CHICAGO – He was convicted of a shocking crime: trying to sell the president's former Senate seat. He eroded the public trust, supposedly lied to jurors and has shown no remorse. Yet Rod Blagojevich says he also did good while he was Illinois' governor, and he has two young daughters to support and no previous criminal record.
Judge James B. Zagel will weigh such factors Tuesday as he begins calculating how much time the disgraced former governor should spend behind bars. He's said he'll pronounce his sentence Wednesday, concluding what could be a surprise-filled hearing in which Blagojevich may beg for mercy or dig in his heels yet again to protest his innocence.
Zagel, who has gained a reputation as tough but fair during a quarter century on the federal bench, now switches hats from referee at trial to part psychologist and moral philosopher who must grapple during the two-day hearing in Chicago with sometimes nebulous concepts of justice and deterrence.
The 70-year-old judge, who played a judge in the 1989 movie "Music Box," must answer nuanced questions according to complex federal sentencing algebra, including whether Blagojevich lied when he denied any wrongdoing from the witness stand at his trial. If Zagel agrees with prosecutors that Blagojevich did lie, that could add years to his sentence.
The ousted governor-turned-reality TV figure, who also intends to address Zagel directly, has good reason to be worried: He's staring at the prospect of 10 or more years in prison, largely cut off from the outside world and his wife, Patti, and their school-age daughters. A man heard scoffing on wiretaps about earning a low six-figure salary would have to take a prison job — possibly scrubbing toilets — for 12 cents an hour.
Prosecutors want Zagel to imprison the one-time "Celebrity Apprentice" contestant for 15 to 20 years. In a Monday court filing, they contend Blagojevich hasn't accepted responsibility for his crimes and has repeatedly thumbed his nose at justice system.
The defense, in seeking a term of no more than a few years, will tell Zagel that Blagojevich has already paid a hefty price in financial ruin and public scorn. In their own sentencing filing, they pointed to how his wife ate a tarantula on the reality show, "I'm a Celebrity ... Get Me Out of Here!" in what they portrayed as a desperate bid for money.
"He has suffered every kind of ridicule and humiliation imaginable — to the point that foreign tourists can often be found posing for photos on the outside staircase to his family home," his lawyers said.
Somewhat surprisingly, Blagojevich's attorneys seem bent on insisting he is innocent — something judges frown upon during the sentencing stage. Rehashing an argument they made at trial, they wrote in their sentencing filing that Blagojevich barely made passing grades in law school and relied on smarter, better-educated aides.
"(They) led him into the morass of a six-year investigation that resulted in the destruction of his life and career," the filing says.
Blagojevich's sentencing comes just days before his 55th birthday and three years to the week of his Dec. 9, 2008, arrest at his home — where a dazed Blagojevich asked agents, "Is this a joke?"
His first trial ended deadlocked with jurors agreeing on just one of 24 counts — that Blagojevich lied to the FBI. But jurors at his recent retrial were decisive, convicting Blagojevich on 17 of 20 counts, including bribery.
Though judges aren't supposed to let personal feelings affect sentencing decisions, lawyers widely believe they do. The straight-laced Zagel wouldn't seem to have a natural affinity for the often boastful, undisciplined Blagojevich, but he's never said he dislikes the former governor.
Both sides are expected to finish their pitches to Zagel Tuesday, but the judge said he'd pronounce his sentence on Wednesday, possibly to give himself time to sleep on it.
Zagel may have a good sense of the sentence he'll impose before the hearing starts, but Blagojevich could affect its severity if he can manage to show some remorse, several legal experts said. They widely concurred that Blagojevich eschew signing autographs in court as he did during his trials and instead focus on body language that conveys humility.
A flat-out apology, though, isn't always a must. If it isn't sincere, it can anger a judge. And some felons are reluctant to apologize because they feel it will undermine an appeal of their convictions.
The defense could also call others to speak in court. But as Blagojevich became politically radioactive after his arrest, longtime friends and allies scattered. So it's not clear who would be willing to speak for him now.
Blagojevich set up a Facebook page asking supporters to write the judge. But the results were mixed. One posting read, "You're getting a raw deal." But another said, "You're a crook and deserve to go to prison."
Wives often plea for leniency, but Zagel likely wouldn't view Patti Blagojevich sympathetically. On FBI wiretaps, she was heard encouraging her husband's bid for campaign cash or a top job in exchange for an appointment to Obama's vacated seat.
A nun, a Blagojevich neighbor, his brother and others have written letters to Zagel, according to the defense filing. Several focused on the anguish Blagojevich's absence would cause his daughters, Amy, 15, and Annie, 8.
"Every day that he is gone (in prison), the girls are the ones who suffer most," said a letter from the girls' ice-skating coach, Kathy Murphy, that was quoted in the filing.
Prosecutors said in their filing that they sympathize with the plight of the twice-elected governor's family. But they hastened to add, "Blagojevich has nobody to blame but himself."
Michael Tarm can be reached at www.twitter.com/mtarm
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