By Jason Meisner
Despite his well-chronicled affinity for publicity, Rod Blagojevich has served his time in a Colorado prison for more than three years without so much as a peep.
That silence ended Tuesday when 30 minutes after Blagojevich's lawyers filed a long-shot bid asking the full 7th U.S. Circuit Court of Appeals to rehear his case, a statement attributed to the former governor was blasted to the news media saying that "what is at stake is nothing less than the rule of the law."
"Fundraising is a part of the job of every politician," Blagojevich said in the statement, which was also posted on a Web page of the PR firm dedicated to the former governor's appeal. "The jury instructions used to convict me in my case are not the law. It makes the standard so low that any politician can be jailed at the whim of an ambitious prosecutor. That standard is wrong and needs to be corrected."
In seeking a relatively rare en banc hearing before all the judges on the appeals court, Blagojevich's lawyers found fault with the three-judge panel for backing the lower court's approval of jury instructions on the extortion statute. The defense had argued that those instructions violated a recent Supreme Court ruling.
Blagojevich's lawyers also argued that the decision lowers the standard of proof for what constitutes a bribe so far that politicians, who must raise campaign funds to get elected and to be effective in office, could not possibly adhere to it.
In its July 21 decision, the three-judge panel threw out five counts on technical grounds and ordered the former governor's 14-year sentence vacated. But that small legal victory was tempered by the court calling the evidence against Blagojevich "overwhelming" and making it clear he will likely remain locked up for years to come.
Requests for an en banc hearing are seldom granted, particularly in cases such as Blagojevich's, where the original panel was unanimous. In order to succeed, either one of the three judges who decided the appeal -- Frank Easterbrook, Ilana Diamond Rovner and Michael Kanne -- or one of the other six judges in active service must ask for a vote by the full court.
If a vote is called, a majority of the nine judges must favor the en banc hearing or the petition is automatically denied, according to the 7th Circuit's handbook on appeals. For Blagojevich, that would likely mean that five out of the six judges who weren't on his panel would have to agree to the rehearing.
If the request for a rehearing fails, Blagojevich's only other option would be to petition the U.S. Supreme Court -- a move that also is considered a legal long shot.
Joel Bertocchi, a veteran Chicago appellate attorney, said only a few en banc hearings are granted each year by the 7th Circuit out of the thousands of cases it decides.
"The chances of the court rehearing the Blagojevich case are pretty remote," Bertocchi said. "The fact that this case has some notoriety may draw the attention of some of the other judges, but that may not be enough."
Blagojevich, now 58, was convicted of misusing his powers as governor in an array of shakedown schemes, most famously for his alleged attempts to sell the U.S. Senate seat vacated by Barack Obama after his 2008 election as president. Blagojevich, incarcerated in a federal prison in suburban Denver since March 2012, is not scheduled to be released until May 2024, according to the Federal Bureau of Prisons website.
The appellate ruling came 19 months after oral arguments, and at 23 pages, it was surprisingly concise.
In throwing out five of the 18 counts against him, the court focused on the sometimes gray line between traditional political horse-trading and flat-out bribery, ruling that the instructions given to the jury in Blagojevich's second trial should have differentiated among his various schemes to sell the Senate seat. In particular, Blagojevich's idea to seek a position in Obama's Cabinet in exchange for appointing longtime Obama adviser Valerie Jarrett could have been construed as a "common exercise of logrolling," essentially the swapping of political favors, not a crime, the court wrote.
But the opinion upheld the vast majority of the jury's decision, including what perhaps was the most brazen of Blagojevich's extortion and bribery convictions -- a deal to name then-U.S. Rep. Jesse Jackson Jr. to the Senate seat in exchange for $1.5 million in campaign cash.
Blagojevich is not the first convicted former Illinois governor to ask the full court to hear an appeal. In 2012, George Ryan's attorneys filed a detailed petition claiming that the original appellate panel erred in finding the district judge's jury instructions on the "honest services" fraud statute to be harmless error. Ryan's request also called out the trial judge for declining to review some of the counts he was convicted on.
Two weeks later, the court dashed Ryan's hopes of a rehearing with a succinct order.
But while being granted a rehearing is unusual, there have been some successes. Recently, lawyers for Leslie Mayfield were granted an en banc hearing after claiming the Naperville man was goaded into a scheme to rob a phony drug stash house by overzealous federal agents. In an 8-2 ruling granting a new trial, the full court ruled that the trial judge erred in barring Mayfield from arguing an entrapment defense.
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