Based on recent public revelations, Judge Spencer has been accused of bias in the McDonnell matter. Fundamentally, the fact Judge Spencer did not recuse himself was a legal strategy decision by the McDonnells’ counsel, and they have no one else to blame.[read_more]
As detailed over at Bearing Drift, Judge Spencer made a number of legal determinations at the McDonnell trial that were very unfavorable to the McDonnells, especially a decision regarding jury instructions that may yet be overturned on appeal. Bob McDonnell, while in the General Assembly, voted against Judge Spencer’s wife for two judge positions back in the 1990’s. Apparently, this is a form of bias for writers Shaun Kenney (Judge Spencer had “an axe to grind) and Lynn Mitchell (“Would that be a huge conflict of interest?”). 
Whether or not there is an axe to grind or conflict of interest, it does not matter when the McDonnells chose to stick with Judge Spencer as pointed out in numerous comments in response to the B/D article.
The McDonnells’ counsel could have filed a Motion for Recusal
Make no mistake, Governor McDonnell knew about the potential for the alleged bias by Judge Spencer. Recusals in federal cases are handled under 28 U.S.C. § 455. Within the Eastern District of Virginia, the seminal case regarding timeliness of a motion for removal is U.S. v. Owens, 902 F.2d 1154 (4th Cir. 1990).
In general, [o]ne must raise the disqualification of the … [judge] at the earliest moment after knowledge of the facts… One of the reasons for requiring promptness in filing [recusal motions] is that a party knowing of a ground for requesting disqualification, can not be permitted to wait and decide whether he likes the treatment that he receives. (Citations omitted)
As Bob McDonnell knew of the potential problem, the McDonnells’ lawyers are considered to have known of the potential problem. There was a decision made early in the case, when Judge Spencer was assigned, to not rock the boat by filing a recusal motion. In doing so, they strategically accepted the risk that bias might leak into the Court’s decision making.
Effect on appeal
This extremely late revelation will have no positive effect on the appeal. The only positive effect for the McDonnells is some potential credibility in the court of public opinion. If raised by counsel on appeal the judges in the Fourth Circuit will rightly rip counsel to shreds over this issue. If anything, revelation at this time will hurt the McDonnells.
The McDonnells may have been mistreated in the courtroom, but make no mistake, when it came to the choice to move forward with Judge Spencer, they, with the assistance of high-priced counsel, made the decision to stick with Judge Spencer long ago.
