Blagojevich Mistrial: What’s Next?

rod blagojevich

After 14 days of deliberations the jurors were unable to reach a verdict on all but one count in Governor Blagojevich’s trial.

So the question on everyone’s mind who is following this case is what is likely to happen next. Before I attempt to answer that questions I want to recap a little history.

Blagojevich is the son of working class Serbian immigrants. He grew up in Chicago and eventually graduated with a history degree from Northwestern University. He went to law school at Pepperdine. He started his legal career as a prosecutor and eventually became a State representative as a democrat. His father-in-law had been active in local Chicago politics.

Four years later he gave up his seat and successfully ran for Congress. After six years as unremarkable career in Congress he ran for Governor, winning the office. His influential father-in-law continued to offer the support of his many connections.

He won reelection in 2006. However, his administration, like his predecessor’s administration, was the subject of numerous allegations of corruption. (Illinois generally, and Chicago in particular, have a long history of political corruption.) His approval ranking fell to 36%, an extraordinary low number for a politician in high office.

President Obama’s election created a Illinois Senate seat vacancy. As governor, Blagojevich had the right to appoint someone to fill the seat. In a wiretapped telephone conversation pursuant to an ongoing corruption investigation he famously said, “I have this fucking thing (the senatorial appointment), and it’s golden, and I’m not giving it away for fucking nothing.”

Apparently, Governor Blagojevich often engaged in, or discussed this kind of political horse trading. Among many other allegations he is accused of having solicited political contributions in exchange for legislative support for a pediatric hospital and state financing for a school.

Chicago’s US Attorney Patrick Fitzgerald believed Governor’s Blagojevich’s behavior rose to the level of criminality and indicted him on numerous corruption charges. Many people in the media and in the public, disgusted by Blagojevich’s profanity and attempts to trade political favors for political contributions or personal advancement, assumed this was an open shut case.

Juries, however, after spending weeks listening to and sifting through evidence, often do not reflect the opinions of the public at large. Most everyone is familiar with the epigram attributed to Bismark, “those who love legislation or sausage should never watch their making,” and all but the most naive realize that in politics support for legislation, for example, might result later in an endorsement or a fund raiser. It seems, however, that society expects these things not be made explicit. In the case of the senatorial appointment, Blagojevich might well have taken his cues from the White House regarding the appointment, and then made it discretely known that he was very interested in consideration for a particular cabinet post. Perhaps the White House would have given him that consideration, or much more likely, at some later date, seized an opportunity to favor the Illinois governor. Blagojevich, being “rough around the edges” seemed particularly inept in engaging in this subtle aspect of politics and seemed to see his power as governor as an asset to be wielded without any pretense of pursuing the common good. As distasteful as his conduct was, the jury had to decide whether it rose to the level of criminality.

Although the final verdict reportedly was 11-1 in favor of guilty on all but the allegation of lying to the government in the course of the investigation, Patrick Fitzgerald would be making a mistake to see mistrial simply as an aberration caused by one juror who “went off the reservation.” Interviews of the jurors reveal that on many of the counts the initial voting was more evenly split and only after extensive deliberating did all but the one juror reach a consensus of guilty.

On the other hand, Blagojevich has to come to terms that he was convicted on one count, and unless he wins his appeal, a statistically unlikely event, the judge will probably sentence him to a short prison sentence.

If the case were not the subject of such intense media scrutiny, it would likely be settled in the near future. A common compromise in such situations would be for the defendant to accept his short prison sentence, give up his right to appeal in exchange for the government giving up its right to retry him on all the charges on which the jury was unable to reach a verdict.

In this case, however, Patrick Fitzgerald knows that the majority of the public thinks that Blagojevich is guilty simply because of the “fucking golden” quote and will think the the inability of the jury to reach a verdict on most of the charges was the result of a single “run away” juror. Blagojevich continues to posture and display bravado, virtually daring the prosecution to retry the case. It will be very difficult for Blagojevich to “eat crow” and accept his punishment. Many politicians charged with corruption would prefer to “go down fighting” than to ever admit guilt and disappoint all of the people who supported them with time and money over their careers.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.