by Joyce Marcel
American Reporter Correspondent
July 9, 2009
NOBODY LISTENED, NOBODY LEARNED
WASHINGTON, July 8, 2009 -- The attorney representing Robert Blagojevich, brother of ousted Illinois governor Rod Blagojevich, in the "honest services" case charging Blagojevich and five others with fraud and corruption, says he will ask for public release of the famous wiretaps in the case.
In a wide-ranging telephone interview with The American Reporter on Wednesday, Chicago attorney Michael Ettinger said the tapes in defense possession contain about 430 hours of recorded conversations and estimates that it will take defense attorneys another three weeks to listen to all of them. Ettinger said that typically, such material is released at trial but the defense will request release sooner because wiretap excerpts published in the arrest of Blagojevich and his chief of staff John Harris Dec. 9, 2008, give "a false impression."
Some excerpts were released to the Illinois legislature during the impeachment of then-Gov. Blagojevich and during review of the U.S. Senate confirmation of Roland Burris (D-Ill.). Harris, who has been cooperating with prosecutors, was charged with one count of wire fraud and pleaded guilty in court yesterday.
Ettinger says emphatically that listening to the full conversations changes perception of the tapes, adding that U.S. Attorney Patrick Fitzgerald, in Chicago, "couldn't have listened to them. If he had listened to all of them, he couldn't have given that [Dec. 9] press conference," which "mischaracterized" them. The press conference "poisoned the well," Ettinger says, echoing a criticism made in legal circles, and may have tainted the jury pool.
Blagojevich's trial is scheduled for June 2010. Randall Samborn, a spokesman for the Federal Court the Northern District of Illinois (NDIL), says the court is unable to respond to requests to hear the tapes, "as there is no public record basis to answer this question." Fitzgerald has urged citizens to step forward with any information about wrongful acts by public officials.
Prosecutors have turned over 3.5 million pages of material to the defense. The NDIL has been investigating Blagojevich since 2002, before he took office. Ettinger says in response to questions that the quantity of material, over a million documents, resembles 'document dumping' in litigation - when a corporate defendant overwhelms plaintiffs in a personal injury case, for example, by sending truckloads of corporate records a small legal team must sort through.
The millions of pages are on disks. To search them requires special software and a server that the government has, Ettinger says, but which the defense does not; the defense is requesting the additional technology. Each disk can be searched individually, but the disks cannot be searched together without the special software.
Robert Blagojevich lives in Nashville, Tenn., with his wife and son. His brother-in-law, Eric W. Thrailkill, an insurance company executive in Nashville who expresses strong support for his sister Nanci's husband, points out that Robert became the governor's campaign manager in August 2008 and served four months.
The April, 2009, indictment accuses the defendants of being an "enterprise," defined in federal law to include "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."
Ettinger says flatly that prosecutors named Blagojevich, his aides and his campaign fund as an enterprise, an association in fact, "for one purpose" - "to tie up the campaign fund" so that the governor couldn't access it for his legal defense. "There's $2.8 million in there," he said, and "they got cute." Judge James B. Zagel has since transferred the campaign fund to a special fund accessible for legal costs.
The "enterprise" terminology is part of bringing an indictment under the Racketeering Influenced and Corrupt Organizations Act (RICO), typically used in complex and often grisly cases involving multiple crimes by organized crime figures or by drug cartels, including murder-for-hire, human trafficking, or commerce in weapons and narcotics. A RICO case must involve either a foreign country or interstate commerce.
Robert Blagojevich is charged with one count of engaging in an interstate telephone conversation from Nashville with his brother to update him on campaign contributions; and one count of participating - also across state lines - in a telephone conversation about campaign contributions with the governor and a an advisor to the former governor in Washington, D.C.
The indictment alleges that in the latter conversation, Gov. Blagojevich claims he would receive "tangible political support ... specific amounts and everything ... some of it up front," if he appointed Barack Obama campaign advisor Valerie Jarrett to the U.S. Senate seat vacated by Obama.
By defining the phone calls as wire fraud and the governor's political and fundraising activities as "a scheme" in the legal sense, each individual action becomes one furthering the scheme, Ettinger says.
Like Thrailkill, Ettiinger points out that Robert Blagojevich came aboard to direct the campaign fund four months before the arrests. He strongly asserts his client's innocence, saying that the brother could not have been involved in the alleged public corruption:
"He couldn't have been. He didn't know anything [about Chicago politics] anyway. He's a Republican."