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.
Means, oppportunity, and motive. These criminal prosecution factors are well-known. The government’s case on the 11 public corruption counts boils down to motive, broadly defined.
Beginning later today, the cross-examination battle between the prosecutor and the defendant will be defined by the motive issue. Unfortunately, for former governor Bob McDonnell, the prosecution would have had a far more difficult task if his lawyers were not been so stubborn. Let me explain.
The prosecution’s position borrows from Yogi Berra, the famed New York Yankees catcher.
“Some things are too coincidental to be a coincidence,” proclaimed the baseball sage. The prosecution brilliantly shaped a timeline of emails, texts, phone records, witness testimony, and defendant’s activities to develop its Yogi Berra motive message: “But for a corrupt quid-pro-quo deal, why would Jonnie Williams have lavished all that loot on the McDonnells?”
Criminally speaking, the government need only prove McDonnell accepted Jonnie Williams’ largess despite knowing, or having reason to know, the Henrico businessman expected illegal favors in return. It doesn’t matter legally whether the governor ever intended to reciprocate.
Prosecutors admit lacking direct evidence of the alleged deal. Williams himself, supposedly in the room when the alleged deal was cut, didn’t testify to even having an implicit agreement with McDonnell. The Star Scientific, Inc. founder only claimed the experienced politician should have known he wanted illegal help, not friendship. Prosecutors further concede Star did not receive any official benefit invariably present in public corruption cases: a government contract, grant, license or other “goodie” putting significant public money into private hands in return for an illegal payoff. By these normative standards, the massive, two year pursuit of the McDonnells seems disproportionate at minimum.
Legally, however, corruption statutes criminalize the agreement. Therefore any official act taken in furtherance of conspiracy ensnares the principals.
But with Williams having received little, if anything, of legally tangible value, this leaves motive - what the heck should the jury think was really going on - open to question. The “Yogi Berra” strategy cleverly makes “corruption” the default motive, in effect shifting the burden of proof in the jury’s mind to the defense even though legally it should be with the prosecution.
Remember: The jury can convict McDonnell for corruption based on what it believes he should have reasonably known given the evidence. The former governor emphatically says Williams never asked for anything, but, as indicated above, Williams’ passive silence isn’t the slam dunk defense attorneys seemingly believe.
Logically, therefore, it would seemingly behoove the defense to show the jury how Williams pro-actively lulled the McDonnells into an unsuspecting complacency. But McDonnell’s lawyers have stubbornly refused, apparently fearing it may make a savvy Governor look unbelievably naïve. They only permitted McDonnell to say he “misjudged Williams.” This suggests a McDonnell mistake.
But the prosecutor’s own evidence actually allows the defense to paint several alternative theories on motive damaging – that is to say raising reasonable doubt - to the government’s case. Let me provide an example.
Suppose Williams’ true but hidden motive actually centered on merely ingratiating himself with the McDonnells. If he got more, great, but secondary.
Why? The alternate theory: Williams’ true plan involved befriending the McDonnells to set up asking for a big official favor near the end of the governor’s term, like putting those research studies at UVA and VCU in motion. Williams' lawyer, a prosecution witness, told the businessman it would be easy for McDonnell to do legally. My expose last year on Williams documents his reaping tens of millions of dollars from unsuspecting stock investors by manipulating data produced by less prestigious researchers.
The point: Williams had a motive to make sure he fooled the governor, but his plan ran into trouble when he learned of a potentially ruinous federal securities fraud probe. He didn’t disclose it to the McDonnells, did he? Soon, Williams learned about a separate investigation into the governor.
The Henrico businessman realized his $177,000 in goodwill had been wasted on McDonnell, but it could be repacked to help the prosecution. So, he switched sides, claiming a “guilty conscience," not a “get out of jail free card” immunity deal, made him admit having previously lied about McDonnell having no reason to suspect Williams’ corrupt motivation.
Showing Williams may have had an ulterior motive to repeatedly mislead the McDonnells could be key. The McDonnells' top aides admitted to “seeing through” Williams. The prosecution will say: “Are there $177,000 reasons to explain Governor McDonnell’s blind spot?”
Bottom line: Creating reasonable doubt is why trial lawyers weave credible, albeit unprovable, alternative theories of the case. The defense’s opening statement alluded to Williams being a “master manipulator.” But have they done it sufficiently?