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March 10, 2011

Blagojevich moves to dismiss charges before retrial, which federal sentencing law kind of supports

As detailed in this Chicago Tribune article, Rod Blagojevich's lawyers have now "asked a federal judge to throw out the remaining charges against the former governor because they have not been paid for months and are 'stymied' in their ability to prepare for retrial next month." Here are more details on the motion and its prospects:

The motion, the latest in a series of early-morning filings that have garnered plenty of news media attention, would appear to have no chance of success.  After Blagojevich’s initial trial in which jurors convicted him of a lone count but deadlocked on all 23 other counts, federal prosecutors have made clear their intention to retry him on the allegations of widespread corruption while he was governor.

Ordinarily, if Blagojevich wanted to avoid a retrial, he would have to engage in negotiations with prosecutors and likely plead guilty to additional misconduct. Jeffrey Cramer, a former federal prosecutor, called the motion "frivolous."...

Former federal prosecutor Patrick J. Cotter also scoffed at the motion’s chances of success. He said it is unusual for the defense to seek to have the charges dismissed without any concessions from Blagojevich, unlike a plea negotiation in which both sides reach a compromise. “It doesn’t make any sense,” Cotter said. “He’s already convicted on that count. What is their incentive to simply dismiss everything else?”

In the motion, Blagojevich asked U.S. District Court Judge James Zagel to dismiss the remaining charges and sentence the former governor on his lone conviction for lying to the FBI. Blagojevich used up his political campaign funds paying for his legal defense during the first trial. For the retrial, Zagel has found Blagojevich unable to afford to pay his legal expenses, so taxpayers will foot the bill. Zagel, though, has limited Blagojevich to two lawyers.

In the motion, Blagojevich’s attorneys said the retrial should be called off, calling it a waste of taxpayer funds and noting the current “budgetary crisis” confronting the federal government. Cramer noted that the federal budget crisis cannot be used to let defendants walk away from charges. "That's a reason why someone gets a free pass? ... Defendants should not reap a benefit from a budget crisis" he said.

It is probably undisputed that a budget crisis and a huge national debt does not provide serious legal basis to seek dismissal of federal charges.  In the Blagojevich case, however, modern federal sentencing law provide a serious policy justification for just moving forward in his case without a retrial.  As regular readers know, the hung jury on other charges does not prevent Blagojevich's sentence from being enhanced based on other alleged wrong-doing.  Indeed, under current federal sentencing law, if Judge Zagel is convinced by a mere perponderance that Blagojevich committed other relevant offense conduct, he must increase Blagojevich's guideline range based on that conduct (though he may also use his post-Booker discretion to reject the sentencing range suggested by a guideline enhanced through unconvicted conduct).

Blagojevich is already facing a sentence of up to five years in federal prison based on his one count of conviction, and I doubt that federal prosecutors genuinely want or reasonably expect that they would get a sentence too much longer than five years for him even if he were convicted on many other counts.  Thus, as some commentators suggested last summer, it might be wise for prosecutors to make their discretion here the better part of valor and just go on to sentencing.  Indeed, I think the prosecutors could (and perhaps should) simply move to dismiss the other charges without prejudice, and thereby retain the opportunity to try Blagojevich on the charges if and when they were to conclude that justice ultimately was not served by whatever sentence Judge Zagel imposing on the one conviction count.

Some related prior Blago posts:

March 10, 2011 at 09:12 AM | Permalink


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I agree, dismiss the remain charges without prejudice and let him get something of a sentence...Its not the prosecutors money they're spending....Its not a personal vendeta, get it over with....Blago won't be smiling so big when he goes away, enough said...

Posted by: Josh | Mar 10, 2011 9:35:33 AM

Agreed, Josh. Also, the sentencing phase might raise public awareness of the scope of relevant conduct under the Guidelines and the use of acquitted conduct/conduct not proved beyond a reasonable doubt to increase a defendant's sentence.

Posted by: Anon | Mar 10, 2011 10:57:30 AM

One of my clients will be sentenced in state court this afternoon on a conviction in one drug case. He's facing another drug case in the trial court, and there's a third awaiting a preliminary examination. There are other possible charges as well that might be brought. I've always felt, and have told the judge, that if the sentence imposed is long enough, the other cases will probably disappear. We'll see, but that's a typical result in state court.

Posted by: Greg Jones | Mar 10, 2011 11:25:54 AM

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