While Not Giving a Knock-Out Blow to Either Side, The Judge’s Jury Instructions Give Both the Defense and the Government Reasons to Be Hopeful
After 26 days of testimony and argument, the fates of former Virginia Governor Bob McDonnell and his wife former First Lady Maureen McDonnell, rest in the hands of a jury composed of seven men and five women. Closing arguments wrapped up on Friday August 29, 2014. The jury, fresh off a 3-day Labor Day weekend, resumed Tuesday September 2, 2014 with over two hours of jury instructions from U.S. District Court Judge James Spencer. Given the fact that Bob and Maureen McDonnell were charged in a 14-count indictment for crimes that stem from allegedly accepting more than $177,000.00 in gifts and loans in exchange for official government acts, there is no surprise that Judge Spencer carefully and meticulously went over 90 pages of instructions before turning the case over to the 12 men and women of the jury to decide. The process of deciding which instructions are read to the jury is at the sole discretion of the presiding trial judge, but the government and the defense aid in the process by recommending competing versions of jury instructions to the court. There are “pattern jury instructions” that have been adopted and approved by appellate courts for each jurisdiction. However, trial judges still have broad discretion in the choice of language which some believe can steer the jury in one direction or the other or make it more or less likely the jury will convict on a given charge.
While the bulk of the victories in the battle for the jury instructions in the McDonnell case were won by the government, the defense did not walk away empty handed. The final instructions included language that may be helpful to the defense. For example, the judge instructed the jury to take special care when considering the testimony of an immunized witness. You may recall that the most powerful evidence presented in this case by the government was the testimony of former Star Scientific CEO Jonnie R. Williams, Sr. The government granted “blanket immunity,” an extraordinary and unusual protection from prosecution for his role in the alleged bribery scheme in exchange for his testimony against Bob and Maureen McDonnell. Williams’ extraordinary plea deal with the government shielded him from prosecution in this case and in other matters, including securities fraud. Judge Spencer instructed the jury that evaluating the testimony of immunized witnesses requires greater care than other witnesses and that the jury should consider whether the immunized witnesses’ testimony was influenced by his own self-interest. In other words, the jury has to determine whether Williams had motive to lie to save himself.
Secondly, the judge instructed the jury that good character alone may give rise to reasonable doubt. If the jury has reasonable doubt, they are obligated to acquit. This instruction is helpful to the defense because the defense put on two witnesses who have known the governor for over 40 years and characterized him in their testimony as an honest and truthful man of integrity. Finally, the judge instructed the jury that Maureen McDonnell can only be convicted of the public corruption charges against her, if the jury also finds Bob McDonnell guilty of those charges. The First Lady is a private citizen and is not a public official. Thus, Maureen McDonnell could only be found guilty of public corruption charges, if the jury finds she acted together with her husband, the former governor, to perform official acts in exchange for things of value. Since Maureen McDonnell could not perform official acts on her own, the jury cannot solely convict her for the public corruption charges. However, the jury was instructed to consider Mrs. McDonnell’s fate separately on the obstruction of justice charge. The government alleges Mrs. McDonnell obstructed justice when she lied to police about her relationship with Williams and subsequently returned $20,000.00 worth of clothing to Williams that he had bought for her with a note suggesting that she had intended to return the clothing all along.
While the defense had some victories in convincing the judge to adopt some jury instruction language that was friendly to their cause, the government won key battles in the war over jury instructions. For example, the defense had been arguing for months for a narrow definition of “official acts” under the bribery statute. The defense argued throughout the trial that Governor McDonnell is not guilty of public corruption because he gave Williams “routine treatment” and did not perform any special favors for him beyond those he would perform for any other campaign donor. However, in a real body blow to the defense Judge Spencer told the jury they should consider official acts to mean, “any decision or action on any decision, matter, cause, suit or controversy, which may at any time be pending or which may be by law brought before any public official.” Judge Spencer also noted that an official act can include, “acts that a public official customarily performs.” Clearly this instruction cuts at the heart of the McDonnell defense because the defense conceded that Governor McDonnell arranged meetings for Williams with government officials, and hosted events for him at the Governor’s mansion, where his company’s products were prominently on display. The defense unsuccessfully wanted the court to limit “official acts” to constitutional duties like budget appropriations, board appointments and executive orders. Tough break for the defense.
Second, the judge instructed the jury that the conspiracy or agreement to commit public corruption between Williams and Governor and Mrs. McDonnell need not be a formal agreement, written out or expressed in every detail and need not even be oral, but could be implied and understood with nods and winks between them. The judge went further to instruct that the conspiracy scheme need not be successful. Judge Spencer told the jury that an unsuccessful conspiracy is just as illegal as a successful one. This distinction is crucial because the defense hammered at the fact that the government could not prove that Williams got anything for his gifts, noting that Williams never received the state government clinical trials he wanted for his products. This has been dubbed the “routine courtesies defense.” This instruction may make the defense argument on this issue irrelevant. Finally, Judge Spencer instructed the jury that it is not a defense to public corruption charges that the Governor had planned to perform the services anyway, regardless of the gifts he got from Williams. Again, this instruction undermines the defense “routine courtesies” argument.
As the jury walks into Day 3 of their deliberations in the jury room, these instructions will color how they evaluate and weigh the evidence presented by the government and the defense at trial. Obviously a variety of outcomes could transpire. To convict on any charge the jury must reach a unanimous verdict for that charge. If the jury cannot reach a unanimous verdict on each charge in the indictment after careful and thoughtful deliberations that include their best efforts, there will be a “hung jury” and the judge will declare a mistrial. As with the federal corruption trial for former Senator John Edwards in North Carolina in 2012, the jury could acquit on some charges and hang on others. The jury could solely convict Governor McDonnell on the bank fraud charges for intentionally failing to disclose the private loans from Williams on bank loan applications. The jury could solely convict Maureen McDonnell of obstruction of justice, or the jury could acquit both Governor and Maureen McDonnell of all charges and give a complete defense verdict of not guilty. There are still many other possible combinations of outcomes.
Anyone accused of or being investigated for federal white collar offenses should consult a seasoned and experienced white collar defense attorney, who is knowledgeable about the current trends in federal prosecutions.