Patterico's Pontifications


Why Did the Government Keep the Lone Blago Holdout Juror?

Filed under: General — Patterico @ 7:32 am

As I noted last night, the lone Blago holdout juror listens to liberal talk radio. In a politically charged case like Blago’s, she is objectively a disastrous juror. So why did the Government keep her?

In a comment to my post about the lone holdout juror in the Blago case, Beldar has a theory:

It’s not unreasonable to wonder, too, whether hypersensitivity to Batson concerns might have played a role as the prosecutors decided how best to exercise their peremptory strikes. Fair or not, the risk of a case being substantially complicated and a verdict put at risk — by later claims of racism during jury selection — is something prosecutors (and to some extent, all courtroom lawyers, civil and criminal) have to weigh.

This is an important point.

Any defendant (even a white defendant) can bring a motion accusing the prosecutor of racism in jury selection. What Beldar is saying is that, because of these motions, a prosecutor might be tempted to bend over backwards to accept a black juror that he would have kicked in the normal course of business.

Let me tell you a story to illustrate the concept.

Earnest Earl is appointed manager of the Scranton branch of a large paper company. His assignment is to clear out the deadwood, because the previous manager had been running the branch into the ground. He is told he must fire 30 of his 100 employees. Earl sets up a personal interview with each and every employee, and vows to come to a fair decision on layoffs, based on merit, after reviewing the employees’ records and speaking with them personally.

As employees start coming in for their interviews, Earl makes a few easy decisions right off the bat. He fires Johnson and Peterson for embezzling after examining their books and realizing they have been skimming money for years. He fires Smith after seeing Smith with his feet on his desk, all day every day, for a week. He fires Jackson because his sales records have consistently been the lowest in the branch for several years running.

Earnest Earl considers these to be easy decisions. But then he gets an anonymous note, saying: “We notice that you’re firing a bunch of black people. Better watch it, or you may end up getting sued.” You see, Johnson, Peterson, Smith, and Jackson all turn out to have been black. They were hired by the previous manager, who was a black racist who hired any black who applied regardless of their qualifications.

Unlike the previous manager, Earnest Earl doesn’t have a racist bone in his body. He acknowledges the history of oppression of blacks in America. At the same time, he has a job to do, and he takes pride in his work. He had promised himself before he came in that he would make his decisions in a completely colorblind manner. Only merit would count.

And yet, today, he has an appointment with Williams. And Williams is black. And Earnest Earl finds himself hoping that he can keep Williams.

He reviews Williams’s file. Williams is not a great employee. Relatively low sales. Not particularly reliable. Objectively, he would probably be one of the 30 worst employees at the branch. If he were white, Earnest Earl would fire Williams without hesitation.

But Earnest Earl thinks of the note. He wants to stick to merit — but he finds himself straining to find good aspects about Williams’s performance. It’s not like Williams embezzled money, or wasted an entire week of work with his feet on his desk, or has the very worst sales record in the office. Maybe, he decides, maybe we should keep Williams after all.

Earl ends up keeping Williams. He tells himself it’s not because of the threat of a lawsuit.

And even if it was, that would be bad for the branch too, right?

Beldar is suggesting that maybe, just maybe, the government lawyers in the Blago case rationalized keeping an objectively bad juror (one who listens to liberal talk radio, in a politically charged case involving a Democrat crony of Obama’s!) because of the fear of being judged racist for kicking her.

We weren’t there, so we don’t know. But it’s not impossible. Not at all.

67 Responses to “Why Did the Government Keep the Lone Blago Holdout Juror?”

  1. Jury nullification. Wow. I did not see that coming. This is my sincere reaction. Great example, Patterico. Discouraging on many levels.

    TimesDisliker (6bf97a)

  2. Kinda like the school system including methods of assessment other than objective tests and lowering standards to pass more minorities so that it is not perceived as racist.

    breitbartfan77 (6bd10f)

  3. Why did I know that holdout juror was black ? I never even looked at the news accounts. Blago has been courting the black jury pool since the indictments. Bingo !

    Mike K (d6b02c)

  4. another off topic link:

    They are discussing who will hear the prop 8 appeal.

    Aaron Worthing (A.W.) (b1db52)

  5. See, this is a perfect example of our sick society. Racism is merely a rational response to the behavior of blacks. Since we are not allowed to respond to the behavior of blacks in a rational manner, we have to lower standards and let incompetence reign in our juries. This would be like saying we should let retarded people join nasa because otherwise we are showing bigotry toward the mentally challenged.

    Chris (0a6172)

  6. I have heard that she had been telling friends she was not going to convict for some time. Couldn’t the Gov have asked for her removal based on that and asked for a substitution ?

    Jeff (488234)

  7. Jeff, if that’s true, isn’t there anything we can do about crap like that?

    Vivian Louise (eeeb3a)

  8. Two possibilities:
    They didn’t know about her–their fault for not doing their homework.
    They did know and felt they had to take a chance, a victory for race hustling.

    Richard Aubrey (10f6e8)

  9. Before you take to that level of analysis you need to first understand the method of jury selection employed by the trial judge. In most federal criminal jury cases the gov’t gets only 6 preemtory challenges while the defense gets 10. More and more federal judges are going to a blind strike method where each side makes a list without knowing who the other side is striking. One consequence is that is impossible to know who the last 1-3 jurors will be because you don’t know if the defense will use all10 strikes or not.

    This method starts with 32 jurors who are cleared for bias or other “cause.”. The two sides then get 16 strikes which results in a 12 member jury and 4 alternates. If not all 16 strikes are used then it changes the composition of who are the 12.

    Unless you know what method the judge used it’s hard to know if the Pros really had a “choice” or not. Maybe the 6 they struck were worse than her.

    Shipwreckedcrew (3634b6)

  10. I’d like to see a transcript of voir dire.

    Patricia (358f54)

  11. Also I’d be surprised if a Chicago jury had only one AA member.

    Re void dire, many federal judges do not allow the attorneys to ask questions. Again it’s hard to understand what happened without knowing more.

    Shipwreckedcrew (3634b6)

  12. You only need bribe one …

    tarpon (541ea9)

  13. This kind of seems like an own goal, but if this helps them nail Blago’s slimy ass next time around …

    JD (d9926c)

  14. Greetings:

    I used to have a business professor who would assert that “good management is what works”. That being keystroked, protection of company assets is a fundamental managerial responsibility.

    What your anecdote demonstrates is the vulnerability inherent in civil rights legislation. While almost everyone would object to the local Mafia capo coming by and saying on of his “soldiers” should be on your payroll, but won’t actually becoming in to work, the employer vulnerabilities created by the EEO legislation are not a whole lot different. One only has to look at the amount of wealth accumulated by the leaders of the civil rights industry to realize that there’s more than a search for the truth going on here.

    There used to be a bit of folk-wisdom in the Bronx of my youth that went, “If you’re in court, you’ve already lost, the question to be determined is how much”.

    11B40 (da7216)

  15. I just recently tried a case where the judge asked everyone in the panel the standard question: can you obey the law that is given in the instructions, even if you personally disagree with it? You’d be surprised at how many university professors said that they can’t, or that it would be hard for them. Jury nullification is still alive and well.

    rochf (ae9c58)

  16. another off topic link

    goldberg makes a compelling case that bloomberg and obama have been complete idiots in this whole 9-11 mosque thing.

    i think you can maybe assume that bloomberg is just a ideologue. i think the running theme is that bloomberg thinks we are all idiots and it is his job to explain to us what we really should think, feel and even eat.

    But obambi literally should have known the backlash was coming and if he didn’t have the nerve to stand up in favor of the mosque, he shouldn’t have bothered to bring it up.

    Aaron Worthing (A.W.) (e7d72e)

  17. In your business example I would say that your manager is approaching the problem incorrectly. He’s told to get rid of 30% but approaches the matter one employee at a time. Sad to say the lost an entire week goof may well be above that line.

    One the other hand, I would say get rid of peremptory strikes altogether, if you can’t kick someone for cause you should be stuck with them. If preemptories must exist I do prefer the blind strike methodology. Better that both sides agree someone must go.

    Soronel Haetir (fadc29)

  18. soronel

    i disagree on what you said about strikes. there can be jurors you can’t trust that you can’t strike for cause. like the juror says he will be fair, but you sense he is lying. you can’t prove it to the judge, but you know you are usually right about these things.

    I think its mostly a pretty good system.

    Aaron Worthing (A.W.) (e7d72e)

  19. I enjoyed the analysis, but in reality, what was touted at being a strong case, whimpers to a close… It was a little hard to see Blago’s arrogance after the verdict, I must say…

    addiction Analyst (9a596e)

  20. A good joke from Jim Geraghty’s daily email broadcast, the Morning Jolt:

    “Q: Why can’t we put Khalid Shaikh Mohammed on trial in Manhattan?

    “A: Because the holdout juror from the Blagojevich trial might move.”

    Beldar (a47d40)

  21. but if this helps them nail Blago’s slimy ass next time around …

    But that’s my primary concern right now, that even with a new trial, they may not convict him of any additional counts. The jury pool may be too contaminated at this point to prevent the same result from happening. This braying ass is already becoming another inane folk hero for all of the losers of this state to affix themselves to, and I don’t know if any of us can tolerate another “Rocky” – type performance from this guy again (if he gets off).

    Dmac (d61c0d)

  22. They should move the trial to Coeur d’Alene ID – both the defense and the govt would have to have ALL of their ducks in a row.
    I believe the residents of Northern Idaho do not particularly care for crooked politicians, nor overly ambitious prosecutors.

    AD - RtR/OS! (4228f5)

  23. If he did keep her because she was black, he was still being racist. Racism isn’t about just denying someone something because of their skin color. It also means giving someone something because of their skin color. Most people who are a victim of that kind of racism though don’t complain.

    Erin (6ab635)

  24. but if this helps them nail Blago’s slimy ass next time around …

    Comment by JD

    I think this is over and Blago knows it. He has been massaging the black part of the jury pool for two years and it paid off.

    Don’t be too eager to take a shaky case to northern Idaho. They do not like feds up there and indicted that FBI agent who killed the wife at Ruby Ridge. It’s interesting that the same area is a favored LAPD retirement colony. A big one.

    MIke K (d6b02c)

  25. When I was in my senior year of undergrad, I was called up for jury duty. At the time, this meant going in every day for 3 weeks, or until you completed a case.
    The judge mentioned before hearing any excuses that a recent trial in the building had been appealed, in part, because too many people were excused from jury duty for less than exemplary reasons.
    This meant that I would have to serve. Being in the middle of a semester wouldn’t cut it.
    I finally got back to school after 3 1/2 weeks .. 2 1/2 weeks sitting about and another 6 days of an attempted murder case.

    Neo (7830e6)

  26. “…manager of the Scranton branch of a large paper company.”

    That’s easy. Michael Scott will fire Toby. If that’s not 30%, he’ll fire Toby again.

    Mike S (d3f5fd)

  27. Some of you folks think Blago will not be convicted on retrial?

    What a disaster.

    Dustin (b54cdc)

  28. The DA blew the OJ case by moving it from Santa Monica to downtown LA. Then he made sure it would stay blown by appointing those two affirmative action morons to prosecute the case. Reaping and sowing are related activities.

    Even though the glove did fit, the fix was already in. Guilty as hell, and free as a bird.

    ropelight (b3104a)

  29. Some of you folks think Blago will not be convicted on retrial?

    I’ll give you three plausible reasons why another jury is likely to contain at least one moron who believes the following:

    – if someone doesn’t physically hand over millions of dollars in bribes directly into the former governor’s hands, there is no evidence;

    – this is Illinois, this kind of corrupt BS goes on all the time, what’s the big deal, anyway?

    – my brother works for a local contractor in chicago, and even though they’ve paid off every legislator in order to receive a no – bid contract for the state, hey, as long as we’ve got ours, screw you.

    Dmac (d61c0d)

  30. In the heel of the hunt Blago was not acquitted. He got convicted on one count. He’s a convicted felon idiot. And the government gets another shot. Same fish, different barrel.

    liamascorcaigh (778748)

  31. He’ll probably run and win that Senate seat at the rate we’re going.

    Dustin (b54cdc)

  32. “They should move the trial to Coeur d’Alene ID”

    They wouldn’t put up with much monkey business up there. And I doubt there would be any persons of color in the jury pool.

    PatAZ (9d1bb3)

  33. I suggested ID because it would force everyone involved to nibble on a little humble-pie.
    And, Yes, Mike K, I know that there are a lot of ex-LAPD (and members from other dept’s) up there.
    Most of them wouldn’t give two-cents for either side of this case.

    In light of the 9th-Circuit decision in the Stolen Valor Act case,
    I wouldn’t be surprised if Blago doesn’t appeal on the grounds that he has a Constitutional Right to lie to the Fibs.

    AD - RtR/OS! (4228f5)

  34. In the Blago jury were three black jurors and 1 asian. The rest were white. This jury was pulled from a multicultural population of millions of voters covering Chicago proper and (I believe) 5 northern Illinois counties. There was 1 holdout. The rest of the jury reportedly worked together and seemed to mostly “get it”. IMO, much less emphasis needs to be placed on juror 106’s race–and much more on her politics and affiliations.

    elissa (846f6f)

  35. Dustin, I voted for Blago’s opponent in the Dem primary here when he first ran for Governor, he was a decent guy, had done commendable public service in the past, and he barely lost. Then when I voted for his GOP opponent, forgettaboutit. The fact that the voters in this state would elect such an obvious Machine politician pretty much said it all, and many of those voters were from downstate, who typically despise any and all politicians hailing from Chicago. They then compounded their idiocy in voting for Obama, so that’s why I have strong cynicism regarding the retrial.

    I still have hope – I was shocked that a jury convicted Ryan on all of the counts, despite similar circumstances. But it’s still a slim one.

    Dmac (d61c0d)

  36. It makes me sick to know that in our collective past that jurors went to duty knowing their verdict before the trial. How many African American men have been convicted of rape by crackers who cared not for the evidence?That an African American woman would engage in the same is sad.

    highpockets (adaced)

  37. The amount of palm-greasing required to get a construction contract in Cook County, or the city of Chicago, is remarkable.

    JD (c13155)

  38. highpockets – what you wrote is really no less offensive than what KKKris has been writing.

    JD (c13155)

  39. It’s not just the county and the city, JD – the state is mostly no – bid as well, I believe. I have yet to hear our esteemed media ask the politicians why this corrupt and wasteful system is still in place, since they only reason appears to be solely for uses of bribery and fraud. I asked my loyal Lefty friends here how much of the stimulus money they thought actually went to anyone other than machine – affiliated contractors. They just laughed.

    Dmac (d61c0d)

  40. Most school and park stuff has to be bid, but the process is byzantine for those not affiliated already.

    JD (c13155)

  41. …but even they’re fed up with Obama, wonder of wonders. They’re mostly composed of guys who are running their family’s businesses or doctors – we had many heated arguments about their choices last time, don’t think they’ll be any debates in the future.

    Dmac (d61c0d)

  42. Oh, they will still support him, they just won’t admit it.

    JD (c13155)

  43. When do they set a new trial date?

    JD (c13155)

  44. I read the piece about the foreman today and Fitz has two chances to convict Blago, slim and none. Half those jurors, including the holdout, were thinking, “What’s the big deal? This is how business is done in Chicago.”

    Mike K (d6b02c)

  45. First reports had the jury selection starting later this month, if the defense council was going to remain the same. Most experts now are predicting the trial won’t start until early next year, regardless.

    Dmac (d61c0d)

  46. All it takes is one juror. Those who don’t like the system, go live somewhere else.

    atty555 (97fa61)

  47. Why do people have to be so intentionally douchey?

    JD (cf3b04)

  48. Is the lamestream media acknowledging that the vote was 11-1?

    Or are they still carrying the water?

    Arizona Bob (f57a20)

  49. All it takes is one juror. Those who don’t like the system, go live somewhere else.

    Comment by atty555

    Why shouldn’t we just work to reform our systems and put this juror behind bars if she broke her oath? That’s what it seems to me she may have done, if she really promised a not guilty from the start.

    I think the prosecution can learn some lessons from these jurors and present the case better, and gain a conviction.

    Dustin (b54cdc)

  50. Fitzgerald taken
    to woodshed again should move
    to Armitage Group… LLP

    ColonelHaiku (2deed7)

  51. Another off topic link. Even more fresh stupidity over the Ground Zero Mosque… Russel Simmons asks “Did we blame Christians for the first World Trade attack?”

    Links to the video that you have to hear to believe, as well as a special “Jesus Facepalm” picture to express my thoughts upon hearing it.

    But hey, still not as stupid as Kathleen Parker telling us that none of the guys building the mosque flew planes into buildings on 9-11. And thank God, because regular terrorists are bad enough, but I don’t think i am ready to deal with zombie terrorists.

    Aaron Worthing (f97997)

  52. The trial was a sham from the start. Fitzgerald prematurely terminated the tape surveillance because Jessie Jackson Jr was about to incriminate himself. So, to protect Jackson and to cover his duplicity, Fitz abruptly terminated the investigation and then went ahead with the Blogo prosecution.

    ropelight (b3104a)

  53. –The trial was a sham from the start– comment by ropelight

    You have articulated your view. Not everyone feels as you do. Here is another view. From John Kass of the Chicago Tribune, linked below is today’s featured column in which Sam Skinner, former U.S. Attorney from Northern Illinois and who was also WH chief of staff for the first Pres. Bush shares his thoughts on why the arrest and indictmnnet had to go down as it did. Some of you may find his insights worth a look.,0,3296271.column

    elissa (846f6f)

  54. Elissa, that’s an excellent read.

    As I said earlier, if they were trying to throw the trial, they sure did a lousy job, what with 11 guilty votes.

    Dustin (b54cdc)

  55. This would be like saying we should let retarded people join nasa because otherwise we are showing bigotry toward the mentally challenged.

    — Whatever you say, space cadet.

    Icy Texan (2c6af9)

  56. Well, they did get a conviction.

    If that had been the only count in the indictment, we’d all be talking about how clever Fitz & Co. are. I just don’t have enough information to assess the performance of either side’s lawyers with any degree of confidence, but I do know it’s a sufficiently complicated process that some of the critiques which are flying around out there are necessarily oversimplifications at best.

    One thing I haven’t seen mentioned elsewhere: In evaluating the fact that the votes were reportedly split more closely than 11-1 (i.e., with more than one dissenting vote) on some counts, the obvious speculation is that the government’s proof must have been really poor on those counts and they’d never have “un-hung,” such that the prosecution’s failure to convict on those counts must be presumed, along with some level of blame on the prosecution for that.

    That could be true, I suppose. But my experience over the last 30+ years in dealing with juries suggests to me that they tend to work like spilled milk — always following gravity and the path of least resistance. If you’ve got one juror who’s holding out, the tendency for the rest of the jurors is to keep changing the subject, bouncing around to look for more areas on which the holdout can be in agreement with the rest. Essentially all of the group’s efforts are pointed at the hold-out, rather than at smoothing out any rough edges among the rest of them. Thus, the existence of the hold-out juror tends to delay the sustained attention and discussion (complete with persuasion and sometimes some degree of compromise) that can turn an 8-4 vote into a 9-3, then an 10-2, then a 12-0 vote. My hunch is that but for the hold-out, then on most counts they had to consider, the rest of the jurors would have eventually reached complete agreement one way or the other (which might have included some aquittal votes on some counts).

    Stripped of trimmings, this was an ugly result for both sides, which is why I speculate that it might produce a plea.

    Beldar (a47d40)

  57. What I find fascinating, is how many commentators here immediately assume it’s some kind of “racial” thing – as opposed to simply politics. Everything that involves a black person isn’t always about race.
    In any case, your example case is all wrong. Especially the part about the racist black manager he was supposed to have replaced. No black manager would be allowed to only hire, or even hire a majority of, black employees; unless there were no other employees available and unless he were completely in charge and had to answer to no supervisors.

    Mike Giles (987fcc)

  58. Mike Giles, so you are saying you did not bother to read the original post at all?

    SPQR (26be8b)

  59. I don’t think he even read most of the comments, or else he suffers from a serious lack of comprehension skills.

    Stripped of trimmings, this was an ugly result for both sides, which is why I speculate that it might produce a plea.

    That is entirely logical, except that I don’t think we’re dealing with a defendent that has any sense of reality. Blago lost his first representation when he refused to listen to any of his advice (he was one of the top litigators in town), which led to the lawyer stepping down out of frustration. This man has been screeching for over two years regarding his innocence, and was willing to hang himself in front of the jury until his lawyers convinced him to decline to take the stand. This guy is narcissistic overload x 20, I don’t know if he’ll ever be able to bring himself to admit that he didn’t do anything wrong at this point.

    Dmac (d61c0d)

  60. “…to admit that he did do anything wrong…”

    Dmac (d61c0d)

  61. What I find fascinating, is how many commentators here immediately assume it’s some kind of “racial” thing – as opposed to simply politics. Everything that involves a black person isn’t always about race.
    In any case, your example case is all wrong. Especially the part about the racist black manager he was supposed to have replaced. No black manager would be allowed to only hire, or even hire a majority of, black employees; unless there were no other employees available and unless he were completely in charge and had to answer to no supervisors.

    Comment by Mike Giles

    Well, it is pretty fascinating, fantastic, incredible… that you think ‘many commenters’ have assumed that. What’s wrong with you people? This guy tried to hijack our democracy and got away with it because of yet another partisan liberal shill. Crying racist again? The race card is maxed out.

    Dustin (b54cdc)

  62. During prior negotiations, there wasn’t already a verdict of conviction on a felony with a potential five-year sentence on the books. Nor, for that matter, was there a hung jury on all those other counts. Complete vindication is no longer even a dream for Blago. Both sides have ample incentive to take a completely fresh look at their own prior plea bargaining positions.

    Moreover, Blago is going to have to write new, big retainer checks to his defense team to keep them on board, or to new lawyers if he’s to replace them. (This is a point in the proceedings when the court would likely permit the withdrawal of his current counsel, which they will certainly use as leverage with Blago to insist that they get paid up for all work done in the past and that he refresh his retainer in an amount sufficient to cover an anticipated retrial; I’m guessing very high six, maybe even seven, figures.) If his finances are genuinely stretched, he may be obliged to become less idealistic.

    Beldar (a47d40)

  63. Competent legal defense is a freaking valuable thing, you just don’t give it away for nothing.

    Dustin (b54cdc)

  64. Beldar, word on the street is that Blago will definitely have different defense counsel for the retrial. Perhaps they will be able to talk some sense into Blago with respect to a plea–

    Would it be considered unethical as officers of the court for them to drug him, hold him down, and force him to sign something? Many here think it might take that sort of “encouragement” since Rod will likely go to his grave still saying he did nothing wrong.

    elissa (846f6f)

  65. For any one who might enjoy additional insight into Blago’s state of mind and activities three days after becoming a convicted felon and facing both a new trial (with new counsel) and sentencing:


    One guilty charge won’t stop Rod Blagojevich from doing what he does best this weekend – schmoozing. has learned that the former Illinois Governor is set to appear at the Wizard World Chicago Comic Con where he will be signing autographs, posing for pictures and engaging in meet-and-greets.
    “I’m looking forward to meeting loyal supporters and other fans on Saturday,” Blagojevich said.

    Other celebrities expected to attend the Comic Con event in Chicago this weekend are William Shatner, Adam West and Linda Hamilton. Autographs and photos are said to go for 30-50 dollars each.

    elissa (846f6f)

  66. As guilty as Blago seems to be, it is BS to bleed him dry $$ wise and watch him take a plea.

    Give the feds one bite at the apple, and they’d be smarter…. like in Patterico’s story… get all the info on the 30 to be fired first… then fire three white and two blacks, two whites and one black, a white, three blacks.. or if most are black, hire a black person to do the firing

    SteveG (5641e3)

  67. elissa: His counsel (previous and/or new) can insist that he sign a confidential, privileged document confirming that he’s given them instructions — e.g., to reject a particular plea bargain offer — that are contrary to their advice, and that they’re only following under (secret) protest (to him only). I don’t think that happens very often, though, since criminal defense lawyers don’t face much by way of potential liability for malpractice, and the only purpose of such a letter is ass-covering to prepare a defense against a feared malpractice claim. (I’ve sometimes insisted on civil clients signing such a letter as a condition of my continued representation, however.)

    But to answer your question directly: No — no one can make Blago accept a plea, since by definition that would be an involuntary plea, and that would be revealed as part of the colloquy required under the Federal Rules of Criminal Procedure during the plea entry hearing.

    Beldar (a47d40)

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