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Both sides in Blagojevich trial looking for holdout juror for different reasons

Updated: September 24, 2012 6:25AM

When Rod Blagojevich’s retrial begins Thursday with jury questioning, both sides could be looking for a needle in a haystack: the elusive holdout juror.

It’s someone the prosecution is desperate to avoid — and the defense is equally desperate to embrace.

Ultimately, experts and jurors in Blagojevich’s first trial say that search could be futile.

The so-called “holdout” juror in last year’s case largely contributed to jurors deadlocking on 23 of 24 counts against the former governor, who’s accused, among other charges, of trying to sell President Obama’s old Senate seat.

This year, avoiding a juror like JoAnn Chiakulas will be in the forefront of prosecutors’ minds, experts say. The prosecution’s ideal juror is idealistic, malleable and deferential, experts say.

Meanwhile, Blagojevich’s lawyers want jurors who “dress casual, smile, might be a little overweight, just friendly people,” said federal defense attorney Michael Ettinger. “If they’re dressed perfect, they’re out. They’re perfectionists. There’s no wiggle room for being human.”

Chiakulas was the one juror who thought Blagojevich wasn’t guilty of selling the seat, resulting in an 11-1 vote for conviction on 11 of the counts, according to the jury’s foreman.

Some 150 potential jurors were summoned to federal court Wednesday, where they filled out a lengthy questionnaire. On Thursday, their individual questioning, handled by U.S. District Judge James Zagel, is to begin.

An expert who helped interview many of the jurors after the last trial — including the holdout — said if the prosecution had the opportunity to probe deeper during jury selection and cut Chiakulas, the trial might have had a different outcome.

“You want to have jurors talking and you want to know who’s going to be stubborn, who’s not going to be open to debate,” said Alan Tuerkheimer, a litigation consultant for Zagnoli McEvoy Foley, which advises attorneys on how to communicate to juries. “It would have been very evident that this individual was – I don’t want to say dogmatic, but might be less open to alternative viewpoints when her mind was made up.”

Other attributes of a holdout: intelligent, stubborn, closed-minded, a dogmatic person who’s antagonistic and willing to play “devil’s advocate,” experts say. It’s also someone who’s willing to criticize the government.

James Matsumoto, the last jury’s foreman, said he wouldn’t have pegged Chiakulas as the barrier to reaching consensus on most counts.

“I would never have thought that she would be the one to hold out,” the 66-year-old Chicago resident said; the older woman struck him as thoughtful and conservative.

The defense wants a jury to hang and to fight, said Ettinger, who managed to get charges dismissed against his client, — the former governor’s brother, Robert Blagojevich —following last summer’s trial.

“If you see someone mean, put them on there,” because they’ll clash with the others, he said. “I wouldn’t put one man on that jury. I don’t think men are good jurors for Rod. Men are jealous of other men.”

Those who do get on the panel, should be “the middle aged man in a sweater” or “sympathetic indulgers,” Ettinger said.

During jury selection, it’s likely the defense will have the opportunity to cut 13 jurors for any reason, while the prosecution will have nine chances, Zagel has said.

That’s in addition to jurors who might be cut for “cause” because the judge determines they can’t be fair in the case. But Zagel said just because a juror has heard about the case doesn’t mean he or she is ineligible to serve on the jury.

The defense wants jurors who see the trial as an overreach of the government, and who might just be sick of hearing about Blagojevich, Tuerkheimer said.

“I think some Blago fatigue has set in,” he said. “Some jurors might blame the government for why there’s another trial. Some may think it’s a waste of taxpayer money.”

In December, the U.S. attorney’s office in Chicago tried to combat that thinking, releasing figures that showed it collected from criminals and civil defendants three times as much money as it spent in taxpayer dollars last year, bringing in $99 million in settlements, fines, forfeitures and restitution.

Still: “There’s a lot of that sentiment out there,” from people who don’t want a retrial, said Steve Wlodek, a juror on the last trial. The 37-year-old Bartlett resident said the ideal juror would have to put aside any pre-conceived ideas or emotions from the outcome of the first trial.

Leonard Cavise, a professor at DePaul University College of Law, said the defense and the prosecution would essentially look for the same juror: one who hasn’t been swayed by news coverage of the last trial and Blagojevich.

Said Cavise: “It’s going to be very hard.”

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