Former Illinois Gov. Rod Blagojevich is set to go back on trial in early January, but he will stand alone as a defendant this time after prosecutors dismissed all corruption charges against his brother on Thursday.
U.S. District Court Judge James Zagel said Rod Blagojevich's retrial will start the week of Jan. 4, but he did not set a specific date. Jurors deadlocked last week on all but one of 23 charges against the former governor and four charges against his brother.
The lawyer for Robert Blagojevich delivered the surprise news about the charges being dismissed to his client in a brief phone call moments after the hearing. The attorney, Michael Ettinger, told the Nashville, Tenn., businessman, "You're free." He said Robert Blagojevich responded "Oh my god, you're kidding!"
Federal prosecutors said their decision was based on Robert Blagojevich's less central role in alleged schemes to sell or trade an appointment to President Barack Obama's old Senate seat and to pressure people for campaign donations.
Some jurors said the panel was close to acquitting Robert. A few said they did not want to see him retried.
The brothers have denied any wrongdoing.
Ettinger said Robert Blagojevich does not intend to testify against his brother. He said he would have to obey any subpoena, but that he could invoke the 5th amendment to avoid self incrimination.
Robert Blagojevich worked as his brother's campaign manager for only four months in 2008. The Republican had been a successful banker and retired Army officer living in Nashville with his wife, but said he went to work for the Democratic governor out of a sense of brotherly love and family solidarity.
Testifying at the trial, he denied allegations that he helped his brother scheme to benefit from his public office. Another witness, noting Robert's relative lack of importance in the campaign, said his desk was the corner of a conference table facing a sink.
For the retrial, Zagel said he probably won't allow the former governor more than two taxpayer-funded lawyers when the case begins anew. But the judge said he would be open to allowing more attorneys if they volunteered their time, or to allowing attorneys paid by a benefactor.
Rod Blagojevich says he's broke after his campaign fund was depleted by paying attorneys in his first trial. Zagel called for a detailed report about Blagojevich's financial status to help him make decisions about his representation. He said the source of any funding for Blagojevich's defense must be clear.
In court, Blagojevich attorney Sheldon Sorosky argued that his client would need more than two attorneys. He said the half-dozen attorneys in the first trial were one reason the team was able to successfully battle against convictions on all but one charge of lying to the FBI.
"Instead of a slingshot, our David had his band of lawyers," Sorosky said.
Zagel rejected the analogy. He said he'd never seen a defense table as crowded with attorneys and legal assistants as Blagojevich's was at the first trial.
"I thought it was the defendant that looked like Goliath and not the prosecution," he said.
Another of the former governor's lawyers said after the hearing that no one has left the defense team, despite media reports. "We're going to meet with the governor and decide what is best for him," said attorney Sam Adam Sr.
Adam suggested that just two lawyers would be burden for the defense. "We had millions of documents to go over. We had 5,500 hours of tape to go over. ... We had 20 people working full-time on this," he said.
He said he was prepared to work for free if the governor asks him.
"He's our friend and he's our client," Adam said. "He's a very lovable guy when you get to know him."
Adam said there was never any discussion of Blagojevich entering a plea deal, but he didn't completely rule it out. "I'm open to discussion on anything that would benefit the governor," he said.
Zagel said any attorney who wants to leave the case must file a motion with the judge before Oct. 1. He set the next status hearing for Sept. 9.
The judge indicated that everything likely would have been in place for an earlier trial — possibly as soon as October. But he said he did not want to risk jurors getting down to deliberations during either the Thanksgiving or Christmas holidays.
Another consideration, he told attorneys, was that putting off a trial until January would make it easier to pick jurors who did not have news of the first trial fresh in their minds.
He said studies have shown most people recall details of news for only a few months, and so it should be possible to find jurors with "non-specific memories" after that.
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