Lawyers for disgraced former Gov. Rod Blagojevich filed a long-awaited appeal of his conviction and 14-year sentence late Monday, arguing that U.S. District Judge James Zagel's "one-sided evidentiary rulings" favored prosecutors and that the stiff sentence he imposed was based on vague and speculative evidence.
The 91-page appeal, filed about an hour before a midnight deadline set by the 7th U.S. Circuit Court of Appeals, maintained that Zagel kept Blagojevich's attorneys from rebutting cooperating government witnesses and pointing out potential biases in their testimony.
Jurors were also wrongly instructed about bribery and fraud laws and how they pertained to "political deal-making," the appeal argued.
The lower court "misled the jury by failing to explain the legal distinction between campaign contributions and bribes," the lawyers wrote.
Federal prosecutors have until Aug. 14 to file a response brief. Appeals typically take months or years to be fully argued and for the federal appeals court in Chicago to rule.
The appeal also alleged that Zagel promised that Blagojevich would be able to play certain undercover recordings he wanted jurors to hear only if the former governor took the witness stand. Yet even though Blagojevich testified, Zagel denied all but a handful of the 33 recordings the defense wanted to air at trial, the appeal said. By comparison, prosecutors were allowed to play 70 recordings, according to the filing.
"While critical evidence for the defense was excluded, the court allowed the government to introduce almost any evidence no matter how irrelevant to paint the defendant in a negative light," Blagojevich's lawyers wrote.
Among the evidence that was unfairly allowed were Blagojevich statements to the news media and testimony about $400,000 he spent on clothes during his years as governor, the appeal alleged.
The appeal also raised the issue of a juror who was allegedly seated despite the objections of Blagojevich's attorneys.
That juror, a man identified only as Juror 174, testified during jury selection voire dire "I just figured possibly him to be guilty," according to the appeal. Zagel denied a defense motion to strike the juror and was allowed onto the panel because Blagojevich has exhausted all his peremtory strikes.
"He should have been struck for cause," the filing states. "The court's error allowed a biased juror to deliberate Blagojevich's fate."
Last March, as Blagojevich marked his first year in a federal prison in Colorado, his lawyers said the former governor remained optimistic that he would be vindicated through his appeal.
But like most defendants, Blagojevich faces an uphill battle in overturning his conviction. His lawyers will have to convince a three-judge panel that errors by U.S. District Judge James Zagel made a difference in the trial's outcome.
Such reversals are rare. In the year that ended September 2011, just 8.2 percent of cases in the 7th Circuit were reversed, according to the court.
Blagojevich might have better prospects of reducing his sentence. The 14-year prison term handed down by Zagel was the second-longest ever delivered in federal court in Chicago for a political corruption case and more than double the time given to Blagojevich's predecessor, George Ryan, who recently completed his 61/2-year sentence for corruption.
Blagojevich, 56, has been incarcerated at the Federal Correctional Institution-Englewood, a low-security prison 15 miles southwest of Denver. Under federal sentencing rules, he would not be eligible for release until early 2024 when he would be 67.
Over the course of two trials, Blagojevich was convicted of 18 criminal counts involving the attempted sale of the U.S. Senate seat vacated by President Barack Obama, illegal shakedowns for campaign cash and lying to federal agents.
Undercover recordings played at trial — including his now-infamous "I've got this thing and it's (expletive) golden" statement — captured Blagojevich talking about an ambassadorship or other high-paying job in exchange for appointing Obama friend Valerie Jarrett to the Senate seat.
Testifying in his own defense during his second trial in 2011, Blagojevich denied there was any quid pro quo for the Senate seat and dismissed the talks as "lengthy musings," not serious proposals.
Blagojevich had defied legal convention after his arrest and kept a high media profile, but since he entered prison in March 2012, he and his family have kept a low profile. His wife and two daughters make the approximately thousand-mile journey to see him once every couple of months, according to his lawyers.
In a lengthy motion for a new trial filed after the conviction, Blagojevich's attorneys argued that Zagel had hamstrung their defense by barring wiretap and other evidence that might have helped their client. The motion — which Zagel denied — also accused the judge of being a "rubber stamp" for the prosecution.
Another motion filed after his 2011 conviction claimed there was possible misconduct on the part of a juror who spoke to a group about her experience in the trial and showed the group a copy of a blank juror questionnaire. Zagel ripped the motion as "harebrained."