Attorneys for former Virginia governor, prosecutors haggle in court

A federal judge on Tuesday signaled that he is growing increasingly frustrated with the voluminous and at times rancorous filings by defense attorneys representing former Virginia governor Robert F. McDonnell (R) and his wife in a corruption case, dismissing one of their recent requests as “dancing through fantasy land” and asking them and prosecutors to limit their written disputes “for the sanctity of the trees.”

U.S. District Judge James Spencer’s offhand comments during the less than 30-minute hearing were, in many ways, more interesting than his ruling on the legal issue at hand. The defense — arguing that it was unfair that a related civil case had been put on hold at the request of prosecutors — had asked the judge to force the government to withdraw that request. The judge ruled that he would not intervene.

But after issuing his decision, Spencer warned both parties to cut down on the disputes that made it to his desk. He said he viewed the case against the McDonnells as “not particularly complex” — putting him at odds with defense attorneys, who have sought to portray the allegations as a novel stretching of federal law — and he warned that he would not be swayed by references to other cases that different prosecutors had botched, such as that involving the late senator Ted Stevens (R) of Alaska.

“The defendants have been essentially operating on the assumption, and urging the court to operate on the assumption, that the government is going to do wrong,” Spencer said. “I don’t make that assumption.”

McDonnell and his wife, Maureen, are facing a 14-count indictment that alleges they lent the prestige of the governor’s office to Richmond businessman Jonnie R. Williams Sr. and a company he used to run in exchange for loans and gifts totaling at least $165,000.

Prosecutors have accused the McDonnells of helping Williams and the dietary-supplement company, Star Scientific, by promoting Star’s supplement at various events, arranging meetings between Williams and senior state health officials, and encouraging state researchers to consider conducting trials of the product.

The McDonnells have pleaded not guilty to the charges, and a jury trial is scheduled for July 28.

Although jurors likely will decide the fate of the McDonnells, Spencer’s views of the case are critically important. He will decide on defense attorneys’ motion to dismiss the indictment, expected to be filed soon, and he will decide how jurors should be instructed on the law should the case go to trial.

Spencer seemed skeptical of defense attorneys’ motion about the civil case almost from the moment the hearing began, saying he had not ruled on it previously because he could not find case law “that came anywhere near it.”

Defense attorney James Burnham acknowledged that the request was “novel,” but so were the circumstances, he said. He argued that prosecutors’ interceding to delay the lawsuit — which was filed by shareholders against Williams and Star — was akin to the government discouraging witnesses from talking to defense attorneys. Were the civil suit to proceed without prosecutors’ interference, he said, defense attorneys might be able to get information valuable to their case, such as a deposition of Williams.

“The prosecution shouldn’t be out doing things that make it more difficult for us to obtain evidence,” Burnham said.

Prosecutor Richard Cooke argued that defense attorneys were welcome to talk to any witnesses in the civil case, and the government had not discouraged those people from providing information to the McDonnells’ team. But he said that defense attorneys could not use the civil case to circumvent the rules governing evidence in the criminal case, such as by accessing forced depositions.

The McDonnells are not part of the lawsuit.

Spencer noted that another federal judge had approved the prosecutors’ request for the delay. At one point, he characterized the defense argument as “just dancing through fantasy land” and said there was “no support in the law for what the defendant is asking for.”

Also Tuesday, Spencer issued a written order granting, in large part, defense attorneys’ request to subpoena the U.S. Food and Drug Administration and the Securities and Exchange Commission for documents they say might help them question Williams.

The McDonnells’ attorneys and a Justice Department spokesman declined to comment after the hearing.

Matt Zapotosky covers the federal district courthouse in Alexandria, where he tries to break news from a windowless office in which he is not allowed to bring his cell phone.
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