquittal does in fact place a burden of proof upon the defendant. I have to agree with Bruce here. The courts have simply gotten this one wrong. It should be the government's task to get a conviction and anything else the defendant walks.

I am willing to entertain some middle point here, perhaps 1 juror should not be enough, although I am not convinced of that since that juror was acceptable to the state to begin with. But two jurors should be plenty to say the government just loses.

Posted by: Soronel Haetir | Aug 17, 2010 10:46:09 PM

Soronel --

The government-got-its-shot argument is reasonable, but so is the jeopardy-never-ended argument. If Miranda gets to stay on the books because it's precedent (after about 35 years)(see Dickerson), then so does Perez (after 185 years or so).

Posted by: Bill Otis | Aug 17, 2010 11:14:59 PM

A BRIEF HISTORY OF THE TAKINGS CLAUSE

I. Antecedents

The Takings Clause found its genesis in Section 39 of the Magna Carta, which declared that land would not be taken without some form of due process: "No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land."

II. The Bill of Rights

After the adoption of the American Constitution, there was fear, particularly by the anti-Federalists led by Jefferson, that the federal government would be too powerful. Jefferson agitated for the adoption of the Bill of Rights, the first ten amendments to the federal Constitution. One of these Amendments, the Fifth, provided that no person shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Is it mere coincidence that the due process clause and the takings clause are so intertwined? Indeed, the govment could break just about everyone with enough retrials.

Posted by: George | Aug 18, 2010 12:10:42 AM

I've got to agree with bruce and Soronel. I also agree that Bill's got the law right, but I think that the Court is just flatly wrong on this (big words, coming from a law student).

Without the DJ clause coming into play in cases where you have a full and fair trial and the jury simply cannot agree, there's nothing to stop the government from continually reprosecuting the defendant until they get a conviction (which they eventually will, even with a factually innocent defendant, given the law of probabilities). I understand that prosecutor's offices have limited resources, and eventually the negative publicity would put pressure on the prosecutor to let the case go or work out a plea (or, at least, that's how I imagine it works, but see Curtis Flowers).

Also, going through a trial is one hell of an ordeal. It puts pretty much everything on hold, doesn't it? I just have a lot of trouble accepting that, in hung jury cases, the fact that the DJ clause doesn't bar subsequent reprosecution squares with the notion of fundamental fairness.

Posted by: Guy | Aug 18, 2010 1:39:18 AM

Bill, what is your take on what Perez is all about? If it is the controlling precedent on double jeopardy, why isn't the phrase "double jeopardy" found in the case?. This morning I'll pull the case and post the sentence from the case that makes me think that in the old days a hung jury was a loss for the defendant.

Thanks for the comments.

bruce

Posted by: bruce cunningham | Aug 18, 2010 6:45:33 AM

I share Bruce's apprehension about the government's Energizer Bunny capabilities and inclinations. Moreover, given that the federal-courts deck is so heavily stacked in favor of the government the feds should only get one shot at making their case.

Blago strikes me as a real d-bag, but what the government does in these cases is nothing less than vile. They Martha Stewarted him, got him for lying to federal bureaucrats about conduct a jury ultimately failed to recognize as criminal.

Ordinarily my first reaction when yet another citizen gets snagged in the ole obstruction-of-justice trap is sheer wonderment. Why, oh why, would anyone in their right mind ever respond candidly (and without their lawyer present) to FBI interrogators?

But in Blago's case, apparently he asked to have a court reporter present for the questioning, but the FBI said no. And of course the FBI doesn't record its interrogations. Agents prepare reports from memory after the sessions are concluded.

This is sinister, oppressive stuff, bordering on un-American. And no one should think it can only happen to screwballs like Blago or rich, uppity women like Martha Stewart.

Posted by: John K | Aug 18, 2010 9:08:04 AM

bruce --

Gads, I haven't read Perez for years, if I ever did. I'm on the road today, so I won't be able to in any event. I'm perfectly willing to take your word for it that it doesn't mention the phrase "double jeopardy." But Yeager sure does, and Justice Stevens was not a careless man or a careless judge (neither are the rest of them). I think it's a hard sell to say that, for all these years, the Court has just been sleeping through DJ analysis.

The argument you make is, as I was saying to Soronel, reasonable -- indeed it's obvious -- so it's unlikely in the extreme that the Yeager Court (or Richardson or Burks) just overlooked it.

I might also note that, while Griswold did not mention abortion, it was and remains the doctrinal underpinning of Roe. When the analysis adopted in one case ordains the result in a later case, albeit one decided under a different provision, the handwriting is on the wall.

Posted by: Bill Otis | Aug 18, 2010 10:13:03 AM

Bill,

As I said on one of the other threads where this came, when I got a chance to ask Prof. Tribe this question his answer was that we've just always done it this way. That is a strong endorsement for continuing to do it this way unless some external influence comes along to force change, but it is also not a strong reason for staying the course after reflection upon the topic.

Posted by: Soronel Haetir | Aug 18, 2010 10:32:05 AM

Bill, here is the sentence from Perez that has me puzzled, "Courts should be extremely careful how they interfere with ANY OF THE CHANCES OF LIFE, IN FAVOUR OF THE PRISONER."

Perez was a capital case. Maybe it was different in 1824, but now we defense lawyers will take any hung jury we can get in a capital sentencing phase because that means the def gets life, at least in NC. What puzzles me is the reference to interfering with the prisoner's right to get life if a mistrial is declared.

Also, doesn't there have to be a finding of "manifest necessity" to declare a mistrial which does not bar reprosecution. Did the judge in Blago's trial declare a manifest necessity? The classic case here is the snowstorm in Asheville which shut the courthouse down and the judge declared a mistrial. The def argued double jeopardy bar to a retrial and the Supreme Court rejected the claim. I certainly don't have any problem with a mistrial due to the lawyer getting sick, the courthouse burning down, (I was in the midst of trial on 9/11 and asked for a mistrial)(didn't get it) Under those circumstances try the def again. But when the state throws everything they choose to throw at him and doesn't get a conviction, I think he has survived his single jeopardy.

Remember, jeopardy attaches when the jury is sworn in, not when punishment is imposed. So, how does one say that swearing in another jury doesn't constitute putting the def in jeopardy twice.?

thanks for everyone's thoughts

bruce

Posted by: bruce cunningham | Aug 18, 2010 10:34:59 AM

John K --

Blago occupied an extremely powerful position. He could easily have had his scheduler/security people tell the agents, "The Governor would like to cooperate, but wants a court reporter or, better, to make a tape recording himself, just to insure accuaracy. When you are able to meet those conditions, he would be pleased to talk to you at a mutually convenient time to be arranged by his attorney."

The governor of a large state can't say that?? Ha!

The one thing I notice you don't do is claim that he actually told the truth.

I was never governor of anything, and oddly I never found it necessary to lie to agents. Now maybe that's because I'm not up to my eyeballs in corruption and payoffs.

He could either tell the truth or say no thanks. The idea that a man is his position was in essence mugged by the agents is preposterous.

Why do you swoon over lying? When did lying get to be the way to live?

Posted by: Bill Otis | Aug 18, 2010 10:35:02 AM

by the way: NPR is reporting that it was, in fact, one hold out on the jury. 11 - 1 for guilty on all counts. The very brief report I heard seemed to indicate that the other jurors were pretty p/o'ed. FWIW.

Posted by: Ala JD | Aug 18, 2010 10:56:04 AM

"Actually, he hit a sacrifice fly. And the game continues. By the way, do you regard Blago as an honest man and a faithful public servant?"

LOL, figured old bag 'em and tag 'em BO would be the "first responder". Just can't stand for a prosecutor to lose one can you? What about "Innocent Until PROVEN Guilty?" Fact is, it does not matter what my personal opinion of Blago is. What matters is that, to a jury of his, Blago's, peers, Fitzgerald, with all of the resources of Uncle Sam behind him, could not make the case stick. What matters is that Blago, unlike most who get run over by the tactics of "win at any cost federal prosecutors, had the resources to fight back and did. He didn't walk away completely clean but if lying to a Fed is all they can come up with...........pitiful. Over all, I would still call it a strike out.

Posted by: Sorry 'bout That | Aug 18, 2010 11:04:55 AM

I agree with Bill Otis: There is zero probability that the Court will change its mind on the hung jury issue. Although I disagree with the holding, it is as settled as the law can get, that a hung jury entitles the prosecutor to a retrial.

I also agree with Bill on the count for which Blago was convicted, lying to investigators. Blago was not obligated to speak to the FBI. He had the same right to remain silent that all of us have. But if you DO speak to them, you must be truthful, and I am sure Blago was well aware of this.

Posted by: Marc Shepherd | Aug 18, 2010 11:07:37 AM

Its a shame to spend all of that money for another trial...The feds should be allowed but 1 chance, they could continue this forever, its unconstitutional in nature, even if its legal.

On the flip side, Blago is a D Bag, bet your bottom dollar, if I got off like he did (temporarily anyway) I would shut my mouth and walk away from the Media...What an idiot, mouthing off and poking fun of basically the strongest force in the world (for his situation)
his attorneys maybe should run for Ill Governor this fall as well, seemed adapt for the inevitable hanging...If the Feds want you bad enough, you will go down...Its the USA, not going to out duke them round after round..

Any chance for leinicy or Mercy has long since been thrown out the window. I don't have to like Fitzgerald at all, but I will respect his position and power. Any way, back to work for me...I enjoyed all of your comments.

Posted by: Abe | Aug 18, 2010 11:39:15 AM

LOL, figured old bag 'em and tag 'em BO would be the "first responder". Just can't stand for a prosecutor to lose one can you?

But the prosecutor didn’t lose, and Blagojevich didn’t win. Given that the jury was tilted 11–1 in favor of conviction, I suspect that the government is feeling a lot more confident about a retrial than Blogo’s lawyers are.

Posted by: Marc Shepherd | Aug 18, 2010 11:40:40 AM

For the record, Bill, lying is bad. Liars aren't to be trusted. People (including cops and federal agents) should be truthful when they can be and silent when they can't.

Still, as I've mentioned a number of times, in the most recent trial I covered each of the three federal agents who testified was caught in cross in a prevarication intended either to make the accused appear more culpable or the government to seem circumspect and fair-minded where it had not been.

Two of the deceptions amounted to relatively innocuous dissembling. The third was an outright, bold-face lie. A whopper. Huge. An honest-to-god Perry Mason moment for the defense attorney who unveiled it.

All three agents were under oath. Yet as far as I know, none was reprimanded or even gently scolded...let alone charged with obstruction or perjury and dragged from the courthouse in chains.

From what I've seen personally and heard from lawyers and other writers it's doubtful those three witness-stand performances were unique in the history of testimony given by law enforcement officers.

So again, Bill, I'm all for honesty. But I'm also for fair fights and level playing fields.

Posted by: John K | Aug 18, 2010 12:14:39 PM

one neat psychic thing I have had vision's of Rod Blagojevich actually with his involvement with the VIN changing and stolen construction equipment in Morris, IL auction that generates millions.

I know that a sepena of Peter Schivarelli in his case would make it strong as Peter work with BLAGO on Chicago Streets and Sanitation fraud. Also, Bret Michaels from the band Poison is involved with Howard a partner of Peter Shivarelli faking a stroke to take away from the BLAGO trial case.

BLAGO was also involved with Ronald Laverdure (http://www.dailyherald.com/story/?id=209366, http://www.google.com/url?sa=t&source=web&cd=9&ved=0CDAQFjAI&url=http%3A%2F%2Fwww.ilnb.uscourts.gov%2Fopinions%2FJudgeGoldgar%2FLaverdure.pdf&ei=KQNsTMuDM4Kenge154W7Ag&usg=AFQjCNF5yf_Tqkyz6ZphdXZ_9p63rsB44w&sig2=qXCfPj691zAd1NAMF4jObQ)

I am hoping this helps as people in the Barrington, IL police department and FEMA including Bobby (Robert) Colangelo are losing evidence are losing evidence all over the place. Bobby Colangelo (FEMA) was involved with money being lost with abuse of their tools used for fraud instead of help. I know they are involved in this loss of the donation money as they are able to use their tools inappropiately. Michael Bruns is also threatening people in this case.

Thank you for listening. Please feel free to forward as I wanted to get your input on this as my visions are usually 100% accurate. I am a Catholic Visionary.


God Bless You,
Michael

ps- I sometimes get call a Neanderthal or a monk. So be it and let it help people if so. I am so much more..

Posted by: Psychic Michaell | Aug 18, 2010 12:33:46 PM

This was clearly a case lost in jury selection and not on the merits!

Posted by: mjs | Aug 18, 2010 6:51:08 PM

"Given that the jury was tilted 11–1 in favor of conviction, I suspect that the government is feeling a lot more confident about a retrial than Blogo’s lawyers are."

No question about it Mr. Shepherd. What a wonderful "justice" system. The government makes its best case, effectively loses yet gets to keep doing it until they "get it right" because they have our, the taxpayer's deep pockets to fund them. 24 counts and they only prove one? What a bunch of sad pitiful excuses.

BTW, regarding the 11-1 "tilt", I would venture that there is not one single defense lawyer on the planet that would complain about an 11-1 win. Is that not why we have 12 men/women good and true on a jury? Ya gotta convince all of them. Close don't feed the Bulldog.

Posted by: Sorry 'bout That | Aug 18, 2010 11:20:31 PM

Sorry 'bout That--Do you believe the justice systems of Oregon and Louisiana are farces as well, since they don't require unanimous jury verdicts for a conviction? In those states, Blago would have been convicted on all 24 counts with the same jury.

Or take another example that I experienced. Defendant files a motion to suppress evidence that was clearly legally obtained, but the county-level magistrate--who is also a practicing defense attorney--grants the motion on the grounds that he personally disagrees with a Supreme Court ruling that (he agrees) directly controls the issue. The prosecution cannot appeal the suppression because it is an interlocutory order, and if the defendant walks, the prosecution can't appeal the verdict because reversing the acquittal would constitute double jeopardy.

Is that a farce too, or just when the government re-tries a case with an 11-1 verdict because of a holdout?

Posted by: Res ipsa | Aug 19, 2010 12:27:31 PM

Ah, c'mon, guys, get out of your academic ivory tower for a few seconds. Obviously, one juror was PAID OFF by the Blago team. They knew this was already in the bag. I talked to one of the jurors myself, and while he couldn't tell me the name of the hanging juror (against the law), he told me that she did not engage any of the arguments, did not acknowledge in any of the discussions. In short, she was bought and paid for. There could be no other reason, as any juror who harbors "reasonable doubt" would at least have provided some sort of justification for his or her position.

Just as the next jury will provide another opportunity for the Chicago-style corruption of justice to prevail and find another juror to siphon off another 10 grand. This could have been predicted on Day 1.

Yes, there are prosecutor malpractice or incompetence incidents all the time. But when the entire trial is moot because one of the jurors is paid off, then where is the perversion of justice then?

Posted by: Eric Knight | Aug 19, 2010 2:55:41 PM

"Do you believe the justice systems of Oregon and Louisiana are farces as well, since they don't require unanimous jury verdicts for a conviction?"

Never mentioned the word "farce" and what does Oregon and Louisiana have to do with a Federal Court trial in Ohio?

"In those states, Blago would have been convicted on all 24 counts with the same jury." Maybe, but they weren't in those states so you just as well have said, if a frog had wings; he wouldn't bump his butt on the ground".

No matter what excuse you come up with, the crème de la crème of the Feds couldn't get it done and they are still a sad and pitiful bunch. When they can't intimidate someone into taking a plea and really have to do their job, they risk failure and this time, in large, they failed. Are you saying the "system" doesn't work? Reform advocates have been saying that for years but no one pays any attention.

Posted by: Sorry 'bout That | Aug 19, 2010 4:45:03 PM

no offense Eric but you want to back this up with facts!

"Ah, c'mon, guys, get out of your academic ivory tower for a few seconds. Obviously, one juror was PAID OFF by the Blago team."

Maybe she/he was someone like me who thought the entire thing was a FARCE of the first order. sorry "we thin" "We're prety sure" and "it's possible" are NOT evidence of ANYTHING let alone a crime.

since as it sits right now if someone on the jury was paid off that STORY would be WORTH MILLIONS to the media. Would be easy enough to arrange for the funds to be stashed in a bank in a country that could care less what the us thinks about anything since the namber increases daily things the the continual STUPIDITY of our govt.

Posted by: rodsmith | Aug 20, 2010 12:51:17 AM

People in Chicago r getting killed on the streets and u want to retry this loud mouth dingbat. Listen the idiot never took a dime all he did was shoot his mouth off,The pros should go after real criminals with the money there spending on a retrail or better yet give it to a a family who cant feed ther kids or get health ins. What has this country come to?

Posted by: dre | Sep 23, 2010 8:33:27 PM

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