Selecting second Blago jury offers challenge

August 20, 2010 9:05:49 AM PDT
Rod Blagojevich's defense and the prosecutors face a daunting task as both sides prepare for the former governor's retrial.

Blagojevich was found guilty of lying to the FBI on Tuesday, which was one of only 24 counts against him. The jury could not reach agreement on the other 23 counts.

Blagojevich is about to embark upon another national media tour on Friday.

His message is perhaps designed to once again get just one juror to accept the defense's view that Blagojevich was not criminally corrupt, and it may have been on display the moment the first trial ended with a mostly hung jury.

"I'm looking at every single camera; I'm talking to the people of Illinois; I'm talking and they are going to say I am talking to the next jury - yes, I am talking to the next jury!" said Blagojevich attorney Sam Adam, Jr. at the end of the first trial.

Jury consultant Beth Foley says that the important thing now is how future jurors are vetted before they are put to work. Foley says both sides will need to ask open-ended questions.

"The trick is really understanding what biases what attitudes what expectations jurors have and whether or not you can live with that," said Foley. "The government definitely wants to get a better read on what expectations do jurors have about what the government needs to prove."

The foreman of the first jury, James Matsumoto, said respect is important for jurors.

"Respect the other jurors and respect their opinions, and not try to coerce or put anyone under duress, and arrive at a just verdict," said Matsumoto.

With all the publicity surrounding the first trial and the subsequent outcome, how will a new impartial panel be picked?

Historically, retrials have a high rate of conviction. Prosecutors tend to present clearer arguments the second time around, and in a complicated, high-profile trial such as this one, it does not hurt the prosecution that jury number two will likely walk in with some knowledge of the case.

The first Blagojevich jury deadlocked on all but one count, but that doesn't mean it was a flawed panel.

"It was not an imperfect jury in my opinion at all," said jury consultant William Healy of DecisionQuest. "It was a diverse group of individuals who took their time, deliberated without rancor, and thought through everything, and they couldn't come to an agreement."

Healy, who has worked on multiple federal criminal trials, says the second Blagojevich jury might look similar to the first.

Panel one had something for both sides. It was largely suburban, which tends to skew more conservative, and the jury members came from diverse backgrounds.

"What the defense wants is a lack of agreement, so you want people who have a different vantage point," said Healy. "What the prosecution wants is a group of individuals who believe in law and order."

The lone holdout has been described as a female retiree from the suburbs, but prosecutors may not shy away from similar demographics.

"I would have figured from the profile that that's a government juror all the way," said DePaul College of Law Professor Leonard L. Cavise. "But there you go, we're not sociologists. We're just plain wrong."

As was the case the first time around, finding twelve people who know little about the charges will be tough, but not impossible.

"There are actually people out there who are going about their lives who really are not following this," said Healy. "You want to find some of those people, and you want to find people who say, 'I can be fair.'"

"Judge Zagel the first time around didn't really give them a lot of opening to express their feelings about the case, and he needs to do that the second time around," said Cavise. "He needs to probe deeply."

Jury selection is really jury de-selection. Lawyers do not get to choose whom to keep. They only get to eliminate potential jury members they cannot tolerate. Most observers seem to think the first jury looked great on paper, but they still could not agree.

Estimates about the total cost of the first trial range from several million to $30 million, but we know for sure jury costs were $67,463.32. Those figures are from the U.S. District Court Clerk's office and include costs for food, travel and a daily stipend of $40 a day for the first month, then $50 after that.

Prosecutors don't calculate costs of individual cases.

Some in first jury reportedly had sympathy for Robert Blagojevich

A juror told the Chicago Sun-Times that many of the jury members believe that Robert Blagojevich was not guilty and had sympathy for him, saying that he should not be retried.

It was the other way around with Rod Blagojevich. More jurors felt he was guilty. Foreman James Matsumoto said he felt the former governor was guilty on all counts, but the panel he led reached a unanimous guilty verdict on just one of the 24 counts. While the number of jurors who voted to acquit on the other counts varied, there was one consistent holdout.

"A clear-cut sign, you know, she wanted to see the videos of the person shooting the other person," said youngest juror Erick Sarnello.

Some jurors say they had trouble sorting through the government's case. Some said the timeline was hard to follow, potential witnesses were never called and the list of laws Rod Blagojevich allegedly broke were confusing.

"They should streamline and see what would be the least confusing. For the racketeering, I know they wanted that, but that's very confusing," said Matsumoto.

It is still unclear who will defend Rod Blagojevich in a retrial. Sam Adam Sr. and Jr. have indicated they won't be back. The Blagojevich campaign fund is now empty, meaning that taxpayer dollars will likely pay for the defense. The judge can pick a lawyer or lawyers from the federal public defender program to take the case, or he could require the Adams to stay on.

Sheldon Sorosky, one of Rod Blagojevich's attorneys, spoke Thursday about what comes next for the former governor, as well as the big question of who is going to represent him in a retrial.

"I know in their heart of hearts, the Adam's family love and support the governor and strongly believe that he is innocent," said Sorosky. "The question is: it is in the governor's interest for them to stay on the case, is it in the governor's interest for all of us to stay on the case, and that has to be decided."

Sorosky spoke on WLS-AM radio Thursday with Don Wade and Roma.

Sorosky says all of Blagojevich's lawyers are willing to continue to defend him, but he says that is up to the former governor and judge James Zagel to decide.

If it came down to it, Sorosky said that Blagojevich is a capable trial lawyer and he would do a good job defending himself.

Blagojevich guilty on Count 24; Jury hung on 23 others

The guilty verdict was on Count 24: Providing false statements. That count refers to a March 16, 2005 meeting with the FBI in which Rod Blagojevich told authorities he did not know who contributes or how much they contribute to his campaign fund.

Blagojevich, who could face up to 5 years in prison on the guilty count, proclaimed his innocence as he left the courthouse Tuesday.

"I've been lied about, and you've been lied to," said Blagojevich, sounding more like an acquitted man than a convicted felon. His attorneys also glossed over the conviction on Count 24.

"We didn't even put a defense on, and the government didn't prove its case," said Blagojevich, referring to the fact he did not take the stand and the defense did not call any other witnesses. Blagojevich also thanked his legal team and the jury for "their hard work" and "giving up their summer."

"If you want to blame anybody, blame me," said Sam Adam Jr., Blagojevich's defense attorney.

Saying a retrial was pending, Fitzgerald said, "What I think is important is that we show gratitude to the jurors."

Judge James Zagel set a date of August 26 for a retrial hearing.

"We can be here tomorrow, Your Honor," said lead prosecutor Reid Schar.

Jurors were also hung on the charges against Robert Blagojevich, the former governor's brother, who faced four counts.

"We'll be ready for the next one," said Michael Ettinger, attorney for Robert Blagojevich, about the retrial.

"I have lived through the most surreal experience anyone can live through. I feel like this has been a slow bleed from the beginning both financially and emotionally," said Robert Blagojevich. He said he felt bad for his brother and plans to spend time with his wife and son.

The one-count verdict indicated the jury did some backtracking since last week, when jurors said they had reached an agreement on two counts in the case.


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