Ex-prosecutor: Blago's shot at vindication 'slim to none'

Barrington attorney Richard Leng knows how difficult it is to wait for a jury verdict.

"We used to call it 'laying your mattress,'" Leng said. "You'd walk around the office interminably ... because it's absolutely impossible to work."

Attorneys, defendants and families in the corruption trial of brothers Rod and Robert Blagojevich are growing intimately familiar with that feeling. Today, the jury deciding the Blagojeviches' fates will enter its third week of deliberations.

"Waiting for a jury is just the most agonizing thing. There's nothing you can do about it. (The verdict) can happen at absolutely any moment. You have to be available at any moment. And you're in an almost constant state of terror -- whether you're a prosecutor or whether you're a defense attorney."

Leng knows it from both sides, having worked 35 years on federal cases, five as a prosecutor. Yet he also knows that, tense as things surely are on both sides, the probable outcome is heavily weighted against the disgraced former governor and his fundraiser brother.

"The chances of a not-guilty verdict in any federal criminal case are slim and none -- and slim left town," Leng said. "Getting an acquittal in federal court on a criminal case, particularly a case of that magnitude, is just enormously difficult."

Assistant U.S. attorneys are famously methodical, and the strict rules of law in federal cases play to their strengths, Leng noted. Prosecutors also typically plead out anything in doubt - something never apparently contemplated in the Blagojevich case.

There is conventional wisdom that the longer the jury is out, the better the indication that is for the defense, but Leng says, "That is an old saw; I don't know how accurate it is."

Another old saw, he added, is a day of deliberation for every week of the trial, which puts the jury only just over that ratio so far, having received the case after eight weeks and beginning their ninth day on Monday.

"I don't think it's gotten to the range where anybody is sitting around saying, 'This has been going on a long time,'" Leng said.

He added that the complexity of the case, with 24 counts including bribery, extortion, conspiracy, wire fraud and the umbrella category of racketeering, make it time-consuming for the jury, especially as they're likely working from Judge James Zagel's jury instructions.

He pointed to conspiracy, which requires not just two people working in congress on a crime, but "an overt act, an act of furtherance."

Did the Blagojeviches cross that line? There's also the lack of a smoking gun - a direct exchange of a public deed for money or vice versa - as there was in so much of the case against Blagojevich's predecessor as governor, George Ryan.

"It's very possible that they're wrestling kind of at the margins," Leng said. "You had pretty much the same thing in Ryan."

Of course, after 10 days of deliberation, the Ryan jury found him guilty on all counts.

Yet Leng also cautioned that it's all speculation over what remains secret in the jury room as deliberations continue.

"Anybody who tells you they know what it means is blowing smoke," Leng said, "because nobody has a clue."