The Washington Post’s editorial board says that Patrick Fitzgerald should back off his vow to retry Rod Blagojevich. The Post acknowledges that the vote on the key Senate seat-selling charge was 11-1 to convict, but it argues that “almost isn’t good enough.”
Some conservatives, perhaps animated by their unhappiness with Fitzgerald’s successful prosecution of Scooter Libby, agree with the Post. But I don’t see why Fitzgerald shouldn’t seriously consider a retrial.
The Post is correct that, as a matter of law, an 11-1 vote isn’t good enough to convict. But neither is hung jury good enough, as a matter of law, to avoid the possibility of a retrial. And it seems no more anomalous to retry a defendant who narrowly escaped conviction due to a single juror than to allow a defendant automatically to walk forever based on the stubbornness of that juror.
In fact, the two outcomes strike me as related. The government’s right to a retrial counterbalances the possibility that justice will be thwarted by an outlier juror, in this case a juror who apparently thought Blago was acting within the accepted norms of politics.
This doesn’t mean that Fitzgerald necessarily should retry Blagojevich. I’m not sufficiently in command of all the facts to say that. But, as the Post agrees, the Senate seat-selling crime Blagojevich was nearly convicted of “perverts democracy.” Given the seriousness of the crime, the 11-1 vote, and the apparently specious, borderline nullification rationale of the holdout juror, I see no reason why Fitzgerald should rule out a retrial.
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