Lessons from Blago's Case: Former Governor Rod Blagojevich Convicted on 17 Counts

[Photo from Wikipedia]

Today, various news reports indicate that former Illinois Governor Rod Blagojevich was found guilty on 17 felony counts in federal court.  The charges include conspiracy, soliciting a bribe, and wire fraud.  The charges relate, among other things, to Blago's attempt to sell the U.S. Senate seat of former Senator Obama, after the latter became president.  Blago was also reportedly found not guilty on one count by the federal jury, which also could not agree on two other remaining counts.  Sentencing will be held at a later date. 

Here's my take on the verdict, as a former federal prosecutor and, currently, as an Augusta, Georgia criminal defense attorney.  First of all, it appears that the federal prosecutors made a wise move by streamlining the case.  For instance, since the last trial, last year, which ended in a hung jury on most counts, the prosecution dismissed a number of counts, (including a complex RICO count), and made the criminal case much easier for the jury to digest.  No doubt the government also learned from their experience in the last trial about who made good, credible witnesses and who did not. 

Finally, it is interesting to note that, in the last trial, Blago elected not to testify and he clearly did much better than in this trial, in which he testified.  Some criminal lawyers believe a jury will often hold it against a defendant who elects not to testify.  However, perhaps this trial illustrates that each case is different and that, sometimes, it may be best for a defendant to elect to stay off the stand. 

What do you think about a defendant's decision not to testify?  Would you hold it against him or her for not testifying, even though the judge will instruct you not to do so?

Of course, perhaps another lesson to be learned from Blago's case is that, if you are a politician, you shouldn't try to solicit a bribe in exchange for a political favor!

What do you think about the result in the Blago case?  Is the problem of political corruption better or worse today than in the past?

Blagojevich, Retrials, and Yesterday's Oatmeal

As a former federal prosecutor, I hated hung juries and having to retry a case!  I have always said that having to retry a criminal case is almost as bad as having to eat yesterday's oatmeal.  While the oatmeal might not have been too tasty the day before, it is downright awful tasting today!

But it seems that the federal prosecutors preparing for the retrial of former Illinois Governor Rod Blagojevich are at least trying to make his re-trial a little less onerous this time around.  According to various news reports, the government has dropped a number of charges, including the complex RICO charge, in order to streamline their case and to make it more palatable to a jury.

In other news, this week, the federal judge presiding over this case has also decided not to reveal the names of jurors who will be selected in the trial, slated to begin April 20th, until after the trial is over.  So, it appears that all the parties in that case are trying to learn from the last trial, which ended in a hung jury on most counts of the indictment.

Perhaps if the judge really wanted to shake things up and streamline the upcoming trial, he would announce that all the jurors and parties will be required to eat yesterday's oatmeal unitil the trial is over!  That would speed things up, wouldn't it!? 

Blago's Bloviating Blunder

By now, everybody has probably heard* that former Illinois Governor Rod Blagojevich nearly beat the federal criminal case against him earlier this week. In other words, there was a hung jury on all but one count against him--a charge of making false statements to a federal agent. But here are some valid reasons why, in my opinion, Blago is making a big mistake in making the rounds and boasting on the t.v. talk and news shows, while protesting his innocence and daring the government to re-try him on the "hung jury" counts.

First of all, Blago probably should be careful about sticking his finger into the eyes of the federal prosecutors in his case! Not only will they "make his day" by re-trying him, but also they will likely "make his day" by seeking the maximum sentence if he is convicted on the additional counts.

Second, did you know that, in federal court, the judge may consider, as "relevant conduct," even the conduct in acquitted counts in imposing sentence!? The bottom line is that, even though Blago was convicted only on one count, under the federal sentencing guidelines, the judge may zap him as though he was convicted on all counts!

Finally, as a criminal defense lawyer, (and former federal prosecutor), I would be afraid for such a client like Blago--afraid that the sentencing judge may see him boasting on t.v. and want to "make his day" by sentencing him to the maximum, too!

So, somebody out there, (hopefully, his own criminal defense lawyers), should, in my opinion, tell Blago to stop his boastful bloviating!

[*No, the use of the black and white picture of Blago above does not mean that he just got voted off the t.v. series Big Brother, too! It's just the easiest picture I could find! Besides, Blago could probably win Big Brother, don't you agree!?]

The Supreme Court and "Honest Services" Mail Fraud

At some point during the next year, the United States Supreme Court is expected, for the first time, to grapple with the issue of what constitutes "honest services" mail fraud. In May, 2009, the Supreme Court granted certiorari in the appeal by a business man of his conviction under the statute. (Black v. United States). His defense attorneys claim the statute is too vague.

In 1988, Congress enacted this statute, (18 U.S.C. 1346), which essentially makes it a federal crime for either a politician or a business executive to use the mails in furtherance of a scheme to "deprive another of their intangible right to [the politician's, or business executive's] honest services.

The "honest services" mail fraud statute is a popular prosecutorial tool used by federal prosecutors everywhere! As a former federal prosecutor, I often utilized this statute to charge corruption cases, too!

Frankly, it is easier to see what this "honest services" statute means when it is applied in the public sector, i.e. to politicians. For example, it is clear to see that a politican has deprived the public of their right to his "honest services" when he uses his public office for private gain and secretly lines his pockets with money. Whether or not he is guilty or innocent, that is the type of case which former Illinois Governor Rod Blagojevich faces.

But applying the "honest services" statute to the private (business) sector presents some tougher questions about what the mail fraud statute really means. The issue in the pending appeal before the Supreme Court involves trickier questions about whether the statute, (and the meaning of "honest services"), is too vague, including issues about how far does the statute go in criminalizing business deals, and does it criminalize mere ethical violations. It also raises questions about to whom does a business executive owe a duty of "honest services," and is that duty based upon state or federal law? In other words, the Supreme Court must decide, in this new case, whether or not the "honest services" mail fraud statute is too vague, because it fails to give adequate notice to the average person as to what constitutes a crime.

Just as you never know what a jury will do, you also can never fully guess what the Supreme Court may do! But it will be interesting to see what happens! And I suspect former Governor Blagojevich and his defense attorneys will be watching, too!