Appeal is Blagojevich’s last hope to cut sentence

December 9, 2011

The Associated Press (AP) on December 8, 2011 released the following:

“By MICHAEL TARM

CHICAGO (AP) — Rod Blagojevich has one last hope to reduce his harsh 14-year sentence: an appeal.

But lawyers for the disgraced former Illinois governor face long odds in chipping away at the time he must serve for attempting to auction off an appointment to President Barack Obama’s old Senate seat and other crimes, legal experts said Thursday.

Attorneys will have the daunting task of demonstrating that the respected, 25-year veteran Judge James Zagel who oversaw Blagojevich’s two trials made major errors at trial and in calculating a sentence for the 18 convictions, said Lance Northcutt, an adjunct professor at Chicago’s John Marshall Law School.

“Zagel is careful to rule in a way to avoid having his decisions overturned and his reasoning for this sentence on Wednesday was detailed,” he said. “A higher court is loath to second-guess the trial court – and they rarely do.”

Northcutt was in the crowded Chicago courtroom Wednesday observing as Zagel scolded a visibly anxious Blagojevich – in a tone befitting a school principal – for harming public confidence in government.

Blagojevich’s attorney Sheldon Sorosky told The Associated Press on Thursday that the defense would ask for the convictions to be overturned and for the sentence to be reduced.

“We intend to appeal everything,” he said.

Potential issues on appeal, he said, included whether Zagel placed so much emphasis on sending a message to other would-be political schemers that he unduly inflated the sentence of the twice-elected Democrat.

“He absolutely did,” said Sorosky, noting that Zagel several times mentioned Blagojevich’s predecessor, Republican George Ryan, who was convicted in 2006 and is serving a 6 1/2-year sentence for corruption.

“He said Ryan got 6 1/2 and so I have to give you way more,” Sorosky said. “He was giving Blagojevich the sentence not to punish Blagojevich for what he did but to stop other governors. That’s not right.”

An appeal could drag on for years, and experts add that there is virtually no chance Blagojevich, who turns 55 Saturday, would be able to put off reporting to prison as scheduled on Feb. 16.

Blagojevich has started a bleak countdown toward that date. In the meantime, he will spend a Christmas at home with his wife, Patti, and their daughters – Amy, 15, and Annie, 8. Once behind bars, Blagojevich will be cut off from the outside world, with visits from his family strictly limited. He’ll share a cell and perform a menial job.

As it stands, he won’t be eligible for early release until 2024, when he’s 67.

Only felons deemed likely to prevail on appeal can stay out of prison in the interim, and that doesn’t seem to apply to Blagojevich. Zagel will make that determination.

The chance that Zagel will let Blagojevich remain free pending appeal?

“Slim to none,” said Gal Pissetzky, a Chicago-based attorney who practices in federal court.

Zagel’s comments at the sentencing weren’t devoid of conciliation. He told Blagojevich he accepted that he did some good as governor, such as on children’s health issues, and said it was “a mitigating factor” for the sentence.

He also cited the former governor’s direct appeal for mercy, in which an untypically contrite Blagojevich repeated apologized and said, “I have nobody to blame but myself. … I am just so incredibly sorry.”

Zagel’s acceptance of Blagojevich’s apologies, Northcutt said, likely kept the former governor from getting an even longer term. Blagojevich’s attorneys will thus likely focus their appeal on trial errors and not on asserting that he did not commit the crimes, Northcutt said.

If the higher court determines Zagel didn’t give Blagojevich a fair trial – even if he admitted the crimes during sentencing – they could toss out the convictions and order a new trial.

In defense motions filed during Blagojevich’s retrial, the defense accused Zagel of bias, pointing to how he almost invariably sided with prosecutors when there were objections during testimony.

They could make similar claims in any appeal.

Blagojevich’s lawyers also have complained that Zagel had repeatedly rejected their requests to play FBI wiretap evidence that they claimed would help their defense.

Chicago attorney Michael Ettinger, who represented Blagojevich’s brother and co-defendant, Robert Blagojevich, at a first trial, said the tapes may be good grounds for appeal.

“I’ve heard those tapes, and what Rod says in one hour, he says something the opposite the next hour,” he said Thursday.

During the sentencing hearing, Zagel rejected the notion – made often by Blagojevich’s own attorneys at trial – that the recordings showed Blagojevich was merely a big talker who brainstormed wildly as a way to weed out good ideas from bad ones.

“Musings are talks without purpose, not the material of arranged meetings and repeated phone calls” to commit crimes, Zagel said. “The jury and I do not believe these were musings.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Key factors judge must consider in calculating Blagojevich’s sentence

December 6, 2011
U.S. District Judge James Zagel
U.S. District Judge James Zagel

Chicago Tribune on December 5, 2011 released the following:

“The Associated Press

CHICAGO (AP) — In a hearing that starts Tuesday, U.S. District Judge James Zagel must answer several key, sometimes nuanced questions as he calculates a fitting sentence for ousted Illinois Gov. Rod Blagojevich on 18 counts of corruption. Most legal experts say Blagojevich is likely to get about 10 years, but Zagel has enormous discretion to give him much more or much less.

Among the questions:

— Has Blagojevich accepted responsibility or expressed remorse? To date, he has not. He could in a statement at sentencing, but signs are he may keep asserting his innocence by claiming aides led him astray — declarations judges frown upon at the sentencing stage.

— What harm did Blagojevich’s crimes cause? The defense says Blagojevich didn’t make a single cent off his schemes, some of which were attempts to extort money that failed. But Zagel could conclude his actions badly undermined public confidence in government.

— Did Blagojevich lie when he testified at his retrial? Federal judges can boost a sentence by years if a defendant testified and was subsequently convicted. In light of the jury’s guilty verdicts, prosecutors have urged Zagel to view Blagojevich’s testimony as perjury.

— Did he lead the conspiracies? The top dog in conspiracies gets more time and prosecutors say Blagojevich was just that. Zagel must decide if he buys the defense argument that just because Blagojevich was a boss didn’t mean he took the lead role in the schemes.

— Other crimes? It may come as a surprise to some that federal judges can consider actions not directly related to crimes for which a felon was convicted. Prosecutors want Zagel to factor in that Blagojevich started hatching schemes from the day he took office.

— Has he otherwise been beneficial to society? Judges can temper a sentence by considering good deeds. The defense cites Blagojevich’s legislative accomplishments, including making health insurance widely available to Illinois children.

— Does the crime involve an elected official? Those, like Blagojevich, who commit crimes in their official capacity, are deemed to have violated the public trust. Judges consider that a major aggravating factor.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


After crime, punishment awaits ex-Gov. Blagojevich

December 6, 2011
Rod Blagojevich
Rod Blagojevich

The Associated Press (AP) on December 6, 2011 released the following:

“By MICHAEL TARM
Associated Press

CHICAGO (AP) — Rod Blagojevich’s days of reckoning arrive Tuesday when a federal judge opens a sentencing hearing for the disgraced former Illinois governor on 18 corruption counts, including trying to auction off President Barack Obama’s old Senate seat.

The impeached state executive-turned-reality TV star has good reason to feel anxious and afraid at the two-day hearing in Chicago. He faces the prospect of 10 or more years behind bars.

If Judge James Zagel settles on a sentence Wednesday of more than a decade, that would make it one of the stiffest penalties imposed for corruption in a state with a long history of crooked politics.

Prosecutors will ask Zagel to imprison the twice-elected governor for 15 to 20 years, arguing he has not only shirked all responsibility for his crimes but repeatedly thumbed his nose at the U.S. justice system.

Blagojevich has already paid a price in public ridicule and financial ruin, the defense argues in proposing a term of just a few years. They also seem bent on an approach judges often frown upon at the sentencing stage: Continuing to insist their client is innocent.

Both sides could finish their pitches to Zagel during Tuesday’s hearing, which was moved to a large ceremonial courtroom to accommodate expected crowds. But Zagel says he’ll wait until Wednesday to pronounce a sentence – possibly so he can sleep on it.

The 70-year-old judge, who played a judge in the 1989 movie “Music Box,” must answer nuanced questions according to complex sentencing algebra, including whether any good Blagojevich accomplished as governor counterbalances the bad.

In describing the humiliation his family has faced, the defense cited Blagojevich’s appearances on NBC’s “Celebrity Apprentice,” where he struggled to use a cellphone, and his wife, Patti, eating a tarantula on the reality show, “I’m a Celebrity…Get Me Out of Here!”

After sentencing, Zagel will likely give Blagojevich weeks before he must report to prison. Once there, the man heard scoffing on FBI wiretaps about earning a low six-figure salary would have to take a prison job – possibly scrubbing toilets – at just 12 cents an hour.

Blagojevich’s sentencing comes just days before his 55th birthday and three years to the week of his Dec. 9, 2008, arrest.

The jury deadlocked in his first trial, agreeing on just one of 24 counts – that Blagojevich lied to the FBI. Jurors at his recent retrial convicted him on 17 of 20 counts, including bribery.

Legal experts have said Blagojevich needs to display some remorse when, as expected, he addresses Zagel Tuesday or Wednesday. But the big unknown is whether the often cocksure ex-governor will beg for mercy at the hearing or yet again protest his innocence.

A flat-out apology isn’t always considered a must. If it isn’t sincere, it can only anger a judge.

The defense could call others to speak in court. But as Blagojevich became politically radioactive, longtime friends scattered, so it’s not clear who would be willing to speak for him now.

Wives often plea for leniency, but Zagel likely wouldn’t view Patti Blagojevich sympathetically. On FBI wiretaps, she was heard encouraging her husband’s bid for campaign cash or a top job in exchange for an appointment to Obama’s vacated seat.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.