Thursday, August 19, 2010

How To Retry Rod Blagojevich

Prosecutors are going to have to rethink how they retry Rod Blagojevich after the jury couldn't agree on all but one of the charges against him. How juries respond to cases is an important aspect of figuring out what to do next.

What should they do differently?

I think that prosecutors should narrow down the number of charges and focus on fewer but more serious claims. Some think that prosecutors shouldn't do that since they were so close to convicting him because of 11-1 verdicts (you need unanimous to convict).
"I think the government will take its time and re-think the presentation of its evidence. I'm not as sure as other commentators that they have to do it a whole lot differently than they did," said former federal prosecutor James E. Barz, now a trial lawyer with the Mayer Brown law firm. "They convicted him on one count, and they had jurors willing to convict him on every other count ... particularly on the Senate counts if they were 11 to 1," Barz said. "There's still an awful lot of evidence. I don't know that you have to do it a lot differently."

While some jurors said prosecutors presented a confusing case that lacked a timeline, others cautioned against a major streamlining of the allegations.

"Take a charge out here and there, to me, would have been counterproductive in that you lose the -- what's the word I'm looking for? -- the totality of everything together," juror Ralph Schindler told the Chicago Sun-Times.

"The lack of a smoking gun, for lack of a better phrase, probably made it more difficult. But the evidence we had, it led me to where I should have gone," said Schindler, who said he thought Blagojevich was guilty of trying to sell the Senate seat.

Prosecutors made a deliberate effort to keep Rezko and Levine off the witness stand. After his conviction, Rezko wrote a letter to a federal judge accusing Blagojevich investigators of encouraging him to lie, while Levine's drug use became a distraction during his testimony in the Rezko trial.

"I have two words of advice: Rezko and Levine. They should be all over the case. They should be all over the proof," said Leonard Cavise, a law professor at the DePaul University College of Law. "If you're looking for the quid pro quo, follow the money; those two guys know where the bodies are buried."
Prosecutors have a tough call to make with Rezko and Levine, precisely because those could be major distractions and take the spotlight off Blagojevich and put it on to Rezko. Then again, the fact that Blagojevich was surrounded by shady characters who are all out there trying to save their own hides shows that there is no honor among thieves.

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