Tuesday, June 28, 2011

Blagojevich Trial-- A Back Seat View After The Fact

By R.A. Monaco
June 28, 2011

The most stunning surprise that came from the Blagojevich trial was from the former governor of Illinois himself saying that, "among the many lessons that I've learned from this whole experience is to try to speak a little bit less." Jurors, clearly fed up with their perceptions of unseemly politics, delivered their intended message to politicians, corrupt or not, future and past. Politicians beware, the days of backroom deals and machine politics are no more--or are they?

First, an observation of how Rod Blagojevich's arrogance did him in when, on 7 out of 10 trial days, he did exactly what he likes to do---talk, talk, talk. Mr. Blagojevich actually believed he was going to ramble his way out of a corruption case at a time when the entire nation and Chicagoans are weary of political schemes and circuslike politics.

On the other hand, there is another aspect to this spectacle reflected in this Jury's verdict which we are not likely to hear or read much about--that there is plenty of blame and responsibility to go around. Accuseology, let's call it. Mr. Blagojevich clearly thought he knew his lawyers' job better than they and good lawyers just don't let their clients do what he did. Do you go to a doctor and tell him how to practice medicine? They needed to be able to control their client or they shouldn't have taken his money. No exception!

Juries come to the dance, so to speak, with the view that we have a judge, bailiff, clerk, courtroom, prosecutors, and in their minds, they're saying, "....this guy did something" to themselves. Regardless of what jurors typically express during voir dire or in oaths to the court, that is a reality of criminal defense trial work and must be understood before the séance begins. High ideals, while important, are a fool's gold in this arena.

The question that should always be paramount for all of us, not just defense lawyers, is whether the prosecution has carried their burden of proof. Was this really a different case the second time? Did prosecutors show beyond doubt, based on reason, that each element of the alleged crimes was true to the satisfaction of the jury in the first trial? Clearly, they did not.

As it has been written, to serve the ends of justice it can never be enough for jurors to think, believe, or just suspect criminal charges to be true--it must be shown. Justice is not a mere promise to the accused. It is an oath to American freedom made for the benefit of every person walking free within our country and not on trial.

The most important message to be learned from a high profile trial such as that of Mr. Blagojevich is that a trial is always, and most importantly, about the process, not sending messages. Clearly the jury in this case diligently carried out their responsibilities even though a motion for a new trial and Sixth Amendment challenges will surely follow. But of greatest importance to all, is that each and every one of us depends upon that most essential and complete understanding of a Jury's purpose.

In a circumstantial evidence case, such as in the Blagojevich trial, inferences must be made from the evidence shown. Was that what he really meant? Were those statements made in contexts? Is the intent of his statements fully shown? Can what he intended be fairly inferred based on reason without other possible interpretations equally as reasonable?

When the prosecution failed in their first attempt to prove this case, the jurors said that the case had been too tangled and confusing. Whether the prosecution boiled-down their case or actually had improved their strategy was much less a deciding factor overall by comparison to the colossal contributions of Mr. Blagojevich and a reckless defense strategy.

Criminal trials are almost always about the absence of evidence. How the prosecution must carry their burden of proof is singularly the most critical legal evaluation of the defense. While Mr. Blagojevich may have an unconditional right to testify the lack of prosecutorial success in the first trial was a lesson learned too late. Their potential for success evaporated the instant Mr. Blagojevich's attorney let him take the stand to testify--end of story. They needed to have a clear, factual issue in dispute that could be corroborated by a credible third person so that his veracity was bolstered. Nothing short of being able to accomplish that objective justifies the sacrifices that appended to what is nothing less than a strategic blunder. You just don't throw your client up on the stand with the hope that the jury believes him, no matter what. Why change what worked? The defense needed to show what couldn't be proved--not prove it! Rod Blagojevich is not Laurence Olivier.

The case against Mr. Blagojevich was a circumstantial evidence case which required the jury to make inferences that were reasonable. Until he testified, ambiguity was the their best defense. Strategically, the defense team and Mr. Blagojevich sacrificed their best arguments and removed all doubt. Indeed, the celebration probably started in Patrick J. Fitzgerald's office long before closing arguments and the jury returned their verdict for guilty on 17 of the 20 alleged counts.

We've all heard the saying, better to let them think you're a dummy, than to remove all doubt. In the end, Rod Blagojevich's arrogance did him in with a good helping of, we can't control our client.

Some compassion for Rod Blagojevich is clearly due as he's little more than a reflection, produced by the system itself. There are many others much more sophisticated and deserving on K Street, Wall Street and across the nation to be sure. The fact is, these days there is no shortage of politically crass deal making and the distinction between financial trade and political exchange has blurred and not become any easier particularly in light of last year's Supreme Court decision in Citizens United v. Fair Elections Committee.

What we must keep in mind and understand is that the criminal justice system can also be a politically manipulated tool--a solid reason why we Americans should begin to look more carefully at publicly funded campaigns and election reforms that obviate the need for backroom schemes and political corruption.

Friday, June 24, 2011

Demagoguery 301 - The Graduate Program

By R.A. Monaco
June 22, 2011

Appealing to the emotions and prejudices of Americans these days has shown little thought or imagination, particularly, when the subject centers around the debt ceiling, taxes and the tactics of non-negotiation by Eric Cantor and John Boehner.

It was most disingenuous to suggest that President Obama's spirit of comity, mutual respect and invitation to civil discourse is demagoguery, as did Charles Krautherammer in his May 12, Washington Post article, Demagoguery 101. Now, while Congressional Republican leaders continue to falsely claim Democrats are pushing for tax increases, they've "vowed" not to compromise or give in. Surely, it could be said that such a vow is an act of insurrection against the sovereignty. After all, valid public debts of the United States constitutionally shall not be questioned under Section 4, of our Constitution's 14th Amendment.

Why wouldn't the President consider a "vow" not to compromise an act of insurrection? Compromise is not capitulation. Why isn't refusing to attend sessions led by Vice President Joseph R. Biden Jr., an instance or act of revolt against civil authority? Maybe the stated purpose of Senators Jon Kyl of Arizona and Mitch McConnell of Kentucky, to turn up the pressure on President Obama, should be considered exactly for what it is--resistance to the authority of one's government.

The president's power under Art II, Section 3 of our Constitution confers power in the President, to convene both Houses, or either of them, in the case of disagreement. There's no expression of reciprocal authority for members of either House. The unilateral "vow" of non-cooperation is just not a mandate for the president's direct involvement in the ordinary business of Congress. And since when is refusing to negotiate and not cooperating with the Vice President a mandate for a larger role from the President himself? Does the expression "go pound sand" have a ring to it?

Americans want the President to lead, not react to the demagoguery of no compromise politics. Enough is enough, going forward this needs to be remembered--capitulation is not compromise. There is a difference, a point which the President too needs to be mindful of.

Under our constitution, it is the president who shall communicate to Congress, convene and adjourn--not Congressional Republicans. Suppose we all vowed to not compromise with our co-workers unless the boss was directly involved in our work--no doubt there would be a huge increase in available job opportunities. Better, suppose we vowed not to pay taxes unless the president was directly involved in our negotiation with the IRS , do we have any less authority? The answer is an unequivocal, no!

The facts of the current proposal are that the bipartisan $2 trillion savings target would come, in part, from a phasing out of tax breaks. Tax breaks which very few individual Americans enjoy. Where do you suppose the lips of Congressional Republicans are exactly? Probably not on your or my--you know what.

What Americans have endured, once again, is little more than transparent demagoguery learned and typically practiced by those with a bat and ball on the baseball field after school. Abandonment of budget talks by Representative Erica Cantor, of Virginia, the House majority leader and Senator Jon Kyl of Arizona, the No. 2 Senate Republican their party's other representative, is a manufactured breakdown and veil partisan election strategy designed to loop the President directly into the debt ceiling debate. Only election and campaign finance reforms are likely to change this complete absence of good faith in conducting the business of Congress.

Going into this election cycle, Congressional Republicans continue to set bait for the President while people like Mr. Krautherammer defend their overt bad faith, impugn President Obama and claim it is not "They" who play politics with deficit reduction, with government shutdowns and health care and immigration. The fact is, a continued recession benefits Republicans in this election year cycle at the expense of the entire Nation and serves only to provide them opportunity to cast the shadows of responsibility for our economic situation solely on the President himself.

Clearly, G.O.P. leaders have misled the public on taxes issues, admittedly "vowed" to not compromise and have quit discussions on the debt ceiling. Those are acts of insurrection. By doing so, Congressional Republicans have conferred power in the president to take such measures as "he" shall judge necessary and expedient. Now is the time for the President to stop reacting to partisan bait and lead the Nation--that is the mandate of the people.

Wednesday, June 15, 2011

GOP Presidential Debate Certified the Reality of American Democracy

By R.A.Monaco
June 15, 2011

With plenty of pride and grinning tough talk about President Obama, Monday night’s second GOP presidential debate certified the reality of American Democracy. Completely absent from the discussions were new ideas about the structural problems that have caused a working-class crisis in America. In fact, the GOP’s Magnificent 7 thought it important to illuminate their respective child rearing accomplishments while not wasting time on discussions about the economy, leaving unsaid the obvious--tax cuts and nothing else will carry the day.

Political humor aside, most people would have to expect that a town hall meeting of serious candidates might discuss the clearly downturned economic cycle and the accumulation of deeper structural problems exposed in this non-recession recession. What about the inability to generate middle class incomes and unsustainable levels of debt—wouldn’t these be subjects on which serious candidates might offer their insights?

It may be that America is supposed to recognize that Michele Bachman’s dozens of adopted children equates to economical craftiness. But, for those of us who aren’t that intuitive shouldn’t someone at a voters town hall meeting have questioned or commented on the steady, if not rapid, growth of special interests and increasingly dysfunctional nature of our current political system?

Let’s not leave all these concerns on the door step of the GOP’s Magnificent 7, as it should not be presumed that the undeclared Sarah Palin, while absent from Monday night’s debate, wouldn’t have her party’s solution for these problems—tax cuts, right?

To be fair, the Democrats, though having recognized the huge problem of wage stagnation, have really nothing new on the table either. While they have New Deal dreams, they are completely absorbed in defending Medicare and so, for as far as the eye can see at this point, it’s more of the same in their camp as well.

Despite this lack of new ideas, it appears that new ground in campaign spending will be broken in this next election. As they continue speaking, the wheels of creativity are spinning rapidly toward devising new strategies timed around the 36 states that have early, before Election Day voting--to get an electoral edge and maximize the unprecedented level of campaign spending anticipated in this next election.

Campaign spending in these early voting states has become a major area of study across the political landscape particularly in light of the recent U.S. Supreme Court’s decision in Citizens United v Fair Elections Committee. Town hall meetings, like Monday night’s clearly choreographed made for TV event, should be seen in the broader light of how these candidates and their strategists are rethinking the money they sink into their later buy ads and get out the vote programs.

Even without a real town hall discussion and regardless of which party’s lack of agenda you favor, it is becoming increasingly difficult to ignore the brazen level of political insincerity and corruption. The unprecedented alliance between corporatism and government is beyond being merely unholy—it has become sacrilegious.

The ever rising conflicting interests of our political structure have brought us never ending discussions from political buffoonery. Candidates, who like trained parrots, now seriously willing to say whatever they think people want to hear--just won’t change the downward trajectory of this nation. Americans should be insulted by these candidates who are willing to wade into these early discussions without real ideas and attempt to sell more of the same. Our political system has become a matter of gamesmanship where transparent self service is confused with public service.

Without the commentary and satire of SNL, Colbert and Steward, a real fear exists that this Magnificent 7 field of candidates might be taken seriously. Save discussions of hope for the next episode of, Is America Smarter than a Fifth Grader?It is time to seriously begin a public discussion about election reform. While corporations can’t vote, it is their money that shapes our policies, political process and the empty promises we’ll be told to get our vote.

The inherent conflicts which have become the current state of campaign finance must first be separated from the election process before the interests of Americans, individually and as a nation, will again be placed above that of the corporate agenda. Save President Obama’s State of the Union address reference to the Citizens United decision, to the total absence of discussion about our corrupted political campaign finance system on the part of the entire field of candidates clearly mandates the critical need for a grass roots movement that shifts our electoral system back to serving the people.

Herald the folks in Madison, Wisconsin whose grass roots actions have begun the struggle to restore a government that is of the people, by the people and for the people, before it forever perishes from this once great nation.