Aug 26, 2015

Book Review—The Prosecutor as Goliath v. American Citizens

Fundraiser A: My Fight for Freedom and Justice
(Northern Illinois University Press, 2015)
by Robert Blagojevich
Five years ago this morning at 11:01 the government dropped all charges against Robert Blagojevich, and he celebrates this as his personal Independence Day every year.

"Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just."
—Robert Jackson's "The Federal Prosecutor" (1940)

Justice Jackson's words, celebrated though they are by some jurists and academicians, are a sick irony today.

A United States Attorney is a good gig, and will land you a cushy job as a partner in a private firm, or a federal judgeship for life.

Other considerations such as the rule of law, justice, prosecutorial discretion and the Brady Rule are for suckers.

Robert Blagojevich's Fundraiser A: My Fight for Freedom and Justice with a Foreword by Leonard L. Cavise, Emeritus Professor of Law DePaul College of Law (Northern Illinois University Press, 2015) is a compelling tale of a travesty of justice and Standard Operating Procedure in the American criminal justice system that goes unreported and unnoticed, except by the victims and their families.

Any federal indictment should be examined with a high degree of skepticism, but federal indictments (and state indictments or criminal complaints) are taken at face value in American society and one ongoing case epitomizes this tragedy of American criminal law: United States of America v. Rod Blagojevich, Robert Blagojevich, et al.

Unfortunately for the brothers Blagojevich, federal indictments are especially taken as the gospel of holy truth by United States District Court for the Northern District of Illinois Judge James B. Zagel, the prosecutors' judge, a Henry Hyde-Ronald Reagan disgrace or lousy bastard, pick a description.

Robert Blagojevich was a co-defendant in the federal case involving his brother, Rod, the Illinois governor (2003-09) with the wavy hair hit with a 24-count indictment in April 2009 for alleged public corruption for talking a lot as politicians connected to the windy city tend to do.

Twenty-four counts.

This is called "charge stacking"—the practice of prosecutors loading up so many criminal charges in an indictment that a defendant is forced to gamble the virtual end of his free life at trial, stakes coercing the defendant into a plea deal. Usually, screened juries will give the prosecutor at least one guilty-as-charged verdict. Why else would the defendant face so many charges if he were innocent?

Innocence is irrelevant (especially if the defendant is black or brown) (Lock, Wrongful Convictions) as charge stacking is standard practice in the American criminal justice system—aka the police-prosecutor state and the objective to build statistics of success out of concerns of career and convenience that dominate the federal and state prosecutor of most every political stripe.

The general public is not much of a check on the power of the prosecutor: Didn't that guy with the funny name and weird hair try to sell the seat that was held by President Obama? I saw it on TV. Hey, the Cubs' opening day is in a few days.

The federal superseding indictment in United States of America v. Rod Blagojevich, Robert Blagojevich, et al came down on April 2, 2009, the matter of innocence of the defendants besides the point.

U.S. Attorney Patrick Fitzgerald (2001-2012) wanted another scalp and nothing was going to stand in his way. Fitzgerald today—after walking though the revolving career door of the prosecutor's office—works as a partner at the monster firm, Skadden, Arps, Slate, Meagher and Flom LLP and Affiliates. Fitzgerald did well for himself.

Robert Blagojevich after refusing to fabricate evidence against his brother saw the prosecution drop all four bullshit public corruption charges against him for raising funds for his brother's campaign after the federal jury deadlocked. Robert won.

His brother, Rod, continues the fight after the Court of Appeals for the Seventh Circuit last month threw out five convictions and Rod appeals his case to U.S. Supreme Court. The case is USA v. Rod Blagojevich (No. 11- 3853). It's a long shot.

The Foreword to Robert Blagojevich's Fundraiser A: My Fight for Freedom and Justice by Leonard L. Cavise, Emeritus Professor of Law DePaul College of Law lays out this one example of the rabid, unchecked power of the prosecutor in American society.

Last April marked the 75th anniversary of Justice Jackson's address on prosecutorial discretion and justice to America's U.S. attorneys in 1940.

The hard reality is Jackson's words have as much relevancy to today's conduct of the prosecutor as the innocence of a defendant has to a prosecutor.

Foreword to Fundraiser A: My Fight for Freedom and Justice:

By Leonard L. Cavise:

The trial of Illinois Governor Rod Blagojevich and his brother Robert was national news. In Chicago, it was daily headline news. It was the latest in a series of “trials of the century,” especially for Illinoisans who were about to see the third of their last four governors go to jail for corruption. I watched the trial at relatively close range because, as a law professor, I was using the trial in my classes and, as a frequent media commentator, I had to distill what happened into manageable sound bites or brief commentary. When Robert told me he was writing this book I was thrilled, not only because of the enticing prospect of getting to know what really happened, but also because of the important social interest served by a close-up look at what many saw as a federal abuse of power in the criminal justice system. The government’s prosecution of Robert was in all senses wrongful but, nonetheless, prosecutors tenaciously pursued charges long after it was obvious that Robert was innocent. The arrogance of that use of power is a central theme of this book.

In Fundraiser A, we now get the story in dramatic and sometimes riveting fashion from the defendant himself. As Robert told the media after the verdict, “I have lived through the most surreal experience anyone could live through. This has been, from the beginning, a slow bleed both financially, emotionally, and otherwise.” After reading Robert’s complete story, I found him to be an astute if sometimes flabbergasted observer who still doesn’t quite believe this happened to him and his family. The criminal justice system in this country is flawed, and the power given to prosecutors is excessive. There’s nothing new in those observations, but to really understand why this happened to Robert is simple: it’s the story of over-reaching prosecutorial power and the adversarial system gone bad.

Chicago has certainly seen its share of circus-like trials, but this one promised to be the best, even without any dead bodies. Right from the day the US attorney announced the indictment, he promised a story of corruption that would “make Lincoln roll over in his grave.” We all waited for the smoking guns, the stories of drugs, sex, lies, and greed sure to come.

While the governor was talking on tape (forty-five days’ worth of tape), his main advisors—John Wyma, Chris Kelly, Bob Greenlee, John Harris, and Alonzo Monk—were talking directly to the government because they had legal problems of their own. Chiefs of staff, advisors, and deputy governors—colleagues who had worked closely with Rod for years—were the witnesses the government intended to use to supplement the tapes. Some would be offered legal immunity in exchange for their testimony against Blagojevich, some would start talking right away to save their own skin, and one would be sent back to the Blagojevich campaign headquarters to spy.

Dropped into this maelstrom and soon to become an important part of this story was Robert Blagojevich, the conservative Republican businessman from Tennessee who, to many observers, always seemed to be an innocent in a den of predators. The governor had asked Robert to raise funds for four months before the 2010 off-year elections. Robert had no political experience, didn’t really know anybody in Illinois, didn’t have a very good relationship with his brother, and didn’t like his brother’s “too liberal and fiscally irresponsible” politics, but, nonetheless, said he would do it. Why? This is a question he continues to ask himself. Because Rod needed somebody he could trust? Because he hoped to repair a strained relationship? Because, as a businessman, he knew about money and could keep the accounts? In any event, he left behind his wife, home, and business in Tennessee to come to Chicago to do something he had never done before—fundraise for a politician.

Why Robert agreed to step into a campaign already known to be under investigation is another judgment for the reader to make. Conventional wisdom would mandate treating the governor at a very long arm’s length. But this was his brother. And for the next year Robert was at the heart of the biggest corruption case in many years. Now, with this book, we find out all the behind-the-scenes action. As he notes in his trial journal, “As a citizen, I can’t believe this is still happening to me, and no one in power cares—unchecked unrestricted power.”

Robert Blagojevich was surprisingly naïve about the FBI, the federal prosecutors, and the criminal justice system. He thought he could just sit down with the FBI and clear this whole thing up and be back on his way. Didn’t they know that it was just Rod talking and talking? It never crossed his mind that the feds might attempt to use him, to make him flip and testify against his brother. It never occurred to him that maybe he and the governor would plead guilty to something in a “package” deal. It never occurred to him that nobody in the government really cared that he was innocent. This case was too big for that. Luckily, Robert found the right criminal defense lawyer who told him, in no uncertain terms, that this trial is not about “clearing anything up.” It’s a war, led by “self-righteous, zealot extremists,” and, Robert, you’re in it.

This is what happens to almost everybody who enters the criminal justice system for the first time—guilty or innocent. The government speaks, and everything changes. The government uses its vast power and unlimited resources, and the defendant bleeds. Financial ruin is almost a certainty. Robert Blagojevich spent over three-quarters of a million dollars on his defense. As he said, while describing the loss of his business and his home, “we were essentially in the process of dismantling thirty years of hard work.” He’s lucky he had the money.

Most defendants can’t make bond like Robert did. Most lose their jobs, possessions, and sometimes their families into the black abyss of seeking justice. Many eventually go to prison—African Americans more than others—where they face so much more than tangible loss. The loss of dignity and freedom, the utter humiliation, the loss of self-respect. Robert was spared that disaster, but he tells us how it was constantly on his mind and how his brother never seemed to think about it.

Robert learned more than he ever wanted to know about the criminal justice system. He learned that more than 95 percent (depending on the jurisdiction) of all defendants plead guilty. Only an infinitesimal 4–5 percent choose to fight back. He was shocked to learn that in no way was it to be a fair fight. The government decides whom

He learned that a jury of peers is a group of people with whom you have little in common, who are placed in judgment of you by a judge who asks most of the questions and then tells them about law they probably can’t understand. He learned that, while the Supreme Court was considering whether a “theft of honest services” charge (one of the charges pending in this case) is unconstitutionally vague, the prosecutor can just strike preemptively and file more charges in a superseding indictment so that whatever the Supreme Court ultimately decides, it won’t make any difference.

He learned that when something good for the defense showed up in the tapes, his lawyers couldn’t use it unless the judge said they could, and the judge was prosecution-minded. People don’t realize that the judge who presides over a case—the largest percentage of whom are former prosecutors themselves—effectively decides how the case will progress. Robert tells us of how perturbed he was about many of the judge’s rulings, in addition to the judge’s habit of usually being forty-five minutes late for the start of court, which Robert estimates cost him $15,000 in attorney time.

One of the biggest surprises to Robert was that the criminal trial is a shell game. Neither side knows what the other is going to do. Are they going to call this particular witness, and, if so, when, to say what, and what will the judge allow on cross-examination? To be fair, the defense plays the same game—not telling the government if the defendant will testify or even if there will be a defense. And Robert watched, often comparing the process to his life in business. If he had gone to business meetings with as little definite information about what would be on the agenda, he would have considered himself woefully unprepared.

Robert’s layman’s eye gives us a fresh, honest, and forthright perspective on the inner workings of one of the most complex and high-profile criminal cases in recent memory. That’s what is so refreshing about this book. I have since met Robert on more than one occasion. He has lectured to my classes. He is an utterly believable but now thoroughly angry citizen who wants nothing more now than to tell America how unfairly he was treated by a system that allows such brutal treatment as a matter of course.#
- Excerpted from Fundraiser A: My Fight for Freedom and Justice ​by Robert Blagojevich with permission from Northern Illinois University PressCopyright © 2015 Northern Illinois University Press.

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