Five Early Musings on the McDonnell Guilty Verdict

September 5, 2014

By: Sara Kropf

Yesterday a jury in Richmond found former Governor Robert McDonnell and his wife guilty of public corruption. Here are the details of it.

I’m sure many others will offer in-depth analysis of the verdict in the coming days. Here are my initial thoughts about the verdict and the media coverage of the trial.

First, I was surprised by it. The evidence of a quid pro quo was nil, as best I can tell. The government certainly proved that the McDonnells accepted things of value, no question. But what did they give in return? Not much. The government did not appear to have any direct evidence that anyone agreed to provide official acts in return for those benefits.

I thought that perhaps the jury would split the baby and convict on one of the non-corruption charges. Or even acquit on everything. Boy, was I wrong.

Second, the media’s complete ignorance (or feigned ignorance) of joint defense agreements was appalling. The refrain throughout the trial coverage was that it was just so unfair of Mr. McDonnell’s team to paint his wife as unstable and difficult. A commentator today said Ms. McDonnell was the “roadkill” of the trial.

Now, I have no inside information on the defense team, but it’s hard to imagine that there was not a joint defense agreement in place. So Mrs. McDonnell’s lawyers agreed with the overall defense strategy or, at least, knew about it well in advance. They had every opportunity to contradict it, either through Ms. McDonnell’s testimony or other witnesses. The fact that they did not contradict it means that they – at least tacitly – consented to it.

So stop blaming Mr. McDonnell for the strategy as though Ms. McDonnell did not have her own, highly competent counsel.

Third, I’d expect an aggressive appeal by the defense team based at least on (1) the overly broad jury instruction given for an “official act”; (2) the lack of quid pro quo evidence; and (3) the denial of the motion for severance.

Fourth, I’m sure a big theme of the upcoming analysis of the verdict will be “he should have taken the deal.” Early in the case, the government apparently offered Mr. McDonnell a plea deal that would have ensured that his wife would not be charged and he would only be charged with one felony that was unrelated to public corruption. He turned it down.

I have a hard time with these types of plea deals where the government uses a target’s spouse as a bargaining chip. It’s hard to imagine what would be a more coercive offer, an offer that encourages someone innocent to plead guilty in order to save a spouse, or one that is nearly guaranteed to create marital strife.

Is this really how we want prosecutors to seek justice?

Plus, hindsight is always 20/20. If Mr. McDonnell maintained his innocence and had the advice of good counsel—which Hank Asbill unquestionably offered—then he had every reason to turn down the plea deal. He may regret it now but it was the right decision for him at the time.

To say post-verdict that he should have “manned up” and taken the deal is much too easy.

Fifth, the outcome shows even more starkly that the government cut Jonnie Williams an amazing deal. He was the alleged mastermind of the scheme, he supposedly paid the bribes and he received the “benefits”—and yet he received complete immunity.

For the government to give him complete immunity shows just how far it was willing to go to convict the McDonnells. This doesn’t mean that the McDonnells are not guilty, but it certainly means that the Public Integrity Section had its target from the start.

All in all, while there was certainly some troubling behavior by the McDonnells, I’m not convinced justice was served by this verdict. Then again, as a defense lawyer, that’s not an uncommon feeling.

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