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.
It was Groundhog Day v. Hogans Heroes in federal court yesterday. Groundhog Day is the title to Bill Murray’s hilarious flick about a newsman trapped reporting the same day of the same story.
Hogans Heroes, a comedy set in an American POW camp, features German Sgt. Hans Schultz saying “I know nothing!” when asked to explain why the inventive American prisoners always seem to outwit their captors.
Yesterday, the prosecutors played Bill Murray, asking on day 21, with mind-numbing repetition, the same questions seemingly asked and answered since day one. Defendant Bob McDonnell played Sgt. Schultz, although I am exaggerating here for literary effect to make a point about McDonnell’s team seeming to be oblivious to the need to better explain his ethically blind eye.
For those who prefer sports, not movie, analogies, Federal Judge James Spencer is apparently an old American Football League fan. The rebel AFL pioneered the wide-open passing offense now dominating on the gridiron. This boyhood affinity may therefore explain Mr. Spencer losing patience with the old National Football League styled “three yards and a cloud of dust” ground game used by the prosecution yesterday to push former Governor McDonnell’s defense back toward the goal line. He rebuked McDonnell for long-winded answers and later the government for repetitive, long-winded questions.
The morning newspapers had their pundits and experts confidentially predicting prosecutorial fireworks. In the fifth week of reading the same script, prosecutors proved asking the same question for the 21st time is beyond mind-numbing. For the defense, McDonnell merely says Jonnie Williams never specifically asked for anything, and he got nothing, a point Williams himself essentially conceded on the witness stand.
“Enough already!” a frustrated Judge Spencer surely meant when adjourning the court early and then turning to the jury to say, “I don’t know about you but this has been the longest day in my life.” Since the prosecution controlled the day’s agenda, his observation can only be fairly read as a rebuke to the government for wasting the jurors' time.
However, I believe he also sent McDonnell’s lawyers a message: Is this the best you boys got? He knows there are better trial-test winning approaches. One would have been based on destroying Williams’ credibility. The prosecution’s key witness has been on the federal government’s scam radar for seemingly bilking unsuspecting investors out of tens, if not hundreds, of millions of dollars.
But the defense opted to let Jonnie go relatively unscathed as a witness, and did the same by giving the government a pass on its seemingly over-the-top investigation at times. As pointed out yesterday, the defense seems to have also decided against presenting an “alternative theory of the case," usually necessary to build reasonable doubt.
The defense likewise has a glaring lack of any lawyer knowledgeable in the realities of gubernatorial politics and administration, a reason McDonnell is being damned for benign actions. Finally, a time-tested defense strategy is to hire a hot-shot “street justice” trial attorney who knows Richmond’s juries. This is a case where a gifted advocate could paint a picture of the real culprit – millionaire huckster Jonnie Williams - getting a “get out of jail free card” for conveniently switching his story, and laughing at all of us all the way to the bank. Juries have been known to rebuke prosecutors for less in what legal experts call “jury nullification.”
Instead, the defense has opted to play on the prosecutor’s turf, a water torture of tit-for-tat.
My take: Judge Spencer believes the “die is cast” if both sides are set in concrete on their thrust and parry. This should worry the defense. As I read the defense strategy, McDonnell’s lawyers believe there is a fundamental element to the alleged crimes which the government can’t prove. But prosecutors believe the defense is fundamentally wrong in believing said element is a necessary element of the crime. Since Spencer gets to charge the jury – and he previously rejected the defense theory – this could be the elephant in the courtroom.
Any fair-minded person knowledgeable about state government knows Mr. McDonnell did, de facto, next to nothing for Williams. But the law may see it differently from a technical point of view.
Let’s be brutally honest: Right now, the only sure winner is Jonnie Williams, who is smiling all the way to the bank and beyond. It tells me the defense might finally want to realize Williams, not the wife, has always been their bigger problem.
I think Spencer is telling them the same thing.