The news coverage about the charges brought by U.S. Attorney Patrick Fitzgerald against Illinois Governor Rod Blagojevich has been so saturated with shock and amazement at the brazenness of Blagojevich’s alleged conduct that few questions have been raised about the strength of Fitzgerald’s case.Â But Gov. Blagojevich will certainly be looking hard at the odds facing him in deciding, among other things, whether to heed calls for his resignation.
Today, Scott Turow — the author and a former federal prosecutor — has an op-ed in The New York Times in which he speculates that Fitzgerald had likely intended to charge Blagojevich only after the issue of his own reappointment as U.S. Attorney was behind him but was forced by the Governor’s movement to fill Barack Obama’s Senate seat to act right away:
In his news conference Tuesday, Mr. Fitzgerald indicated that he had not planned to indict Governor Blagojevich until next spring, meaning that the prosecutor was going to wait until his own fate was decided. Instead, with wiretap evidence piling up that showed that Mr. Blagojevich was intent on selling the Obama seat in exchange for a substantial personal benefit, like a high-paying job for himself or his wife, Mr. Fitzgerald was forced to make the arrest. He decided that he could not even wait for the grand jury investigating Mr. Blagojevich to meet on Thursday and indict him.
Turow describes the downside of skipping the grand jury:
Bypassing the grand jury and proceeding through a criminal complaint instead effectively puts the case against Mr. Blagojevich n the express route. Mr. Fitzgerald will now have only 20 days to either give the governor a preliminary hearing â€” which would amount to free discovery for his defense lawyer â€” or return an indictment. Given Mr. Fitzgeraldâ€™s frank appeal for information from the public at his news conference, itâ€™s obvious that his case is not fully buttoned up, and that Mr. Blagojevich forced the prosecutorâ€™s hand.
In a separate report, the Times elaborates on why the “express route” is a problem:
The problem for the prosecution with a preliminary hearing is that it gives the defense an early look at the evidence that will be used to prove the crime, according to legal experts. It also gives the defense the opportunity to cross-examine any witnesses that the government brings up to prove probable cause for an arrest. That allows the defense to find weaknesses in testimony and potential avenues to dispute it.
But, some experts believe that everything will turn out fine for the prosecution:
Legal experts interviewed Wednesday said that all things being equal, it would have been preferable to wait for the indictment rather than risk the additional step of a preliminary hearing. But they also emphasized that given the strength of the evidence in the criminal complaint, Mr. Fitzgerald will probably be able to bring an indictment quickly, in all likelihood avoiding the need for the extra hearing. If necessary, Mr. Fitzgerald can start by charging Mr. Blagojevich with only a few counts of wrongdoing, and subsequently file additional charges in a superseding indictment.
Be that as it may, it’s easy to see why Blagojevich won’t be answering calls for his resignation — at least not until he sees the actual strength of the case against him.
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