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Blagojevich retrial looms; will it be different?

Wednesday, August 18, 2010 | 7:02 p.m. CDT

CHICAGO — "Blago on Trial, The Sequel" promises to be just as circus-like and expensive as the first trial of the former Illinois governor. And some taxpayers would prefer not to see it at all.

But the next round also could look different if prosecutors adjust their strategy after listening to the jurors who deadlocked on all but one charge against Rod Blagojevich. And despite their defiance after the verdict, Blagojevich's defense attorneys could offer a few surprises of their own — if they are still on the job.

Could prosecutors decide to call witnesses such as White House Chief of Staff Rahm Emanuel? Could the defense finally put Blagojevich on the stand?

Asked the latter question, Blagojevich attorney Sheldon Sorosky said, "The answer to that is, absolutely yes. It doesn't mean he will. But he could."

Prosecutors plan to retry Blagojevich on charges that include allegations he tried to sell President Barack Obama's old senate seat. U.S. Attorney Patrick Fitzgerald said the prosecution is nearly ready to start jury selection, and the presiding judge set a hearing on the matter for Aug. 26.

Blagojevich attorney Sam Adam Jr. blasted Fitzgerald for insisting on a second trial, questioning the expense of millions of dollars. His father, also named Sam Adam, called Fitzgerald "nuts."

"I wish this entire group would go upstairs and ask Fitzgerald one question: I understand he's got an important job, but why are we spending 25 to 30 million dollars on a retrial? You couldn't prove it the first time," Sam Adam Jr. said. Some observers have said that figure is too high.

But it's unknown whether either of the two flamboyant lawyers will still represent Blagojevich in a second trial.

According to Sorosky, all of Blagojevich's attorneys who went through the just-ended trail want to stay with him. But money, as well as various legal requirements, may determine whether that happens.

To pay his legal bills over recent months, the judge permitted Blagojevich to dip into a campaign fund dating back to his time as governor. But Sorosky said that well has run dry.

So Blagojevich's attorneys may have to be paid as public defenders using tax dollars — at a rate of around $100 an hour, Sorosky said. That may lead the judge to try to cut Blagojevich's legal team from more than half a dozen attorneys to just two or three.

A lot depends on how prosecutors alter their approach. Many adjustments are likely to be small, addressing what many jurors complained was a complex, hard-to-follow case.

"They have to listen to what jurors are saying," said Jeff Cramer, a former federal prosecutor. "If they're saying it's not clear ... prosecutors may need to lay out a clearer road map."

They may also want to simplify the overlapping, interlocking counts, Cramer said. Other prosecutorial changes may be more far-reaching, like calling witnesses who, like Emanuel, were not summoned for the first trial.

Another witness who was not called in the first trial is convicted political fixer Tony Rezko, who prosecutors say was a key cog in Blagojevich's schemes.

Rezko, a former fundraiser for both Blagojevich and Obama, could be an explosive witness — but one with little credibility who could blow up in prosecutors' faces.

The same is true about another notable witness prosecutors did not call, Stuart Levine, a one-time Blagojevich fundraiser convicted in the same kickback scheme as Rezko.

"They are a nightmare. They have too much baggage," said Jeff Cramer, a former federal prosecutor. He did not think prosecutors would call them in a second trial.

In the first trial, the defense did not put on any case at all, choosing instead to rest immediately after prosecutors concluded seven weeks of testimony.

After Sam Adam Jr. promised jurors Blagojevich would testify, they ultimately decided not to put him on the stand, arguing that there was no case to answer to.

Sorosky said they may well do things differently at a retrial — depending on how prosecutors alter their attack.

"We respond to the offense," he said. "So you may have a different defense in a different situation."

Another consideration he said, is that all of Blagojevich's current lawyers have pushed aside dozens of other cases to represent the former governor.

"We have other clients and other judges screaming at us, saying, 'Hey, what about our case?" Sorosky said. Some clients have had to wait in jail.

If the current defense team stays together, Sorosky said they could be ready for another trial in months. New defense attorneys might need a more than a year for them to be ready.

Cramer said he does not accept that cost should factor into whether there's a Blago Trial Two or not. And he said any suggestion that a second trial would cost more than $20 million is "absurd."

"Prosecutors get X amount a year whether they are on this case or not," he said. "The judge gets paid whatever he gets paid. The lights are still on, no mater what."

A key for prosecutors will be to seat a jury more friendly to their case — or at least one where there's no one likely to dig in their heels, as one jurors apparently did this week.

That may ultimately be a crap shoot, though, with attorneys on both sides having only a few opportunities to keep potential jurors off the panel.

And at least one jury consultant, Bill Healy, said Blagojevich is already trying to influence any future jury, especially with his comments after the verdict that the federal government was persecuting him.

"I guarantee he was already strategizing about what to say to future jurors within minutes of the verdict," Healy said. "He's shown to be a master at getting his case out there through the press."

Cramer, for one, says he has little doubt prosecutors will prevail.

He notes that there is a more than 90 percent conviction rate in federal cases — in part because the federal government is always prone to try someone again if a jury's hung.

"I am hard-pressed to think of a hung jury I know of that didn't, ultimately, end in more convictions after another trial," he said.

And if a Blagojevich jury is hung after a second trial?

Said Cramer: "There's a good chance they'd do it again — a third time."

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