Practice News

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?