In its first hint at an appeal, Rod Blagojevich's defense filed a motion Tuesday in an apparent bid to overturn 17 convictions for fraud, bribery and extortion a jury leveled against the ex-governor last week.
The motion asks U.S. District Judge James Zagel to hold onto jury questionnaires from the beginning of the trial as a July 25 appeal deadline looms. Defense attorneys are hoping to show Zagel should have thrown out jurors who were biased against Blagojevich, and who instead ended up on the jury, said a defense lawyer familiar with the case.
Blagojevich's defense used all of its peremptory challenges, where they're able to dismiss a potential juror for any reason, said Michael Ettinger, who defended Blagojevich's brother Robert in the ex-governor's first trial and said he spoke with defense attorneys about the new motion. Blagojevich's attorneys were unavailable for comment.
If Zagel kept a juror in the pool who ended up sitting on the case, and an appeals court determines that juror should have been excused, then the convictions could be overturned for a new trial, Ettinger said.
Jurors can't just say they "think" they can be fair, Ettinger said. But former federal prosecutor Jeffrey Cramer said case law tells a different story.
"That's colloquial," he said, referring to the phrase 'I think.' "It's probably the best answer anyone can give to a hypothetical question. They're not saying, 'I'm not sure.' They're not saying, 'No way.'"
Certain issues are easily written off in appeals as "harmless errors," Ettinger said, including questions about which tapes were allowed to be played in court. A failure to excuse an unfair juror is never a "harmless" error; as Cramer explained succinctly, "That's just an error."
The defense is hoping to keep Blagojevich out of jail on bond pending the appeal, Ettinger said, but thinks Zagel's unlikely to let him stay free, especially given his sole conviction in his first trial, lying to the FBI. That charge carries a maximum of five years in prison, and the defense would have to prove Zagel was unfair in both trials to be able to get Blagojevich out of serving time on that conviction.
Cramer called the defense's latest bid not necessarily a long shot, but "not a two-foot putt" -- especially since Zagel is known for getting jurors to say they can be fair in a case.
"In any courtroom it's going to be an uphill battle," said Cramer, who's tried cases in front of Zagel. "In Judge Zagel's courtroom, it's almost an insurmountable mountain.
"I don't care what 12 people were in that box," he added. "Once they pushed play on the tape recorder, they're gonna convict."