By Jerry Markon
Washington Post Staff Writer
Thursday, August 19, 2010; A05
As prosecutors began preparing Wednesday for the retrial of Rod Blagojevich on corruption charges, they wrestled with whether to retool a complex case that left some jurors confused and others unconvinced that the former Illinois governor had broken the law.
One day after a federal jury convicted Blagojevich of lying to the FBI but deadlocked on 23 other counts, legal experts said the government faced a high-stakes choice: plunge ahead with essentially the same case or make adjustments going forward.
Evidence supporting both approaches emerged on Wednesday. Jurors in the politically sensitive trial said they nearly convicted Blagojevich on the most sensational charge: that he schemed to sell President Obama's former Senate seat. But the 11 to 1 deadlock for conviction on that count masked flaws in the government's case, jurors said. They described the prosecutors as meandering at times and said the government's team had failed to convince several jurors beyond a reasonable doubt that Blagojevich had committed a crime.
"There has to be a sentiment among the prosecutors saying, 'Look, it was 11-1, it was one anomalous juror, we have strong evidence, we're not going to revamp this thing and start from scratch," said Patrick Collins, a former public corruption supervisor in the U.S. attorney's office in Chicago, which brought the 24-count indictment.
"The other tension is that there are enough people out there who aren't kooks saying the case was too complicated, and that Blagojevich was all talk and no action," Collins said. "Which of these competing arguments will win out, I don't know."
The 12-member jury convicted Blagojevich of lying to federal agents when he said he did not track campaign contributions and kept a "firewall" between political campaigns and government work. Jurors deadlocked on counts that included racketeering, extortion and fraud, failing to decide whether Blagojevich plotted to sell the Senate seat and tried to shake down a racetrack operator and others for campaign cash in return for state business.
The jury also deadlocked on four felony counts against Blagojevich's brother, Robert, who will also be retried. The case nearly entangled several members of Obama's inner circle, whom Rod Blagojevich's legal team had threatened to call as witnesses.
Prosecutors declined to comment Wednesday, as did Blagojevich, who had proclaimed vindication Tuesday.
But several jurors fanned out for media interviews, saying the government needed to streamline an overly complicated case. "The majority of us felt it was confusing," juror Eric Sarnello said. "It was all over the place."
The single holdout on the count involving Obama's Senate seat was a retired woman. She "thought he was all talk, that's just how politicians talk, especially in Chicago," Sarnello said. On other counts, several jurors "just could not take the leap from the evidence, it wasn't clear-cut to them," he added.
Prosecutors and Blagojevich's legal team are surely scouring jurors' comments to the media, lawyers said, because neither side can speak to jurors without the judge's permission. Defense lawyers, who called no witnesses, are unlikely to change their approach, said Kelly Kramer, a Washington lawyer who has defended numerous public officials in corruption inquiries.
"They got a hung jury on this notion that he was just a big talker, at least one juror," Kramer said. "They're going to make those points again. Sure, he said it, but he didn't do it.Did any money go into his pocket?"
Prosecutors have several potential advantages for the retrial. Viewing the first trial as a dry run, they can adapt to the jurors' concerns, trimming evidence or witnesses. And they will likely ask the judge to admit Blagojevich's felony conviction as evidence of his character for the new jury, experts said.
"I'm sure they will pare down their theory of the case and make it more focused," said Steve Bunnell, a former Justice Department public corruption prosecutor.
The changes, he said, can extend to striking jurors from the panel based on what the previous jury said. "If they can identify someone who says 'politicans just talk, you can't believe anything they say," maybe that's not a good juror for the government," Bunnell said.
But Andrew Lourie, former chief of the Justice Department's public integrity section, said prosecutors will be reassured by Blagojevich's conviction and the near-guilty verdict involving the Senate seat. "They'll be fairly comfortable that at 11-1, they had a pretty good gameplan," he said.