Politics, Trials, White-Collar Crime

The McDonnell Trial Shows What's Wrong With Severance Law In Federal Criminal Cases

One thing that hasn’t been talked about during the trial much is the defense severance motion that was denied at the very start.

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As you’ve likely heard, there’s a Southern governor on trial for public corruption.

Shockingly, he’s not from Louisiana.

Former Virginia governor Bob McDonnell and his wife Maureen are on trial for, in essence, taking gifts from a guy named Johnnie Williams in exchange for doing things in the governor’s mansion (there are also some bank fraud charges and obstruction charges, but frankly, in comparison to the public corruption stuff the bank fraud is terribly dreary). After five weeks of trial and testimony, the case just went to the jury.

UPDATE (5:40 p.m.): And the McDonnells got convicted.

There has been a lot of commentary on the McDonnell trial (see, e.g., here, here, here, and here). One thing that hasn’t been talked about during the trial much: the defense severance motion that was denied at the very start.

And, as the trial has continued, that motion looks more and more important in hindsight….

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As in so many trials, the basic facts aren’t really in dispute. Williams gave the McDonnells loans, gifts, swigs from bottles of $5,000 cognac, golf outings and accessories, use of his Ferrari, and free stays in his vacation home.

The Governor hosted events for Williams’s company at the Governor’s mansion, appeared in photographs with the big product Williams’s company makes, and called Williams’s dad on his birthday to wish him a happy birthday.

As it happens, most of the gifts went to Maureen McDonnell. As it happens, much of the things done for Williams’s company also went through Maureen McDonnell.

The basic defense has been twofold. First, the things the former governor did for Williams weren’t “official acts” such that it was a problem that he did them. This is a legal issue that has — I suspect — zero jury appeal. Also, the jury instructions on this issue are pretty horrible. Still, it’s nice to have issues for appeal.

The other defense — other than that Johnnie Williams is a complete liar (he testified, for example, that he created a miracle weight loss and generally great-for-you product by microwaving tobacco) — is that the McDonnell marriage was in a shambles and Maureen had a crush on Johnnie Williams, thus, there could be no way the McDonnells were in a conspiracy.

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Rather, according to the former governor’s defense team, everything Maureen did was to get her closer to her love interest.

It’s the “bitch set me up” defense for the new millennium and the basis of the McDonnells’ severance motion.

Bob McDonnell took the stand. He talked about the problems in his marriage. He read an email to Maureen that talked about how he felt they needed to tend to problems in their marriage.

His daughter testified and talked about tense moments when she saw her parents not getting along.

Johnnie Williams was cross-examined about an email that Maureen sent to him joking about sex after the Washington, D.C. earthquake in 2011.

A friend of Maureen McDonnell talked about what she saw of the relationship between Maureen and Williams. It also included this hilarious excerpt (Niamtu was the witness):

“He said, ‘Oh, it’s no big deal. I fly to California all the time,’ ” Niamtu said.

“Your honor, objection to the hearsay,” Assistant U.S. Attorney Jessica Aber interrupted.

U.S. District Judge James R. Spencer sustained the objection, and Niamtu expressed dismay, drawing a laugh from the courtroom: “It’s not hearsay. He said it to me.”

As Niamtu kept describing what Williams had told her, Aber objected again.

“The objection is sustained, and it is hearsay,” the judge said, drawing another laugh. “And I make that call.”

The one person we didn’t hear from is Maureen McDonnell.

Before trial, the defense filed a request for a severance. Maureen’s lawyers explained that if there were a joint trial, she would not testify, but if there were separate trials, she would testify in her husband’s and would not testify in her own.

The judge denied this motion:

[D]efendants have failed to meet their burden to show that a joint trial will result in a miscarriage of justice or prevent Robert McDonnell from receiving a fair trial.

The trouble with this, of course, is that hearing from Maureen McDonnell in this trial would have been very helpful to anyone who cares about any truth-seeking function of a trial.

And, unfortunately, who goes to trial with whom and when is almost always in the discretion of the government. The government gets to choose who to charge together and who to charge separately, and, if the defense wants to change this, they have to show not that a joint trial is worse, or less fair, or prejudicial.

Instead, the defense has to show that it would deprive one of the people of a fair trial or result in a miscarriage of justice.

This gives the government massive amounts of virtually unbridled power to structure what the ultimate trial looks like. (I have looked for, but failed to find, anything about the loss rate for motions to sever in federal criminal cases, but, based on what I’ve seen, it’s got to be really freaking high. The only one I can remember hearing of being granted was filed by the fabulously awesome Barry Pollack.)

And, as we see in the McDonnell case, allowing a severance would sometimes let the jury hear something closer to the truth.

Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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