Attorneys for the disgraced former governor of Illinois, Rod Blagojevich, are appealing his conviction and prison sentence on corruption charges, arguing the judge barred evidence that put his actions in context.
The appeal, filed close to midnight Monday with the 7th US Circuit Court of Appeals in Chicago, argues that Mr. Blagojevich’s conviction should be overturned because US District Judge James Zagel, who presided over the case, would not allow the full airing of FBI wiretap conversations they say would provide context to the prosecution’s assertion that the governor tried to sell President Obama’s former US Senate seat.
“The record shows that Blagojevich’s proposed exchange was an arm’s length political deal … between himself and Barack Obama which Blagojevich believed was not only lawful, but also in the public interest,” the appeal reads. “Blagojevich made no effort to conceal his plan but discussed it openly with his advisers and with an emissary sent by Obama to urge the selection of [White House advisor Valerie] Jarrett for the Senate.”
Blagojevich received a 14-year sentence and a $20,000 fine in December 2011 following the second of two federal trials in which he was found guilty of 14 counts of wire fraud, six counts of conspiracy and attempted extortion, one count of attempted bribery, and one count of making false statements. To date, he has served almost two years of his term while living in federal prison in Englewood, Colo. He was arrested in December 2008.
Throughout the trial, Blagojevich and his team argued that he was merely engaged in conversations related to horse-trading among interested parties for the Senate seat, and that he did not personally profit from those conversations.
The appeal also argues that Judge Zagel made decisions that were biased against Blagojevich, such as allowing only a small number of the 33 recordings the defense wanted aired for the jury, while at the same time allowing prosecuting attorneys to air their requested total of 70 recordings.
“While critical evidence for the defense was excluded, the court allowed the government to introduce almost any evidence no matter how irrelevant to paint the defendant in a negative light,” Blagojevich's lawyers wrote.
Zagel also refused a defense request to strike a juror from consideration, after he made the statement, “I just figured possibly him to be guilty,” according to transcripts.
“When questioned by the court, the juror was unsure and uncertain as to whether he could ‘leave aside’ his beliefs. … Juror 174 had formed an opinion as to the ultimate issue to be tried – the defendant’s guilt. He should have been struck for cause,” the appeal reads.
Legal experts say that it is unlikely that the appeals court will overturn Zagel’s ruling as the judge was perceived as operating fairly throughout the two trials.
“In these high-profile cases where judges know every decision they make will be put under the appellate microscope, they bend over backwards to cross every ‘t’ and dot every ‘i’ there is,” says Chicago attorney Andrew Stoltmann, who was not involved in the Blagojevich trial. “Judge Zagel has a good reputation. There weren’t any decisions he made that made any of us scratch our head to say, ‘where did that come from?’ ”
Where Blagojevich’s attorneys might find some traction is in reducing the 14-year sentence, which some have argued is extensive in public corruption cases, especially where the defendant did not personally profit from the scheming. Others convicted in the Blagojevich case, for example, received far shorter sentences, such as John Harris, his former chief of staff, who received a 10-day term.
Former Illinois Gov. George Ryan was recently released after serving just a 6-1/2 year term on racketeering and fraud convictions.
“That 14-year term is one of the longest ever for an Illinois politicians. It is comparable to what bank robbers and second degree murders get,” says Stoltmann.
Federal prosecutors have until Aug. 14 to file a response brief with the court. It is uncertain how long the appeals process might take for a ruling, although it is likely the court will not act until next year.