Rod Blagojevich Needed a Henry Fonda on His Jury: Ann Woolner

Rod Blagojevich crows as if a federal jury in Chicago had set him free. He seems to think that not being found guilty is the same thing as being found not guilty. It isn’t.

He says the mostly indecisive end to his corruption trial proves the charges were bogus, the prosecution a persecution that wasted millions of dollars and months of time that could have been spent fighting real crimes.

He brushes aside the one verdict the jury reached: guilty of lying to the Federal Bureau of Investigation. No big deal. “Nebulous,” he called it.

To him, it doesn’t matter that an obviously conscientious jury that divided on 23 counts found unanimity on this one.

Was the result a defeat for prosecutors? A resounding one. They failed to prove what they first trumpeted as a slam-dunk case against a corrupt governor of a populous state.

That doesn’t mean the verdict vindicated Blagojevich. The jury had 24 chances to find him not guilty and didn’t. Not once.

On 23 counts, jurors found him neither guilty nor not guilty, but something in between. And some of the most significant counts brought 11-1 votes for conviction, jurors have reported.

In the eyes of the law, that makes Blagojevich not guilty of those 23 counts. But in the eyes of most of the 12 people who heard the evidence, he isn’t innocent, either.

Blagojevich’s Luck

“He was lucky,” former Blagojevich juror John Grover told the Los Angeles Times. “The amount of evidence the prosecution presented to us -- there was so much of it. I don’t see how anybody could come to any other conclusion” than guilt.

Likewise, juror Stephen Wlodek told the same newspaper that prosecutors proved the case as far as he was concerned. It’s just that “they didn’t prove it to one person,” referring to a holdout juror.

If this had been a state case in Louisiana or Oregon, Blagojevich would stand convicted on multiple counts. Oregon juries can convict even if two jurors disagree. In Louisiana, a 9-3 vote does it.

Allowing less-than-unanimous verdicts is a bad idea in my book, but the U.S. Supreme Court OK’d it in 1972.

Blagojevich juror interviews show that the vote spread was narrower than 11-1 on some counts, including those related to his alleged attempts to sell a U.S. Senate seat.

Needing Fonda

What the ex-governor needed on his jury was Henry Fonda, or at least a juror who could play Fonda’s role in the classic 1957 film “Twelve Angry Men.” If Blagojevich’s holdout had Fonda’s powers of persuasion, she might have turned 11-1 votes to convict into unanimous votes to acquit.

Holdout jurors have a special place in American law. They can be seen as principled heroes, or as nut cases, or even as people who believe the accused is guilty but refuse to convict on the grounds that the prosecution is somehow unjust, the defendant likable, or the victim not so much.

In Blagojevich’s case, the holdout so far hasn’t spoken to reporters. But comments from ex-jurors indicate that this woman saw the evidence differently and wasn’t convinced of guilt beyond a reasonable doubt. Not a nut or a nullifier, she was true to her conscience.

Still, it doesn’t bode well for Blagojevich’s future. When Dennis Kozlowski, ex-chief executive of Tyco International Ltd., came to trial in New York state court in 2004, a lone juror stood between him and conviction. At retrial, with the former holdout in the audience, the new jury found Kozlowski guilty, along with Tyco’s former chief financial officer.

Hold the Exuberance

In fact, whatever exuberance Blagojevich feels now should fade as he considers the history of retrials.

Federal prosecutors don’t give up easily. It took three tries to persuade a jury to declare Walter Forbes, former chairman of Cendant Corp., guilty of accounting fraud. In 2007, he was sentenced to 12 years in prison.

Likewise, the third time was a charm for the government in the case of Hal Turner, an Internet radio host and blogger accused of threatening to kill three federal appellate judges. After two juries hung, a third convicted him last week in federal court in Brooklyn, New York.

And then there are the twists and turns of Frank Quattrone, famed, or notorious, investment banker prosecuted on a charge he obstructed justice.

A federal jury in Manhattan couldn’t reach agreement the first time he went to trial. A second jury found him guilty, but an appeals court reversed the conviction. Finally, the prosecution and defense reached a settlement, which eventually wiped the slate clean.

Virtue of Simplicity

Chicago U.S. Attorney Patrick J. Fitzgerald is right to go another round with Blagojevich. If Fitzgerald listens to jurors, who report confusion over the case, he will streamline the charges and the evidence and offer a timeline of events. He will try to persuade the judge to simplify jury instructions, which ran to 100 pages.

The vote was too close on too many counts for the government to give up on a case about corruption in high office.

And no matter what Blagojevich is saying these days, he isn’t not guilty.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net

To contact the editor responsible for this column: James Greiff at jgreiff@bloomberg.net

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