Korecki: If any part of Blagojevich case reversed, Fardon 'conflicted' out of decisions

It’s been 16 months, and the U.S. 7th Circuit Court of Appeals has yet to rule on the appeal in the criminal case that sent ex-governor Rod Blagojevich to prison for 14 years.

That extended wait — not typical though not unprecedented — has fueled speculation that perhaps at least a part of Blagojevich’s case will be sent back to a lower court for reconsideration.

If charges are tossed out, the U.S. attorney’s office could find itself having to wrestle with a big question — whether to try Blagojevich for a third time.

Len Cavise, director of DePaul University’s Center for Public Interest Law, has been a critic of the prosecution of Blagojevich. Cavise says he doesn’t think U.S. Attorney Zachary Fardon would have any interest in retrying the case.

“I think that Zach Fardon would be crazy to retry Blago on anything,” Cavise says. “I think the 7^th Circuit is making its point by taking so long. Just as a political, not a legal matter, he would have to think really long and hard before subjecting us to another prosecution.”

But it appears Fardon wouldn’t be part of the equation.

Should the 7^th Circuit kick back part of the Blagojevich case, it would land inside a drastically different U.S. attorney’s office — starting at the top. Former U.S. Attorney Patrick Fitzgerald, who headed the office during the Blagojevich investigation, has gone into private practice.

While Fardon was a lead prosecutor in the case against former Gov. George Ryan, he then went into private practice as a criminal defense lawyer. In fact, he was a defense attorney representing a key cooperator in during the Blagojevich case — John Wyma, the former confidant of the governor whose statements provided the probable cause to a judge who approved the first listening devices in the case, in October 2008.

Now second-in-command in the prosecutor’s office is First Assistant Joel Levin — who, while in private practice, represented another key witness at Blagojevich’s trial, Rajinder Bedi. Levin rejoined the U.S. attorney’s office after a stint at the law firm Perkins Coie.

Would both be left out of any decisions involving Blagojevich because of conflicts of interest? The answer is yes — a U.S. attorney’s office spokeswoman told the Chicago Sun-Times both Fardon and Levin “would be conflicted out if the case is remanded.”

“I believe they would make any close call in favor of recusal. They’d have their criminal chief [Julie Porter] make their decisions,” or other supervisors in the office, says Ron Safer, a former federal prosecutor who’s now managing partner with the law firm Schiff Hardin. “There are certainly decisions and strategic calls that would have to be made by people in the front office.”

Only one of the three prosecutors at Blagojevich’s trial — Carrie Hamilton — is still around. Many jurors credited Hamilton with closing the deal in the second trial, persuading them to convict Blagojevich on all counts. Former prosecutors Reid Schar and Chris Niewoehner, who were instrumental in cases leading to the Blagojevich trial, have left the office. Still on staff is Debra Bonamici, who has steered the bulk of the government’s appellate arguments.

Safer points out that there are “a lot of ‘what ifs’” in this scenario.

“Just because the court of appeals has taken a real long time — it probably means they have some difficulty, they’re wrestling with some aspect of the opinion,” he said. “It doesn’t necessarily mean that they’re going to reverse some aspect of it.

“Silence is very difficult to interpret.”