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Thursday, August 19, 2010

The benefits of retrying a criminal case

Retrying a criminal case after a mistrial is often a good bet for the government.  If the prosecutor knows how and why the jury split in the prior trial, it can adjust its game plan for the next.  Sometimes, the government presents additional witnesses, who can better tell the prosecution's story and corroborate witnesses whose testimony was questioned in prior trials. 

In other cases, the problem is one of complexity.  The government has presented too much evidence, and perhaps has charged the defendant with so many crimes that the jurors do not quite know how to proceed.  Apparently, that may have been the problem for the trial of Rod Blagojevich.  In cases like that, the best tactic might be to streamline the trial by bringing fewer charges and presenting less testimony.  

I would imagine that the streamlining approach is exactly the one that the United States Attorney's Office in Illinois will adopt when it retries Blagojevich.  Expect the trial to be shorter and the charges to be far more limited to the events surrounding the alleged sale of a Senate seat (the jury broke 11-1 on this count). Expect also that the government will push for an immediate trial date - the shorter the time lag, the better.

That leads to the obvious question: Should the government retry its case against Blagojevich?  The Washington Post has an editorial arguing against it, but I am not persuaded that a second trial is unwarranted.  The governor of the fifth largest state (by population) allegedly tried to sell a Senate seat for his own gain.  Despite the complexity of the case, 11 jurors concluded that Blagojevich was guilty of this count, and all jurors concluded that he lied to federal agents (which is why he was convicted on one count).  Assuming you believe that retrials are ever appropriate, isn't this exactly the type of case that the government should retry?

Posted by Miriam Baer on August 19, 2010 at 11:33 AM | Permalink


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The 11-1 breakdown for various serious counts colors the framing of some accounts that this was a problematic case etc. since they could have done things differently and one juror very well might have determined that "hey, that's politics" or whatever.

Since he was convicted in one count and his lawyers will realize that his reprieve was less of a slamdunk than their client is trying to sell, I also wonder if a plea is possible -- though given the defendant, it might not be something his character would being willing to accept.

Posted by: Joe | Aug 20, 2010 2:37:59 PM

I recall seeing a statistic that an overwhelming percentage (something in the 80s) of retrials end in conviction. The implication is that a hung jury (particularly where one strongly-but-not-unanimously prepared to convict) indicates the defendant got lucky and luck does not strike twice. Maybe this is more true of "common" crimes as opposed to white collar/political corruption.

Posted by: Howard Wasserman | Aug 19, 2010 8:32:26 PM

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