Minutes into the oral arguments for former Virginia Gov. Robert F. McDonnell’s appeal, three federal judges expressed serious doubts Tuesday, as defense lawyers worked to keep McDonnell out of prison.
McDonnell’s team presented arguments before the Fourth Circuit Court of Appeals in Richmond, with defense attorney Noel J. Francisco saying the former governor’s trial was fatally flawed.
The defense contends jurors easily convicted McDonnell of 11 corruption counts because jury instructions were overly broad – specifically, the instruction defining the term “official acts.”
McDonnell is accused of performing official acts as governor, in order to help Henrico businessman Jonnie Williams. Prosecutors assert the governor directed subordinates to help Williams, days or minutes after McDonnell received a total of $177,000 in generous gifts and loans from Williams.
Francisco argued the broad definition of “official acts” lumped harmless meetings and introductions McDonnell arranged for Williams into illegal conduct.
“Mere ingratiation and access are not corruption,” Francisco said. “You need to advocate a specific action for something to be considered an official act.”
In a brief news conference following the one-hour hearing, McDonnell expressed confidence in the defense’s primary argument, citing the support of more than 40 former attorneys general who filed amicus curiae briefs.
“This is a jury instruction and a theory of the law that is unprecedented,” McDonnell said. “It would make every elected official in the country a potential target for federal prosecutors because these are routine courtesies.”
“When you have every White House counsel from President Regan to President Obama, former counsel, saying this is grossly wrong under the law, I think that says a lot,” McDonnell added.
Judge Robert B. King asked how the defense’s issue could have ultimately impacted the verdict, when King maintained a safeguard existed in the jury’s “good faith instruction.”
The provision prevents jurors from convicting, if they find McDonnell carried out his duties as governor “in good faith.”
“So how were there all of these convictions?” King asked.
The defense then turned to pre-trial publicity, arguing lawyers on both sides were never able to ask specific jurors if they formed opinions of guilt or innocence based on extensive media coverage.
The three judges asked how jurors were questioned before trial, with Francisco responding the lower court asked jurors to stand up if they followed media coverage of the corruption scandal.
U.S. District Court Judge James R. Spencer then asked prospective jurors to sit, if they felt they could be fair and open minded during the trial.
All of the men and women called for jury selection took their seats.
King and Presiding Judge Diana Gribbon Motz then asked why more questioning would be needed, with Francisco responding people may have felt pressured to sit, not comfortable admitting in a public display they had formed opinions on guilt or innocence.
The three-judge panel also included Judge Stephanie D. Thacker, and is expected to make a decision by September.
The current term for the Fourth Circuit ends Wednesday, with judges returning Sept. 15. The judges can either throw out all convictions, uphold all convictions, or order a new trial.
The losing side may then appeal to the entire appeals court, or elect to skip the step and petition the U.S. Supreme Court to hear the case.