Why Rod Blagojevich jury deadlock could be good news for defense

The jury deliberating the federal corruption trial of former Illinois Gov. Rod Blagojevich reached a verdict on two of the 24 counts, the judge presiding over the case said Thursday, but it is uncertain which of the counts the jury has reached a verdict on and what those verdicts are.

What is known is the jury has not yet even voted on the 11 counts of wire fraud. Of the additional 11 counts, the jury is deadlocked.

Thursday marks the 12th day of deliberations in this high-profile trial in which the charges against Mr. Blagojevich relate to his alleged efforts to sell President Obama’s former US Senate seat and other schemes to raise money for his campaign trust. While reading the jury’s actions is now a late summer sport for Chicago trial watchers, some legal experts say the drawn-out process plays well for the defense.

“If it was an open-and-shut case, it would have been shut by now. [The jury] may think there is a reasonable doubt and the longer they’re talking about these issues and the more doubt comes up, the better it is for the defense attorneys,” says Stuart Slotnick, a New York City attorney who specializes in white-collar defense.

Mistrial looming?

Mr. Slotnick says the defense now has the opportunity to ask for a mistrial, and that such a request is likely if the jury returns a second time with news they are at an impasse regarding the majority of counts.

Retrying Blagojevich, and his brother Robert, who is charged with four counts, plays in the defense's favor. The defense would have transcripts from the first trial at their disposal, and it could use them to contradict witness testimony from the prosecution.

“It’s very unusual that people tell an account of events the same way twice, and once you’ve had the benefit of looking over transcripts you can come up with so many new avenues for cross-examination," Slotnick says. "If [new testimony] differs at all from prior sworn testimony, [the defense] will use it as a noose and hang them with it.”

Because so much is unclear regarding the two verdicts the jury has successfully decided upon, it is too early to speculate about possible convictions. Considering the serious charges leveled against him, Rod Blagojevich can still receive a “significant sentence” if the verdicts are against him, Slotnick says.

Just because a jury may be hung on some counts, that doesn’t exonerate either brother, as it allows prosecutors to pursue retrying either or both in a renewed attempt to make the charges stick.

Judge gives guidance

Judge James Zagel said Thursday morning he planned to tell jurors that they needed to first deliberate on the remaining 11 wire fraud counts.

“We recognize that your stated inability to reach agreement on other counts may establish to your satisfaction that you will be similarly unable to reach unanimity on the wire fraud counts. Nonetheless a deliberate decision on those counts should be made even if it is a decision that you can’t reach agreement,” read the proposed note he shared with attorneys from both sides.

The complexity of the charges is likely the reason why the jury is stymied, says Shari Seidman Diamond, a law professor at Northwestern University School of Law in Chicago. Their measured deliberations illustrate they are taking their roles seriously, which is a reflection of the relationship they have with Judge Zagel.

“They probably trust him a great deal,” she says. “It’s a very sensitive interaction between the judge and the jury at this point.”

However, for a trial that took over 18 months to get to court and lasted seven weeks, one thing is clear: “The jury has control over how long they go,” she says.