Allan Lengel

There’s no question it was a major embarrassment for U.S. Attorney Patrick Fitzgerald when a Chicago jury on Tuesday convicted the over-chatty ex-Illinois Gov. Rod Blagojevich on only 1 of 24 counts — and that sole count did not even go to the meat of the case.

But I have to disagree with my former paper, the Washington Post, which said in an editorial that Fitzgerald “should back off” retrying the case. I also disagree with the Wall Street Journal editorial, which said Fitzgerald should resign or be removed by the Justice Department.

The Post said a retrial would amount to persecution, not prosecution. The Journal says that Fitzgerald piled up charges in this case and others and “this pattern points to a willful prosecutor who throws an exaggerated book at unpopular defendants and hopes at least one of the charges will stick, even as he flouts due process and the presumption of innocence when the political winds are high.”

First off, the jury voted 11-1 to convict on some counts including the most publicized one that Blagojevich tried selling the Senate seat vacated by Obama. One juror  said she thought Blagojevich was simply engaging in politics as usual. Sad, but true.

A retrial is not inappropriate. Even in the best of cases, you can run into a juror who simply holds out, rightly or wrongly. It happens. It doesn’t mean your case is a stinker or that you shouldn’t retry the case; it doesn’t mean you’re mean, vindictive if you retry the case.

Politicians have to learn that with political office comes the responsibility of being honest and having some integrity. Shaking down people for money shouldn’t be part of the job description.

Frankly, I find Rod Blagojevich amusing. So do a lot of other folks around the country. But he stepped way over the line. He knew he was stepping over the line. Unfortunately, yes, stepping over the line is simply politics as usual in Illinois and other parts of the country like Louisiana and New Jersey.

We need to keep sending a message this isn’t the politics as usual we want.

John Morton

These have not been fun days for John Morton, who heads up U.S. Immigration and Customs Enforcement.

The union representing ICE agents just issued a vote of “no confidence” for him.  And on Tuesday, two key sheriffs along the Arizona-Mexico border sharply criticized him.

The sheriffs, according to the Washington Times, called Morton’s planned visit to Arizona on Wednesday a “political stunt” and claimed it was the Obama administration’s attempt to “cover up its inaction in protecting our borders,” the Washington Times reported.

“The administration blew past their promised Aug. 1 deadline to send 524 National Guard troops to Arizona, and now they are trying to appear concerned by sending the ICE director, who recently received a vote of ‘no confidence’ by ICE’s union,” Arizona Sheriffs Paul Babeu of Pinal County and Larry Dever of Cochise County said in a statement, the Washington Times reported.

The paper said ICE did not respond for comment.

Melinda Haag/law firm photo

WASHINGTON — The Senate Judiciary on Thursday gave the nod to U.S. Attorney nominees in California, Kansas and Pennsylvania, the website Main Justice reported. The matter now goes before the full Senate for a vote.

The nominees include: Melinda Haag for the Northern District of California; Barry R. Grissom for Kansas and David J. Hickton for the Western District of Pennsylvania.

Main Justice, which closely tracks nominations for the U.S. Attorney’s Offices, reported that the Senate Judiciary Committee has approved 66 nominees so far. Of those, 57 have won Senate confirmation.

John Stagliano/facebook photo

WASHINGTON – In courtroom 18 in the sterile D.C. federal courthouse, Justice Department prosecutors earlier this month tried nailing a major producer of adult pornography on obscenity charges.

The lawyers, part of the department’s Obscenity Prosecution Task Force, spent four days presenting their case against California porn producer John Stagliano (aka “Buttman”), who had been indicted in 2008, during the final year of the Bush administration. As part of their case, prosecutors even played pornographic videos with names like “Milk Nymph” for the jurors.

But before the defense could even present its side, U.S. District Judge Richard J. Leon dismissed the case, saying the government had failed to prove the most basic of issues: that the defendant and two related companies were linked to porno videos that the government claimed went beyond the acceptable community standards.

Adult film director John Stagliano arrives at the 27th annual Adult Video News Awards Show at the Palms Casino Resort January 9, 2010 in Las Vegas, Nevada.

Ethan Miller, Getty Images

A U.S. district judge earlier this month dismissed a case against porn producer John Stagliano, here at the Adult Video News Awards Show in Las Vegas in January.

The judge also raised questions about core issues in the case.

“I hope the government will learn a lesson from its experience,” declared Leon, who voiced concerns about the issues of obscenity statute, the Internet, free speech and criminal rights, according to The Washington Post. “I hope that [higher] courts and Congress will give greater guidance to judges in whose courtrooms these cases will be tried.”

With the disastrous outcome in the D.C. case, and the change from the conservative Bush administration to the liberal Obama regime, some now wonder how enthusiastic the Justice Department will be in going after adult pornography cases.

“That’s a big question,” says Penn State University professor Robert D. Richards, head of the Pennsylvania Center for the First Amendment. “How much the Obama administration will be interested in pursuing obscenity cases is questionable. It would certainly be hard pressed to pull full steam ahead. It’s not an easy area to prove.

“The real problem with obscenity is you never know if something is criminal until a jury comes back and says it’s criminal and it’s only in that jurisdiction,” he added.

Robert Peters, president of Morality in Media, who blames the FBI for “botching” the D.C. case, also wonders what will become of future prosecutions. He believes even the Bush administration fell far short of its expressed goals — and has far less confidence in the Obama administration.

“We can’t continue to treat [pornography] like a joke, which is largely how the FBI has treated it,” he said. “The FBI is simply unwilling to do these cases other than a token investigation here and there, and that’s not enough.

“Adult pornography has effects on marriages, effects on children and effects on women,” he continued. “The Supreme Court has held repeatedly the First Amendment does not protect obscene material.”

The FBI deferred to the Justice Department for comment. Justice spokeswoman Laura Sweeney declined comment on the D.C. trial or on future plans to prosecute obscenity cases.

A Shift in Priorities?

The dip in the number of cases has been noticeable during the Obama administration. According to the Justice Department, prosecutors charged about 360 defendants with obscenity violations during the Bush years, nearly double the number under Bill Clinton. In 2009, about 20 defendants were charged, compared with 54 the previous year, when George W. Bush was still in office.

After Bush took office, his conservative attorney general, John Ashcroft, vowed to go after obscenity cases involving adult pornography that violated “community standards.” In 2005, Ashcroft’s successor, Alberto Gonzales, took it up a notch, creating the Justice Department’s Obscenity Prosecution Task Force. The FBI also vowed to commit resources.

But the Bush people disappointed, according to Peters.

“Ashcroft failed,” he said. “[FBI Director] Bob Mueller failed and Alberto Gonzales failed. … They talked the talk and then they didn’t do it.”

Plus, he claimed, few U.S. attorneys’ offices around the country wanted to take on the cases, and even when they did, the FBI wouldn’t investigate.

Unquestionably there was skepticism within the ranks of the FBI and the Justice Department — and resistance — over the push to prosecute porn during the Bush years.

“I thought they were nuts,” said one former federal prosecutor in Washington. “And they would approach you about taking these cases, making it sound like it was a great honor. They had cases that were just [garbage].”

He said his office found ways to politely pass on prosecuting them. “Nobody liked the cases, nobody thought they accomplished anything,” he said. “They were true believers. They had a moral culture they wanted to push. It had nothing to do with enforcing the law.”

Brad Garrett, a former FBI agent in the Washington field office, said the obscenity cases were tough to prove since they were based on community standards. Plus, many agents questioned whether it was the best use of resources, particularly after Sept. 11, 2001.

“It really boiled down to priorities for most agents,” said Garrett, whose own accomplishments include nabbing a Pakistani national who gunned down two CIA employees at the agency’s headquarters in 1993. “You’ve got a limited number of people. Is it really the best use of our time to be investigating obscenity with consenting adults?”

Regardless, Allan B. Gelbard, one of the defense attorneys in the Stagliano case, said he expects the Justice Department to continue going after the cases so long as the same people are in the Obscenity Prosecution Task Force.

“It strikes me that this particular unit is so driven by ideology that they’ll probably go through [with more prosecutions] until they’re disbanded, and that can’t be too soon in my book,” he said. “They’re going to keep ruining peoples’ lives.”

The Case That Imploded

The indictment against Stagliano and two related companies, John Stagliano Inc. and Evil Angel Productions, came in April 2008, in the waning months of the Bush administration. In early July, the trial started. Things went poorly for the prosecution almost from the start.

For one, the FBI agent in the case copied from the Internet a trailer of a video — “Fetish Fanatic Chapter 5″ — that had so many glitches, it failed to play properly for the jury. Consequently, the judge ruled it was inadmissible.

Then prosecutors, who had the porn DVDs shown as evidence shipped via a third party, failed to prove that Stagliano or either of the two companies had anything to do with the films or the shipping.

“It was a colossal disaster,” says Richards, the Penn State professor. “They never connected the dots, and that was fatal to the case.”

Peters of Morality in the Media has concerns about the Stagliano case, but for obviously different reasons.

“The FBI ought to be embarrassed — they blew it,” he said, adding that the FBI agent was either inexperienced or had inadequate resources.

Even after the Stagliano case, however, many in the adult entertainment industry have concerns about what direction the government will take on obscenity prosecutions.

Diane Duke, executive director of the California-based Free Speech Coalition, the industry’s trade association, said she is worried the government may continue filing what she sees as questionable charges against studios, aiming to bleed them to death through legal fees that can run upward of a million dollars.

“They know they’re going to do damage to our companies, no matter what,” she said. “I think there’s people in our government who respect freedom of speech and the Constitution, and it’s my hope those folks will prevail.”

WASHINGTON — Thursday’s Post reported about a growing controversy over the Justice Department’s decision to scale down a voter-intimidation case against members of the New Black Panther Party. The story succinctly summarized the issues but left many readers with a question: What took you so long?

For months, readers have contacted the ombudsman wondering why The Post hasn’t been covering the case. The calls increased recently after competitors such as the New York Times and the Associated Press wrote stories. Fox News and right-wing bloggers have been pumping the story. Liberal bloggers have countered, accusing them of trying to manufacture a scandal.

But The Post has been virtually silent.

The story has its origins on Election Day in 2008, when two members of the New Black Panther Party stood in front of a Philadelphia polling place. YouTube video of the men, now viewed nearly 1.5 million times, shows both wearing paramilitary clothing. One carried a nightstick.

To read more click here.

By Allan Lengel

The entertainment factor in the trial of ex-Illinois Gov. Rod Blagojevich continues to be strong.

Tapes played Monday during his public corruption trial show Blagojevich tossed around some names to fill the Senate seat vacated by President Obama and mentioned Oprah Winfrey, the Chicago Tribune reported.

His chief of staff John Harris apparently didn’t see that as a reasonable idea, the paper reported.

In a secretly recorded conversation played in court, Harris told Blagojevich the idea sounded “crazy.”

“That’s where you’re wrong,” Blagojevich said.

“Oprah, by the way, is not far-fetched,” Blagojevich said. “She’s up there so high, no one can assail this pick.”

Later, in a wiretapped conversation, Blagojevich and Harris agreed it would be best to pick an African American, the Trib reported.

Blagojevich said it would be best to find a “black Albert Einstein or something.”

One thing that is likely beyond dispute: Blagojevich is no Albert Einstein.

Blagojevich is accused of using his office for personal benefit of trying to sell the seat vacated by President Obama.

He’s expected to testify on his own behalf.

OTHER STORIES OF INTEREST

• Chicago Gun Ban May Be on Way Out But Mayor Vows to Fight (AP)
• Ex-Chicago Officer’s Torture Case May Not Be the Last (AP)
• Hamas Spy Finds Home in Calif., Seeks Asylum (AP)
• 524 Guard Soldiers Headed to Mexico-Arizona Border (AP)
• Supreme Court Orders Review of Conviction of Ex-Ala. Gov  Siegelman (Wall Street Journal)
• Husband of Supreme Court Justice Ruth Bader Ginsburg Dies (Wall Street Journal)

Atty. Gen. Eric Holder

As expected, the Justice Department is going after those involved in the ugliest oil spill in U.S. history.

Atty. Gen. Eric Holder Jr. announced Tuesday in New Orleans that the Justice Department was launching a criminal and civil probe into the Gulf spill that continues to kill wildlife and livelihoods and is likely to cost the Obama administration some serious political capital.

“As we move forward, we will be guided by simple principles: We will ensure that every cent of taxpayer money will be repaid and damages to the environment and wildlife will be reimbursed,” Holder said a in prepared statement posted on the Justice Dept. website.

“We will make certain that those responsible clean up the mess they have made and restore or replace the natural resources lost or injured in this tragedy. And we will prosecute to the full extent any violations of the law.”

In the Rose Garden at the White House, President Obama remarked:

“We owe all those who’ve been harmed, as well as future generations, a full and vigorous accounting of the events that led to what has now become the worst oil spill in U.S. history.”

Read New York Times story

Read Eric Holder’s Statement

Read President Obama’s Statement

PITTSBURGH — President Barack Obama’s decision to send 1,200 National Guard troops to bolster security along the porous U.S.-Mexico border should be seen for what it is — not a long-term solution but a reactive, political move that solves nothing over the long haul.

The context is the recently passed anti-illegal alien bill in Arizona, which unwisely thrust local police into a role for which most are not trained: helping enforce federal immigration law. As Gov. Jan Brewer said, her signing of the new law “clearly ignited the talk of action in Washington for the people of Arizona and other border states.”

Yes, but this action is all about the wrong sort of talk — to wit, answering the talk of the demagogues with a political sop. And in doing so, it further reduces the chances of a real conversation in Congress that looks beyond enforcement as the only solution and comprehensively addresses immigration reform in all its facets.

To read full editorial click here.

The U.S. Senate on Friday confirmed Stephanie Finley for the U.S. Attorney post for the Western District of Louisiana and Laura Duffy for the top federal prosecutor post in the Southern District of California.

Duffy had been recommended by Sen. Barbara Boxer (D-Calif.), the San Diego Union reported.  The website Main Justice, which closely tracks the U.S. Attorney appointments,  reported that the Senate has now confirmed 51 of President Obama’s U.S. Attorney nominees.

WASHINGTON — The Obama administration, which vowed to have more transparency in government, is working very hard to keep some secrets.

At issue: The names of more than 9,200 people President George W. Bush denied pardons and commutations, the National Law Journal reports.

Last year, a D.C. federal judge ruled against the Obama Justice Department and said the names should be made public. The Justice Department has appealed that ruling, insisting the privacy interest of the applicants outweigh the public’s right to know.

“The case is a politically sensitive one for the Justice Department, given Attorney General Eric Holder Jr.’s involvement in the decision to pardon fugitive Marc Rich at the end of the Clinton administration,” the Journal wrote. “The Rich pardon turned into a Washington scandal that compelled Holder to apologize for mistakes when it came up during his confirmation hearing last year.

The Journal wrote that the case applies only to the Bush years, but could open up the door for the public to see applicants from other administrations.

Under the current policy, the Justice Department can confirm a specific pardon, but won’t comment on a list of denials, the Journal reported.

Since October 2009, Obama has received 382 pardon petitions and 2,275 applications for commutation, but none have been acted upon at this time, the Journal reported.

The Journal said the case was initiated by retired Washington Post reporter George Lardner, who is writing a book on the history of clemency.

To read more click here.