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.

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