Aug. 19--A federal appeals court in Chicago on Wednesday denied former Gov. Rod Blagojevich's long-shot effort for a rehearing of his appeal before the full court.
In a brief docket entry, the 7th Circuit U.S. Court of Appeals said that each of the three judges on the original panel voted to deny the rehearing and that none of the other regular active judges requested a vote.
"The petition for rehearing is therefore DENIED," the entry said.
The decision left Blagojevich with one alternative: to petition the U.S. Supreme Court to hear his appeal, another legal long-shot the former governor's lawyers have vowed to take.
Blagojevich's attorneys had no immediate comment Wednesday to the legal setback.
The denial for an en banc hearing was not a surprise, especially in a case such as Blagojevich's where the original panel was unanimous. In order to succeed, either one of the three judges who decided the appeal -- Frank Easterbrook, Ilana Diamond Rovner and Michael Kanne -- or one of the other six judges in active service would have had to ask for a vote by the full court.
If a vote had been called, a majority of the nine judges would have had to support the en banc hearing or the petition would be automatically denied. For Blagojevich, that meant five out of the six judges who weren't on his panel would have had to agree to the rehearing.
In its July 21 decision, the original appeals panel threw out five of the convictions on technical grounds and ordered the former governor's 14-year sentence vacated. If prosecutors opted not to retry Blagovich on the five dismissed counts, the court held that the former governor should be resentenced by U.S. District Judge James Zagel, the same judge who imposed the original 14-year prison term.
But that small legal victory was tempered by the court calling the evidence against Blagojevich "overwhelming" and making it clear that Zagel's original sentence was not out of bounds.
In petitioning for the en banc hearing earlier this month, Blagojevich's lawyers found fault with the panel for backing Zagel's approval of jury instructions on the extortion statute. The defense had argued that those instructions violated a recent Supreme Court ruling.
At the time, a statement attributed to Blagojevich said that "what is at stake is nothing less than the rule of the law."
Blagojevich's lawyers also argued that the decision lowers the standard of proof for what constitutes a bribe so far that politicians, who must raise campaign money to get elected and to be effective in office, could not possibly adhere to it.
"Fundraising is a part of the job of every politician," Blagojevich said in the statement. "The jury instructions used to convict me in my case are not the law. It makes the standard so low that any politician can be jailed at the whim of an ambitious prosecutor. That standard is wrong and needs to be corrected."
Blagojevich, now 58, was convicted of misusing his powers as governor in an array of shakedown schemes, most famously for his alleged attempts to sell the U.S. Senate seat vacated by Barack Obama after his 2008 election as president. Blagojevich, incarcerated in a federal prison in suburban Denver since March 2012, is not scheduled to be released until May 2024, according to the Federal Bureau of Prisons website.
jmeisner@tribpub.com
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