Analysis: Blagojevich's conviction fits pattern of white-collar retrials
This article first appeared at the St. Louis Beacon, June 27, 2011 - The conviction of former Ill. Gov. Rod Blagojevich on 17 federal criminal counts on Monday is not surprising in light of the high percentage of convictions that federal prosecutors win in retrials of white-collar crimes after they have a chance to streamline complicated cases to appeal to juries.
A jury found Blagojevich guilty of 17 counts of wire fraud, attempted extortion, bribery, extortion conspiracy and bribery conspiracy. He was acquitted on one bribery charge, and the jury deadlocked on two counts of attempted extortion.
"Typically when you have a hung jury and the case gets retried it is better for the prosecution than the defense; and this proves it again," said Peter A. Joy, vice dean at Washington University Law School.
Joy doubted that Blagojevich hurt himself by taking the stand in the second trial after remaining silent in the first.
"Since he was found guilty this time, a lot of people will reason backward and conclude the defense made a mistake putting Blagojevich on the stand," Joy said. "I honestly think that the defense had to put him on the stand, the way the prosecution had decided to trim down their case. I thought it helped him rather than hurt him."
Catherine Hanaway, former U.S. attorney in St. Louis, said, "The prosecution did precisely what it needed to do here -- narrow its case, focus its efforts and stick with it. They were not distracted by nor did they get pulled into the media circus that was Blago."
Hanaway added, in a email: "Routing out public corruption is one of the most difficult and easily one of the most important jobs of any prosecutor. Too often the public is left with the impression that politicians are generally corrupt. In fact, the overwhelming majority, in both parties, are ethical public servants. However, when they go bad, they tend to go really bad in ways that jeopardize the fabric of our form of government. Our government only works if people believe their vote matters. The convicted felon, who was the governor of Illinois, sought to rip from end-to-end our system of government, literally stealing from millions of voters their right to have a senator appointed who represented their interests, not the highest bidder."
Mike Lawrence, retired director of the Paul Simon Public Policy Institute at Southern Illinois University Carbondale, said the conviction won't erase the damage that Blagojevich did as governor.
"Prosecutors showed they had drawn lessons from the first trial," he wrote in an email. "Their presentation was more focused, less complicated and better mapped for jury consumption. My sense is this jury was more analytical and disciplined. But it's important to note that Blagojevich would have been convicted on several counts by the first jury except for one or two holdouts. He's headed for years in prison, but the state will suffer from his corrupt, fiscally reckless, managerially chaotic reign for decades to come."
There had been some criticism that U.S. Attorney Patrick Fitzgerald had been too zealous in his pursuit of Blagojevich. But Joy disagreed. "Whenever a prosecutor brings a case and gets a hung jury, he has to ask himself if this is something worth going after. Given the nature of the charges and what Blagojech did, most prosecutors would say it was worth it.
"The prosecution took to heart what most people thought about the first trial and changed. I think the prosecutors can take this as a vindication of their approach. When the deliberations were going on for longer than expected, there was some criticism of the prosecution. But there must have been some core of the case the jurors were agreed upon. Given the number of counts they were unanimous on it is unlikely a situation where they were troubled."
One of Joy's colleagues at Washingon University Law School, Kathleen Brickey, conducted a study of eight high-profile, white-collar cases that resulted in mistrials over the past decade and found that convictions occurred in almost all of the retrials. She studied cases such as Enron, Tyco and Qwest.
"Prosecutors have enjoyed considerable success after mistrials," she concluded. Two of the eight defendants pled guilty to avoid the perils of a new trial. Three of the four retrials ended in conviction of all defendants. None of the eight defendants won an acquittal.
Brickey found that some of the cases had suffered from confusing complexity during the first trials. Prosecutors were more successful in second trials after simplifying their cases. Fitizgerald eliminated Blagojevich's brother from the case and trimmed the original 24-count indictment down to 20 counts.
Many of the 17 counts on which Blagovich was convicted carry sentences of up to 20 years. Blagojevich still faces up to five years in prison for the one conviction from his first trial for lying to the FBI. Joy said it was hard to predict how much time Blagojevich will serve in prison. It will partly depend on whether the judge imposes sentences that run concurrently or consecutively, he said.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.