Published September 14, 2010
CHICAGO – Former Illinois Gov. Rod Blagojevich has asked a judge to nullify the lone conviction in his mostly deadlocked corruption trial, saying the jury's decision was underpinned by errors at trial and misconduct by prosecutors.
Trial Judge James Zagel should override jurors' verdict and acquit Blagojevich of lying to the FBI or set it aside and try him again on that charge, defense attorneys said in a motion filed at the U.S. District Court in Chicago.
"The fact is that the government knew — and knows — that Blagojevich was not lying to the FBI," says the motion, filed late Monday. "The conviction in this case is not legally sound."
If Zagel refuses to toss the conviction — which many legal observers say is likely — then the multiple arguments in the filing could lay the groundwork for any appeal to a higher court.
At the end of a two-and-a-half month trial, jurors convicted the impeached governor on just one of 24 counts against him. Prosecutors told the judge they will try Blagojevich again on the deadlocked charges, a retrial that is expected to start in January.
Among the charges jurors couldn't agree on was that the twice-elected governor attempted to sell or trade an appointment to the U.S. Senate seat President Barack Obama was vacating in exchange for a lucrative job or campaign donation.
The charge of lying to the FBI was considered the least serious of them all, carrying a prison sentence of up to five years. Other charges, including racketeering, could result in a 20-year prison term. Blagojevich, 53, has denied any wrongdoing.
Also in the filing, Blagojevich's attorneys allude to his financial straits, saying a legal fund he drew on has run dry. One consequence, they claim, is that he can't even foot the bill to secure all official trial transcripts — rendering his lawyers' work more difficult.
But the primary focus of the filing is the sole conviction.
Prosecutors accused Blagojevich of lying in a March 2005 FBI interview during his initial term as governor — first when he asserted he kept a "firewall" between political campaigns and government work; and second when he insisted he did not "track" campaign contributions.
Jurors only agreed he lied about not tracking donations. But the motion argues they should have been told they had to agree on both before they could convict on the single count of lying. It also says the meaning of 'track,' in the context of the charge, was unclear.
It also questions why prosecutors waited years to charge Blagojevich with lying, saying they used the charge as a way to enter evidence that otherwise would have been disallowed.
The filing also includes more sweeping accusations, including that the government pursued Blagojevich unfairly and "sought to fit any round peg into any square hole it could find."
The motion claims more than 170 FBI agents fanned out when the then-governor was arrested on Dec. 9, 2008, knocking on doors and pressing witnesses for incriminating statements.
"The very manner in which prosecutors brought this case to trial before the court was dishonest, improper and constituted judge-shopping (trying to find a favorable court for prosecution)," the filing said. "It kick-started the prosecutors' win-at-any-cost tactics."
It also takes prosecutors to task for so frequently objecting as defense attorneys cross-examined witnesses — interrupting lawyer Sam Adam Jr. during his fiery, sometimes theatrical closing argument more than 30 times.
Zagel's "sanctioning of this obstructionist tactic prejudiced Blagojevich greatly," it says.
It's unlikely even Blagojevich's attorneys believe Zagel will grant the motion, said Michael Helfand, a Chicago attorney not linked to the case. Instead, they may want to cram as many arguments as they can into the court record so they can cite them during appeals.
"The chances of Judge Zagel approving this motion is zero percent," he said. "But if you throw out a thousand issues now, your chances are better of just one sticking in appeal than if you throw out just a few."
A spokesman for the U.S. Attorney's office in Chicago, Randall Samborn, declined to comment on the filing.
On the Net:
The latest Blagojevich filing: http://bit.ly/bsFBdq