06/14/2011 05:07 pm ET Updated Aug 14, 2011

Blagojevich Retrial: Reasonable Doubt

I'm still scratching my head over the retrial of former Illinois governor Rod Blagojevich now that it's over as we all await the jury's verdict on some 20 counts.

The prosecution got its do-over with the retrial of the disgraced Blagojevich. Not many times in life do you get a do-over. Surely this time around heavy hitters like Tony Rezko, Rahm Emanuel and Jesse Jackson, Jr. would be called as prosecution witnesses to testify against the former governor. If not in the case in chief, surely as surprise rebuttal witnesses. All these heavy hitters were oddly missing from the first trial.

But no. Convicted political fixer Rezko was not called to testify in the retrial by either side. Why not? Mayor Emanuel and Representative Jackson were both called as witnesses this second time around but not by the prosecution. They were called by Blagojevich's defense team to defend Blagojevich. And Blagojevich would have even called President Obama to testify on his behalf if Judge James Zagel had not nixed it.

Emanuel testified that he had no knowledge of any shakedown involving a school getting funds for an athletic field being tied to a possible fundraiser involving his Hollywood agent brother or about any plan to sell President Obama's senate seat to Valerie Jarrett in exchange for a charitable organization being set up for Blagojevich.

Likewise Rep. Jackson testified that he had no knowledge of any possible fundraiser to be held on his behalf or campaign donations to be made by Indian-American businessmen to buy Obama's senate seat for him.

By the way, the senate seat was never sold. But Blagojevich did appoint Obama's successor. He appointed Roland Burris, one of only a handful of African-Americans in American history to ever become US Senators. Unfortunately, Burris served amid much controversy over his appointment by Blagojevich. However, Blagojevich who was still governor was required by law to make a timely appointment so Illinois could be represented by two US senators.

The prosecution, in summing up last week, said "the ask" is enough to convict Blagojevich on most counts. Except that it's not illegal for a politician to ask for political contributions as Blago's defense team emphasized during its closing arguments. The "ask" is not enough. There has to be more. Action is needed. Talk is cheap.

The prosecution's star witness, Lon Monk, admitted under oath in the first trial that he himself is a liar. Monk was also the star witness for the prosecution in the retrial. Couldn't the government, with all its taxpayer-funded resources, have produced a more credible star witness to testify against Blagojevich than an admitted liar. Evidently not.

It's a fair question to ask: where was Rezko for the prosecution? Why didn't the prosecution make him testify against Blagojevich? He's already in custody. He's not going anywhere. Since, for some strange reason, he is still awaiting sentencing, the government has all kinds of leverage with him. Why no Rezko? Why were Emanuel and Jackson testifying for the defense? Why didn't the prosecution call them as witnesses for their side? Makes no sense. No sense at all.

The prosecution also made much of Blagojevich signing legislation. That he allegedly withheld his signature on bills the legislature had passed, until he got what he wanted from various folks. The fact of the matter is, whether a governor signs a bill or withholds his signature has nothing to do with whether it becomes law. The legislature passes bills and a governor can choose to sign them or not. If he doesn't sign a bill, it still becomes law after a certain number of days.

Another thing about this retrial that is irksome. Why was the public essentially shut out from observing it? Why did the mobsters on trial before Judge Zagel in the Family Secrets trial during the summer of 2007, get a courtroom several times larger to accommodate more members of the public who wanted to watch justice in action? The ex-governor of the state of Illinois is on trial and the mobsters get a bigger courtroom?

When only a few dozen seats are available to the public after the media is seated, and there is no televising permitted of the proceedings, is it really a public trial? A criminal defendant such as Blagojevich has the constitutional right to a public trial. And the public has the right to know. That's what separates our form of government from dictatorships, fascism and communism. They have secret trials. We have public trials.

A public trial is especially important here where the defense has presented a motion for a mistrial which was denied by Judge Zagel on Friday. The motion alleged that the judge was biased against their client and favored the prosecution. The judge gets to hear the motion alleging his bias, and then gets to rule on whether he is biased or not. That's the way the system works.

But who's to know if the judge has acted in a biased fashion when the public is being shut out? It is supposed to be a public trial but when the public for all practical purposes can't get into the courtroom or see it on television, is it really a public trial? It is not Judge Zagel's fault. He doesn't assign courtrooms or make the rules on whether the televising of federal courtrooms should or shouldn't be permitted. But it stinks all the same.

It will be instructive to see what the jury comes up with this time around. There's just something about a do-over when a guy's liberty is at stake. Obviously, it's legal. The government's doing it. But it feels like double jeopardy even though technically, it isn't, I guess. I wonder how many do-overs the government gets. Two, three, four? Since the government is working on the taxpayer's dime, maybe there are unlimited do-overs. Now that's a scary thought for the average Joe who's ever been unjustly accused of anything and doesn't have the resources of a Blagojevich to defend himself repeatedly.

But hey, it's motormouth's own fault, right? Should have paid attention to history. If you are the governor of Illinois, there's a good chance you'll end up in prison. Look at the track record of our recent governors. Pretty soon, no one's gonna want the job. Not to worry though. It can always be contracted out to China.