Rod Blagojevich retrial: Can prosecutors succeed with a simpler case?

Retrying former Illinois Gov. Rod Blagojevich in federal court this fall may require prosecutors to condense 23 remaining charges against him to get a fuller conviction, say legal experts.

Mr. Blagojevich was convicted of lying to FBI agents Tuesday, a single count that both sides, particularly the defense, considered ancillary to more serious indictments. He was facing charges related to racketeering, conspiracy, and bribery related to the selling of President Obama’s former US Senate seat for cash.

The jury deadlocked on those charges and US District Court Judge James Zagel told prosecutors they had until Aug. 26 to say they wanted to retry the case. Federal prosecutors have indicated they will seek a retrial.’

For many, the deadlocked jury was no surprise.

Throughout the trial, experts said the complexity of the prosecution’s case could prevent the jury from reaching consensus on guilt.

For example, Blagojevich's recorded conversations with advisers were portrayed in court as being about raising money from interested parties. But prosecutors never showed any money changing hands. Experts suggest that disconnect led to confusion among jurors.

Prosecutors also attempted to implicate Blagojevich in a sweeping political conspiracy that was too complex, say many experts. In retrying the case, prosecutors will likely present jurors a simpler, more direct argument.

“They over tried the case. They had too many charges with too many themes,” says Andrew Stoltmann, a securities attorney in Chicago.

Mr. Stoltmann says he would not be surprised if the prosecution’s case was redesigned to be shorter and stripped of all charges not related to the sale of Mr. Obama's senate seat.

“You can’t give a bunch of laypeople a 110-page indictment and expect them to figure it out,” says Stoltmann. “They get overwhelmed and get confused, and when jurors are confused they tend not to convict.”

Others say an over-aggressive lead prosecutor may have hurt the government's case against Blagojevich. US Attorney Patrick Fitzgerald labeled Blagojevich’s actions “a crime spree” and said his actions "would make Lincoln roll over in his grave.”

Those statements, made at the time of Blagojevich’s arrest in early December 2008, helped the defense portray the case as a witch hunt and accused Mr. Fitzgerald as wasting taxpayer money, a message it continued to endorse this week.

In a news conference following Tuesday's verdict, Blagojevich defense lawyer Sam Adam Sr. called Fitzgerald “nuts” and described him as “a master of indicting people for non-criminal behavior.”

“Why are we spending $20 million to $30 million on a retrial when you couldn’t prove it the first time,” said Sam Adam Jr., also a member of the defense.

The defense is expected to have an advantage in any retrial. It will be able to use testimony transcripts from the first trial to poke holes in new testimony from prosecution witnesses who return to the stand.

But interviews with jurors suggest that they were only one vote away from convicting Blagojevich on the most serious charges.

Shari Seidman Diamond, a law professor at Northwestern University School of Law in Chicago, says that the prosecution will likely redraft their case according to “cues” it takes from the first jury. This includes finding a way to help the next jury connect the dots between the conversations heard on tape with the illegal actions.

“Jurors like timelines. It helps them organize things,” she says. “It would be useful to think about presenting a timeline that jurors can use rather than leaving them to create their own.”