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.
Did Judge Spencer seal the fate of Bob and Maureen McDonnell yesterday? He sided with the government on a key ruling. He sustained the prosecution’s objection, and didn’t allow the McDonnells' lawyers to ask the government’s own witnesses a seemingly fair, indeed necessary, question regarding the two bank fraud indictments. I am not saying Spencer lacked authority to make his ruling, but I do believe he had the discretion to overrule the objection, indeed should have in the name of fairness. Let me explain.
In the legendary 1603 trial of Sir Walter Raleigh for treason, the defendant dared the Court to “[C]all my accuser before my face,” so that he might be cross-examined and the lie exposed. Needless to say, the King’s judges didn’t oblige. By the time of the American Revolution, the Virginia Declaration of Rights, a forerunner to the Bill of Rights, had adopted in the main what we today call the Confrontation Clause of the Constitution of the United States.
The Sixth Amendment says that “in all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.”
Our system considers cross-examination the great “truth-telling machine," thus the reason the Confrontation Clause is in the Bill of Rights.
In America, with all the advantages given to the government when it wants to convict you – in the McDonnell case, the government did 300 private interviews, reviewed 3.5 million documents, empanelled secret grand juries, even started thinking about cutting an immunity deal with multimillion dollar fraudster Jonnie Williams to get him to help get the McDonnells even when the government only knew about a questionable $15,000 wedding caterer’s bill – the Sixth Amendment is considered sacrosanct.
So, today I feel compelled to ask: Did Judge Spencer violate the spirit of this great constitutional right?
The McDonnells' lawyers continually pressed, to the ultimate exasperation of the judge, for the right to question the prosecution’s witnesses on the issue of “materiality.” The prosecution objected and the judge backed them.
Why is Spencer’s ruling potentially so crucial? While the McDonnell case centers on the 11 public corruption counts, many legal experts believe the two non-corruption bank loan fraud charges are the couple’s biggest criminal risk. I wrote about that yesterday for those who need the background.
The prosecution has to prove more than that the McDonnells “knowingly” omitted their Williams’ indebtedness from the loan applications. They must also prove this omission to be “material” – that is to say the omitted information, had it been known to the bank, would have caused the bank to either deny the loan or significantly change the terms of the loan.In street justice terms: “No harm, no foul” is a winning defense if believed by the jury.
The “witnesses against me” are not actually the people on the stand, but the alleged evidence of the crime they provide. The government therefore presents its “bank loan witnesses” to provide the proof to crimes alleged.
These are the prosecution's own witnesses. Surely, the question asked by the McDonnells' lawyers has been asked by the prosecution of their own witnesses given its centrality to the matter.
“But Paul," you say, "it is the witness’ speculation as to what might have been the case.”
My response: “This is a circumstantial evidence case, the jury has to speculate on what is material or not.”
What good is the right to Confrontation if you can’t ask a question the prosecution knows you are going to ask of their own witnesses, a question that goes to perhaps the key element whether or not the bank got defrauded!
The McDonnells may infuriate, disgust, whatever given their abuse of a sacred public trust, but they are not on trial for disgracing the office. I don’t question the sincerity and professionalism of the prosecution or Judge Spencer as I have repeatedly written. Moreover, I have used the term “unfair," not unconstitutional or unlawful.
If the defense was willing to risk asking the prosecution’s own witness this question, why is justice served by not allowing them to answer? I don’t get it. Why should the government fear the public answer from its own witness to a question they have already asked in private?