Sentencing likely to await Blagojevich retrial

[August 24, 2010]  CHICAGO (AP) -- As former Illinois Gov. Rod Blagojevich works the national media circuit proclaiming his innocence, he has publicly ignored the most sobering consequence of his conviction last week on a single count of lying to the FBI.

He faces a prison term of up to five years -- though how and when he is sentenced depends on a host of factors, including plans by prosecutors to retry him on 23 deadlocked counts and Blagojevich's own vow to appeal the conviction.

Lying to authorities carries the least severe penalty of the charges Blagojevich faced in that first trial, and some legal observers believe that -- based on sentencing guidelines -- he could get six months to three years on that charge alone.

If the Democrat is imprisoned, Illinois would achieve the dubious distinction of having two ex-governors locked up on criminal charges at once. Blagojevich's Republican predecessor, George Ryan, was convicted on corruption charges in 2006 and is expected to be in prison until 2013.

But even without a retrial of Blagojevich, the governor known for his coifed haircut and expensive suits likely would not be crossing through a prison gate anytime soon.

It can normally take more than a year to get to sentencing after a conviction as officials compile sentencing reports and the appeals process runs its course. And this case is far from straightforward.

There are so many potential complications in sentencing Blagojevich right away that all sides, including the judge, will likely agree to wait, said Jeff Cramer, a former federal prosecutor.

"There is no way he's sentenced before a second trial," he said. "It's not happening."

No one knows yet when a second trial will even get under way. It could be a few months or more than a year. A hearing set for Thursday could shed light on that.

Prosecutors have good reason for wanting to hold off, said Cramer.

If a second trial ends with Blagojevich convicted on other counts -- nearly all of which carry longer sentences -- prosecutors would likely be content with a lighter penalty for lying, he said. But if a second trial ends with Blagojevich acquitted on everything else, prosecutors are sure to press for the stiffest sentence on the lone conviction at the first trial.

There's jury psychology to consider, too.

The prosecution may fear that sentencing Blagojevich before a second trial may inadvertently influence jurors -- making them less likely to convict him on additional charges,

"Future jurors may end up thinking, 'He's already going to prison for six months -- that's enough me,'" said Michael Helfand, a Chicago attorney not connected to the case. "Consciously or subconsciously, jurors might factor that in arriving at verdicts."

Sentencing before a new trial would also put the defense in a bind.

U.S. District Judge James Zagel, who would both sentence Blagojevich and most likely preside over a second trial, can take expressions of remorse into account in sentencing.

But if sentencing occurred before a new trial, Blagojevich could be in the awkward position of expressing remorse to Zagel at a sentencing hearing and then having his attorneys argue before a jury in a second trial that he's never done anything wrong.

And what sentence might Zagel impose for lying to the FBI when he does get around to it?

Guidelines set to help judges decide that question can be complicated, requiring they factor in everything from prior records to harm done.

Blagojevich doesn't have a prior criminal record and lying to the FBI, in itself, didn't cause monetary loss -- all of which may point to a sentence on the lower end of the scale. But he wasn't just anyone lying to federal agents; at the time, he was the state's twice-elected chief executive.

"Part of sentencing is deterrence," said Helfand. "And they may not want a convicted felon governor getting off lightly ... (his) lie affects how the government system runs."

It's unlikely Blagojevich gets either the full five-year prison term or that he walks with mere probation, Cramer and Helfand agreed. Cramer thought Blagojevich could get as many as two or three years, while Helfand thought he'd get closer to six months.

That may well be the range Zagel will consider. His sentencing record doesn't necessarily reveal much about what he'll do with Blagojevich, said Cramer.

"He's fair but not a pushover by any stretch," he said. "I've seen him be generous to someone he's sentencing and I've see him hold someone's feet to the fire."

Where Blagojevich would serve any prison sentence would have to be determined as well. The Federal Bureau of Prisons said it tries to send inmates to facilities within a 500-mile radius of their homes.

[Associated Press; By MICHAEL TARM]

Associated Press writer Deanna Bellandi contributed to this report.

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