Shortly after jurors failed to reach a verdict on all but one of the 24 counts against former Illinois Gov. Rod Blagojevich, U.S. Attorney Patrick Fitzgerald said that the government would seek to retry the case. Andrew Leipold, an expert on criminal law and the federal judicial process, discusses what went wrong with the prosecution's case against the ousted governor and what to look for in a retrial. He was interviewed by News Bureau reporter Phil Ciciora.
It's rare that prosecutors emerge without a complete victory, and the case against the ex-governor seemed like a slam-dunk. What went wrong, and how embarrassing is this for the U.S. attorney's office?
I don't know that the result is embarrassing to the prosecutors, but it is surely frustrating. I'm sure they thought they had presented a complete and compelling case of guilt, and the fact that the jury was unable to agree on a verdict must be discouraging. Now they need to find out what they can from the first jury, and plan ways to avoid the problem the next time around.
How often are high-profile cases retried?
In a case like this, where the jury was deadlocked on nearly every count and where the preliminary indications are that the jury was split 11-1 on a few of the big counts, the government will almost always retry the case. What we have learned so far is that the jury felt that it did not have enough guidance in how to evaluate the prosecution's evidence, but this is a problem that the government can address in a new trial. If the jury had come back and simply said the government's case was not credible, that would call for a different kind of reassessment by the prosecutors.
Some of the jurors felt the prosecution's case was confusing, and lacked a "smoking gun." What can the prosecution do, if anything, at the re-trial to strengthen its case against Blagojevich?
The prosecution may drop a couple of the counts to present the jury with a more streamlined set of allegations. It also may spend more time helping the jury see how the evidence fits together as a whole, rather than as discrete parts.
Of course, the government undoubtedly thought that it was doing this already, plus there will be an entirely new jury panel, so it's not obvious to me that the government will make major changes to its presentation.
What can we look forward to at the retrial? Is it likely we'll see Antoin "Tony" Rezko, who was convicted on corruption charges in 2008, take the stand?
What the government will do in the new trial will depend in part on the feedback they get on the last trial. You'll recall that there were witnesses at the first trial who agreed to testify after pleading guilty, and if the jurors found them significantly less credible because of the deals they made, offering more witnesses like that might not be effective. On the other hand, if witnesses like Rezko can help the jury see the government's case in a more coherent light, we might see him testify despite the baggage he would bring.