Am I Being Pollyannish?

Maybe.

I have been busy so the post earlier was a quick reaction to the doom and gloom of the news today.

I do have a lot more faith in the jury than just about everyone else at this point, but I also  understand I could be completely wrong.

Where I do think we all ought to be cautious is reading too much into notes written by a jury who are not familiar with legal proceedings or legal language.  I’m not picking on Eric at all given he’s been on the button about the trial on several issues, but he was trying to interpret what the note meant.  The problem is that the jury isn’t filled with people who use words for a living and aren’t likely to put as much thought into their use as we are into analyzing what they mean.

One thing to consider if they haven’t voted on the wire fraud, that’s a lot more significant than one might think.  Part of the RICO and conspiracy to commit racketeering is that the jury must agree on certain acts unanimously fitting the definitions (see here for some discussion on how complicated this might be).  But, and this is important, many of the acts that could be construed to qualify as the RICO predicates are in the wire fraud charges.  So if they haven’t deliberated on those charges, I would hope jurors are somewhat divided on the RICO and conspiracy charges.  If they aren’t some aren’t doing their job of being skeptical.  However, if they start working through each of those wire fraud charges and the pattern starts to emerge in their head, they might be going back to the big counts and changing their minds.

What strikes me is that if they haven’t deliberated on these issues, they might be thinking that they don’t have to because they never bought into the conspiracy charges so the elements aren’t important. However, I would argue that in the end they would find that to be backwards. You may first need to demonstrate the individual acts to have the pattern emerge.

That is why I think the judges instructions to simply go back and look at every charge is so important.  If they simply go through and do what he said, the picture is likely to change in their minds quite a bit.  I’m not of the mind that the prosecutors have done a bad job.  I tend to think this is a very strong case though perhaps structured to not be as friendly to the juror’s minds as it could have been–though the legal process puts limits on that for fairness.

If they come back quickly next week, I’m almost assuredly full of it and Blagojevich is likely to get almost nothing–maybe the lying to the FBI. If it takes a bit, relax and wait and see what happens. The jury may start to put the pieces together after going through each of the 11 wire fraud charges.

All that said, there is a middle possibility as well.  Because Rod Blagojevich is so scattered, the jury may simply not accept that he was a part of an enterprise, but they might find that he committed many of the acts that could lead to racketeering.  In other words, he might get off on RICO and conspiracy and get nailed on every wire fraud charge.

Personally I tend to think RICO is overused, but that Rod Blagojevich is a perfect example of where it does work other than organized crime.  That said, his ‘unique’ personality might have insulated him from the RICO charges.

Updated:  Slight change in wording regarding RICO predicates for accuracy.