I had hoped that the jury instructions approved by the judge would have been posted on line by now, because there were some subtleties in the proposed instructions that could make a lot of difference in how the jury sees the case, and I had wanted to base this post on the instructions. Alas, as of 1:00 AM Tuesday, they had not been posted, so I can’t. And I have not found any news outlet that covered the jury instructions conference in enough detail to allow me to comment.
So — let me comment on a question that two people have asked me in the past few days.
Can the jury find only one of the McDonnells guilty? If they find Bob not guilty, wouldn’t they pretty much have to find Maureen not guilty?
The simple answer is that a jury can do pretty much anything it wants to do, and there are very few cases in which the judge or an appellate court will reverse a trial based on inconsistent verdicts. So there where, for example, a verdict of “guilty” of using a firearm in the commission of a robbery, and “not guilty” of the robbery, has been upheld. Logically, that is a nonsensical result. But courts have said, in essence, we’re not going to get in the way of a jury’s decision, even when it seems to be a compromise verdict based on a clearly unsupported view of the law. And the jury will be given this instruction:
A separate crime is alleged against each of the defendants in each count of the Indictment. Each alleged offense, and any evidence pertaining to it, should be considered separately by the jury. The fact that you find one defendant guilty or not guilty of one of the offenses charged should not control your verdict as to any other offense charged against that defendant or against the other defendant. You must give separate and individual consideration to each charge against each defendant.
That may encourage some inconsistent results.
But let’s assume that the jury is going to be reasonable. What then?
The first point to make is that the first 11 counts deal with the bribery/corruption charges, while the last 3 deal with making false statements. Count 12 charges Bob with making a false statement on a personal financial statement submitted to TowneBank in October, 2012, to help refinance some of the property owned by MoBo Realty. The statement that he filed did not list any of the loans from Jonnie Williams. This count doesn’t mention Maureen, so obviously she can’t be convicted of that.
Count 13 charges both Bob and Maureen with making a false statement on a loan application submitted on February 1, 2013; that application did not list any loans from Jonnie Williams, and did not list any Star Scientific stock that the McDonnells owned. It seems highly likely that if one is convicted on this count, the other will be also, though a jury could decide that maybe Bob didn’t know about the loans and stock, or maybe Maureen didn’t know that Bob had failed to list them.
Count 14 charges that Maureen tried to obstruct the investigation when she sent a hand-written note to Jonnie Williams and returned to him the dresses that he had bought for her; the indictment doesn’t mention Bob, so he couldn’t be convicted there.
But as to the bribery counts, Count 1 charges that the two of them “did knowingly and intentionally conspire with each other and with others, both known and unknown to the grand jury,” to deprive the citizens of Virginia of the honest services of Bob as Governor through bribery. One of the subtleties on which the parties’ proposed jury instructions disagree is a very specific point — if the jury believes that Bob and Maureen didn’t conspire with each other, do they get off, even if they conspired with others? Where the indictment refers to conspiring “with each other AND with others,” does that mean that if the jury thinks, for example, that Maureen conspired with Jonnie to try to get Bob to do certain things, but that Bob didn’t join in the agreement, does Maureen get off? To put it slightly differently, is the AND in the middle there truly an AND, or could it also be an OR? Believe it or not, there are times in the law when AND is understood to mean OR.
The jury will be given a copy of the language from the indictment that contains the AND language, and it includes language that certainly suggests that only an agreement of the two of them would suffice. But when the elements of the crime are described, the instruction offered by the government just talks of an “agreement… entered into by two or more persons.” The instruction offered by the McDonnell team states, in part:
The government must prove that Mr. McDonnell and Mrs. McDonnell knowingly and deliberately arrived at an agreement or understanding that they, and perhaps others, would commit honest-services wire fraud by means of some common plan or course of action as alleged in Count 1 of the indictment.
As I have looked at the instructions that each side has proposed, I am a little surprised that the government did not submit an instruction that specifically allows the argument that “You can find Maureen McDonnell guilty if you find that she conspired with Jonnie Williams, whether or not she conspired with Bob.”
Count 5 has the same language, but is based on the premise that they conspired to “by extortion, … obtain property … to which [Bob] was not entitled,” and it is subject to all of the same analysis.
Counts 2 through 4 all allege that Maureen and Bob, “having devised and intending to devise a scheme and artifice to defraud the citizens of Virginia of their right to the honest services of the Governor of Virginia through bribery,” got three wire transfers from Jonnie totaling $85,000. The way the indictment is written, it seems as though the jury will think that they cannot find either McDonnell guilty of these three counts unless they find that the two of them conspired together. As a practical matter, they will likely go the same way — either both will be found guilty or both will be found not guilty.
Counts 6 through 11 all allege that Bob and Maureen McDonnell acted to make Jonnie Williams give Bob $135,000 plus two golf outings. Unlike Counts 1 through 4, here Counts 6 through 11 are not, by the literal words of the indictment, dependent on finding the conspiracy alleged in Count 5. (An aside here — Counts 5 through 11 talk of “extortion,” a term that conjures up images of someone saying, “give me money or I’ll blow your kneecaps off.” In fact the U.S. Code defines “extortion” much more broadly — “The term ‘extortion’ means the obtaining of property from another, with his consent, . . . under color of official right.” No kneecapping is required.)
On these counts, I doubt that Maureen could be convicted on the two counts that allege the golf outing as separate crimes; she didn’t go golfing, and paying for a round of golf is hardly itself so unusual as to be the basis for anyone to figure that a crime had been committed. And if Bob is not convicted of receiving something he wasn’t entitled to, Maureen can’t very well be convicted of those counts either.
Stay tuned for discussion of verdicts, jury questions, etc., as the deliberations get going.
