UPDATE:  Justice John Paul Stevens on Friday afternoon refused to delay the June 3 opening of the criminal trial in Chicago of former Illinois Gov. Rod Blagojevich and his brother Robert.  The Justice issued no opinion, simply denying a stay of the trial in a brief order.  A letter about the order can be found here.

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The Justice Department urged the Supreme Court on Friday afternoon to let the public corruption trial of former Illinois Gov. Rod Blagojevich and his brother Robert go ahead as scheduled next Thursday, rather than wait for coming rulings by the Supreme Court that may affect some of the charges in the case.  In a memorandum filed with Justice John Paul Stevens, as Circuit Justice, Acting Solicitor General Neal K. Katyal argued that the accused will not suffer any prejudice that could not be corrected in a later appeal, if guilty verdicts result.  The case is Blagojevich, et al., v. U.S. (application 09A1121).

Justice Stevens is considering, and may share with his colleagues for action, a plea by defense lawyers for the former governor and his brother for a 30-day delay of the opening of their trial in Chicago.  That plea is keyed to the fact that the Supreme Court is expected to decide shortly three pending cases testing the scope — and perhaps the constitutionality — of the federal law that makes it a crime to fail to provide “honest services” to someone to whom that duty is owed.  Rod Blagojevich has been charged with 11 counts of “honest services” wire fraud, along with 13 other counts on different crimes, all based on prosecutors’ claims that he used his office as governor for personal gain, and to benefit his family and associates.  His brother Robert is facing five criminal charges, including two of “honest services” wire fraud.

Among other evidence that prosecutors plan to present is a claim that the former governor acted illegally in trying to gain financially in the process of selecting a replacement for former U.S. Senator Barack Obama after Obama was elected President.   Blagojevich chose Democrat Roland W. Burris.

Between now and the end of the Supreme Court’s Term, probably late next month, the Justices are expected to issue rulings in Skilling v. U.S. (08-1394), involving a test of the constitutionality of the “honest services” law, and two cases seeking interpretations of the scope of that law: Black v. U.S. (08-876) and Weyhrauch v. U.S. (08-1196).

If the trial goes ahead before those rulings come down, the defense lawyers argued in their application for a stay of the trial date, the brothers’ “rights to a fair trial and effective representation will be irretrievably lost.”  They have asked Justice Stevens for the stay, and simultaneously asked the full Supreme Court to grant immediate review of the fairness of going forward with the trial, or at least an order to the trial judge to delay the trial for 30 days.

Urging the Court not to intervene at this point, the Justice Department said the trial judge will be taking steps to assure that the trial does not create unfairness before the jury, should it turn out that the “honest services” counts cannot be tried because of what the Supreme Court may rule.  The judge, for example, has ordered prosecutors not to use the phrase “honest services” to describe any crime that they mention in their opening remarks, the Department noted.  Moreover, the Department said that the “honest service” fraud counts against the brothers are based upon the same factual evidence that prosecutors claim underlies the other criminal charges in the case.

The trial judge has also said that the trial will extend well beyond the day on which the Supreme Court is likely to decide the pending cases before it.   The trial is estimated to continue for four months.

Posted in Cases in the Pipeline