If The Hair Does Oddly Sit, You Must Acquit

Heather Horn at The Atlantic with the round-up

Monica Davey and Susan Saulny at NYT:

Prosecutors here once said that the conduct of Rod R. Blagojevich, the former governor of Illinois, was so despicable it would make Abraham Lincoln “roll over in his grave,” but 12 jurors in the federal corruption case against him were apparently not all so certain.

After deliberating for 14 days, the jury found Mr. Blagojevich guilty of a single criminal count — making false statements to the F.B.I., which carries a maximum sentence of five years in prison, one of the least severe penalties in the charges against him.

The jurors also said they could not reach a unanimous verdict on 23 of the 24 counts against him, including an accusation that he had tried to sell an appointment to fill the Senate seat once held by President Obama. On that count, one juror said, the group was split 11 to 1 in favor of convicting him.

Prosecutors immediately announced plans for a retrial, but the outcome was seen as something of a victory, at least for now, for Mr. Blagojevich, a Democrat and lifelong politician from this city, who had always proclaimed his innocence and did so again as he left court.

Michelle Malkin:

Reminder of the issues in addition to the Senate seat-trading scam that the jury has been charged with tackling:

– a shady, Tony Rezko-connected state pension bond sale;

– attempted extortion of then-Rep. Rahm Emanuel, whose brother Blago wanted to host a fund-raiser in exchange for a $2 million football field grant sought by a school in Emanuel’s congressional district;

– attempted extortion and bribery of Children’s Memorial Hospital;

– conspiracy to extort and bribe a race-track owner in exchange for horse-racing industry tax subsidies;

– and attempted bribery and extortion of a road construction executive, whom Blago wanted to hold a fund-raiser in exchange for $6 billion in government tollway projects.

Allah Pundit:

Gabe Malor notes on Twitter that that was one of the counts Martha Stewart was convicted on. Question: What now? Is the U.S. Attorney going to re-try him or do we sentence him to parole on the lying charge so that he can jump into the Kirk/Giannoulias race and fulfill his destiny?

Update: The case is too high-profile for the feds to walk away, so as expected, Patrick Fitzgerald says it’s on to a retrial.

Update: Ace e-mails with a new theory: What if the jury was split 11-1 to convict on the remaining counts? That might explain why they wanted a copy of the oath — to confront the holdout with his duty to render an honest verdict. It also raises the disturbing question of what kind of juror would be so invested in seeing Blagojevich walk that he’d hold out for two weeks against 11 increasingly frustrated colleagues.

Emptywheel at Firedoglake:

All you Californians ought to be getting awfully nervous about Senate-Select Carly Fiorina about now. Because the lesson I take from the Rod Blagojevich verdict–he was found guilty of just one charge of lying to the FBI, while the jury remained deadlocked on 23 other charges–is that it’s okay to sell a Senate seat, so long as you don’t lie about it.

Doug Mataconis:

Basically, Blagojevich was convicted on the same “lying to an FBI agent” charge that got Martha Stewart and Scooter Libbey in trouble in their cases although, to be honest, the “lie” in Blago’s case could arguably be considered boasting rather than a material misrepresentation.

In any case, while the U.S. Attorney is saying they will re-try on the 23 counts that the jury was unable to reach a verdict on, there’s no denying that Blagojevich won big today. Prosecutors rarely lose in Federal Court and while this isn’t an outright acquittal, it’s close enough considering the high-profile nature of the case and the fact that Blagojevich’s attorneys didn’t even put on a defense case (meaning that the jury wasn’t even able to convict based solely on the prosecutions evidence). They’ll get another bite at the apple, but, for now, one of America’s oddest politicians remains a free man.

Scott Turow at NYT:

IN May 1980, during the height of the movement to add an Equal Rights Amendment for women to the Constitution, an activist named Wanda Brandstetter delivered a note to Nord Swanstrom, an Illinois state representative. “Mr. Swanstrom,” it said, “the offer to help in your election and $1,000 for your campaign for pro-E.R.A. vote.” Things did not go as Ms. Brandstetter hoped. The measure was never ratified by the Legislature, while her offer of $1,000 lead directly to her conviction for bribery in the Illinois courts.

Since Ms. Brandstetter’s case, it has been clear in Illinois (and eventually in the federal courts too) that, notwithstanding the First Amendment protections the Supreme Court has applied to political contributions, prosecutions for bribery and extortion may be brought when a donation is tied directly to a specific act by an elected official.

So, people are right to wonder how the jury in the trial of Rod Blagojevich, the former governor of Illinois, could possibly be unable to come up with a verdict on any bribery-related charges, finding Mr. Blagojevich guilty only of lying to federal agents when he characterized himself in 2005 as uninvolved in political fundraising.

After all, government wiretaps revealed Mr. Blagojevich threatening not to sign legislation beneficial to the harness racing industry unless he received a $100,000 campaign donation from one race track executive. He even threatened to hold up an increase in state Medicaid reimbursements for pediatric cases until the chief executive of Illinois’s leading children’s hospital contributed $50,000.

Yet the unwillingness of one or more jurors to convict Mr. Blagojevich of anything but bare-faced lying makes some sense. I suspect the jury’s indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

For example, in June 2009, the court decided a case involving Massey Coal and its chief executive, Joe Blankenship. (Coincidentally, Massey was the operator of a coal mine in West Virginia that exploded in April, killing 29 miners.) In 2004, after Massey had lost a $50-million fraud verdict to a rival coal company, Mr. Blankenship spent $3 million supporting the successful candidacy of Brent Benjamin to the West Virginia Supreme Court of Appeals, where Massey’s challenge of the fraud verdict was going to be heard.

Although Mr. Blankenship’s spending eclipsed the contributions of all of Judge Benjamin’s other donors put together, the judge subsequently refused to remove himself from Massey’s appeal. Unsurprisingly, the court voted to overturn the verdict against Massey, with Judge Benjamin providing the deciding vote.

The case eventually came to the United States Supreme Court, which by a 5-to-4 vote decided Justice Benjamin should have recused himself because of the “disproportionate” influence Mr. Blankenship’s money had in the election. Nonetheless, the court pointedly refused to require the same from other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them.

Moreover, the court appeared persuaded that nothing criminal had occurred, even though its ruling concluded that it was “reasonably foreseeable” at the time that Mr. Benjamin would decide the Massey case and that Mr. Blankenship had a “vested interest” when he spent the money. Given that logic, who can blame Mr. Blagojevich — or Wanda Brandstetter — for asking, “Why me?”

Jim Geraghty at NRO

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