UPDATED 12/06/11 6:06 p.m.
CHICAGO (CBS) — Defense attorneys dominated the discussion on the first day of former Gov. Rod Blagojevich’s sentencing hearing, but based on the judge’s decisions so far, getting the leniency they are seeking could be a long shot.
Even so, the defense made an impassioned plea for the judge to show Blagojevich mercy, drawing on his family’s emotional words about the devastating impact a long sentence would have on them.
U.S. District Judge James Zagel sided with federal prosecutors on several key points in the case, in regard to matters that would add more years to Blagojevich’s sentence. CBS 2’s Dana Kozlov reports
LISTEN: WBBM Newsradio’s John Cody reports
LISTEN: WBBM Newsradio’s Bernie Tafoya talks with Blagojevich’s neighbors
The judge agreed with the government that Blagojevich played an active role and was a leader/organizer of the schemes to get illicit campaign cash through his actions as governor.
“His role as a leader is clearly shown by his actions and not merely his badge of office,” Zagel said.
The judge also contested Blagojevich’s claim to the federal Probation Department that he “came from nothing” as the son of Serbian immigrants to become governor of Illinois.
“I don’t understand it. This is the backbone of America,” Zagel said. “This is the classic American story. … This is not nothing.”
Defense attorney Carolyn Gurland said they were referring only to the fact that Blagojevich’s parents were poor and had to work hard and make sacrifices to provide for him and his brother, Robert. She said Blagojevich was in no way trying to denigrate his parents’ hard work, merely pointing out he came from a poor family to rise to a powerful position.
Defense attorneys closed out the day by painting Blagojevich as someone who genuinely cared about helping average Illinois residents and by invoking impassioned pleas from his wife and daughter, asking the judge not to take Blagojevich away from his family for an extended period of time.
“Standing before you, Mr. Blagojevich is convicted and that is a side of him,” defense attorney Aaron Goldstein said. “But there are sides to him that are not criminal, that are good and kind and decent.”
Goldstein read from a handful of letters that Blagojevich wrote to his daughters, as well as letters his wife and daughter wrote to the judge in his defense.
“Mommy and I are so grateful we’re the parents of such a smart and sweet daughter,” he wrote in one letter to his oldest daughter, Amy, while she was on a class trip in 2005.
“What value does it have that he has a family that he cares for and would be devastated without him?” Goldstein said. “We understand there’s a balance that has to be struck. I suggest, your honor, that balance is way, way, way below what the governor suggests.”
Goldstein also read from a letter that Amy wrote to the judge.
“He’s been here to help me with my homework,” she wrote. “I will not be able to handle my father not being around. I need him here for my high school graduation. … I’ve wanted to go to Northwestern since 6th grade. … I’ll need him when my heart gets broken. … I need my father in my life.”
Blagojevich’s wife, Patti, sobbed and dabbed tears from her face with a tissue as she listened to Goldstein reading from the family’s letters to the judge and when the defense played a snippet of a phone call to his youngest daughter, Annie, whispering that he loves her.
Goldstein repeated the defense’s assertion that Blagojevich’s wife and daughters would be devastated if he is sentenced to a term of 15 to 20 years in prison as prosecutors have sought.
“A day, let alone a year, away from their father is a lifetime,” Goldstein added.
Some of Goldstein’s last words to the judge were from Blagojevich’s wife, Patti, who wrote the judge a letter asking him to be merciful.
“The punishment that he fears most … that he would not be here to see his daughters grow … that he would not be here to protect them from a cruel world,” she wrote.
The hearing resumes Wednesday at 10 a.m., with arguments from prosecutors for a stiff sentence. Blagojevich is expected to address the judge after prosecutors present their side of the case.
The day’s proceedings started with a debate on a number of disputed factors that would affect the range of sentences Blagojevich would ultimately face, mostly focused on how much money was involved in the schemes the former governor was convicted of.
Zagel sided with the government regarding one of the most explosive allegations in the Blagojevich case, that he wanted to get a $1.5 million campaign contribution offered by supporters of U.S. Rep. Jesse Jackson Jr., in exchange for appointing Jackson to the U.S. Senate.
“The judge is thinking about big numbers or he wouldn’t have ruled the way he did today,” CBS 2 legal analyst Irv Miller said.
Defense attorneys had argued that the $1.5 million dollar amount should not be considered when deciding how long Blagojevich’s sentence should be, pointing to the federal Probation Department’s report that there wasn’t enough evidence to show how much money he thought he could get from Jackson’s supporters.
But Assistant U.S. Atty. Reid Schar disputed the Probation Department’s finding, saying, “There’s never a dispute throughout this entire period that $1.5 million was being offered. … The number is clear and easily valued.”
Zagel agreed with prosecutors, saying that although Blagojevich apparently knew it was unlikely he’d actually get that money from Jackson’s fundraisers, “that was the benefit he had in mind. It was a price he put on it, a price he expected to receive.”
The defense also argued that Blagojevich was not a leader or organizer of the schemes he was convicted of, claiming he was manipulated by his advisers.
But Zagel rejected those arguments, saying FBI wiretap recordings made it clear Blagojevich was in charge, not simply because he was governor, but because the schemes were intended to benefit him alone.
“His role as a leader is clearly shown by his actions and not merely his badge of office,” Zagel said.
The judge also shot down the defense’s repeated claim that Blagojevich’s advisers failed to warn him that his plans to get campaign contributions in exchange for official actions would be illegal.
“He has said that his staff should have stopped him one way or another,” Zagel said. “Frankly, based on what’s on those tapes, I don’t think he was an easy man to stop. … He was not a supplicant.”
Ultimately, Zagel said that, while Blagojevich could face a sentence of 30 years to life under federal guidelines, he said such a lengthy sentence was “simply not appropriate.” However, he has yet to establish a final potential range for the sentence, as both defense attorneys and prosecutors have yet to make their full arguments.
Blagojevich has been convicted of 18 charges, including allegations he tried to shake down a hospital CEO and a racetrack owner for campaign cash and that he tried to sell or trade an appointment to the U.S. Senate seat vacated by President Barack Obama.
Prosecutors are pushing for a 15-20 year sentence, which would be the longest sentence handed down in a political corruption case in Illinois history. The defense has argued Blagojevich should face no more than 3 1/2 to a little over 4 years in prison, but are pushing for probation.
In making their case for leniency, Blagojevich’s lawyers acknowledged for the first time in public that his actions crossed the line.
“He has been convicted of these crimes, he has to be punished for it, he has to take responsibility for it,” Goldstein said.
Lead defense attorney Sheldon Sorosky spoke at length, discussing each of the illegal acts that Blagojevich was convicted of, conceding that his client crossed the line. For example, Sorosky conceded it was illegal for Blagojevich to seek a White House cabinet post for himself in exchange for appointing a close friend of President Barack Obama to replace Obama the U.S. Senate.
“There’s no doubt this is a crime to do this in relation to the Senate seat, we accept that,” Sorosky said. “I am just saying that does not call for a 15- to 20-year jail” term.
Sorosky argued Blagojevich’s crimes were not nearly as bad as other convicted Illinois governors or some of Blagojevich’s co-defendants, such as fundraiser Antoin “Tony” Rezko and political fixer Stuart Levine, both of whom actually made money through their corrupt actions.
“The examples of all these other corrupt officials were so much more egregious than the crimes we have here that we have to begin with what Mr. Blagojevich was convicted of,” Sorosky said. “These are rather minimal, minimally wrong … they’re not right, but they’re minimally wrong compared to the outrageous conduct that was shown in these other cases.”
Goldstein also questioned whether or not Blagojevich should get a strict sentence to serve as a deterrent against other politicians committing similar crimes in the future. He suggested that Blagojevich does not need to receive a more severe sentence than other previously convicted Illinois governors to serve as a deterrent.
“Just because we have crimes that occur does not mean that deterrence is not working,” Goldstein said. “There is a point at which general deterrence isn’t the end-all be all.”
Goldstein argued that no matter how long of a sentence Blagojevich would receive, some politicians would still decide to commit corrupt acts.
“If they truly believe that they can go ahead and commit crimes because, say, five years was the sentence, that person was not in their right mind,” Goldstein said. “In this case, your honor does not need to sentence Mr. Blagojevich to anywhere near what the government is suggesting.”
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Most legal analysts have said Zagel is likely to give Blagojevich no less than 10 1/2 years in prison – the sentence handed down to his chief fundraiser, Antoin “Tony” Rezko, for shaking down companies seeking state business under Blagojevich.
Miller says even though Zagel might be inclined to “throw the book” at Blagojevich, this does not mean prosecutors will get the draconian sentence they are seeking.
“The bottom line is he’s not going to get 15 to 20 years,” Miller said. “I think the judge is going to give him a sentence a little bit higher than Tony Rezko got, which is 10 1/2 years, but not the 15 that the government is asking for.”
–Todd Feurer, CBS 2 Web Producer