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.

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.

Making the Consensus of America Transparent - A Foreign Policy

By: Randell A. Monaco
May 12, 2011


Following news of Bin Laden's demise one of the first questions to be raised was, "[i]s 'spiking the ball' a matter of public safety?" After three decades of a declared war on terrorism our Nation finds itself in a state of an anxious uncertainty.

This seems particularly the case in these moments when no one can take seriously Pakistan's protestations of innocence. The perceived complicity of Pakistan in shielding Bin Laden more than justifies our concerns about their allegiance.

Speaking to the issue of credibility, it has been said that it is like your virginity - you can lose it only once. Fortunately, for both Pakistan and the United States, in the world of international diplomacy that doesn't seem to be always the case.

As the Reagan administration came into office in 1985, it was announced that the "evil scourge of terrorism" in the Islamic world would be at the core of U.S. foreign policy. (New York Times, 18 October 1985). The consensus of public opinion was ignored and the President announced a state of national emergency because of, as then President Reagan put it, "the unusual and extraordinary threat to the national security and foreign policy of the United States." This state of emergency was annually renewed over and again, then fully realized on 9/11.

Using the same rhetoric as the first declaration twenty years earlier by the Reagan administration, the war on terrorism was redeclared on September 11, 2001. What few Americans are likely to realize, or recall, is that the overthrow of the Taliban regime was a rationale thrown in to make the war seem just for the benefit of intellectuals who would follow and write about the war.

The people of Afghanistan were informed that the United States and Britain would continue their attack until they handed over the wanted suspects responsible. As the big dog on the block, George Bush made it clear that we do not defer to any authority or accept the idea that we should have to offer evidence or bother with the formality of even a request for extradition. Despite the almost certainty that the U.S. would have easily obtained clear and unambiguous authorization, George Bush saw no reason to bother with international protocol and flatly rejected the option of obtaining UN Security Council authorization.

In the eyes of the world, as in the mirror of our own hypocrisy, are we truly above abiding by the moral truisms that we pretend to revere? How are we to be secure or trusted as partner in a global society when we continually fail to apply to ourselves the standards we apply to others?

Today, the idea of diplomatic credibility seems ever more dubious given the financial influences of corporate money conflicting our own government policies and the enticing promise of rewarding Pakistan with long term commitments of assistance through trade benefits in exchange for their diplomatic cooperation. Preventing extremists from acquiring nuclear weapons from Pakistan seems a matter for counter-terrorism operations not incentivized diplomacy.

As a Nation, we must come to reconcile our past and those policies which will continue to vilify the ire of hate against America. It's unlikely that America's failure to observe international law has been forgotten or overlooked even if we were to begin doing what we demand of other nations.

What seems best for Americans is that we assess the true costs of our misguided policy and earnestly attempt to understand more about the justifications that have fueled extremist growth. The time has passed in which we can look beyond our own lack of citizenship and accept the scripted we-know-best arrogance of those who have obtained power on our behalf.

A milestone opportunity presents itself for America - no longer should we allow ourselves to be marginalized by our all-knowing leaders whose judgments are becoming ever more conflicted by money. We must demand accountability, transparency and carefully question all future policies to act as an enforcer state outside the stream of vilification without keeping to the most elemental moral standards of equivalence.

Despite the efforts of our elected government to prevent transparency, Wikileaks and others whose missions are of similar values will continue to proliferate. Increasing transparency and the fluidity of global communication must become a means to prevent the marginalization of individual voices in America. The consensus of American opinion should never again be ignored.

With the news of Bin Laden's finality, we now have the opportunity to reexamine the direction of American foreign policy. Whether it would be too naive or the world is now too evil to suggest that we be a good neighbor in the next era of American foreign policy, it should become a matter of public consensus, not arrogance-elect. Let our elected government convince us and explain our choices - we'll all be the better for making the will of the American people transparent to the world.

Maybe it is time for America to lead by example without the calculated use or threat of violence. Our actions going forward, for no other reason than the history of our misguided policies, should now be a matter of public consensus and never again ignored . It is doubtful that, had the collective opinion of America in 1985 been followed and not been ignored, the costs would have been greater than the course chosen by our all-knowing leaders. Hegemony is not our only option, let the world hear Americans speak.

Mixed Lessons Yet Learned

By: R A Monaco
May 5, 2011


In the wake of Bin Laden's death many of us here in the United States are uncertain how to act or reconcile our feelings. Do we celebrate a symbolic victory, anxiously fear ten years of extremist growth that has followed the September 11, 2001 World Trade Center bombing? Is "spiking the ball" really a matter of public safety?

I certainly don't blame Americans for rejoicing in the news of bin Laden's death, but I personally have difficulty celebrating the death of another human. Some of us here at home just find it difficult to find jubilation though our hope is that in the death of Bin Laden other's will get the "closure" needed to heel from their personal losses. Frankly, I think we let him off the hook and so too we may have given him the exact ending he would have wanted. Worse, we may have inspired others to follow his path to the “glorious” martyrdom that has often been a powerful inspiration for others.

Under false pretense, George W Bush mislead our country into invading Iraq, later invaded Afghanistan, politicians for their own ends have exploited the death of 9/11 while foreign and American soldiers as well as civilians in the thousands have been wounded or killed. It would seem that this loss is all for not if we as a Nation can better understand and at least learn more about why Americans are hated with such ire. Have our historical misuses of power and support of corrupt dictatorships turned the world against us? Has American imperialism and corporate avarice flamed the envies of foreign propagandist such that we should now expect the death of innocent people for reasons no other than being American?

Beyond how we must now reconcile the claimed willful blindness of Pakistan the real issue it would seem, is what can America learn and make different in the way our neighbors in rest of the world embrace us?