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Blagojevich Trial: More Waiting, More Questions

Blagojevich

MICHAEL TARM   08/13/10 07:46 PM ET   AP

CHICAGO — While many who heard Rod Blagojevich's wiretapped phone conversations may have expected a tidy result in the former Illinois governor's corruption trial, the notes sent by jurors this week suggest a far murkier outcome.

In a message to Judge James B. Zagel, the jury said they have managed to agree on only two counts after nearly two weeks of deliberations. They said they could not reach agreement on 11 counts and had not even begun to deliberate on 11 other counts of wire fraud.

"These notes have opened up all kinds of possibilities as far as outcomes," said Phil Turner, a former federal prosecutor not connected to the case.

As jurors try again in a 13th day of deliberations Monday, a number of scenarios could play out.

Most likely is the possibility of Zagel accepting only partial verdicts and declaring the jury hung on other counts. That, ultimately, could trigger a retrial on any undecided counts.

But a lot depends on just what jurors are hung up on in a case full of interlocking and overlapping counts, all of which are described in legalese that may well confound them.

Here are some possibilities about what may be happening and what could occur next:

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They Keep Deliberating

Zagel instructed the jurors on Thursday to deliberate on the wire fraud charges. Whether that leads to drawn-out talks or another quick note from the jury was a focus of speculation.

While most observers think the jury notes indicate some level of disarray, not everyone does.

Thursday's note did not say directly that they were deadlocked, noted Richard Kling, a professor at Chicago-Kent College of Law. He says that may indicate they aren't deeply divided.

"I don't think it's as nearly as messy and tenuous as everybody seems to be saying," he said.

Others, like Turner, expect a partial verdict – with jurors ending their deliberations and, if Zagel approves, announcing verdicts only on some charges.

Or, if jurors continue to say they can't agree, Zagel could keep sending them back to try again.

"He could say, 'Look, folks, when you were selected, you agreed to try to come to unanimous decisions," Kling said. "And in my experience, very often jurors do come back with a conclusion."

They Are Confounded by Count One

There is no way to know which two counts jurors have decided and which 11 have stymied them.

Many defense attorneys believe one of the most difficult allegations is racketeering, which appears first on a 10-page verdict form that jurors are likely using to help guide their deliberations.

Count One is the linchpin: However jurors decide it could dictate how they decide on nearly all counts that follow. That's because as part of that jurors must decide whether Blagojevich committed more than 20 separate illegal actions, from attempting to sell President Barack Obama's vacated Senate seat to trying to squeeze executives for campaign cash.

That makes the count highly important – and extremely complex.

"They must be completely baffled," Turner said. "No lay person can understand this indictment – even lawyers have a hard time with it. And that's largely because of Count One."

If jurors agree Blagojevich committed the illegal actions, it could have been easy for them to deal with the wire fraud charges, in which he allegedly spoke about the crimes on the phone. So the fact that they hadn't moved on to wire fraud suggests they were bogged down on Count One.

They May Consider Easier Charges First

The jury may have skipped the more complex charges and addressed more straightforward ones first.

One of those is Count 24, in which Blagojevich is accused of having lied to FBI agents. Blagojevich allegedly lied when he said he never knew details about fundraising on his behalf and that he kept a "firewall" between official business and his campaign.

Since it's a charge clearly not connected to the racketeering charge, it may be one jurors were able to agree on.

Or, did the jury first address the case of Rod Blagojevich's co-defendant brother, Robert Blagojevich?

The Nashville, Tenn., businessman was heard infrequently on wiretap recordings played in court. Unlike his brother, he took the witness stand – coming across as more serious and more grounded than his younger sibling.

That may have led jurors to skip to his charges first. But it's also possible the racketeering charge reared its head there, too.

Even though he isn't charged with racketeering, the counts against Robert Blagojevich – wire fraud, conspiracy to commit extortion, attempted extortion and conspiracy to commit bribery – are all directly linked to jurors deciding whether the former governor tried to parlay the Senate seat appointment into personal gain – one of the illegal acts under the racketeering charge.

If jurors couldn't agree on those acts when deliberating on the racketeering charge against the ex-governor, they may not have had grounds to assess the charges against Robert Blagojevich.

There May Be A Hung Jury

If they can reach verdicts on only a few counts, that would mean a hung jury on the others – effectively a partial mistrial.

Prosecutors could try Blagojevich again on those counts. But there are pitfalls.

"They might just spend taxpayer money on another trial – and then just get the same outcome," said Turner. "If this jury can't seem to reach a verdict – it should send a message to prosecution: This case is not very strong."

U.S. Attorney Patrick Fitzgerald and his team may have a strong incentive to take Blagojevich back to court – especially if he's found guilty on just one or two lesser charges.

"If it's just one or two counts, prosecutors won't say it's a defeat but it would be," Turner said. "The jury will be saying, 'Mr. Fitzgerald, you were wrong.'"

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Filed by Jen Sabella  |