The Fourth Circuit Court of Appeals last week denied the former Governor’s request to extend his bond and allow him to remain free pending appeal of his conviction to the U.S. Supreme Court. McDonnell’s lawyers immediately appealed to Justice Roberts, who oversees petitions from the Fourth Circuit.
Today, Roberts issued an order staying the Fourth Circuit’s mandate and requiring prosecutors in the case to respond to McDonnell’s bond request by Wednesday. This does not mean McDonnell gets to remain free pending the appeal of his conviction; it only means that Roberts (or all nine justices, if Roberts so decides) will take up the matter of extending his bond. From the WaPo:
To win a longer reprieve, McDonnell must [demonstrate] that there is a “reasonable probability” that four justices would agree to review his case, that there is a “fair prospect” a majority would ultimately rule in his favor and that he would suffer irreparable harm if his request were denied.
That decision could come in a matter of days after Wednesday’s deadline for prosecutors to tell Justice Roberts why McDonnell’s case doesn’t meet the standard outlined above. If Roberts and/or the full Court rule against McDonnell, he could be in prison in a matter of a couple of weeks (enough time for SCOTUS to remand the the Fourth Circuit, the Fourth Circuit to remand to the trial court, and the trial court to set a prison date). If he wins, he could buy himself several months more freedom while the Supreme Court considers his case. His deadline for filing the appeal of his conviction on 11 counts of corruption is not until November 9, and the high court might then take several weeks or even months before deciding it.
McDonnell’s team should be encouraged by Justice Roberts’ action today. While the high court often summarily swats away appeals in criminal matters, the fact that Roberts weighed in could be interpreted to mean that he sees some potential validity to McDonnell’s arguments.
I certainly hope so, for the sake of McDonnell and his family, particularly given the nature of the alleged crime involved. It’s not like allowing him to remain free for a couple more months harms the administration of justice, makes him a flight risk, or endangers the public.
Separately, Maureen McDonnell’s appeal of her eight convictions is set to be heard by the Fourth Circuit on October 29th.
