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 doesn’t matter what I believe. It only matters what I can prove,” explained exasperated criminal defense attorney Tom Cruise in the movie A Few Good Men. His clients were facing conviction.
“Confidence is contagious” opined legendary football coach Vince Lombardi. “So is lack of confidence.”
Sitting in Judge Spencer’s federal courtroom watching the McDonnell trial, you sense at times the former First Couple’s defense team is resigned to losing. Prosecutor’s give a far different vibe, having masterfully followed the K.I.S.S. principle for winning advocacy: Keep It Simple, Stupid.
With robotic efficiency, Bob and Maureen McDonnells' pursuers spent 14 days using every hammer at Home Depot to nail down a timeline connecting what Jonnie Williams gave them and what the former first couple allegedly gave in return. The resulting K.I.S.S. message: “Some things are too coincidental to be a coincidence.”
The defense team’s only memorable rejoinder: blame the former governor’s crazy, out-of-control, estranged wife with a school girl “crush” on Williams. Even Judge Spencer couldn’t resist expressing skepticism.
To quote Anne Hathaway’s response to Jake Gyllenhaal’s lame hook-up line in the terrific movie Love and Other Drugs: “That’s the best you got?”
I’m not Muhammad Ali, but here’s a 10-point plan should the defense want to fight back.
1. WILLIAMS NEEDED TO KEEP HIS PERSONAL GRAVY TRAIN ROLLING
Forget sex: Williams has always been about flash and cash.
This means picking-up the tab, be it a $1,000 round of golf, $2,000 dinner, $5,000 bottle of Cognac, a $36,000 vacation, or a $42,000 plane ride. But this requires access to the Star Scientific Inc. credit card. That’s why Jonnie worked to be seen as “tight” with Virginia’s first family since Star only got fluff, not stuff, as Williams himself complained. He cleverly got close by easing the former governor’s fears – trust me, no illegal strings attached - while providing mostly repayable loans or gifts charged to Star! It’s consistent with Williams being on Uncle Sam’s scam radar since the 1980s.
2. NO DIRECT EVIDENCE OF CORRUPT DEAL BETWEEN WILLIAMS AND THE GOVERNOR
This is the one fact the defense failed to make certain jurors understood while listening to the prosecution’s circumstantialevidence. Prosecutors know their lack of direct evidence could sink public corruption counts 1-11.
3. WILLIAMS NEVER SAID HE HAD A DEAL WITH THE GOVERNOR!
On the witness stand, William’s merely said the McDonnell’s should have realized he wasn’t a friend, only a businessman willing to pay to play. If Bob McDonnell can survive cross-examination, Counts 1-11 become all about reasonable doubt.
4. PUT THE GOVERNMENT’S TACTICS ON TRIAL.
Investigators sandbagged Mrs. McDonnell, forced the governor’s protection detail to spy on him, and who knows what else. The Defense must build sympathy for the McDonnells.
5. EXPOSE THE REAL JONNIE WILLIAMS
Incorporating my suggestion last week, the defense should add a street smart local African-American trial lawyer for the purpose of recalling Williams to show how he got rich selling worthless stock to widows, veterans, middle class workers among others. Uncle Sam’s prosecutors read my seminal Virginia piece collecting the truth.
6. MCDONNELL MUST “MAN UP."
Indicted elected officials typically “run for office” from the witness box by adopting the political approach of blaming others. Big mistake. Bob is a good Catholic boy, he knows about confession. Americans love a sincere sinner. He needs to be able to look the jury in the eye and say: “God knows I am a lot of things but never a criminal operating out of Mr. Jefferson’s office.”
7. BAIT THE PROSECUTION
The government’s investigator admitted to wanting to give Williams immunity for tens of millions of dollars in seeming stock fraud in exchange for helping to nail the McDonnells on a $15,000 catering bill. That smells of an obsession. If the jury gets merely a whiff, it could save the McDonnells.
8. BETTER LAWYERING ON BANK FRAUD CHARGES
The defense needs to more closely read U.S. v Wells, 519 U.S. 482 (1997) and its progeny to overcome Judge Spencer’s earlier objection. They can get possible exculpatory evidence admitted on Counts #12 and # 13.
9. EXPOSE COUNT # 14 AGAINST MRS. MCDONNELL AS A SHAMEFUL GOVERNMENTAL TACTIC
The former first lady is charged with obstruction of justice for an allegedly false note to Williams suggesting a previous agreement to return dresses rather than keeping them. Maybe she also should be charged with writing a doctor’s note to explain why her boys were late for class.
- 10. RECALIBRATE THE “OFFICIAL ACTS” DEFENSE
Defense lawyers appear to be banking on proving the former Governor didn’t do any official acts for the Williams. But Evans v United States, 504 U.S. 255, 268 (1992), says “fulfillment of the quid pro quo is not an element of the offense," an illegal agreement is crime enough. A narrow split decision, but still apparently good law. It seems the defense is building a record for appeal, as opposed to convincing the jury to acquit.
The K.I.S.S. principle is simple for the defense: Jonnie Williams had any number of reasons to mislead the McDonnells into thinking his money came without any illegal strings attached. It is consistent with a 30 year Modus Operandi.
The Henrico resident arguably suckered everyone: the McDonnells [pretended to have the governor’s back] Star Scientific [pretended he could influence the governor in order to max-out the company credit card], Uncle Sugar [ pretended to have made a corrupt deal in order to get immunity], three decades of bankrupted stock investors [pretended to be selling stock in sound companies] and now Anatabloc users [pretended it was the real thing, but it is now been forced off the market due to phony claims].
Williams and the McDonnells deserve each other. But does one deserve jail on the purchased, immunized, historically unreliable word of the other?
As legendary Judge William Blackstone said, better 10 guilty men go free than risk one innocent person going to prison.