Rod Blagojevich’s Second Trial – and Conviction: Why He Lost This Time

Posted in: Politics

While most Americans have been intrigued by the Casey Anthony trial, I’ve been following the trial of former Illinois governor Rod Blagojevich, who has been convicted (and is awaiting sentencing) on 18 felony counts. This conviction is a true victory for the U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald.

As readers may recall, Blagojevich was convicted on one count at an earlier trial, where the jury hung on 24 other counts.  At his recent retrial, the jury found him guilty on 17 of 20 counts.

Looking at the larger picture, it strikes me that what happened in the federal courthouse in Chicago is probably more important than Casey Anthony’s fate, so I’ve decided to recap the second Blagojevich trial – as to which few may know more than the result.

Jurors reportedly deadlocked 11-to-1 the first time, on all but one count.  Moreover, virtually all the jurors for the first trial complained that the Government’s case had been too complex.

In retrying the former governor, who had been impeached and removed from office by the Illinois Legislature, Fitzgerald significantly trimmed his indictment.  Here, less proved to be more.  For example, Rod Blagojevich’s brother Robert was dropped from the charges, and some of Blagojevich’s more elaborate schemes to shake down campaign contributors were eliminated.

Rather, this retrial relied on the most persuasive possible witness: Rod R. Blagojevich.  Blagojevich’s own words, spoken at the time of the crimes and recorded, revealed an undertaking to sell then-President-elect Barack Obama’s U.S. Senate seat.  Blagojevich was also heard by the jury, when the recordings were played, trying to force contributors to pay him to undertake his duties as governor.

In short, Blagojevich convicted himself – because the FBI had him fully wired.

The Blagojevich Recordings

From October 22, 2008 – when the U.S. Attorney’s Office first found probable cause to believe that Blagojevich was engaging in criminal conduct – until December 9, 2008, when he was arrested by the FBI to prevent him from selling then-President-elect Obama’s U.S. Senate seat, the FBI had two bugs and six wiretaps (plus recording equipment) at work on Blagojevich’s home phone, his cell phone, and his campaign offices – along with the cell phones of his chief of staff, John Harris, and his friend and chief fundraiser, Alonzo “Lon” Monk.  (Both Harris and Monk pled guilty and testified for the Government at the second trial.)

Many of the jurors from Blagojevich’s second trial have now spoken to the news media about their verdict.  It is clear that what convinced them of Blagojevich’s guilt was his own words on the surveillance recordings.  A surprising number of the jurors said they personally liked the governor, that they found him highly personable, and that they worried about his wife and young daughters.  Several said they had voted for him as governor on two occasions, but they all said that the recorded conversations proved Blagojevich’s guilt beyond any doubt.

Notably, the jurors explained that it had required ten days for them to reach a verdict because of the care they took to remove all personal feelings about the governor from their decision-making process, as they proceeded count by count through the indictment.  When a unanimous vote was reached on any count, during their deliberations, they deemed that vote to be final, and that count was set aside.

The jury’s decision-making process was unique, and they deliberated without any acrimony whatsoever.  They selected a choir director as forewoman, and, based on the suggestion of one of the panel members, a grade-school teacher, they voted using the “fist-to-five” method, which they felt prevented a minority of jurors being pitted against a majority. Here’s how that method worked.

The Jury’s “Fist-To-Five” Voting

When voting on the various counts, each juror held out a clenched fist if he or she believed Blagojevich to be not guilty, or held out all five fingers if he or she was convinced Blagojevich was guilty beyond any doubt.

If any juror was not convinced either way, then he or she would hold out between one and four fingers, with the fewest fingers indicating the greatest doubt.  In this situation, a thumbs-up represented a juror’s holding deep doubt about guilt, but also not being convinced of innocence.  Thus, it took a high-five on a given count to convict on that count.

Anything less than all fives, and the jurors talked it all through until they reached unanimous agreement. When it was all over, no single juror had thought Blagojevich innocent of all counts during the voting, and the voting patterns had shifted from count to count, with different jurors lining up in different combinations on different counts.  The fists-and-fingers system brought them to a consensus.

The fist-to-five voting showed the strength of the Government’s case.  Reading the jurors’ post-trial comments closely shows that they all were disappointed to have to vote for conviction, and no one was particularly happy about the clear results.  Indeed, one juror said she was “heartbroken” at having to vote Blagojevich guilty.

But the Government’s strong evidence won the jury over.  What troubled all the jurors most deeply were efforts by Blagojevich to use his appointment power as governor to fill the vacant U.S. Senate seat for personal gain.  This was the core of the Government’s case, and the evidence on this point was overwhelming.

To say that Blagojevich’s actions were crude and sleazy is an understatement – as you can hear for yourself if you would like.  The Chicago Tribune maintains a website assembling all the courtroom documents from both trials. The quality of the audio on the surveillance tapes is, for the most part, remarkably good.  Clearly, Blagojevich and his co-conspirators did not realize they were being recorded.

Selling Obama’s Senate Seat

After listening to most all of the recordings used at the trial, for I was curious to hear them for myself, I have selected a few telling samples, which appear to be the evidentiary jewels that were the centerpiece of the Government’s case.  (With the first recording I am posting, I found the audio from the first trial to be a bit better than that from the second trial, so I have used that URL below – since it is such an interesting conversation, and one of the first where Obama’s former Senate seat was discussed.)

So turn up your volume, if inclined, and listen to the former Governor of Illinois at work. (He makes Richard Nixon sound classy – sorry, but I could not resist that observation, although I am not exactly a Nixon apologist.)

The first conversation I’ve selected occurred on November 5, 2004, the morning after Obama’s election victory.   Blagojevich was thrilled with the “golden” opportunity that Obama’s presidential election, and the now-vacant Senate seat, provided him.  He was initially thinking about seeking a Cabinet post, or the position of Secretary of Health and Human Services, or an ambassadorship – for instance, to the United Nations.

Blagojevich also contemplated taking Obama’s Senate seat himself, or better yet, selling the seat to the highest bidder, or in the worst-case scenario, simply giving it to a crony, or maybe even using it to remove a political enemy.

In this surveillance recording, the governor was talking on his home phone and speaking with Doug Scofield, a political advisor and former deputy governor.  (Scofield’s voice is harder to hear than Blagojevich’s.)  They talked about Tom Balanoff, a top union official, who had earlier claimed that he had spoken with Obama about his Senate seat.  The then-President-elect had purportedly said that he wanted someone who was good for Illinois, and who could win the seat in 2010, but he would publicly suggest no one.  Nonetheless, Obama let it be known that he thought that his campaign (and, later, White House) aide Valerie Jarrett would fit the bill.  Doug Scofield and Blagojevich discussed using Balanoff as an intermediary.  About four minutes into this exchange will be found a memorable and now infamous statement: “I’ve got this thing,” Blagojevich said,  “and it’s f…ing golden,” he added, with an unforgettable tone of delight and satisfaction.  Then he continued, “And I’m just not giving it up for f…ing nothing. I’m not going to do it.  And I can always use it.  I can parachute me there.”

The second conversation that I’ve selected occurred two days later, on November 5, 2008.  This surely was the type of evidence that left no doubt in the jury’s mind that Blagojevich was talking about a quid pro quo for a Jarrett appointment to fill the vacant Senate seat.  Within less than two weeks after the presidential election, Blagojevich realized that because he was tainted by his association with convicted Chicago businessman and political fundraiser Tony Rezko, he could never get confirmed before the Senate for any high-level post.  So Blagojevich and his aides began concocting other schemes.

In the third conversation I’ve selected, taking place on November 12, Blagojevich and Scofield discussed creating a tax-exempt 501(c)(4) advocacy organization. And the next day, on November 13, in a related conversation, Blagojevich plotted having Obama’s supporters, like Warren Buffett or George Soros – presumably, after a call from the then-President-elect – provide millions of dollars in funding.

By early December, Blagojevich realized that the Obama team was not going to do anything for him or with him.  They had shown no interest in paying-to-play.  So the governor was considering any and all of his potential options, including selecting a politician whom he personally disliked, but whose supporters he believed would pay over a million dollars for the Senate seat:  Illinois Democratic Representative Jesse Jackson, Jr.

In this last selected conversation on December 4, 2008, when Blagojevich is discussing Jesse Jackson, Jr. you hear signs of panic in his voice and manner, and while it is not known which of the last conversations provoked U.S. Attorney Fitzgerald to arrest Blagojevich in order to prevent him from selling the Senate seat, this might have been the one.

Blagojevich on the Stand

Rod Blagojevich did not testify during his first trial.  Because of the Government’s highly-focused retrial case – which featured the playing of one conversations after another to the jury revealing Blagojevich scheming to sell Obama’s Senate seat, as well as his other schemes to shake down campaign contributors in exchange for his doing what he was suppose to do as governor – Blagojevich was forced to go for broke.

Blagojevich had no choice but to try to explain away his own damning words.  He must have known that he would surely be convicted unless he used his skills to persuade others to plant a seed of doubt in at least one of the jurors’ minds, and convince at least one of the jurors that it was not as bad as it sounded.

Blagojevich’s defense was surprisingly similar to Richard Nixon’s explanation of the damning recordings of his conversations.  The explanation was that these were merely internal deliberations, the exploring of options, posturing with staff and others, as he made up his mind.

Blagojevich told the jury that he had not received a penny for any of the schemes he had explored with his closest aides.  Seeking to trigger a reasonable doubt in the mind of one or more jurors, he told stories of growing up in a working-class family, and going to Northwestern University in Evanston, where his classmates were better dressed and better off than he was. He painted himself as not too bright, mentioning that he squeaked by in law school and revealing that he only managed to pass the bar exam the second time.  He was self-effacing, likeable, and clearly loved his wife (to whom he gave a kiss every day, before the jury) and daughters.  In sum, he was campaigning aggressively from the witness stand for that one juror to save him.

He lost that campaign, because of the withering cross-examination of the lead prosecutor, Assistant U.S. Attorney Reid Schar.  The cross-examination started off badly when Schar asked Blagojevich if he was a convicted liar (referring to the one count that had stuck from the first trail).  Blagojevich gave the only answer possible: Yes.  But then, as one news account described it, when Blagojevich began trying to explain away his answer, along with other answers, “The courtroom quickly descended into mayhem and confusion as Schar asked pointed questions requiring yes and no answers, and Blagojevich gave long-winded responses.  Schar would repeat his questions over Blagojevich’s answers and over the top of all of that were several of Blagojevich’s attorneys shouting ‘Objection!’”

The Verdict

Blagojevich spent seven days on the witness stand and he left it in far worse shape than before he had tried to explain away his actions.  As the jurors later explained to the news media, the charming rogue was charming, but he was a criminal and he was a liar.

Several jurors felt that the defense had tried to manipulate them, showing them pictures of Blagojevich in settings that seemed to address information that the jurors themselves had provided in the questionnaires they filled out at the start of the case.  None thought that Blagojevich had done well at explaining away his conspicuous misbehavior.  Accordingly, when the jurors carefully applied the law to the facts, they found that Rod Blagojevich was guilty.

Here is their verdict in a nutshell:  Blagojevich was found guilty of five of six charged shakedown schemes (Count 1).  More specifically, he was found guilty of trying to get himself appointed Secretary of Health and Human Services in exchange for appointing Valerie Jarrett to the Senate (Counts 2 and 3); and when that failed, he was also guilty of trying to get Obama to set up a nonprofit 501(c)(4), funded by millions of dollars from Obama contributors, in exchange for the Senate seat (Counts 4 to 8).

Blagojevich was found guilty of wire fraud (Count 9); extortion conspiracy (Count 14), and attempted bribery (Count 15) in connection with his attempt to shake down a racetrack owner for a $100,000 campaign contribution in exchange for Blagojevich’s signing legislation benefiting Illinois racetracks.

He was also found guilty of wire fraud (Count 10); extortion conspiracy (Count 18), attempted extortion (Count 19); and attempted bribery (Count 20) in trying to get $1.5 million from Jesse Jackson, Jr. supporters for the Obama Senate seat.  He was found guilty, as well, of attempted extortion (Count 12) and soliciting a bribe (Count 13) when shaking down the head of the Children’s Memorial Hospital for a $25,000 campaign contribution in exchange for Blagojevich’s approving funding for doctors at the hospital.

The jury did not render a verdict on the charge (Count 11) that Blagojevich was attempting to extort the brother of Rahm Emanuel (who is now mayor of Chicago, and then was a former Congressman about to become Obama’s White House Chief of Staff) to hold a Hollywood campaign fundraiser for Blagojevich.

Nor did the jury render a verdict on the charge (Count 16) that Blagojevich attempted to extort a building executive for a $500,000 contribution to approve a toll road project.  Rather, they found him not guilty of soliciting a bribe (Count 17) regarding this project.

The Sentence

While Rod Blagojevich may have charmed the jury that convicted him, he did not charm U.S. District Court Judge James Zagel, who will soon have the last word on this case.  Judge Zagel, a former prosecutor with a Harvard Law degree, can give out tough sentences.  The news media is predicting that Blagojevich will be sentenced to up to 300 years, by stacking up the maximums on every count.  This is not realistic.

Experts with whom I have spoken, who know both the federal sentencing guidelines (such as they are) and this judge, think that the best Blagojevich could possibly hope for would be a minimum of seven years in a federal prison. The worst sentence Blagojevich has been predicted to face, by those whom I have spoken to, would include as many as 20 years of actual prison time.  The consensus on what the most likely sentence would be seems to fall somewhere in between.

Suffice it to say, Rod Blagojevich is out of the shakedown business, for if his conviction is upheld – and professional trial observers believe Judge Zagel to be too able a jurist to have made an error during the trial – then he will soon be living in a very different political world.

Posted in: Politics