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Carol Felsenthal
On politics

Expert Defense Lawyer: Blagojevich Has Grounds for Another Retrial

As jury deliberations continue in the Blagojevich retrial, one of the city’s prominent criminal defense attorneys provides insights on the case. He says that Judge Zagel has acted uncharacteristically “screwy” and unfair, leaving open the possibility of a retrial, and that Blagojevich did remarkably well on the stand…

As jury deliberations continue in the Blagojevich retrial, I called one of the city’s prominent criminal defense attorneys to get his take on Blago’s fate. As he has in the past (here and here), he provided some insights on the case, saying that Judge Zagel has acted uncharacteristically “screwy” and unfair, leaving open the possibility of a retrial. My source also said that Blagojevich did remarkably well on the stand—and that the young prosecutor who cross-examined him was simply too inexperienced to “emasculate” the impeached gov.

Here, our conversation, edited and cut (it was a long talk). The source is identified as CDL as in “Criminal Defense Lawyer.” He has asked to remain anonymous as he is a practicing attorney with a full caseload of matters in which he might interact with people mentioned in this interview. 

CF: What does it mean that the jury is out so long? [Today is its 9th day of deliberation.]
CDL:
It could mean that one person is fighting to get a guilty, or that one person is fighting to get a not guilty.

CF: Is it true that the longer the jury is out the better for the defense?
CDL:
After a few days there’s no rule. I’ve had cases where I thought I was brilliant, and the jury’s out two weeks, and [I lose]. There are no rules. I know there’s not a lot of animus going on so they must be fairly agreed.

CF: How do you know there’s not a lot of animus?
CDL:
People telling other people who talk to the different court personnel are saying that that [the deliberations] seem to be very measured. I’ve heard they’re not close to a verdict. On Tuesday, they announced they’re not going to work Friday, which makes it seem like they’re not even close. [The jury has Fridays off but agreed they’d work on Fridays if they were close to reaching a verdict; Blago defense lawyer Aaron Goldstein told me today that he has not heard that announcement from the jury.]

CF: I hear from my media colleagues that sympathy seems to be turning in Blago’s direction.
CDL:
I don’t think there’s sympathy; I don’t think anyone likes him. I think it’s not as much sympathy turning toward Blago; they’re turning on [U.S. Attorney Patrick] Fitzgerald. For years, the feds have been infallible—even if they lose, everybody agrees that it was a proper prosecution. But people don’t seem to be seeing that now. They see the first Blago [trial] hung; [prosecutors] oversold the case, and the case was never what they said it was.

CF: Does Blago get some credit for this?
CDL:
Yes. Blago is so much faster than people give him credit for. He took what with a good cross-examiner would have been an indefensible position and beat the crap out of the government. I don’t mean he sounded like he was the most believable guy in the world, but he broke even. No one expected him to do that. Everyone expected him to be emasculated—and a good prosecutor would have emasculated him.

CF: So lead prosecutor Reid Schar wasn’t up to the job?
CDL:
He’s a wonderful young man; he’s a brilliant guy, but the fact of the matter is he’s just not a first-rate trial lawyer. That doesn’t mean he hasn’t won and will continue to win. 

CF: You argue that Fitzgerald oversold the case when he gave that news conference on the morning Blago was arrested in December 2008. Why did Fitzgerald do that? [Fitzgerald said Blago’s “corruption crime spree” must be stopped, and that those crimes  “would make Lincoln turn over in his grave."] 
CDL:
I really don’t believe Fitzgerald knew the case. He was talking to FBI agents who sold him on a case that didn’t exist. And he was transfixed by the [profane] language that was used. That excited him. Forgetting what Blago’s intent was—you got a guy who wanted to get money, a guy who solicited money, a guy who offered people things, maybe in exchange for the money or maybe not—he wound up getting no money and doing everything that he was saying he was charging for, for free. In the first trial the lawyers were showing off and playing for the papers, and they ignored the defendant. Blago is fast, he’s crazy, in some things he’s dumb as a brick, but he knows how to stick to message. I think that the prosecutors are smart and good lawyers. They’re just not stars. Blago was better than they were. U.S. attorneys are, for the most part, extraordinarily bright men. But being bright and being a good trial lawyer is not necessarily the same thing.

CF: Conventional wisdom is that women will be more sympathetic to Blago, and the holdout juror in the first trial [which resulted in only one conviction on 24 counts] was a woman. This new jury contains 11 women and one man. Is that a failure of the prosecutors?
CDL:
Yeah, you’d think that they would want more men. The holdout juror essentially said that the men were adamant, strong in their [pro-prosecution] views, where the women were a little more caring. I think 11 women was a bright spot [for the defense], and that was the lawyers’ doing and the prosecution’s failure. I think women are good for the defense in this case.

CF: Even if the prosecution loses, Blago is headed to prison, right? He was convicted in the first trial of lying to the FBI.
CDL:
Yes.

CF:  But he can appeal that conviction?
CDL:
Yes, but he’ll be in jail while he appeals. He’ll do at least a year, I would think, even if he wins the appeal.           

CF: What about an appeal stemming from the second trial—would that have legs?           
CDL:
I think an appeal of this case would have legs, yes. Judge Zagel acted screwy. There’s not even a pretense of being fair. If the right judge gets this appeal, I think the conviction could be reversed. It’s hard to understand, too, because Zagel’s really one of the brightest judges on the bench. [Sustaining all those objections] is a problem. In this trial, you’ve either got a judge who is overreaching his authority or is not being fair, or, if you want to say that the defense was asking the wrong questions, you’ve got incompetent lawyers. Either way, Blagojevich deserves a new trial. 

CF: How did Blago’s main defense lawyers [Goldstein and Sheldon Sorosky] do?
CDL:
They did as well as they could. These are guys that are completely inexperienced. I don’t think that either one of those two have ever tried a case for 10 days in their whole life. [Sorosky told me yesterday that he has tried “many, many cases in federal court, and some lasted longer than 10 days.”]  They never had a chance to be good or bad because they got the shit kicked out of them. 

CF: If this ends up in a hung jury, will the government try this case a third time?
CDL:
I just don’t think the public would allow him to try it a third time. I think they were justified going twice because it was an 11-to-one guilty [verdict], but a third time, no.

NOTE: As noted above, I contacted both Sorosky and Goldstein; both responded that they could not discuss the trial. Goldstein said, “I can’t talk about the case, but I can’t tell you why.” The Sun-Times reports that there is a gag order on the lawyers in the case.

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