Guilt by Complication

Last March, finding the statute unconstitutionally vague, the Supreme Court restricted it to cases involving bribery. Hence the allegations against Blagojevich that relied on the "honest services" statute, which in turn were the basis for 11 counts of "wire fraud" (because he used a telephone to communicate with his associates), depended on the shaky bribery charges they were supposed to reinforce.

The prosecutors also said Blagojevich's chats amounted to "racketeering" and "racketeering conspiracy" (one count each) under the egregiously overused Racketeer Influenced and Corrupt Organizations Act, a 1970 law aimed at organized crime. To convict Blagojevich on those counts, the jurors had to conclude that he and his allies created an "enterprise" that was implicated in a "pattern of racketeering activity" involving at least two distinct but related crimes.

Not surprisingly, the multitude of charges, all based on the same underlying conduct but drawing on different statutes with different criteria, proved confusing to the jurors. "It was like, 'Here's a manual, go fly the space shuttle,'" one told The New York Times. After 14 days of deliberation, the jurors reached a verdict on just one ancillary charge: that Blagojevich lied to the FBI when he claimed he did not keep track of his campaign donors.

Fitzgerald plans to retry Blagojevich, who may yet be convicted of bribery or extortion. But the prosecution's failure in a trial where the defense did not even bother to present any witnesses shows that the length of an indictment is not a reliable indicator of a defendant's guilt. Since people tend to assume that anyone who faces dozens of charges must have done something wrong, that is a welcome reminder.