Lessons from the Blagojevich trial

By Robert A. Loeb Just when you thought it was safe to go back to reading the news, free from LeBron, Favre, Drew and Blago,  . . . surprise, here’s another take on the trial of our former Governor. Guilty of one count, hung on 23, with near-unanimous votes to convict on at least several of those 23. Let’s try to avoid talk of bad hair and reality shows, and take a look at that we share as lawyers, such as trial practice and the criminal justice system. Some things are pretty clear, while there no right-or-wrong answers to questions about the case. Let’s start with the easiest one: Can it ever be advantageous to promise that a defendant will testify in a criminal trial? NO! When a defense attorney makes that promise in opening statement, and the defendant ultimately does not take the stand, the best that can happen is that the jury accepts the excuse, “They didn’t prove their case, so there is no need for the defendant to testify.” The worst that can happen is that the jury holds the broken promise against the defendant and his lawyer. There is nothing to be gained by making that promise. In analyzing the trial, we’ve now had the benefit not just of the 24 verdicts - but we’ve also heard the individual views of the trial from a few of the jurors. It seems that as a group they were diligent, deliberated in good faith, and had different views on different issues and different counts. That’s only to be expected from a group of 12 people. On many of the counts, there was but one holdout preventing a guilty verdict. There are a number of issues for which answers are not so clear when analyzing the past trial or predicting the retrial. What effect did Rod’s (and Patti’s) pretrial media exposure have on the jurors, even subconsciously? I don’t think we have enough information to determine to what extent the pretrial publicity affects the attitude of the holdout juror, nor the attitudes of prospective jurors in the retrial. The jury apparently wrestled with the issue of whether extortion was proven when none of the alleged schemes came to fruition. Under conspiracy law, the underlying crime doesn’t have to be completed, but that doesn’t mean that jurors don’t have real and legitimate problems with that doctrine. Do prosecutors need a smoking gun? Did they jeopardize their case by arresting Blagojevich too soon, thereby depriving themselves of more solid proof that the sale of the Senate seat was real? If there had been an acquittal, or a solid majority for acquittal, I would say that they did move too soon, at least from the narrow perspective of obtaining a conviction on those counts. On the other hand, they got 11 votes for conviction those counts, and they probably don’t have to do much differently to obtain a conviction next time. The trial raised other problematic, systemic issues for the criminal justice system. What kinds of jurors are we getting in high profile cases where we try to choose jurors who can ignore or put aside everything they have learned from the ubiquitous and saturating media? Is it at all realistic to expect that in a long and high profile trial that jurors don’t learn biased or inadmissible information from television, radio, emails, internet, Twitter, and who knows what technology will be here next year? And what else can the system do to ensure fair trials in light of these questions? So what happens in the next trial? Do prosecutors treat brother Robert Blagojevich and wife Patti the same way? I’ve often wondered if  having a less culpable defendant (and perhaps acquitting a less culpable defendant) makes it easier for a jury to convict the more culpable defendant? Rod Blagojevich was convicted of lying to the FBI when he claimed he was not involved in fund-raising as a governor. He defended the other counts involving extortion/fund-raising by claiming he had these conversations about fundraising, but they were just hypothetical.  The verdict on the false statement count comes as no surprise. But what about the other counts? What, if anything, should the prosecution or defense do differently in the retrial? The prosecution obtained a conviction, and persuaded 11 of 12 jurors to convict on numerous other counts. That suggests they did a fine and effective job, and should change very little in their approach to the next trial. The defense attorneys got a hung jury on 23 of 24 counts; those are pretty excellent results as well. They might tweak a tactic, a little here or there, but there is only one huge decision that remains for them. . . Should Rod testify next time? Again, there is no right or wrong answer, so let me suggest the following analytical approach: Recognize that despite the Court’s instructions, some of the 12 jurors, consciously or not, will hold it against a defendant who doesn’t testify. But when defendants testify in criminal trials, they usually hurt their case rather than help it. Evaluate the risks and rewards if the defendant testifies. Juries tend to hold the prosecution to its burden of proof when the defendant testifies; however, when the defendant does testify, they tend to weigh the prosecution’s evidence against the defendant’s evidence, and the prosecution usually wins that battle. So the defense team should ask itself, “What are the chances we win the case without the defendant’s testimony?” If those chances are so slim, then consider the possibilities that the defendant can pull out an acquittal (or perhaps, a hung jury) by testifying. If the defense has a slightly reasonable chance of winning without the defendant testifying, keep the defendant off the stand. Despite the opening statement promise that Rod Blagojevich would testify, my feeling is that the defense still made the right decision in not calling him as a witness. Ultimately, however, that’s the client’s call. I’d lean toward not calling Mr. Blagojevich next trial, but I can’t predict what will happen. I just have a vision from Monty Python and the Holy Grail, in which the Green Knight who is attempting to guard a bridge, loses both his arms in a duel, then is wounded in the legs.  He remains bombastic and blindly overconfident, still predicting victory and shouting “It’s only a flesh wound.” In my mind’s eye, I can still see that knight, his mane of black hair covering his metallic facial helm, proclaiming to anyone who will listen, “I didn’t do anything wrong. Let’s play all of the tapes. Just wait ‘til I get a chance to tell my side of the story!” See you back in court, Mr. Knight. 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.