Marty Aussenberg (f/k/a “Gadfly”), previously a columnist for the alternative newsweekly, The Memphis Flyer, is a lawyer in Memphis, Tennessee. He was, at one time, an attorney in the enforcement division of the SEC in Washington, D.C., at a time when its good reputation was still intact.
Update [2010-8-20 0:51:7 by Marty Aussenberg]: I hate it when someone “borrows” my ideas. But, speaking of jurors, it turns out it wasn’t just a single holdout who caused the jury to hang, at least not on all 23 of the unresolved charges. There were, apparently,differences of opinion by more than just one juror about some of the other counts as well. And finally, if you haven’t seen Jon Stewart’s take on the Blago trial outcome, it’s worth a look. Suffice it to say, the spoof logo that accompanies the piece is “Law and Order: Time Wasters Unit.”
Now, back to the show:
Back when Rod Blagojevich’s troubles first surfaced (January, 2009), I wrote an article that appeared in The Memphis Flyer about the legend “Blago” had become.
Here’s what I wrote:
Continued below:
The governor of Illinois, Rod Blagojevich, is becoming a folk hero. Have you noticed? Among other things, he has succeeded in sticking his thumb in the collective eye of the politicians, not just in Illinois, but in D.C. as well. While those politicians run around in apoplectic circles, trying to figure out how to clip Blago’s wings, he outflanks and outmaneuvers them at every turn. Resign from office—up yours (and watch as the Illinois Supreme Court refuses to remove him). Refrain from appointing a replacement for Barrack Obama’s Senate seat—fahgitaboutit (and watch as the Senate’s Democrats are forced to seat Blago’s appointment). Impeachment—a mere technicality, a political hatchet job. After all, we know how bogus Bill Clinton’s impeachment was (not to mention that he survived it quite nicely, thank you).
Blago is, if nothing else, a lovable rogue, if only because he’s figured out he doesn’t have to buckle under the pressure of the “powers-that-be.” He has managed to survive the all-out collective onslaught of the State of Illinois, the United States Department of Justice and the United States Senate. Talk about grace under fire! With the full arsenal of state and federal government aimed at him, what does he do? Goes jogging, of course. Oh sure, everyone says that someone who’s charged with a crime is innocent until they’re proven guilty, but we all know that’s an exercise in lip service. Everyone knows Blago is guilty, if only because everyone has already decided he is. How can anyone with that much hair, or who reveres Elvis, not be guilty of something. Right to trial? Just a formality. And yet, many capable criminal law practitioners believe he may very well not be guilty of any crimes, based on what has come to light about his conduct so far.
Think about it. We idolize criminals, convicted or not. We may not admire them, but we sure do erect legends around them. How else to explain the Bonnie and Clyde phenomenon. Or D.B. Cooper, Jesse James, John Dillinger, Billy the Kid (or Captain Kidd, for that matter). How about the entire “Mafia” (a la “The Godfather,” and “The Sopranos”). We even name products after criminals (e.g., “Captain Morgan” rum, named for the famous pirate). Sometimes, we even secretly hope they outwit the “authorities,” if only because we know the “authorities” aren’t always right, and there, but for the grace of luck, go we. Remember, even Robin Hood was considered a criminal by the “authorities.” It’s no accident that “true crime” books are perennially best sellers (especially the kind that have pictures). We are fascinated by anyone who can commit crimes, and sometimes, for however long, even get away with them.
Don’t get me wrong. We pick and choose which criminals we idolize. No one idolized Jeffery Dahmer, and yet the film, loosely replicating his exploits, was a multiple Academy Award winner, and one of the most popular films of all time. Same for Don Corleone or Tony Soprano.
There’s no telling how much longer Blago will survive the withering pressure he’s under, both politically and criminally, but in the meantime we can all watch his exploits and marvel at his chutzpah.
Well, now that Blago has managed to doge another bullet (actually, more like an IED), even if only for as long as it takes his inquisitor, Patrick Fitzgerald, time to reload for the next round of this battle (i.e., retrial), the Blago legend continues. Fitzgerald failed to deliver what everyone hoped for in this high profile prosecution, just as he did in the infamous Plamegate matter. Oh sure, he managed to convince the jury the Elvis wannabe lied to the FBI, but that was a small consolation, just as the conviction of Scooter Libby (and only Scooter Libby) for perjury and obstruction of justice was a poor substitute for nailing the real culprits in that whole debacle.
Trust me: I was a federal investigator for several years, and took dozens of statements in my career, and if I had taken the testimony of Mother Teresa herself, and turned my microscope up high enough, I assure you I could have found something she said that would set her up for a charge of lying to a federal officer (18 U.S.C Sec. 1001–also known as the Martha Stewart mistake).
Much is being made of the post-trial interview of jurors, in which they’ve said that there was one holdout who prevented a unanimous verdict on the remainder of the 24 counts that were brought against our “hero.” Lest anyone assume this means the one holdout was obviously wrong because she resisted what must have been the withering, righteous, pressure of her fellow jurors to fall in line, I remind them of the epic film about jury deliberations, “12 Angry Men” (a must-see), the premise of which was how important to our system of justice the unanimity of a jury verdict is, and how one holdout in a jury of twelve can, sometimes, be the linchpin in that system of justice.
I make no claim to hero-worship when it comes to “Dondi” (does anyone else see the similarity to the cartoon character) Blagojevich, but it continues to trouble me that the bedrock principle of “innocent until proven guilty” is so cavalierly ignored in our society. In the case of Blago, there weren’t many who believed he should really be given his day in court; hang him first, then give him a fair trial seemed to be the prevailing attitude.
As if to prove that point, despite the fact that, for all intents and purposes, he beat the rap (even if only temporarily) on 23 of the 24 counts that were brought against him, the headlines on many of the stories that announced the verdict touted the one finding of guilt, rather than the 23 the jury, in essence, gave him a pass on. Our justice system is far from perfect. If you don’t believe that, ask any one of the nearly 250-some people who were ultimately exonerated of wrongful convictions, but, like Winston Churchill said about democracy, that system is better than the all the rest.
I don’t know whether Blago was guilty or innocent of any of the charges that were brought against him; only a jury can decide that, and unless you heard every word of testimony and saw every scrap of evidence that jury did, you cannot second guess their decision. And you certainly can’t base your opinion on what the media have told you about the trial, or the events leading up to it. I think it’s fair to say much of the media (and especially the ones in Chicago) were part of the lynch mob mentality that surrounded Blago, and continue to do so.
I do know this, though: if the justice department can’t do any better than prosecuting what they claim are the equivalent of “crimes of the century” (in this case, crimes that Fitzgerald said “would make Lincoln turn over in his grave”), only to be left with the weak broth of lying to federal investigators, they need to go back to the prosecutorial drawing board.
