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Appellate judges lob tough questions about Blagojevich prosecution

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Updated: January 15, 2014 6:10AM



It’s a long time since Rod Blagojevich had anything to celebrate in federal court.

And he probably shouldn’t get too excited just yet.

But a ray of hope beamed into the disgraced former governor’s prison cell Friday when appellate court judges zinged prosecutors with pointed questions about his corruption convictions.

Chief among the questions the justices wanted answered: just what separates Blagojevich’s actions from the “legal horse trading” politicians typically rely upon to advance their careers?

And: if they’d been held to the same standard as Blagojevich, wouldn’t venerated figures like former President Dwight Eisenhower and former Supreme Court Justice Earl Warren have been locked up for 14 years, too?

Blagojevich, who celebrated his 57th birthday behind bars in Colorado earlier this week, wasn’t in court to hear the passionate hour-long oral arguments before the Seventh Circuit of the U.S. Court of Appeals.

But comments made by Judges Frank Easterbrook, Ilana Rovner and Michael Kanne gave his lawyers and his wife Patti — who was watching in the packed courtroom ­— something to cling to in what’s likely their last, best chance of overturning his convictions for crimes including trying to trade President Barack Obama’s former Senate seat for a place in Obama’s cabinet.

“Where is the line that differentiates legal horse trading from a federal offense that puts you in prison?” Rovner asked during one exchange with Assistant U.S. Attorney Debra Bonamici.

During another, Easterbrook asked if there was “any criminal conviction in U.S. history” other than Blagojevich’s in which a politician was convicted for trying to trade one job for another.

When Bonamici admitted she was not aware of any, Easterbrook described how in the run up to the 1952 presidential election, Earl Warren offered to use his position as California governor to “deliver California” for Eisenhower in return for a seat on the Supreme Court — a deal that Eisenhower honored when he was elected.

“If I understand your position, Earl Warren should have gone to prison, Dwight Eisenhower should have gone to prison,” an incredulous Easterbrook said. “Can that possibly be right?”

The judge added “It would be an act of shysterism to try to say that was okay and what Blagojevich did . . . was not okay.”

Bonamici told the court Blagojevich’s case was different because his deal was an “official act” for his own benefit, not merely an offer of “political support” as Warren had made.

Blagojevich’s lawyers — who clashed repeatedly with U.S. District Judge James Zagel during trials in 2010 and 2011 — have long argued Zagel made a laundry list of mistakes that meant Blagojevich did not get a fair trial.

But the appeals court had sharp questions for them, too, in particular about their argument that Blagojevich was unfairly barred from telling jurors that he’d acted in good faith when he cooked up various schemes to swell his campaign coffers or find himself a new job.

When defense attorney Len Goodman twice failed to answer their queries quickly about whether there was any reference to the “willfulness” of a defendant’s actions in relevant case law, Easterbrook snapped, “I wish you would answer my question!”

Easterbrook seemed to reject the “good faith” argument, scoffing that “ignorance of the law is no excuse.”

Statistics suggest Blagojevich’s appeal faces long odds — just 15 percent of appeals were successful last year in the Seventh District, which has have a reputation for rarely quashing convictions unless a lower court’s errors are egregious.

Speaking after court, Goodman was guarded about Blagojevich’s chances.

“We argued that his trial was fundamentally unfair, the jury did not get both sides of the story,” said Goodman, who is a court-appointed appellate attorney.

“I’m not a predictor at all. I’m not even going to try to guess.”

Goodman did note the irony of Easterbrook raising the historical question regarding President Eisenhower appointing Earl Warren.

“It’s interesting that’s one of the examples that Rod Blagojevich gave in his offer of proof, which he was prevented from giving to the jury. It was certainly powerful for Judge Easterbrook — the jury never got it.”

Patti Blagojevich added she hoped her husband would soon be home.

“He’s missed so many birthdays and holidays and now this is going on, we’ve just gone through our second Thanksgiving, coming up on our second Christmas without him,” she said.

“We just hope and pray that he’ll be home soon with his family.

“We have the utmost confidence in the court and we put our trust and faith in God.”

A ruling is not expected for several weeks, at the earliest.

Contributing: AP



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