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Utterly Lawless
It Was A Team Effort To Convict Virginia's Former Governor And First Lady Of Corruption: A Judge Complicit With Federal Prosecutors Working In Concert With The McDonnell's Own Million Dollar Defense Team.
 
By Perry Hicks- Special to GulfCoastNews.com   10/10/14
 
“The United States Attorney is the representative… of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” -Berger v. United States, 295 US 78 (1935)

On the day the indictment against former Virginia Governor Bob McDonnell and former First Lady, Maureen McDonnell was released to the public, Acting U.S. Attorney Dana J. Boente told the Washington Post, “We will continue to work tirelessly with our law enforcement partners to investigate and prosecute public corruption.”
 
Lofty sounding words, if only they were true.

The McDonnell prosecution wasn't about corruption at all.

It was really about nipping a potential presidential candidacy in the bud; no different than similar efforts to criminalize Texas' Governor Rick Perry, former Texas congressman Tom Delay, Wisconsin's Governor Scott Walker, and before them, Texas U.S. Senator Kay Bailey Hutchison.
 
If this weren't so, Mr. Boente would be filing far more charges against far more Virginia officials because, grand jury wise, it is such a target rich state.
 
Not that it would be easy; the work convicting the McDonnells could be likened to  passing a camel through the eye of a needle.  Prosecutors had no quid pro quo agreement between the governor and the food supplement CEO, Jonnie Williams.  They had no evidence Williams received tangible benefits in exchange for his personal “generosity.”  Nor had the trial revealed any such agreement existed between Williams and the former first lady- who, by the way, isn't a public official.
 
The entire case ad nauseum was about nuance- a supposed unspoken conspiracy between the Governor and his wife, and whether or not she is a despicable person.
 
Trial lawyers know that regardless of the evidence, juries will convict if they simply don't like a defendant.  Curiously, the defense's strategy was built on a foundation laid down by the Government: Maureen is emotionally volatile, greedy, and mean.  The defense used those claims to build an artifice that she lived in a state of cohabitational estrangement from her husband.  With their marital life so damaged, the defense argued no conspiracy was possible.
 
In order to undermine the defense, the FBI went to great lengths to determine how many nights the governor and his wife had slept under the same roof.  Under cross examination, they had to admit their numbers were misleading.
 
In the end, none of these arguments matttered.  The McDonnell's strategy failed because it was overly complicated, fostered contempt, and destroyed both defendant's credibility at the precise moment credibility was needed it in abundance.
 
A more affirmative defense would have been simply to ask investigating FBI Special Agent David Hulser under oath if he possessed a spreadsheet that juxtaposed Williams gifts against the money or other benefits he had received in return.  The answer would have been “No.” Hulser couldn't have such a spreadsheet because no data existed to fill it.  If it had existed, the prosecution would have presented it.
 
In like manner, Jonnie Williams should also have been asked under cross examination if he possessed a spreadsheet juxtaposing his money and gifts against the benefits he had received in return.  Answering “No,” he should then have been asked if he was truly no friend to the McDonnells, did he feel umbrage for having given the them approximately $165,000 in cash and gifts and in return got nothing.  He would have had to say “yes” because he had previously testified that he “shouldn't have to buy things like that to get the help I needed.”
 
As we all know, money for access is what American politics is all about; just ask any proponent of campaign finance reform.  We may not like it, but it is accepted practice at all political levels.  For example, try lunching with President Obama without first donating tens, if not hundreds, of thousands of dollars to a Democratic Party campaign.
 
The government's case was built on hypocrisy because Williams' testimony itself came as a quid pro quo:  Williams was the subject of other Federal investigations, not only in regard to the McDonnell case, but the Securities and Exchange Commission (SEC,) as well.  His cooperation garnered him broad immunity from serious Federal prosecution.
 
In the end, all the Government could show is tawdry behavior on the part of the McDonnells.  Bob was a clueless boob who at one point exulted in driving William's Ferrari, and naively believed that a Rolex watch given to him had been purchased by his wife.  Maureen was painted as a greedy “nutbag” and in all likelihood, this alone sealed her and her husband's fate.
 
After five weeks, the Government's case was so desperately deficient, Federal District Judge James R. Spencer had to bail them out by issuing jury instructions advising that wife Maureen need not have to hold public office in order to be found guilty of depriving the public of “honest services” by a public official.
 
Judge Spencer also instructed the jury that the prosecution did not have to prove that specific acts had been performed in return  for money paid or other benefits received in order to convict either McDonnell of bribery.
 
Think about that: The Government doesn't have to prove anything in order for a guilty verdict to be rendered?  That is in blatant contravention with the Constitutional standard for conviction requiring proof beyond a reasonable doubt.
 
One of Bob McDonnell's fifteen defense attorneys, Noel Francisco, objected to Judge Spencer's jury instructions, stating that some of them were actually “legally erroneous;”  a nice way of saying the judge's instructions were unconstitutional.
 
As would be expected under the extra constitutional criteria set forth by Judge Spencer, the jury had no difficulty finding the McDonnells guilty on most counts.
 
Regardless of the outcome of any future appeals, the Federal conviction will personally destroy both McDonnells.  Even now they are broke, humiliated by the public airing of their most private family matters, dishonored, and Bob McDonnell is utterly unemployable, at least anywhere near the level he once enjoyed.  Frankly, he will be lucky if his next job doesn't require him to wear a paper hat.
 
At 60 years of age, a possible twelve year sentence would see Bob McDonnell released from prison well past retirement age.  Furthermore,  it is highly unlikely that his law license or his state and military pensions could survive his felony conviction.
 
There will also be hefty fines and other fees that will likely absorb all of  the proceeds from the sale of their Glenn Allen, Virginia home.  That house is reported to have been up for sale for years despite its location adjacent to the prestigious Dominion Country Club golf course.
 
However, all may have been avoided had the McDonnells just screamed Political Prosecution at the outset.  There is ample evidence for it, particularly with the appointment to the case of Federal District Court Judge James R. Spencer.
 
The Aptly Named Cavalier State
 
The case against the McDonnells started not with the Governor's own protective detail reporting their concerns to their Virginia State Police supervisors (which they did,) or  some subsequent investigation by then Virginia Attorney General, Ken Cuccinelli- who, by the way, had also taken gifts from Jonnie Williams.
 
The case started when the governor's Executive Mansion Chef, Todd Schneider,  was accused of embezzling foodstuffs from the mansion's kitchen.  In still another quid pro quo, Schneider took a misdemeanor plea deal where he exchanged valuable information about the McDonnells in return for avoiding a felony conviction and jail time.
 
Of course, the Attorney General could neither pursue Williams nor defend the governor because of his own entanglement within “Giftgate.”  Ken Cuccinelli had no choice other than to recuse himself.  As a result, taxpayers had to pay for an outside law firm to defend the governor and his wife.  It is not clear if those monies will have to be repaid.
 
Both Williams and the FBI should easily be able to monetize the value of the AG not pursuing an investigation into Williams: It has to be “priceless.”
 
Just as the McDonnells tried to walk back some of the gifts and reporting after it was known that an investigation was underway, Cuccinelli also “donated” to charity the $18,000 value of the various gifts Williams had given to him.
 
Then to clear himself in the eyes of the court of public opinion, if not forestall his own prosecution, Cuccinelli forged yet still another quid pro quo with the Richmond City Commonwealth's Attorney, (Democrat) Mike Herring.
 
Perhaps feeling some scrutiny for his own behavior, Herring, dutifully “investigated” Cuccinelli's involvement and then publicly announced that Cuccinelli had broken no laws.
 
Really?  Ken not only took gifts from Williams, knew the governor was also taking big bucks, and yet did nothing about it, and still he broke no laws?  Could not an “honest services” issue be found here?
 
Mike Herring's problem was that his office, along with the Richmond Circuit Court, and the Virginia State Bar, had been under scrutiny by a local no-name citizens working group of which the author of this article is the investigator.
 
As time went along, the group's findings were distributed to an array of nonprofit legal defense organizations, Richmond's indigent defense bar, numerous media outlets, government agencies, state legislators, a congressman, and even two Federal judges.  A website put up for the purpose garnered on the order of 65,000 page views that further disseminated the group's concerns with Virginia's criminal justice system.
 
One of those government entities was none other than Acting U.S. Attorney Dana J. Boente and his deputy, Assistant US Attorney Michael S. Dry.  At an earlier time, the group's concerns had even been personally delivered to Ken Cuccinelli, who dryly suggested that the group sue.
 
By a U.S. Supreme Court edict, complaints with prosecutors and judges can only be filed with the State Bar or Judicial Inquiry & Review Commission. Furthermore, Virginia is a state without interlocutory appeals; meaning that higher courts will not intervene to stop judicial or prosecutorial abuse while a trial is in progress.
 
Of course, it would be futile to file complaints when the Bar and JIRC are corrupt, and in Virginia, they are most certainly corrupt.
 
What the group had found was a shocking array of illegalities that (particularly but not exclusively) deprived indigent defendants of their right to due process.  That deprivation  resulted in innocent defendants being convicted of crimes they either did not commit, or the Commonwealth had no ability to prove.
 
The offenses found in part were the unnoticed substitution of attorneys of record with others willing to push pleas, critical case decisions being made without hearings,  hearings held without notice or service, discovery violations as a matter of policy, manufacturing evidence, removal of a defense attorney via fraud on the court, an appointment of an unqualified guardian ad litem, prosecutors secretly lobbying medical examiners to rewrite autopsy reports, substitution of medical examiners with ones willing to argue against the state's own final and official autopsy report, failure to hold a  bond hearing that kept an innocent defendant in jail for 15 months, exertion of court influence over court appointed defense attorneys via a sham appointment process, and only two out of seven judges hearing all murders and the vast majority of other top tier felony cases.
 
(A letter to one Federal Judge can be read here:)
 
The two judges suspiciously doing all the heavy lifting were also found to be the most problematic: Richard D. Taylor and Margaret P. Spencer.
 
It was Judge Margaret Spencer who had presided over Chef Schneider's embezzlement trial that launched the case against the McDonnells.  Predictably, it was her husband, Federal District Judge James R. Spencer, who then heard the McDonnell case.
 
The odds of a “coincidence” arising where the two Spencers would be so involved  calculates to well less than four percent- not impossible, but highly unlikely according to chance. 
 
What made Judge James Spencer's assignment even more concerning is that he is “retired” and so is now termed a “senior judge” who may sporadically hear cases at his personal discretion.  If for no other reason, Judge James Spencer should have recused himself from the case in order to maintain- as required by judicial canons- the appearance of fairness.
 
Precisely because that appearance was sullied, there should be no surprise that Judge Spencer predominately ruled in the prosecution's favor and issued unconstitutional instructions to the jury. The true appearance is that the jury would never be allowed to acquit the McDonnells.  There had to be a guilty verdict no matter what the evidence- or the lack thereof.
 
No Federal Investigations Into Other Public Corruption
 
Counter to the squeeky-clean reputation Virginia would like to present to the world, the Commonwealth has been rated as America's fourth most corrupt state by stateintegrity.org.
 
Of particular interest is the website's grading for Virginia's judicial accountability (F,) legislative accountability (F,) executive accountability(F,) and public access to information (F.)
 
In other words, Virginia's government is totally out of control.
 
Accordingly, Virginia should be a rich field for a Federal plow to turn up public corruption.  The fact that there isn't a wide array of investigations speaks volumes.
 
Acting U.S. Attorney Boente will not examine Ken Cuccinelli or the Richmond courts regardless of how many defendants are unjustly sent to prison.  Nor will Boente send the FBI to look into the Virginia State Bar's shut down of a corruption investigation into a Russell County prosecutor.  (The Bar abruptly ended that probe by firing its own investigator, a 27 year veteran of NCIS.)
 
Indeed, Virginia's legal system is so lawless, there was no inhibition to appointing a Commonwealth's Attorney prosecuting before her own mother's court
 
While her mother says she will recuse herself from all of her daughter's cases, there apparently is no perceived conflict if Madam Commonwealth only appears before her mother's friends and colleagues.
 
Mr. Boente's claim of working tirelessly to uproot corruption was self serving.  He has no intention of  pursuing public corruption.  His statement to the Washington Post was nothing more than a lie intended to portray himself as a dedicated public official, laughably providing  taxpayers supposedly “honest services.”
 

Additional Information:

 

About the Author.....

Perry Hicks is the senior writer and Washington correspondent for GCN. He is a former Mississippi Coast resident and was a correspondent for the old Gulfport Star Journal. He has appeared on Fox News Channel. Perry has also hosted his own radio talk show on the auto industry with a mix of politics. Perry is a frequent contributor to GCN writing on stories of national importance with local interests.

His articles can be found in the GCN Archive.  

 

Contact the Author: bsalightning650@live.com



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