Before his Rolex watch became the talk of Richmond, before it was known that a wheeling-and-dealing businessman had picked up the catering bill for his daughter’s wedding, former governor Robert F. McDonnell (R) was known as a family man who got things done for Virginia.
To beat the public corruption charges against him, he will have to convince jurors that reputation was not a farce.
In recent court filings, McDonnell’s defense attorneys have written that their client’s character will be the “centerpiece of his defense” — and questioned the credibility of prosecutors’ key witness. They asked permission to call 10 character witnesses to testify that McDonnell is a good person, calling him “a man who has served in public office for over 20 years without a hint of impropriety.” And they proposed jurors be told, in part, that “evidence of good character alone may create a reasonable doubt as to a defendant’s guilt, although without it the other evidence would be convincing.”
“There is no question that the ‘elusive quality of credibility’ is the most important factor in this case,” defense attorneys wrote. “If the jury believes Mr. McDonnell, then it will not — and cannot — convict him on any charge.”
McDonnell and his wife, Maureen, were charged in January in a 14-count indictment that alleges they lent the prestige of the governor’s office to Richmond area businessman Jonnie R. Williams Sr., the former CEO of a dietary supplement company. Prosecutors allege the McDonnells arranged meetings for Williams with state health officials and promoted his company’s products and, in exchange, Williams lavished the couple with money and gifts, including golf outings and expensive apparel.
The McDonnells have pleaded not guilty and have argued in the past that nothing they did for Williams was “official.” To win convictions on the public corruption charges, prosecutors must prove the couple performed or agreed to perform “official” acts in exchange for Williams’s largesse.
At the trial, though, the legal nuance of what is “official” might be a smaller point — raised to ensure the case can be appealed, rather than to move the hearts and minds of jurors, according to legal experts not connected with the case.
The McDonnells’ defense attorneys, led by John Brownlee of Holland & Knight and Henry Asbill of Jones Day, instead will likely focus on another, more basic argument, the experts said: that McDonnell never intended to enter into a corrupt bargain with Williams. And to do that, they said, it helps to show the former governor is a good person.
“You’re basically going to have to be saying to the jury, ‘Look, the government’s got to prove beyond a reasonable doubt that this man did this with a corrupt intent. Look at this man. Do you believe that that’s what’s going on here?’ ” said Kelly Kramer, a white-collar criminal defense lawyer at the Mayer Brown firm.
The U.S. attorney’s office and McDonnell’s defense team declined to comment.
In essence, the defense will try to convince jurors that Robert McDonnell “ is a person who has done good for his electorate. Do not convict even if the evidence suggests you should,” said Jacob Frenkel, a former federal prosecutor now at the Shulman Rogers firm.
Prosecutors asked a court to limit defense attorneys to calling just six character witnesses — three each for the former governor and his wife. While the judge declined to impose any limit in advance, he said he would likely limit the ex-governor and his wife to calling five character witnesses each at the trial, which begins July 28.
Prosecutors have also attacked the characterization of Robert McDonnell as a squeaky-clean public servant, arguing he took steps to hide the extravagant gifts given by Williams and others — including a $23,000 family vacation funded by Henrico hotelier William H. Goodwin Jr.
Edward T. Kang, a former federal prosecutor who is now at the Alston & Bird law firm, said prosecutors will try to focus on the actions the former governor took, instead of the man he is. While defense attorneys will argue McDonnell “did it, number one, because he thought that was good for the state of Virginia,” Kang said, they will get the chance to do so only after prosecutors take their turn detailing the lavish lifestyle he led when Williams picked up the tab.
“By the time the defense gets to call their first witness, the jury will have heard at least two, maybe three or four weeks of the government’s case about how bad of a guy McDonnell is, how he allegedly used his office for his own personal gain,” Kang said. “I think the defense, when they put on witnesses, they have to do something to try to blunt that.”
McDonnell’s attorneys have already aggressively contrasted their client with Williams, a businessman who, they argue, is testifying only for immunity from criminal charges himself.
To be sure, Williams is not the ideal witness. His various business ventures have often been surrounded by controversy, and in rebutting defense attorneys’ claim that the case was a “credibility contest” between him and the McDonnells, prosecutors invoked an unflattering analogy that posited him as similar to an informant in a drug case.
“The prosecution typically relies on the informant’s testimony, with corroboration by other witnesses, documents, and common sense,” prosecutors wrote. “And as the McDonnells well know from the ample discovery provided, the Government has documentary evidence corroborating the relationship between Mr. Williams and the McDonnells. This is not simply a case of ‘he said, she said.’ ”
Highlighting Robert McDonnell’s character to diminish Williams’s is not without risk, experts said. Prosecutors will be given the opportunity to respond to any assertions character witnesses raise, and that might allow them to present negative evidence about McDonnell that they otherwise would not have been able to, experts said.
“If you want to make sure you don’t open that door too widely, you’ve got to limit the scope of the testimony of that character witness,” Kang said. “It’s a dangerous proposition.”