Former Governor McDonnell is the first Virginia Governor to be convicted for crimes committed while in office. The defense went horribly awry, some legal rulings went against the McDonnells, and all Virginia politicians are subject to potential prosecution.[read_more]
What went wrong?
Let us start with the obvious: There was a major loss on the issue of jury instructions that is not the fault of the defense and provides a strong basis for appeal.
Boiled down to a simple level though this is a criminal case, with the highest burden of proof available in the United States: Guilt must be proven beyond a reasonable doubt.
Going into the trial the defense focused on the prospect of putting dozens of character witnesses on the stand. The defense indicated that Bob McDonnell’s character would be a “centerpiece of his defense.” A few character witnesses might be helpful, but how would this establish reasonable doubt?
Then, during the course of the trial, the defense appeared to be focused on the status of the marriage between Maureen and Bob McDonnell. The theory behind this is that Bob McDonnell supposedly had limited communications with Jonnie Williams. If that is the case, then in order for Bob McDonnell to misuse his office he would have had to engage in a conspiracy with his wife to misuse public office. That conspiracy would be hard to prove if the couple barely spoke and did not get along. Although this could be used to completely disprove a major element of the prosecution’s case, the focus is not on poking holes in the prosecution’s narrative to establish reasonable doubt.
Closing argument is the opportunity to tell a coherent story to the jury, and argue the legal standard. The defense appeared so focused on telling their own alternative story, they did not emphasize the basic premise of every criminal defense, i.e. the prosecution did not prove their case beyond a reasonable doubt. Was there reasonable doubt that McDonnell knew Jonnie Williams expected favors in return for the gifts, probably.
The defense was focused so heavily on affirmatively proving innocence, they minimized the fundamental importance of simply establishing reasonable doubt.
McDonnell rejected a plea deal early on. There had to be more discussions. Did McDonnell and his counsel err in refusing a reasonable deal leading into trial, or was the prosecution intransigent?
So what happens next?
Not an appeal. Next comes sentencing, and not for four months. Only after a final order is entered can an appeal even occur. This means the case will not reach the Fourth Circuit Court of Appeals until spring 2015 and oral argument and rulings probably will not occur until fall 2015.
Based on my understanding of the broad reading of the criminal statutes in the jury instructions the McDonnells have a plausible basis for having the convictions for public services fraud overturned.
Maureen McDonnell, even with a favorable appeal, is highly unlikely to have the obstruction of justice charges overturned. There are no reports of claims that the jury instructions for the obstruction charge were improper.
I have heard that one grounds for appeal is Judge Spencer’s denial of the McDonnells’ request to be tried separately. This is likely a decision given to the sound discretion of the trial judges and unlikely to be successful grounds for appeal.
What this means for Virginia politicians
Receive a gift + meet with the donor/gift-giver, because that is what normal politicians do + possibly assist them in some minor way in your official capacity = go to jail. Essentially the simple fact that a gift giver has given something to a politician allows the inference that there is an informal arrangement to help the giver on some future date.
In an early scene in the Godfather Don Corleone agrees to do a favor for one of his guests and states “Some day, and that day may never come, I will call upon you to do a service for me. … until that day accept this . . . as a gift . . .” These words were never spoken between Gov. McDonnell and Johnnie Williams. The jury inferred these words from their behaviors. EVERY GIFT going forward to any office holder (even outside Virginia) will be regarded under federal law as a quid pro quo from Don Corleone.
To that end I agree with Chris Saxman.
