Hung on 23 out of 24 after 14 days of deliberations, Rod Blagojevich is back to living large. 

“On every charge except for one, they could not prove that I did anything wrong,”a defiant Rod Blagojevich said shorty after the jury was dismissed. “I told the truth from the very beginning.”

Yeah, right.  It was a hung, not an acquittal.  A little humility would go a long way right about now, but that’s not Blago’s way.  Of course, the question looming over this outcome is why, given the near-universal belief that the Patrick Fitzgerald mob had him nailed to rights.

In an op-ed in the New York Times, Scott Turow (who everybody loves, me included), explains why he thinks the Blago jury hung.  Turow is one fast writer, obviously, as the ability to not only produce an op-ed within hours of the mistrial and get it placed in the Times is impressive.  There aren’t too many people who could produce a thought-provoking commentary that quickly.  Turow explains:

After all, government wiretaps revealed Mr. Blagojevich threatening not to sign legislation beneficial to the harness racing industry unless he received a $100,000 campaign donation from one race track executive. He even threatened to hold up an increase in state Medicaid reimbursements for pediatric cases until the chief executive of Illinois’s leading children’s hospital contributed $50,000.

Yet the unwillingness of one or more jurors to convict Mr. Blagojevich of anything but bare-faced lying makes some sense. I suspect the jury’s indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

He then goes on to discuss the failings of Citizens United and the damage it’s done to political speech and the American psyche.  So were the jurors debating the cynical demands of the funding of politics, the hypocrisy of our expectations of purity and moving television commercials, during their 14 days of seclusion?  Were the emotions so mixed that these jurors realized that Blago’s words on tape reflected the unreasonable demands of a complex and inconsistent system of campaign financing rather than any malevolent intent of a man who wouldn’t spend enough for a decent haircut?

Nah.  Not that it isn’t a very thoughtful position, but Turow ascribes an awful lot to these jurors.  Given how few people can name the three branches of government, the idea that this hung jury resulted from ambivalence brought about between the Massey and Citizens United decisions is a rationale only a lawprof could love.

On the other end of the spectrum, Norm Pattis  argues that the government blew it.

The United States Government huffed, puffed and blew an elected governor out of office in the State of Illinois. But at the end of the day, all prosecutors have to show for their efforts in the prosecution of Rod Blagojevich is a single count of making a false statement. The jury could not reach a verdict on the remaining 23 counts.

I am no fan of Blagojevich. The conversations he reportedly had on tape were ugly. He is a guttersnipe. But he is a politician, after all. He is such stuff as Congressmen and Governors are made.

But I wonder how many lies the government told Blagojevich during the course of its investigation? I wonder how many witnesses were intentionally misled? I wonder how often jurors were kept in the dark about how prosecutions of this sort are made?

I wonder why so many questions when Norm already knows the answers.  So did the government huff and puff?  Mind you, when it was Blago’s lawyer in the crosshairs, Norm wrote that Sam Adam Jr. “fussed and fumed.”  I wonder what Norm’s going to do when he runs out of words that prominently rely on the letter “F”.   Maybe he’ll fret?

But the government didn’t blow the case because it huffed or puffed.  It tried the case with vigor and what appeared to be some darn good evidence.  Audiotapes tend to be quite persuasive, and the fact that the government is authorized to lie through its teeth because it’s an effective tool of law enforcement is nothing new.  We don’t like it, but we didn’t like it before and won’t like it after.  Yet, people get convicted despite being drawn in by government lies all the time.

So now, here’s the real reason.  Via CNN :

Juror Erik Sarnello, 21, told CNN affiliate WLS in Chicago the final vote on whether to convict the former governor of attempting to sell the seat was 11 in favor and 1 against.

“She obviously didn’t see it,” he said about the holdout. “Some things were so obvious to me.”

That’s it, folks.  One juror, a woman, who held her ground for 14 days, that she didn’t see guilt.  Is this a screwy system or what?  It’s likely that we’ll never know for real what went through her mind during those 14 days, whether she gave any thought to Citizens United or didn’t like the way the government lies to get its evidence.  If someone can get her to talk now, she’ll likely try to explain herself in some way to make it appear that she had a reasonable doubt, and sound explanation for holding out. 

Chances are pretty good that there isn’t any good explanation for being a hold-out.  The juror isn’t required to explain herself, either to her fellow jurors or anyone else.  She doesn’t have to give interviews.  She doesn’t have to engage in a philosophical discussion with the other eleven.  She can if she wants, but there’s no obligation.  A person can just decide that she’s unconvinced.

The Allen charge directs the jurors to discuss the case with each other, to listen what the others have to say, to open their minds and consider the thoughts of others.  But there’s no one in the jury room with a gun to her head, telling her to explain herself or they’ll shoot.  It’s enough that one juror says, “nope, I’m not voting guilty.” 

For all the discussion and analysis, whether of the law, the selection of jurors or the facts, it all comes down to the unknown variable, the vote of a single juror, even if that juror’s vote against the will of the other eleven is just because she feels like it. 

Update:  From the Washington Post :

The lone holdout on those key counts was identified Wednesday as a retired woman. Her argument was that Blagojevich was a politician who “was talking to other politicians . . . and he was just talking,” Matsumoto said, referring to FBI wiretaps that the prosecution portrayed as incriminating. “She saw it as no crime was being committed. It was just talk, political talk.”

And from the jury foreman, who voted guilty, guilty, guilty:

[James] Matsumoto said the “major flaw” for the prosecution “was probably the complexity of the case, the amount of information that we had to digest, the length of the judge’s instructions to us. . . .” He said he would like to see prosecutors retry Blagojevich and “streamline the case,” reducing their reliance on witness testimony, “which was sometimes weak.”

Via the Chicago Sun-Times :

“Say it was a murder trial — she wanted the video,” Sarnello said. “She wanted to hear [Blagojevich] say, ‘I’ll give you this for that.’ . . . For some people, it was clear. Some people heard that. But for some, it wasn’t clear.”

And lots more.  Expect those jurors who are enjoying their 15 minutes to appear on morning news shows on a TV near you.