Opinion: Why Rod Blagojevich Should Expect a Stiff Sentence

On Monday jurors in the corruption retrial of former Illinois Governor Rod Blagojevich returned guilty verdicts on 17 counts of conspiracy, extortion, bribery, and wire fraud. At the heart of the government’s case - led by one of the ablest (if, at times, overzealous) prosecutors in the country, Patrick Fitzgerald - was the claim that Blagojevich tried to sell the Senate seat vacated by President Obama.

We can certainly debate the merits of the conviction. Even Fitzgerald acknowledged that he closed down his investigation earlier than he would have liked. And there was no evidence at either trial that Blagojevich ever received any remuneration in exchange for his boastful banter, be “just talk,” as the defense contended, or “in furtherance of a criminal enterprise,” as the prosecution alleged. But whatever the relative arguments for or against conviction, the jury has spoken. Now, comes the penalty.

It will take weeks, if not months to formulate the sentence in the case. At first blush, the sentence is somewhere in the neighborhood of 250-300 years. As the verdict came down Monday, the pundits were quick to point out that Judge James Zagel will have to follow the federal sentencing guidelines, leaving most to surmise that Blago will get somewhere in the neighborhood of 7-10 years.

I think Blagojevich will do much more time, however, and here's why:

1. His Testimony

This was Blegojevich's second trial. The jury in his first trial deadlocked: Eleven to One, in favor of conviction.

Of course, the judge can't give the former governor a longer sentence for wasting taxpayer money on a retrial. The decision to try the case again was strictly the government's. But this time around Blagojevich did something he hadn’t done in the first trial, however. He took the witness stand, testifying for seven long days.

I have a little insight into his decision to testify; I was one of the journalists who interviewed Rod Blagojevich back in January 2009, shortly after his indictment, and just before he was impeached. I liked the guy, despite my cynical-self. He was charming and personable. He is a consummate politician, after all.

But he is also loquacious, a trait which may suit a politician just fine, but one that is self-destructive in a criminal defendant.

I tried to suggest as much to Rod Blagojevich during our interview. I mentioned that his media blitz might not sit well with the jury who would ultimately sit in judgment of him; I reminded the then-governor that anything he said publicly could be used against him in court.

No matter. Rod Blagojevich was a man who was determined to employ the charm offensive to its fullest effect. The effect was not what he had hoped for.

As my mentor, the great trial lawyer James Brosnahan, schooled me when I was just getting into law practice, "You cannot win a case on charm alone." The jurors may like a defendant, but that doesn't mean they will believe him.

Whether this jury liked Blagojevich, we may never know. But it appears they didn’t believe much of what their former governor said in court since they acquitted on only one count. And one juror told Reuters after the verdict that she found Blagojevich's testimony "manipulative" and that it was "very clear" he was making a trade for the Senate seat. There is nothing a judge likes to punish more than a defendant who takes the witness stand and lies to the jury. And this jury felt it had been lied to.

2. The Public Trust

Many people feel this was a victimless crime, that no one was hurt. But Fitzgerald will argue at sentencing that the violation of the public trust requires an upward departure from whatever the sentencing guidelines suggest. Remember, this was the seat vacated by the President of the United States.

Thus, Judge Zagel may seek to use sentence the to translate the violation of the public trust into a number. The role of the judge at sentencing to balance the law, the public’s emotions while handing down a sentence that is just and satisfies the court’s need to send a message.

Judge Zagel will not choose a number arbitrarily; nor will he compromise with a figure, say, halfway between zero and 300 years. But symbolism will be hugely important, given the enormity of Blagojevich’s crimes and the history of the state. The judge will reflect on the fraud’s unprecedented hubris and the cultural and political context within which the former governor (even by his own account) operated.

The court's probation department, using the federal sentencing guidelines, will calculate the range of punishment. Then the defense will plead for the lightest possible sentence and the government will, no doubt, request the maximum – in the order of 250 years.

None of the 17 counts against Blagojevich carry a sentence of life imprisonment (indeed, none carry more than 20 years); thus Judge Zagel cannot not impose a conventional life sentence. That may be where most of the experts are coming from when they say he will serve about ten years.

But here’s my analysis: The judge is required to stack the maximum sentences for each count to calculate a recommended sentence according to the federal advisory guidelines. That totals 250 years. Zagel is not bound by that figure, and he will likely go beneath it. But how far? Not as far as 10 years.

3. The Madoff Example

You will recall that many of the experts who are now predicting a ten-year sentence for Blagojevich also predicted a ten-year sentence for Bernard Madoff. Madoff was older (71). He was also convicted in federal court and the sentencing guidelines in that case suggested a 13-year term. Instead, Madoff was sentenced to 150 years and will never see the light of day. I predict a slightly kinder, gentler sentence for Blagojevich; something in the order of 20-25 years.

Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues. You can follow her on twitter.