Should Rod listen to Rob?

For some two-plus decades, I have covered legal proceedings in assorted criminal trials, and I have come to the conclusion that I don’t think it really makes a difference whether or not a defendant takes the witness stand and testifies on his own behalf.

BLAGOJEVICH: Does his brother have a clue?



Because for as much as jurors are supposed to give the defendant the benefit of the doubt (presume he’s innocent until prosecutors prove otherwise), I have always felt like most trials are over and done with once the prosecution rests its case.

EITHER THE PROSECUTORS have done such an effective job in tossing out fact, rumor and trivia to create the impression that the defendant is guilty that it doesn’t matter one bit what he says, or the prosecutors have failed to use the inherent advantage of their position that the jury is already ready to vote to acquit – largely so they can quit returning to the courthouse and go back to their regular life routines.

If anything, a defendant’s testimony (on those occasions when he – or she – testifies) adds nothing that changes the basic mood of the jury in any given criminal case.

So when I heard the news reports being picked up by broadcasters from a Chicago Sun-Times story that says Rob Blagojevich is advising his brother, former Illinois Gov. Rod, to testify on his own behalf during his upcoming re-trial, I couldn’t help but snicker.

Rob told the newspaper that he thinks his brother is capable of creating enough doubt in the criminal charges against him by testifying, which would allow his attorneys to then bring up portions of the federal wiretap recordings that prosecutors would prefer to think are irrelevant – preferring to use only those snippets out of 500 hours of raw tape that make Rod Blagojevich look particularly venal.

ROB (WHO DURING the first trial was a co-defendant but has since had all charges dropped against him) said he thinks that if Rod testifies, “I think he’d knock it out of the park.”

Now I know there are those people who think that prosecutors would easily be able to make Blagojevich look even more venal if he actually tried testifying on his own behalf, because then they’d be able to question him directly, and under oath.

They think they could either trip him up, or make him look so arrogant that the jurors would wind up despising him even more.

But as I implied earlier, I don’t think it matters.

THE REASON THAT Blagojevich is even undergoing a second trial is because the prosecutors did such a poor job of trying to explain the basis by which the former Illinois governor’s political activity should be considered criminal that the jury couldn’t bring itself to render “guilty” verdicts against the man – except for that one count about lying to the FBI.

Although I still wonder how he could be guilty of that charge if he wasn’t found guilty of anything else.

That verdict from his first trial just strikes me as a jury so overwhelmed by testimony that they felt they had to find him guilty of something, but didn’t really know what it was he did wrong.

And that was in a trial where Blagojevich did not take the witness stand in his own behalf – even though he had gone on for months about how he would testify and drag down the political establishment of this state.

I SENSE BLAGOJEVICH, if he does wind up speaking under oath on his own behalf in his re-trial, wiouldn’t mind trying that tactic this time around.

When he made his house-front manifesto last week to complain about prosecutors trying to limit his defense, he couldn’t help but drag the names of Mayor-elect Rahm Emanuel and Rep. Jesse Jackson, Jr., into his argument – claiming somehow that if they’re not guilty of any wrongdoing, how could he be?

Which could mean that Blagojevich could come off as smarmy and worthy of any penalty that a jury might want to have inflicted upon him – even if prosecutors wind up putting together another confusing case that is meant to intimidate a juror into thinking that something illegal must have occurred.

Because, let’s face it. The charges against Blagojevich aren’t clear-cut venality – no matter how much prosecutors want to believe in their own minds that they are. It’s totally conceivable that Blagojevich is not guilty of any criminal offense – even though his behavior as a politician was petty, juvenile and mind-numbingly vapid.

ONLY THE MOST hard-core of rural Republican partisans can have trouble accepting that fact.

The bottom line, I suppose, is that I don’t know what to think of whether Rod Blagojevich would accomplish anything by persuading his attorneys to let him testify this time around. His attorneys will only say that they won’t make that decision until the last possible moment during the legal proceedings.

It may well be that Rob Blagojevich knows his brother and his capabilities better than we do. Perhaps Milorod has it in him to make the prosecutors look ridiculous for wasting federal tax dollars to do a second trial (rather than just accept a prison term of a couple of years for his one conviction from the first trial).

But somehow, I suspect everybody is going to come across as looking ridiculous from “Blagojevich 2 – the Hairdo Returns.”

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A false alarm

It seems we’re nowhere near a verdict against former Illinois Gov. Rod Blagojevich on assorted charges of government corruption, and his brother Rob, who prosecutors say helped the one-time governor in what they claim is his illegal activity.

A lot of people got all worked up Wednesday afternoon and into the evening when the jury indicated it had questions about how united they had to be to be considered finished with their deliberations.

BUT WHEN THINGS were studied more rationally Thursday morning, it seems the jury isn’t anywhere near finished.

Of the 24 charges that Blagojevich, the former governor (not the brother), faces, the jury has only reached a verdict on two of them. There are 11 other charges, all related to wire fraud, that the jury hasn’t even gotten to.

Which means we’re talking about 11 other charges that the jury has deliberated for 12 days now, only to be unable to reach a decision.

Because of the wire fraud charges that haven’t been discussed yet by the jury, U.S. District Judge James Zagel was justified in telling the jurors that their work isn’t finished – and that they have to continue to deliberate.

CONSIDERING THAT THE wire fraud charges relate to the alleged attempt to “sell” a U.S. Senate appointment to the highest political bidder, those are the ones that have the potential to add the most time onto any prison sentence – assuming, of course, that Blagojevich the former governor is found guilty.

During the time Wednesday night when it wasn’t clear what the confusion was amongst the jurors, those of us who stumbled across local television news got to hear from countless legal pundits who told us what was “really” going on. Not that any of them really knew. They were just taking educated guesses, and their guesses all contradicted each other.

Some are convinced that this means a jury that is failing to see the prosecution’s case against the Blagojevich brothers, while others are convinced it is a sign that the gov is guilty. Others insist it is just the confusion about finding Rob guilty of things his brother, Rod, did.

What I see is a confused jury – one that is honest enough to admit that the case they are considering is overly complex. As one who has covered trials in U.S. District Court both in northern and central Illinois, I am aware that this confusion factor is typical in criminal trials.

FEDERAL CRIMES USUALLY are much more complex than, “Someone hit a woman over the head and tried to take her purse, and somebody across the street saw the whole thing.”

Which means it is common that juries in federal cases consist of individuals who have to be given a crash course in what the law actually says, and how the arcane acts involved in the case fit in with the law.

What I find encouraging is that we have a jury that is not so intimidated by the concept that they just assume the federal prosecution must be on to something. They’re not just giving a knee-jerk reaction so they can go home.

If anything, I find the fact that it seems the jury can’t make up its mind on 11 counts to be encouraging. It seems they’re taking their duty seriously – even though those people who are politically partisan and want a “guilty” verdict at all costs are now engaging in their own trash talk that this process is somehow being held up by one or two nitwits who are being stubborn and refusing to accept Blagojevich’s guilt.

OF COURSE, THERE is one fact to consider. All it is going to take to permanently besmirch Blagojevich’s legal reputation (his personal reputation has been trash for years) is a “guilty” verdict on one count.

For all we know, there may already be two “guilty” verdicts against Rod Blagojevich. He may have already lost.

There’s also the possibility that as the jury deliberates the 11 wire fraud counts, those jurors will gradually come to a concensus on the counts that currently divide them. The point is that extra time could erase the split.

We could still get a unanimous verdict on all 24 counts against Rod Blagojevich (Rob only has four charges against him).

THE REALITY IS that this case is going to take time. Personally, I’m not concerned about how long it takes a jury to deliberate – so long as it is clear that they are taking the matter seriously. It’s not like we’re in a case where the jury is being sequestered at taxpayer expense. The biggest drawback to the delay is that we get subjected to reports that Blagojevich skipped lunch, and instead drank a Snapple-brand fruit juice. Only The Bright One never told us which flavor Milorod prefers.

Those people who are anxiously awaiting a verdict and eager to hear the words “Guilty!” repeated 24 times in conjunction with Milorod’s name are the ones who ought to ease up (particularly since they will be all outraged if the real outcome is “Not Guilty”).

If guilt really is the eventual outcome, it will come soon enough. I’d rather not have a future legal appeal that claims the jury’s conduct itself (remember George Ryan’s jury) was at fault.

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Blagojevich did us a favor by shutting up, even though some don’t appreciate it

I couldn’t help but breathe a sigh of relief when it became official Wednesday that Rod Blagojevich is NOT going to blather on for days, if not weeks, on end, trying to justify himself as a noble public official – rather than just a government geek who got where he did because of his father-in-law.

In fact, we may have heard the most honest thing we will ever hear come from the mouth of a public official when he told reporter-types at the Dirksen Building courthouse, “maybe the biggest lesson I’ve learned is that I talk too much.”

THE IDEA OF a politician piping down is something we ought to be thankful for – even though the tone of much of the punditry about Blagojevich’s criminal trial these days is that he somehow owed us his testimony.

That idea was based on all the boasting that Blagojevich did throughout the months leading up to this trial claiming that he wanted a chance to “tell” his own story so as to convince the public of his innocence of any criminal behavior.

It was pleasant to know that the Republican research teams doing work for the various GOP candidates will have to dig elsewhere, rather than just write down the words Blagojevich said on the stand in their efforts to dig up dirt on Democrats who nominally were the former governor’s political allies (but in reality were more pleased than Republican legislators when he was impeached and removed from office over a year ago).

Because that would have been one of the few benefits to actually having Milorod on the stand during his trial.

SO WE SHOULD thank the defense attorneys who talked Blagojevich into not testifying – and give a coscorron a la cabeza (a smack to the head, for those who don’t habla Español) to the one defense attorney who said he wanted Milorod to testify.

Now I will go so far as to make this prediction. While I think there is some legitimate thought to the idea that the prosecution did not prove its case against Blagojevich, I don’t think that matters.

I expect Rod Blagojevich to be found guilty of all counts in the case before him. If this jury feels any compassion, it will be in terms of determining the fate of brother Robert. They may feel he was an un-political rube who got thrown in way over his head, and shouldn’t have his life ruined because of his younger brother.

Then again, the contempt factor for Rod may be so intense that it will take down everything in its path – even Rob, who amused me when he admitted during his testimony that he still considers himself to be a Republican. That will be one fact the GOP “attack dogs” will ignore.

THERE ALSO IS the fact that U.S. District Judge James Zagel is determined to set the rules that the jury must follow in ways that ensure they disregard many of Blagojevich’s claims.

How else to explain Zagel’s comments outside of the earshot of jurors when he compared one-time first lady Patti Blagojevich to a pair of madams from 19th Century Chicago, and his comments about how conspiracies can be just words (since Blagojevich’s attorneys have tried saying that much of the political trash talk caught on FBI tapes was merely speculation that never occurred, and the former governor himself describing it as “brainstorming ideas”)?

As Zagel put it (and was reported by the Chicago Tribune), “you can have a conspiracy entered into with fools and bumblers, and it’s still a conspiracy.”

“Fool” and “bumbler” are probably the nicer words that people would use to describe Blagojevich these days. Is that what we really would have wanted to hear coming from the witness stand for the next few days?

I HONESTLY BELIEVE that if Blagojevich has a chance at having his name cleared in a strictly legal sense (the bulk of Illinoisans are going to think that Rod is skuzzy, regardless of the jury’s eventual verdict), it is going to come in the appeals courts.

Blagojevich could wind up suffering the same fate as former Gov. George Ryan, whose appeals up to the Supreme Court of the United States were unsuccessful – despite the firm belief of dissenting justices who think that Ryan’s behavior wasn’t criminal.

But it likely would be there that we will learn whether Zagel’s rigid control over what could or could not be said in court was truly an attempt to keep Blagojevich from turning the trial into a circus, or merely a judge leaning too far to benefit the prosecution

One last thought.

SHOULD BLAGOJEVICH SOMEDAY have his name cleared, I would envision him spending the rest of his days on this Earth blathering on and on about how he was victimized – similar to how I now expect former newspaper magnate (and Chicago Sun-Times owner) Conrad Black to behave, now that he has been granted bond to be free from prison while his criminal appeals are pending.

True justice would be to lock the two of them in a room together and let them suffer from each other’s over-bloated egos.

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