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Blagojevich Retrial Begins Wednesday, Won't Be Repeat Of The First

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BLAGOJEVICH
AP

CHICAGO — The same defendant. The same judge. The same courthouse. Even the same carefully coiffed hair.

Rod Blagojevich's second corruption trial begins Wednesday, starring many of the same figures as the first. But this retrial won't be just a rerun.

Prosecutors have streamlined their case against the disgraced former Illinois governor, dropping some of the most complex charges to address complaints by the previous jury that the evidence was too hard to follow.

Blagojevich, now 54, returns with a scaled-down, more bookish defense team that no longer includes lead lawyer Sam Adam Jr., whose courtroom theatrics in round one often drew the judge's ire. And this time, Blagojevich will be the lone defendant after authorities dropped all charges against his brother.

Like a second-night Broadway performance, the actors presumably come in with many missteps and miscues corrected.

"Everyone improves," said Blagojevich attorney Aaron Goldstein.

Surprises are also possible.

For prosecutors, it could be seeking testimony from Chicago Mayor-elect Rahm Emanuel. For the defense, it could be putting their client on the stand. In the last trial, Blagojevich repeatedly promised to testify, then didn't.

Speaking at his Chicago home over the weekend, Blagojevich told The Associated Press that he both looked forward to the retrial and dreaded it.

"To have to sit through that and hear all that again ... it's brutal, brutal," he said with the family dog, Skittles, resting on his lap. Listening to former aides, confidants and once-close friends testify against him was particularly painful, he added. All of them are expected to take the stand again in the weeks ahead.

But Blagojevich, who says he ruled out accepting a plea bargain, said he was also eager for another chance to clear his name. He knows he has a lot to lose.

He could get up to five years in prison for lying to the FBI, the sole count on which he was convicted last year. He faces 20 more counts in the retrial, including bribery and fraud. And the stakes are as high as ever: A conviction on just one offense could mean a decade or more behind bars.

The first order of business Wednesday will be jury selection.

Last year, a single juror who refused to go along with the rest of the panel was the only thing that prevented Blagojevich from being convicted on the most serious charge – that he tried to sell or trade Barack Obama's old Senate seat.

"Would you want to be the defense knowing you have to change 11 minds to get an acquittal or prosecutors thinking you have to change just one?" said Michael Helfand, a Chicago attorney with experience in federal courts.

Most legal observers say the odds against Blagojevich are steep.

"Federal prosecutors win 90 percent of the time at trial, and odds of winning at retrial are sky-high," said Beth Foley, a Chicago-based jury consultant.

The defense readily concedes that point.

"David against Goliath was confident, wasn't he?" Goldstein said. "Our level of confidence is high. ... But we know what we are up against."

Prosecutors have their burdens, too. Last year's conviction, on the least serious charge, was a huge disappointment for them.

"There's pressure squarely on the government," said Phil Turner, a former federal prosecutor in Chicago.

To get a bigger conviction, prosecutors will have to connect the dots more effectively. The government's case so befuddled jurors at the first trial that they drew up their own timelines of alleged misdeeds and taped them to a wall as they deliberated.

Former juror Stephen Wlodek complained that prosecutors failed to fully explain the case. "It was like, `Here's a manual. Go fly the space shuttle.'"

In pretrial preparations, prosecutors have been working to simplify everything.

They've dropped racketeering charges, which have stupefying legal points and subpoints. They also dismissed all charges against Blagojevich's brother and co-defendant, Robert Blagojevich, allowing them to focus entirely on the former governor.

They even sought to edit out what they consider irrelevant chit-chat on hours of FBI wiretap recordings, evidence at the heart of the government case, including a reference in one conversation to Blagojevich's famously bountiful locks.

"They've been like a ship tossing excess baggage over board to get through a storm," said David Morrison of the Illinois Campaign for Political Reform.

Observers say the government attorneys would also do well to channel their inner Agatha Christie – offer a compelling narrative that ties together the evidence and allegations.

The three prosecutors – Reid Schar, Carrie Hamilton and Christopher Niewoehner – showed at the first trial that they are most at ease in lawyerly, just-the-facts mode.

"Maybe lawyers can manage a stack of disconnected facts," Foley said. "But most of us need a good story to help manage the facts."

The first trial took around 2 1/2 months, but the next one is expected to be shorter, since there's now just one defendant and somewhat less evidence.

The retrial offers at least some advantages to the defense.

Knowing what key witnesses testified at the first trial, for example, should give them a chance to hammer on those same witnesses if they stray even a word or two from their previous testimony.

"Then you ask in cross examination, `So, you said that then and this now. What's the truth? What you're saying now or then? Or is none of it the truth?'" Turner said.

But what the defense can ask has been a point of contention.

Blagojevich's attorneys balked when Judge James Zagel granted a prosecution request to bar the defense from asking witnesses certain questions at the retrial.

"It's like the government wants to throw a punch at us and we can't throw a punch back," Blagojevich attorney Sheldon Sorosky complained at a status hearing last week.

He cited a prosecution witness who testified that Blagojevich and his wife, Patti, spent more than $400,000 on custom suits, furs and other clothes in a six-year shopping spree.

Prosecutors never explained why they entered that evidence, Sorosky said, but they want to stop the defense from asking – as they did at last year – if it's illegal to buy fine clothes.

"They obviously felt it placed him in a bad light," Sorosky told reporters later. "So, we want to ask that question. But we're apparently precluded from doing it."

With the prosecution pursuing a condensed case, many experts say it would behoove the defense to call at least a few witnesses – in contrast to the first trial, when they chose not to put on a case.

"My default in federal cases is – you have to have an alternative narrative to the government's," Turner said. "I think the defense should put something on."

That something could be Blagojevich on the stand.

Turner said he would normally adhere to conventional wisdom that it's almost always a bad idea to expose a defendant to blistering cross-examination.

"But, as a politician, Blagojevich knows rhetorical bobbing and weaving, and he knows acting, so he can act cool or indignant when he needs to," he said. "He could be formidable."

Blagojevich himself told the AP he wants to testify, but that a decision would only be made during the trial. He added that he has been preparing for that possibility, including reading hundreds of pages of witness transcripts from the first trial.

In his free time, he said, he's also been doing a lot of reading, including Winston Churchill's "The Gathering Storm," about World War II.

He's also begun working on a new book of his own about political leaders, like Churchill and lesser-known figures, who have made "great comebacks ... who have been up high and have fallen, but have picked themselves back up."

"The final chapter on me," he said, "hasn't been written yet."