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.
Almost all of the prosecution’s own witnesses, except for law enforcement officials, don’t believe Bob and Maureen McDonnell are criminals. The government’s star witness, on the federal governments scam radar since the 1980s, couldn’t swear under oath former Governor McDonnell knew the $177,000 in cash, gifts and loans came with illegal strings attached.
Jonnie Williams, the charmingly cagey Star Scientific, Inc. founder, admitted to wrapping himself in a friendly, seemingly benign veneer, albeit an image he thought shouldn’t blind an experienced politician. McDonnell swears it did. The prosecutor produced not a single shred of direct evidence to refute him. Surely then, the prosecutor would have to concede this leaves reasonable doubt?
No. To prove their corruption case, they spent the free market equivalent of at least $100 million dollars, reviewed 3.5 million documents including texts and emails, ordered the FBI and Virginia State Police to interview 500 people, and examined the alleged conspirators from birth to beyond.
How hard can it be to determine whether Jonnie agreed to supply the loot in exchange for Bobby agreeing to provide the illegal governmental muscle? Like really, really hard.
The government could only dump a mountain of purely circumstantial evidence on the jury and cite New York Yankee great Yogi Berra’s famous observation: “Some things are too coincidental to be a coincidence.”
Their “Yogi Berra” prosecution lacks the usual DNA marker for a public corruption: no state contract, special license, or scheme to get public money to Williams or Star. No cash in a brown paper bag. There is only one undenied quid pro quo: the generous “Get out of Jail free” immunity deal Williams made with the prosecution after changing his story. He had initially defended the McDonnell’s, calling them honest and trustworthy.
But to quote songwriter Bob Dylan, “Things Have Changed.”
The former Star CEO says he ratted out the McDonnell’s due to “pangs” from a guilty conscience. Really? I ask: how does the prosecution win given the fact its own witnesses mostly think McDonnell is gullible, not guilty?
Especially when the government’s case is riddled with evidentiary holes besides Williams’ agreeing McDonnell might not have understood the conman’s ulterior motive. In addition the “white bread” prosecution team made easy pickings for a local African-American attorney appreciating how to use the McDonnell administration’s best-ever gubernatorial record on restoring ex-felons civil rights to build good will with the racially mixed jury when they retire to deliberate on a verdict.
Finally, as Sherlock Holmes observed in The Boscombe Valley Mystery, this type of purely circumstantial case lends itself to developing a plausible “alternative theory of the case," thereby creating reasonable doubt. Slam dunk for the defense? Not!
The former governor’s counsel spent days explaining a “not guilty by reason of marriage meltdown” defense. The McDonnells fielded their own all-white team lacking “street smarts” and an appreciation for the restoration of rights character issue. Lastly, the defense merely denied the government’s charges as opposed to crafting an alternative theory to explain William’s actions.
The McDonnell legal defense focused largely on saying what Bob did for Jonnie – the “quo” - amounted to a Shakespearean “much ado about nothing.” But this defense strategy does not actually negate any necessary element to the corruption felonies charged. An illegal quid pro quo agreement can exist even if McDonnell took the money while never intending to anything for Williams!It depends on how McDonnell judged Williams’ expectations. The McDonnell defense can be 100 percent right on there being no meaningful “quo” and still lose huge.
They are apparently hoping this low criminality bar will seem unfair to the jurors given what Williams got from McDonnell compared to the free pass the con man got from the government. Such “street justice” would not surprise, leaving aside the bank fraud charges. .
But why not equally argue the following:
If Williams admits to having a reasonable doubt as to whether the former governor saw through the conman’s practiced deception, how can a jury, with far less real-time information, in effect conclude beyond a reasonable doubt that the businessman is wrong?
It would be different if Williams and McDonnell were sitting together at the defense table and denying everything, but the Star executive is working for the prosecution.
The government’s other non-paid witnesses are collectively appalled at the McDonnell’s blind ethical guy, indeed their Beverly Hillbilly attitude. But they give them the benefit of the doubt – as legally required – on crossing over into criminality.
“Call me Ishmael” starts the book Moby Dick. The prosecution’s “Yogi Berra” case is damning. But legally, it has the story line of a hunt for a big fish.