John Quincy Adams and Henry Clay can rest quietly in their graves. Their "corrupt bargain" would not be considered a federal crime today. The same goes for Ike and Earl Warren. In United States v. Blagojevich, decided yesterday by the Seventh Circuit and discussed here by contributing editor Lucian Dervan, the panel vacated five counts of conviction based on partially faulty jury instructions. Under those instructions, the jury could have convicted the former Illinois Governor based on his attempt to obtain a Cabinet seat in the incoming Obama Administration in exchange for appointing Valerie Jarrett to President Obama's soon-to-be-empty Senate seat. This was just logrolling and Judge Easterbrook and his colleagues were having none of it. "It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal." The same was true of the Government's efforts to shoehorn the Cabinet seat/Jarrett offer into 18 U.S.C. 666–the notorious mark of the beast. Altogether a sound public policy decision, although the statutory analysis is not as clear cut.
Tag: Blagojevich
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Hat tip to Scott Greenfield of Simple Justice for his outstanding post on Judge James B. Zagel's unfortunate public criticisms of one of Rod Blagojevich's criminal defense attorneys, Lauren Kaeseberg. Kaeseberg had the temerity to file a post-judgment Emergency Motion For Evidentiary Hearing Regarding Potential Juror Misconduct, based on news reports that the Blagojevich jury foreperson was publicly displaying her juror questionnaire, arguably in violation of a prior court order. Zagel denied the motion from the bench, calling it "harebrained," according to the Chicago Sun-Times' Abdon Pallasch. The Lake County News-Sun, picked up the "harebrained" comment and placed it in the headline of its story about the ruling. Above the Law piled on with a frivolous post, and Kaeseberg has apparently been taking additional criticism on her web site. You can read the Emergency Motion above for yourself and draw your own conclusions. On its face, I see absolutely nothing wrong with it.
Judge Zagel also hit Kaeseberg, sworn in as an attorney in 2008, with the following zingers:
"The motion was prepared without any adequate thought." It looks thoughtful enough to me. Sometimes criminal defense attorneys, particularly in the post-sentencing, pre-notice of appeal context, have to move swiftly in order to obtain a fact-finding hearing, make a record, and/or preserve error.
"[The filing was] beyond my imagination." That's not exactly the legal standard.
"You should seek outside counsel…and send a letter of apology to the juror." Why? The Emergency Motion was temperate in its discussion of the foreperson, who "has made many public appearances since the verdict…touting her decision and role in the Blagojevich jury."
"By the absence of precedent, I assume you couldn't find precedent." As Greenfield correctly points out, lawyers don't always have on-all-fours (or, as they say in Chicago, "white horse") precedent at hand. The dedicated, imaginative lawyer works with principles and analogous cases and tries to make new precedent. It's called lawyering.
Pallach also reports Judge Zagel saying that he "could hold Kaeseberg in contempt of court but was cutting her slack because she was a fairly new lawyer." On its face, the motion does not seem to be improper at all, much less contemptuous. Perhaps there is some backstory here that we are not aware of. The press seldom reports everything. But this is a serious public allegation for a federal judge to throw at a young lawyer, particularly given the unexceptionable nature of the Emergency Motion.
Ms. Kaeseberg defended her motion in the press. She stands by it. She is proud of it. Good for her. She has guts. She should wear Judge Zagel's criticisms as a badge of honor.
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The press is reporting here, here, here, and here, that Former Illinois Governor Rod Blagojevich has been found guilty of 17 counts, not guilty on one count, and two counts with no verdict. This was the second trial, the first ending in a hung jury except for one count. The jury was out this time for 10 days. Blagojevich did not testify in the first trial, but did testify this time.
A second trial was an enormous benefit to the government. They had the opportunity to re-evaluate their case and to see that keeping it simple was the smarter choice. They also had the conviction on one count to allow them to start cross-examination against him with the "convicted felon question."
Why is it that so many Illinois Governors wind up as convicted felons? (e.g. Otto Kerner, Dan Walker, George Ryan, and Rod Blagojevich).
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Addendum – Doug Berman, Sentencing Law and Policy Blog here
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