Blago Is Right: His Trial Is Completely Unfair

By Tommy De SenoAttorney/Writer

"Whatever disagreement there may be as to the scope of the phrase 'due process of law' there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard."

-- U.S. Supreme Court Justice Oliver Wendell Holmes, Frank v Mangum, 237 U.S. 309, 347 (1915)

I don't know if Illinois Governor Rod Blagojevich did something wrong, and neither do you.

[caption id="attachment_4534" align="aligncenter" width="300" caption="llinois Gov. Rod Blagojevich addresses reporters,10 days after he was arrested on federal corruption charges (AP)"][/caption]

After the current Illinois Senate trial to remove him from office is over, we still won't know. The proceeding is not just unfair, it's third world unfair.

We are a nation of laws, and that's not a burden. Why do we set up procedural safeguards in criminal trials? One reason: To make sure the proceeding can find the truth.

Pundits are pointing out that this isn't a criminal trial, so the Illinois Senate is free to set up rules that are less stringent than those in a criminal trial. -- That's like saying you don't need a batting helmet during practice because it isn't yet the big game. Sorry but the 90 mph fastball will still kill you if it hits your temple.

The right to call witnesses is not a burden we "have to put up with" in a criminal trial. It's there because we can't find truth without it.

The right to subpoena witnesses is not a burden we "have to put up with" in a criminal trial. It's there because can't find truth without it.

The right to access to all evidence is not a burden we "have to put up with" in a criminal trial. It's there because we can't find truth without it.

The right to cross-examine witnesses is not a burden we "have to put up with" in a criminal trial. It's there because we can't find truth without it.

You can't cross-examine an affidavit.

Why should we ever write rules of a hearing less stringent then these simple because we can? Do we not want to find truth?

Yet Governor Blagojevich is being denied all of those things in this Senate "trial." The result will be about as trustworthy as when Saddam Hussein used to hold trials of his political enemies outside the legislative chamber with a pistol.

America is supposed to be better than this.

I don't care if it isn't a criminal trial. It's still a trial, and it's worthless if it isn't fair.

I don't think this trial is even legal under Illinois law, and if I were the Governor, I'd appeal the procedure to the courts.

The Illinois Constitution has its very own Due Process Clause, which states in Article 1, Section II:

No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.

The Illinois Constitution does not limit that protection to just criminal trials.

Also, the wrong person seems to be in charge of this whole impeachment scheme. Under Illinois Constitution Article 4, Section 14, it states:

The House of Representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment...

If the legislature was to have sole power, they relinquished it to criminal prosecutor, U.S. Attorney Patrick Fitzgerald. They let him cherry pick the evidence and the witnesses that were allowed at the impeachment hearing in the House.

In a criminal context, the Governor is being denied what is called "Brady evidence" -- evidence that could tend to prove he isn't guilty. Since this is not yet the criminal trial, Fitzgerald doesn't have to show that it exists. That's why it's so unfair to even hold this hearing right now.

To make matters worse, the Senate has declared that the Impeachment Findings will be introduced into this trial, and the governor is not allowed to challenge it. That basically means they finished the trial before it began. I've never seen such a disregard in this country for a fair process.

Article 13 Section 1 of the Illinois Constitution says this about eligibility to hold office:

A person convicted of a felony, bribery, perjury or other infamous crime shall be ineligible to hold an office created by this Constitution.

Governor Blagojevich has not been convicted of anything. All we have is one man, Patrick Fitzgerald, who says he is holding evidence he won't show us that will one day convict him. Due Process does not mean removing a governor from office because Patrick Fitzgerald says so.

I scoff at people who say Blagojevich's media appearances are trying to sway the jury in a possible criminal case. No one is guiltier of that than Fitzgerald. It certainly would sway jurors if the governor were given a fair trial in the Senate hearing and actually won.

Fitzgerald is manipulating the Senate trial because he knows it will help sway jurors on his favor if the governor is removed. He's not stupid. He just has better media right now.

Tommy De Seno is an attorney in New Jersey and contributor to Ricochet.com.