Defense attorneys representing former Virginia governor Robert F. McDonnell at his public corruption trial suspected that the juror who was mysteriously excused midway through the proceedings was on their side, and they urged the judge to declare a mistrial because of the circumstances of his removal, according to documents unsealed Thursday.
U.S. District Judge James R. Spencer rejected the request, and McDonnell (R) and his wife, Maureen, were ultimately convicted of lending the prestige of the governor’s office to Richmond-area businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, gifts and luxury goods.
But the juror’s removal has now become a focal point of the McDonnells’ bid for a new trial, and the documents unsealed Thursday reveal new, messy details about a few people who did decide — or could have decided — the McDonnells’ fate. The McDonnells are now arguing that comments the juror made suggest that his peers deliberated prematurely and that the judge did not adequately investigate the matter.
The removal of Louis DeNitto Jr. from the jury on the trial’s 12th day had been one of the great mysteries of the proceedings, in no small part because he said afterward that he would have pushed against convictions. Spencer offered no public explanation when he replaced DeNitto with an alternate juror, and until this month, the reasons behind the removal had been discussed mostly in sealed or redacted filings.
The Washington Post filed a motion asking for those filings to be unsealed, and on Thursday, Spencer issued an order saying that many of them should be.
A technical error by prosecutors this month had already revealed that DeNitto was removed from the panel of 12 jurors because he called a lawyer he knew and mentioned his role in the trial. Although both men said they did not have substantive discussions about the case, the lawyer, who had worked with DeNitto in the past, claimed that DeNitto falsely asserted that he was the jury’s foreman and said: “There are 12 people, and they are kind of all over the place and I don’t know what to do.”
A transcript unsealed Thursday shows that McDonnell’s attorneys pushed for a mistrial at the time and urged Spencer to interview all the jurors because of DeNitto’s comments.
The transcript shows that there were also concerns about the alternate juror who took DeNitto’s place.
One of Spencer’s clerks referred to the alternate as the “sleeper guy,” and McDonnell’s defense attorneys asked that he be removed on those grounds, according to the transcript. Spencer acknowledged that the juror had “been drifting later in the day” but said he was unsure if that was a reason to remove him, according to the transcript. He ultimately rejected the defense’s request to take him off of the panel.
“He hasn’t been asleep,” Spencer said at one point, according to the transcript. “He has been listening intently with his eyes drifting downward.”
In an interview Thursday after the transcript was unsealed, DeNitto denied that he claimed to be the jury’s foreman, and he said his comment about people “all over the place” referred to news reporters outside the courtroom.
He said he never discussed the case with any of the other jurors and did not make a reference to them in his conversation with the lawyer, identified in the transcript as Jim Watson.
“I never spoke about the jurors. Period. I had nothing to say about them,” DeNitto said.
DeNitto acknowledged that he had mentioned to Watson that he was on the jury, but he said their conversation did not go beyond that. He said he was troubled that Watson had told the attorneys in the case and the judge about their conversations.
“That guy was a little bit unethical,” DeNitto said. “It was an attorney-client private conversation. I’m entitled to that because he was my attorney.”
Spencer ultimately rejected McDonnell’s request for a mistrial and to have other jurors be questioned about possible premature discussions. Defense attorney Hank Asbill then resisted removing DeNitto from the jury, saying he viewed DeNitto as “favorable” to the defense and arguing that his mere mention of his jury service in the McDonnell case was an “irrelevancy,” according to the transcript.
It is unclear why Asbill viewed DeNitto as a favorable juror; the judge dismissed it as “total speculation,” although Asbill would prove to be right.
In asking for a new trial, McDonnell’s defense team focused on the judge’s failure to investigate DeNitto’s “all over the place” comment rather than DeNitto’s removal.
Spencer ultimately told DeNitto that calling the lawyer and talking about the case had been inappropriate, according to the transcript. For his part, DeNitto apologized to the judge and insisted that he called the lawyer on other business before the case came up.
“I certainly apologize for that,” DeNitto said, according to the transcript. “It wasn’t intended in any way.”
Watson has previously declined to comment on the matter to The Washington Post and did not immediately return messages Thursday. Asbill declined to comment for this article, and a spokesman for the U.S. Attorney’s Office for the Eastern District of Virginia, which prosecuted the case, also declined to comment.