By Paul Goldman
Editor's note: Paul Goldman is a guest columnist for DecisionVirginia.com. The views expressed below are his own and do not necessarily reflect the opinions of NBC12.
In order to walk, does the Governor have to talk? The federal prosecutor can’t force former Governor Bob McDonnell to testify at his criminal trial beginning on Monday. The right against self-incrimination is contained in the Fifth Amendment, although originally the Seventh when the First Congress in 1789 proposed adding the Bill of Rights to the U.S. Constitution.
If McDonnell chooses not to testify, Judge James Spencer must instruct the jury to refrain from drawing any adverse conclusions for his exercising this constitutional right.
Nearly one-half of all criminal defendants elect not to testify at trial. This percentage has risen in recent years.
But while the statistical odds may be 50-50, I believe the practicalities approach 100 percent of McDonnell taking the stand, unless the prosecution case crumbles like Sonny Liston in round one of his second heavyweight championship fight with Muhammad Ali. The majority view disagrees with me, believing it is usually best for a defense attorney to counsel a client not to testify.
But this view misses the dynamics in a Governor’s public corruption trial. The jury wants McDonnell to look them in the eye and say the government is wrong. While high risk, “it is almost a necessity in a public corruption prosecution.”
The decision to testify is held by the defendant, not defense counsel. The “lure of the witness stand (and perhaps one last performance) can be overwhelming” for a politician who believes his long elected career is due in part to his power of persuasion.
This may be particularly true in this case, as it seems built on circumstantial evidence built around the immunized testimony of controversial businessman Jonnie Williams. This requires the jury to make dicey value judgments based on balancing various interpretative factors. It could be a he said/he said with the winner being the one seeming most credible to the jury.
Bottom line: If McDonnell fails to take the stand, it will hurt him to some lesser or greater degree despite Judge Spencer’s admonishment. This is why some claim McDonnell has already made a serious mistake in failing to take the witness stand in his first trial: the one held in the court of public opinion.
Despite having the gubernatorial “bully pulpit” during 2013 to address investigative leaks appearing regularly in the media, McDonnell refrained from waging a PR counter-offensive. This is surely on advice of counsel. It seems a strategic mistake. A “silence” strategy is generally justified on not wanting to anger prosecutors with the power to cut a generous plea deal. It is true such plea deals tend to carry a less onerous sentence, but apparently McDonnell never intended to take a deal. Why then miss a unique opportunity to speak with potential jurors over the heads of the prosecutors?
Having essentially remained mute during the first “trial," McDonnell risks too much doing it again despite the risks of cross-examination. While his initial direct testimony figures to get the widest press coverage, the key risk for McDonnell is on cross-examination, regarded by legal folklore as the true truth- telling mechanism.
Prosecutors have admittedly been waiting over a year to get their crack at the blonde-haired former chief executive. Will McDonnell step down from the witness having deflected all the government’s best shots? If so, then I believe he can beat all the corruption charges. But should prosecutors draw significant blood, the former choir boy likely faces conviction on one or more of the 13 indictment counts aimed at him.
In the old English courts, a defendant could remain silent in theory, but the evidence rules made such a decision suicidal. They therefore talked despite the risks. American jurisprudence changed the rules.
But practical reality has remained the same in this case: Fair or not, if McDonnell wants to walk, he has best be ready to talk.