Fed's Flimsy Case Against Blagojevich

by John M. Curtis
(310) 204-8700

Copyright August 27, 2010
All Rights Reserved.                                             

             Found guilty Aug. 17 on only one count of making false statements to the FBI, former Illinois Gov. Rod Blagojevich, narrowly escaped conviction by U.S. Atty. Patrick J. Fitzgerald on 23 other felonies, the most serious of which trying to sell President Barack Obama’s former senate seat for personal gain.  Fitzgerald, a tough federal prosecutor who won a conviction March 7, 2007 against former Vice President Dick Cheney’s chief of staff I. Lewis “Scooter” Libby also for lying to the FBI, couldn’t pull off the same feat with the flamboyant and mouthy Blagojevich.  Fitzgerald based much of his case on wiretapped tape recordings of the former governor shooting off his mouth, talking like a Chicago gangland thug.  “This guy Fitzgerald is a master at indicting for non-criminal activity,” said Blago.  “This guy is nuts,” showing the kind of mouth bound to destroy himself.

            Fitzgerald had very few comments following Blago’s conviction of a single count of lying to the FBI.  Instead of letting the dust settle, Blago’s post-trial tirade could eventually cost him a conviction on other counts the next time around.  Fitzgerald’s decision at this point to retry the 53-year-old former Illinois governor rests purely on personal preference.  Calling Fitzgerald names isn’t too bright when you consider the costs of future retrial now slated for Jan. 4, 2011.  Giving his defense attorney fits, Blago blasted federal prosecutors for retrying the case.  “We have a prosecutor who has wasted and wanted to spend tens of millions of dollars of taxpayers money to take me away from my family and my home,” Blago told reporters in the Dirksen Federal Building in downtown Chicago.  Blasting Fitzgerald surely isn’t the best way to vent his feelings and  protest his innocence.

            Whatever Blago’s defense attorney Sam Adam Sr. expects to happen in a retrial, it doesn’t help his client’s cause to antagonize a federal prosecutor with a big ego.  Adam apparently got through to one juror named JoAnn Chiakulas who didn’t buy Fitzgerald’s argument that Blago attempted to sell Obama’s senate seat to the highest bidder.  “I could never live with myself if I went along with the rest of the jury,” Chiakulas told the Chicago Tribune, trying to figure out what went wrong with Fitzgerald’s case.  Jurors indicated they deadlocked 11-1 on the question of whether Blago tried to sell or get an appointment in exchange for Barack’s former senate seat.  Chiakulas, a 67-year-old retired state worker showed a fierce sense of autonomy, resisting formidable pressure to conform with jury’s consensus.  She called Blago’s actions “shenanigans,” not criminality.

            Pressure toward conformity in jurors, especially after difficult deliberations, often impacts the conventional standards of proof in criminal trials.  Criminal trials require “beyond a reasonable doubt,” a far tougher standard than applied to civil trials requiring “preponderance of evidence.”  Chiakulas told the Tribune she didn’t think Blago was “innocent,” just not meeting the prosecutors’ burden of proof.  “I thought he was narcissistic,” Chiakulas told the Tribune.  I thought he was all over the place.  I thought he was just rambling,” referring to the numerous recordings of Blago apparently making deals for Obama’s former senate seat.  Fitzgerald convinced 11 other jurors that Blago committed a federal crime, trying to peddle a senate seat in exchange for cash or  political appointments.  What Fitzgerald saw as black-and-white, Chiakulas saw as neurotic behavior.

            Fitzgerald tried to tell jurors the meaning of “reasonable doubt,” far from the absolute doubt rarely seen in any criminal convictions.  “Some people in [the jury room] only saw black and white,” said Chiakulas.  “I think I saw in the transcripts and in the testimony, shades of gray.  To me, that means reasonable doubt,” not meeting the criminal standard of proof.  Judges and prosecutors put so much pressure on jurors to complete what amounts to an aversive process of jury deliberation.  Long hours of exhaustion and pouring over tedious exhibits and trial transcripts assures that most jurors want the to end the pain.  Chiakula’s fierce independence and ability to see things objectively warrants further consideration.  Few people under intense social pressure resist undue influence and pressure to conform.  Chiakulas proved that the power of one still counts on juries.

            Federal prosecutors should ignore Blago’s incendiary post-trial remarks and think twice about wasting more time and money on a new trial.  While the U.S. Attorneys’ office prides itself on convictions, trying Blago a second time defeats the purpose of the trial.  Putting his best evidence forward, Fitzgerald couldn’t convince Chiakulas that Blago really tried to peddle off Obama’s former senate seat.  Fitzgerald can’t say with any certainty that Chiakulas didn’t get it right, despite his best efforts at seeking a conviction.  Fitzgerald could get a more compliant juror the next time but it’s questionable whether justice would be served.  “I can’t explain how badly I felt,” said Chiakulas.  “I didn’t sleep at night.  I thought it on the trail.  I wanted to make sure my reasonable doubt was reasonable,” showing the kind of intense pressure to conform.  Knowing that, Fitzgerald should think twice about another trial.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

©1999-2012 Discobolos Consulting Services, Inc.
(310) 204-8300
All Rights Reserved.