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Blagojevich jury agrees on two out of 24 counts

Jurors in the Rod Blagojevich trial are shown in an artist's sketch.
Jurors in the Rod Blagojevich trial are shown in an artist's sketch.Art Lien / Nbc News / Art Lien / NBC
/ Source: The Associated Press

A new message from the jury weighing the fate of Rod Blagojevich provided a few clues Thursday about their deadlock in deliberations, stirring speculation that the panel's struggles could be good news for the disgraced former governor of Illinois.

In a note read in court by Judge James Zagel, jurors said they had only managed to agree on two of 24 counts against Blagojevich and had not even begun discussing 11 of the counts.

The jurors did not say which two of the 24 counts they had agreed on, nor what their decisions were. The judge instructed them to go back and continue their work, which they planned to do Monday after taking Friday off.

Their message raised questions: Did some jurors have misgivings about the prosecution's case? Might some of them have dug in their heels against the majority? Or were they simply confused?

"It's a victory for the defense for several reasons," said Douglas Godfrey, a law professor at Chicago-Kent College of Law, arguing that the way the government had presented its case was extremely complex. "If the jury hangs on 22, it's a big blow to government."

Michael Helfand, a Chicago defense attorney not involved in the case, agreed Blagojevich had good reason to be thrilled.

"This jury has been deliberating for such a long time, the chances of someone changing their mind now aren't good," he said.

As Zagel read the jury note to a packed courtroom on the 12th day of deliberations, Blagojevich and his co-defendant brother listened intently, sitting at the edge of their chairs. After the hearing adjourned, Blagojevich smiled in a huddle with attorneys. He put his arm around wife Patti's shoulder.

Blagojevich did not comment after the hearing, but at least one of his attorneys, Aaron Goldstein, suggested that the latest word from jurors could be good news for his client.

"I think there's a lot of cautious optimism," he said.

For their part, prosecutors appeared worried — standing together after the hearing to discuss the implications of the note. They did not comment as they left the courtroom.

Not everyone thinks the note is necessarily good news for the defense.

Daniel Coyne, another Kent professor, said no one knows what the two counts are that have been decided, or how the jury decided on them. If jurors have agreed that Blagojevich is guilty of one or two counts, he could face prison time.

"That's a little premature," he said. "It means some more sleepless nights (for the defense). Trying to forecast what a jury is doing is really very treacherous work."

The 11 counts the jury has yet to discuss involve wire fraud. Most of them deal with FBI wiretap recordings and the allegation that Blagojevich tried to sell or trade President Barack Obama's old Senate seat.

Joel Levin, a former federal prosecutor, said what is particularly baffling is that there were few notes to the judge throughout deliberations. Until the 11th day, they had sent two.

"Given they've accomplished virtually nothing, you would have thought we'd heard something," he said.

Which counts they've agreed or disagreed on is crucial, especially when it comes to arguably the most serious charge, racketeering.

As they consider the racketeering charge, the indictment requires jurors to decide whether Blagojevich committed more than 20 separate illegal actions, from trying to sell the Senate seat to squeezing a construction executive for campaign cash.

Many other charges, including wire fraud, rely on whether jurors have already agreed Blagojevich committed the long list of actions under racketeering. That makes the racketeering count a kind of legal domino. If jurors convict on it, many other counts should also come in as guilty.

Asked if Thursday's note suggests jurors are bogged down on racketeering, Blagojevich attorney Sheldon Sorosky agreed.

"Yes, it does seem to," he said.

The jury sent a note to Zagel on Wednesday saying they were stuck, but without giving specifics. He asked for clarification.

After the jury was sent back to deliberations, Blagojevich and his brother, Robert, spent Thursday afternoon waiting in a courtroom cafeteria on the chance jurors came back with another note. Jurors didn't.

The brothers appeared relaxed, though they sat at opposite ends of the room. The ex-governor played a trivia game to pass the time.

Blagojevich, 53, has pleaded not guilty to charges including that he tried to sell or trade the Senate seat appointment for a Cabinet post, private job or campaign cash, and tried to leverage the power of his office for personal gain.

If convicted, he could face up to $6 million in fines and a sentence of 415 years in prison, though he is sure to get much less time under federal guidelines.

His brother, a Tennessee businessman, faces four counts and has pleaded not guilty.

Judges have a lot of autonomy in the event of a deadlock on some or all counts, Helfand said.

Besides sending jurors back to keep trying, a judge can ask them if there's anything he could provide that might help them reach a verdict — transcripts of specific witness testimony, for instance.

Zagel praised the Blagojevich jurors Wednesday, calling them disciplined and diligent. Any discord has apparently been civil, Zagel told the court, with no reports of shouting or screaming from the room where they gather each weekday.

"Even though we feel like they've been deliberating a long time, given the number of counts, they really could keep at it longer," said Nancy Marder, a professor at Chicago-Kent College of Law. "Jurors don't have a sense of how long is long."