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Why Rod Blagojevich jury deadlock could be good news for defense

After 12 days of deliberation, the Rod Blagojevich jury has reached a verdict on only 2 of 24 counts. 'If it was an open-and-shut case, it would have been shut by now,' says one legal expert.

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Charles Rex Arbogast/AP
Former Illinois Gov. Rod Blagojevich arrives at the Federal Court building in Chicago as the jury continues to deliberate in his federal corruption trial Thursday.

The jury deliberating the federal corruption trial of former Illinois Gov. Rod Blagojevich reached a verdict on two of the 24 counts, the judge presiding over the case said Thursday, but it is uncertain which of the counts the jury has reached a verdict on and what those verdicts are.

What is known is the jury has not yet even voted on the 11 counts of wire fraud. Of the additional 11 counts, the jury is deadlocked.

Thursday marks the 12th day of deliberations in this high-profile trial in which the charges against Mr. Blagojevich relate to his alleged efforts to sell President Obama鈥檚 former US Senate seat and other schemes to raise money for his campaign trust. While reading the jury鈥檚 actions is now a late summer sport for Chicago trial watchers, some legal experts say the drawn-out process plays well for the defense.

鈥淚f it was an open-and-shut case, it would have been shut by now. [The jury] may think there is a reasonable doubt and the longer they鈥檙e talking about these issues and the more doubt comes up, the better it is for the defense attorneys,鈥 says Stuart Slotnick, a New York City attorney who specializes in white-collar defense.

Mistrial looming?

Mr. Slotnick says the defense now has the opportunity to ask for a mistrial, and that such a request is likely if the jury returns a second time with news they are at an impasse regarding the majority of counts.

Retrying Blagojevich, and his brother Robert, who is charged with four counts, plays in the defense's favor. The defense would have transcripts from the first trial at their disposal, and it could use them to contradict witness testimony from the prosecution.

鈥淚t鈥檚 very unusual that people tell an account of events the same way twice, and once you鈥檝e had the benefit of looking over transcripts you can come up with so many new avenues for cross-examination," Slotnick says. "If [new testimony] differs at all from prior sworn testimony, [the defense] will use it as a noose and hang them with it.鈥

Because so much is unclear regarding the two verdicts the jury has successfully decided upon, it is too early to speculate about possible convictions. Considering the serious charges leveled against him, Rod Blagojevich can still receive a 鈥渟ignificant sentence鈥 if the verdicts are against him, Slotnick says.

Just because a jury may be hung on some counts, that doesn鈥檛 exonerate either brother, as it allows prosecutors to pursue retrying either or both in a renewed attempt to make the charges stick.

Judge gives guidance

Judge James Zagel said Thursday morning he planned to tell jurors that they needed to first deliberate on the remaining 11 wire fraud counts.

鈥淲e recognize that your stated inability to reach agreement on other counts may establish to your satisfaction that you will be similarly unable to reach unanimity on the wire fraud counts. Nonetheless a deliberate decision on those counts should be made even if it is a decision that you can鈥檛 reach agreement,鈥 read the proposed note he shared with attorneys from both sides.

The complexity of the charges is likely the reason why the jury is stymied, says Shari Seidman Diamond, a law professor at Northwestern University School of Law in Chicago. Their measured deliberations illustrate they are taking their roles seriously, which is a reflection of the relationship they have with Judge Zagel.

鈥淭hey probably trust him a great deal,鈥 she says. 鈥淚t鈥檚 a very sensitive interaction between the judge and the jury at this point.鈥

However, for a trial that took over 18 months to get to court and lasted seven weeks, one thing is clear: 鈥淭he jury has control over how long they go,鈥 she says.

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