Wednesday, August 18, 2010

Blagojevich Verdict:: Where Does the Prosecution Go from Here?

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Ending weeks of speculation in the family, yesterday's verdict unveiled the fact that my uncle, James Matsumoto, was on the Blagojevich jury and was also the jury foreman. I've followed the case, but not that closely, but I wasn't surprised when I heard the jury was possibly deadlocked last week and that there was only one guilty verdict out of 24. I didn't have access to all of the evidence, but my take was that a jury might have a hard time taking Rod Blagojevich's outlandish conduct seriously. Rod Blagojevich seemed like he was out of touch with reality with his schemes. My thoughts were that the government's case hinged upon providing specifics about a deal about to go down. If I were on that jury, I think I'd be one of the jurors wanting a "smoking gun" or some compelling evidence that a real deal was about to happen, so I'm curious about the specifics of what evidence the prosecution presented, i.e.,  was the Santiago proffer sufficiently damning?

Rod Blagojevich went a bit over the top with his taunting of the prosecution, but in a way he's being true to type. While U.S. Attorney Patrick Fitzgerald has already vowed to retry the case, it would make sense to streamline the charges and make a more clear and concise presentation of the evidence. CBS' post-mortem on the case cites overconfidence on the part of the prosecution with their shock and awe strategy and how they might have a tough road ahead. Jan Crawford of CBS offered::
"When they played those tapes, they assumed the jury would just be shocked and really what the tapes show is that Blagojevich was a profane loud-mouthed guy. That's not exactly a shock to jurors in Chicago politics. And the defense did a really good job of getting back to the simple concept: Follow the money. And there wasn't a dime the prosecution showed went into Blagojevich's pocket, it was all talk. So is he a bad governor or a criminal? The prosecution didn't show how the tapes translated into criminal conduct."
How I see it,  the prosecution {in the retrial} needs to demonstrate the criminality of the "speech act", i.e., the performative of Rod Blagojevich's words with respect to using his position for personal gain. The challenge will be convincing a jury that his illocutionary acts {pay for play} are illegal and resulted in further illegality with perlocutionary acts {getting parties in close proximity to making a quid pro quo deal} as consequences. The defense will try to poke holes in this connection and any illegality by continuing to focus on the money {or lack of it changing hands}. How about a plea deal to spare the expense of a trial? Doubtful. I think the prosecution wants a conviction and will feel the need to save face. I think that even if offered a deal, Blagojevich would take his chances.

image :: Juror #135, ABC7-Chicago
Song:: Treepeople-"Bigmouth Strikes Again" {rockin' cover}

Twitterversion:: [blog] Blogojevich verdict 1 for 24 w/a complex prosecution, retrial imminent. Can Rod's "speech acts" be deemed illegal? @Prof_K


Kenneth M. Kambara said...

Here's an AP article that has a good summary of the verdict:: Jurors were close to convicting Rod Blagojevich

Ex-federal prosecutor Joel Levin thinks that the fact that the jury was close to a guilty verdict bodes well for the prosecution and that the case was lost in jury selection. I think that may hold true if the prosecution can streamline its case and clearly connect the dots. The votes on the most damning charge of selling Obama's US Senate seat was 11-1, but weren't so close on some of the other charges.

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