Rod Blagojevich Trial: Does Witness Lineup Construction Really Matter?

Posted on April 18, 2011


Former Illinois Governor Rod Blagojevich will return to court Wednesday, more than half a year after a jury was able to convict him on just one minor charge, deadlocking over the issue of whether or not Blagojevich committed more serious crimes than lying to the FBI in the weeks following the 2008 Presidential election.

Frustrated by their inability to score more than one conviction last time out (and by a really discouraging West Coast swing wherein Barry Bonds treated them like a 2-1 fastball), the federal government has elected to get experimental, shifting their lineup of witnesses for the upcoming retrial. Reportedly, key players in the prosecution’s case will be moved down the list, as the prosecution is concerned their “baggage” was exposed in the last trial. Other, less critical witnesses will move up, establishing a faster pace for this trial and allowing Blagojevich’s defense less fodder for early attacks on witness credibility.

I get that. I can see why you would want the smaller, faster witnesses atop the order, chipping away at Blagojevich, absorbing some early salvos from his defense team. Death by 1,000 cuts can work well in an open courtroom, especially if the cuts come fast and furious instead of being weighted and bogged down by long cross-exams and objections in the early going. Still, by saving your sluggers for the middle and bottom of the bill, you risk losing some of the jury’s focus, and if one or more of those witnesses crumbles on cross, it amounts to a very costly double play after the little guys got on ahead of them.

So there are two sides to this coin. You want to wear out the slimmed down defense team (the two top lawyers dropped from Blago’s side after round 1, so think of this trial as a game when the opponent’s closer is not available and they’re running out a back-of-the-rotation starter) so that they have little left in the tank. If they make even one mistake, if they allow the wrong evidence to emerge unchallenged, your sluggers have the table-setters to thank. Then again, putting your lead witness five or six names down the list is akin to batting Jason Heyward sixth, or something ridiculous like that. You steal precious and high-impact opportunities from your most important team members. The tradeoff is real.

Or is it? we have all kinds of evidence that batting order changes outcomes by, at most, one to three wins per season. That translates to just one of the 20 counts against Blagojevich, and that’s if we’re lucky. Squeezing sequence-optimization techniques for a few extra points with the jury will not make or break this case.

In the end, it doesn’t so much matter where you bat guys, as what kind of talent they possess. Hey, drop Carlos Pena to sixth or bat him third where he belongs, and move Marlon Byrd down to seventh. Move Kosuke Fukudome way up and Darwin Barney way down, or leave them in entirely the wrong parts of the order as they are now: Either way, with those as your critical dilemmas you probably won’t score more than 650 runs. Similarly, the government is trying to carve Michelangelo’s David from Play-Doh here. Blagojevich isn’t going down for anything else.

Unless Tony Rezko steps off the bench and onto the witness stand, in which case a Kirk Gibson-style United States Government walkoff is totally possible.