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.

Stinky Cheese Florida Style, Behind the Great Cheese Wall of Elections

By Randell A. Monaco
April 15, 2011


More than a week after a state wide election for a 10 year term on the Wisconsin Supreme Court the state's highest court, Waukesha County takes a page out of the Bush Election Playbook and turns in 14,000 votes changing an early count which suggested incumbent Justice David T. Prosser, Jr. had lost.

The newest hanging chad of election culprits is reported to be a Waukesha County Clerk named Kathy Nickolaus. According to New York Times reporter Monica Davey, Kathy Nickolaus said that she had forgot to hit "save" on her computer. There is no mention of how it was that Nickolaus discovered her neglect more than a week after the election or why election results would be on "her" computer if that is in fact, where they were.

The discovery has decisively turned the election against the challenging candidate, JoAnne Kloppenburg who must decide before Wednesday whether to request a recall or allow the results to be certified.

Just how aggressively the state's Government Accountability Board will investigate this profound discovery under the skeptical scrutiny of former republican legislative colleague and now embattled governor Scott Walker, remains to be seen.

Since currently challenged new collective bargaining legislation has yet to make its way to the Wisconsin Supreme Court, Justice Prosser's presence on the bench may become an important factor in the court's conservative majority when it does.

Wisconsin voters who have been bombarded with economic claims that the sky is falling might want to save a few steps and ask that a federal investigation step in which might also save the state a few bucks and avoid a recount.

Possibly, Ms. Nickolaus might voluntarily submit to a polygraph examination which might save a recount of the election. She might also consider turning her computer over to federal law enforcement assuming that the state has yet to seizes and conduct a forensic examination. On that note, it wouldn't be a bad idea for the state to turn over the machine to the FBI for a computer forensics examination just to satisfy voters and corroborate Ms. Nickolaus absentmindedness.

Turning this investigation over to federal law enforcement at the earliest moment would serve a dual purpose, paramount to voters and Governor Walker alike, which is to eliminate the stinky cheese odor of impropriety and restore the integrity of the sovereignty and democracy in Wisconsin. After all, if the hanging chad has reappeared why would anyone want to accept the results of another state investigation.

Behind the Great Cheese Wall of Politics, Worker Bashing and Deception!

By Randell A. Monaco
February 21, 2011

American’s, and particularly Wisconsin residents, please permit me to ask what your answers would be to a few questions about ethics. I’m interested to know how each of you might chose to manage the following situation. Suppose that you lived in Wisconsin and were to learn or even observe someone take advantage of your neighbor, either by omission, half truth or misleading factual representations. Would you just mind your own business and ignore the unfairness of the scheme because you weren’t directly affected? Worse, would you lend your support to the scheme because you saw your neighbor as having something you didn’t or couldn’t have now? What if your decision to speak up or not didn’t seem at the time to make a real difference because your friend or neighbor was in another state, would you still speak up?

My guess, if I’m allowed, is that when push comes to shove the answer to those questions would be, no way am I going to let those dirty crooks get over on my neighbor or my friend if I can do something about it!

Well that is exactly the type of organic grass roots stand-up and be counted American backbone that has been going on - on the other side of the Great Cheese Wall for the past seven days. Our Wisconsin neighbors are speaking up for themselves, for you and for every worker in America and we should listen, here’s why.

Private sector unions have been reduced to roughly seven percent of the workforce and it’s not because workers don’t want to join unions. In fact, many studies have shown that there is a huge pool of workers who want to join unions but can’t. A coordinated assault on public sector unions has arisen in the last few months, not just in Wisconsin, but in states like New York and Ohio too. Right in step with this assault on labor is a most impressive white wash of propaganda deflecting attention away from those who actually created the economic crisis, like Goldman Sachs, Citigroup, JPMorgan Chase, their associates in the government like the Federal Reserve and others who let all this go on and helped it. So, to switch attention away from the cause and people who are really responsible for the crisis, teachers, police, firefighters, sanitations workers and their unions have become the villains with their Rolls Royce healthcare benefits and pensions.

The reason why we should stand with our Wisconsin neighbors now is that there’s not a worker in this country who will be unaffected if we don’t quickly come to understand that the contracts won by organized workers function as a ceiling for what the rest of the workforce, union or otherwise, is able to maintain.

As a nation, we are by and large not a society of indifference that permits our friends and neighbors to be cheated, taken advantage of, or mislead. What is happening in Wisconsin is not really a local labor dispute at all. It is a strategic assault on the public sector unions that follows on the heels of a movement that essentially destroyed most of the private sector unions in the United States.

Now ask yourself, if I were a Wisconsin resident what more would I expect from the fire fighters, teachers and public employees who contribute daily to the general good of the community? Beyond their daily contributions as public employees and willingness to negotiate, cooperate and contribute to the ultimate solutions that would allow the State of Wisconsin to meet its financial obligations, what more would any reasonable person ask from these people? Now, if your answer to this last question is nothing more, then why should it be necessary for Gov Scott Walker to attempt to take away their “right” to collective bargain? Simply said, there is no reason!

The facts as they stand are that Union leaders have taken money issues off the table. They’ve said that they would go along with the proposed financial changes of increasing their pension contribution from 1 percent to 5.8 percent and increased health care premiums from 6 percent to 12.6 percent. Bottom line, public employees have agreed to Gov Walker’s concession demand which solves the budget challenges, right? Not so according to the new Wisconsin governor.

Today, Gov. Scott Walker made clear he won't back off his proposal to effectively eliminate collective bargaining rights for most public employees. The deception which has taken place in Wisconsin makes it transparently obvious that Scott Walker has been given one part, in fact a leading role, in a larger pre-planned strategic union-busting campaign. Not surprisingly too, the newly sworn Wisconsin governor during his campaign received $15,000 from Koch Industries (according to Forbes the largest private company in America) the maximum contribution allowed and hundreds of thousands of dollars more in support from other Koch-funded groups. Walker’s conflicting interests will begin to come into focus as the first domino in a larger scheme to undermine labor in America once it is realized that what is taking place is not simply about balancing Wisconsin’s state budget.

Americans must recognize now that public sector labor has become the last line of resistance to corporate control of our government and that collective bargaining is the sole and only means of protecting, not just workplace fairness, but safety too. The entire deception scheme depends upon getting us American’s to argue about small government big government so that we aren’t watching the ball. Inflate numbers, exaggerate facts, and twist meanings, are by design, the tools used to make reality almost incomprehensible to ordinary Americans. The main concern for Americans, at this moment, should be how much more damage will be done to our government and democracy before our friends and neighbors understand and realize what really is happening, not just in Wisconsin but across the nation?

Early last week, what caught my attention was a report that Gov Scott Walker was planning to call up the Wisconsin National Guard. No demonstrations or public behavior had been reported at that point requiring the need for assistance of local military and law enforcement to maintain public safety or keep the peace. This seemed an unnecessary, if not a reckless, expenditure of public money in the middle of a financial crisis. As I began to look further into what was happening behind the Great Cheese Wall of politics people began protesting in Madison, 25 and 33 thousand each day. Now, we have couple of long time friends I now affectionately refer to as Cheeseheads that live on the other side of the wall. Were all originally from the Land Of Lincoln and lived in Chicago in 1969 during the protests at the democratic convention. Given those memories this sounded serious, the National Guard?

As I began analyzing the purported budget crisis and the ethics of a newly sworn governor the idea of calling up the National Guard stood out in my mind. To me, just the idea reflected his state of mind and showed the anticipation of a plan and a knowing determination to carry out a violation of public trust. After all, labor negotiations are a matter of ordinary business.

On Wednesday, sometime during the morning after learning about Gov Walker’s demands, I posted a short article on my blog, Just For The Yell Of It! and sent it off to some friends including those in Wisconsin via Facebook. Offering my opinion, I wrote a personal assessment of what I thought might likely be happening. I suggested that given the Governor’s notable anticipation, needing the National Guard for ordinary everyday government business, my opinion was that it meant he was up to no good and that there’s more behind the scene.

As the week progressed the Governor’s tactical maneuvers quickly escalated. He commandeered the assistance of law enforcement, not to control public outbursts or dissidence, but to bring one of those damn democrats by the collar into the legislative chambers while 19 of Walker’s republican henchmen waited for a quorum to hammer home the purported solution to the Wisconsin budget crisis. Had he been counseled by Tom DeLay?

The matter at hand here is the present and existing obligations of the state which purportedly has become a financial crisis in Wisconsin. At this point, union leaders have taken the financial issues off the table so in effect the crisis no longer exists, if in fact it ever did. But how does this all become the basis for a taking of a property interest belonging to public employees and why should the financial responsibility of the state be born solely by those who are owed the obligation? Keep in mind, Wisconsin’s financial situation didn’t become a crisis until after their legislators had spent $140 million in the first weeks of this new term. Does anyone smell an accounting stench?

Public employees presently have the “right” to collectively bargain with their employer, the state. Each and every public employee has a “property interest” in that “right” to collectively bargain. They have relied upon that right, invested their reliance upon having been conferred this right; they have forgone other possible opportunities in life on that reliance and earned what they have invested through their commitment to make safer and better communities for everyone.

As it turns out, Gov Scott Walker may have already blown the game plan for his political co-conspirators and failed to carry out his mission and marching orders. Sending law enforcement to round up a quorum of legislators seems an act of desperation. Clearly, he is not serving the general welfare interest of Wisconsin residents because he has placed the aspirations of the national conservative agenda and unethically his own, above the general welfare of those who reside in the state. I don’t care what state you live in, or whether you work in the public or private sector, Gov Walker isn’t to be trusted further and we surely don’t need to sort out his lack of character in the future on the national stage, get rid of him.

Every person who lives in the State of Wisconsin has been betrayed by Scott Walker in only his first days of having been sworn. He has betrayed many of the people who likely were the very same conservative voters that supported his election into office. He has demonstrably shown that he is not acting in the general interest of the people of Wisconsin or those the state employs. An investigation into the entire scheme, and his commitment to carry it out, surely will reveal that this plan was in the works during his campaign. Did he come out and tell prospective voters that he intended to carry out an assault on collective bargaining in the state? That deception serves as a solid basis for his removal from public office. An omission is a lie. Under some legal mechanism, be it recall, impeachment or government shutdown and forced resignation if necessary, he needs to go. We’ll leave that up to the Wisconsin resident’s who have braved the snow, cold and extreme elements of their state to decide but now is the time. Politicians need accountability now!

Let me make clear that from 2000 miles away and the arm chair that I’m sitting, I think Gov Scott Walker has breached his oath of office, his responsibility to govern without conflict and deceived the voters of Wisconsin. He has pursued his own self interests and overtly acted against the general welfare of every employee, resident of the state and for that matter every worker in America. Get rid of him now we’ll all be the better. Unless an epidemic statewide loss of memory were to occasion the entire population of Wisconsin, he couldn’t really have planned to serve a second term as governor so give him the vacation he deserves now.

Puppet Politics

By Randell A. Monaco
February 16, 2011

Is anyone arguing that Gov Scott Walker is not completely over the top? His conduct seems too deliberate and obviously tied to a self-serving desire to climb the political ladder on to the national stage. Wisconsin does not have a crisis and is not broke. In fact, today in a New York Times article there was a reported surplus of $138 million.

Clearly, the recently sworn Wisconsin governor is doing the bidding of the larger national conservative political agenda which is strategically attempting to disempower public employee unions and collective bargaining. That is not to say or ignore the real concern about the pension bubble which exists and will soon occupy center stage in America. However, Wisconsin should be seen for what it is - a test case which is likely to set a national tone and put a crack in the armor of almost a century of collective bargaining.

Calling out the National Guard is an abuse of office, an unnecessary reckless use of public money and a probable political headline grab strategy designed to create national attention rather than be seen as just another labor dispute. I suggest that all of America watch and see this for what it is and continue to track Gov Scott Walker. He is a puppet in a larger scheme or ploy. He has just taken office. He addressed none of his intentions during his campaign and fabricated a crisis while failing to meet union leaders and explore options. I have no reservation about concluding that his ethics are worse than mere dishonesty. Self promotion is once again the order of the day for conservative politics. The taint of this strategy falls onto the entire political cast of characters as it should and demonstrates America’s pressing need to explore election reform now.

Walker is unlikely to be re-elected and they know it. We will likely see him at the front of a national political effort post-office in state politics. My question at this moment is whether he is already a member of The Federalist Society and what relationship exists that would connect him with the Koch brothers and their politics?