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.
The contrast late yesterday between the smiling prosecutors and tight-lipped defense attorneys spoke volumes. The defense knows it needs a powerfully compelling closing argument.
Anyone up on "street justice" knows Judge James Spencer has been down on the defense ever since their “not guilty by reason of a marriage meltdown” claim. It might prove a winning argument, but Judge Spencer evidenced skepticism when Bob McDonnell claimed PTSS – Post Traumatic Stress Syndrome – from being an abused husband, as a legal defense.
But does he reflect the jury’s view? The former governor survived cross-examination far better than seemed likely at the start. For the defense, a hung jury is a win, but reasonable doubt, to the extent it exists, could vanish after Judger Spencer instructs the jury on the law.
My gut: "street justice" always remained the defense’s best hope. This seemed possible in this case. But the former Governor’s lawyers may have caused their client to morph into a very unsympathetic figure. “Street justice” is easier when jurors feel an emotional pull to cut you some slack.
For example, let’s use the legal standard for finding McDonnell guilty of violating the Hobbs Act, the biggest part of the 14-count indictment. The seminal definition case in our 4th Federal Circuit is given by U.S. v. Taylor, stating “the public official must obtain a payment to which he was not entitled, knowing that the payment was made in return for official acts [citation omitted].”
Thus, a quid pro quo, agreed upon, exchange must be proven. But McDonnell didn’t actually have to perform the requisite official act. The crime is the agreement, provable by purely circumstantial evidence including any of his actions.
This begs the question: What is considered proof beyond a reasonable doubt, also defined as guilt to a moral certainty?
According to the defense, Jonnie Williams never directly asked their client for anything, indeed he acted in such a manner as to hide his true motives. McDonnell’s lawyers also point to the alleged official acts cited by the prosecution. The defense suggests they are of such insignificant nature in the grand scheme of things to fall well below what Williams would have expected in return for $177,000.
Furthermore, Williams, in his direct testimony as the prosecution’s chief witness, never claimed to have made a corrupt deal! The Henrico businessman merely said McDonnell should have been able to see those corrupt expectations, despite there being hidden behind the friendly appearances.
That’s right: If Williams had been honest in revealing his corrupt intentions to McDonnell, then the prosecution’s chief accuser could have called the former governor a liar since the “payment” required in Taylor had been accepted.
But Judge Spencer is not going to tell the jury it must acquit if the above scenario fits. His previous rulings indicate he uses a lower standard of proof, better for the prosecution and permitted by case law.
Will “street justice," however, prevail? A fair person will know Williams admitted, perhaps unwittingly, to have been actively trying to hoodwink the McDonnells into believing the businessman to be a friend, not a predator. Did this deception work? His own testimony says McDonnell might have been fooled.
Meaning: A fair juror could see the corrupt instigator having been given a “get out of jail free card” immunity deal, while the government has used him to ruin the McDonnells financially and personally by this trial.
“Street justice” says: “Charles Dickens is right, the law is an ass. The prosecution’s chief witness admits his con might have worked, but the government tells us it doesn’t really matter according to the law of the case? I am not joining in that travesty.”
In the law, this is called jury nullification, the jurors choosing to be the conscience of the community in meting out “street justice.”
Judicially speaking, the jury would hold the government to its own facts, actually an accepted legal principle, not merely “street justice.” The prosecution’s own chief accuser pointedly said he couldn’t swear the McDonnells were guilty beyond a reasonable doubt.
A juror might therefore conclude: “With all due respect your honor, why should I?”
A powerful closing argument might convince one if not all twelve to send the government a message even if they might not have much sympathy for the defendants. Of course, there are also non-Hobbs Act charges, but those we leave for another column.