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Analysis: Note to judge suggests Blagojevich jury might acquit former governor on some charges

While the jury in the Rod Blagojevich corruption trial took the weekend off, court watchers had time to read between the lines of the jury's cryptic note to the judge and to reflect on the Blagojevich trial strategy.

Lawyers speculated that the jury's note about having reached agreement on two counts probably means that it has decided to acquit on the two complicated racketeering charges that are Counts 1 and 2 of the indictment. If the jury had decided to convict on these charges, it probably would have convicted on some other counts that allege acts that would have been part of a racketeering conviction. (Click here to read about the jury's deliberations.)

Kathleen Brickey, a Washington University law school professor and expert on white-collar crime, said that if she were Judge James Zagel, she would tell the jury to begin at the bottom of the indictment instead of the top. The simpler charges involving false statements, bribery and attempted extortion are at the bottom of the indictment, while the more complicated racketeering and wire fraud charges are at the top.

The jury's note stated that it had not begun to deliberate over the 11 wire fraud counts.

A person doesn't have to be a gangster to be convicted of racketeering. But to convict Blagojevich, the jury would have to find that there was a racketeering enterprise and at least two racketeering acts. If the jury did not find a racketeering enterprise, it would have had to find Blagojevich not guilty on those counts.

The enterprise alleged in the indictment is that Blagojevich sought "to exercise and preserve power over the government of the state of Illinois for the financial and political benefit of defendant Rod Blagojevich both directly and through Friends of Blagojevich, and for the financial benefit of his family members and associates." Friends of Blagojevich was a campaign committee.

Possible racketeering acts are attempted extortion and bribery, the crimes alleged toward the bottom of the indictment. They allege that Blagojevich attempted to extort campaign contributions or payments from the head of a children's hospital, supporters of a bill favoring the race track industry and road builders. The jury probably would have an easier time on these simpler counts, each of which involves a single set of facts.

The false statement allegation at the end of the indictment is also straightforward. It alleges that Blagojevich made false statements to the government when he claimed that he did not even pay attention to who gave him political contributions.

As the jury deliberations continue, some court observers wonder if Blagojevich has pulled off an "I'm too dumb to be guilty" defense.

In the weeks after his indictment, Blagojevich engaged in a series of publicity stunts that left the impression with many that he was a buffoon. But, as the trial came to a close, the public relations tomfoolery fit hand in glove with the defense's claim that Blagojevich wasn't smart enough to pull off the crimes.

Defense lawyer Sam Adam Jr. put it this way when characterizing Blagojevich's statements on secret tapes of his conversations: "He's not the sharpest knife in the drawer. He was just yakking -- if you put Joan and Melissa Rivers in the same room you wouldn't get that much talk."

Mike Lawrence, former executive director of the Paul Simon Public Policy Institute at Southern Illinois University Carbondale, said that regardless of the verdict, Blagojevich will be remembered for the reckless way he ran the government.

"It's difficult to predict jury outcomes -- especially if there are one or two staunch holdouts," Lawrence wrote in an email. "I think the government made a strong case. If the jury convicts him, he will be held accountable for criminal activity that embarrassed the state and further eroded public confidence in government. But any criminal activity, though despicable, pales in comparison with the actions for which he was impeached and convicted. His fiscal recklessness and total disregard for the sound management of state government did far more damage -- especially in the long term."

This article originally appeared in the St. Louis Beacon.