McDonnell Jury Ends First Day of Deliberations 

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Scott Elmquist

The fate of former Gov. Bob McDonnell and his wife, Maureen, is now in the hands of the seven men and five women on the federal jury who have been hearing evidence in the public corruption trial for the past five weeks.

The jury began its deliberations Tuesday afternoon and resumed them this morning.

In their opening and closing arguments, prosecutors told the jury that it's a fundamentally simple case: The former first couple solicited more than $177,000 in loans, gifts and luxury vacations from businessman Jonnie Williams in exchange for promoting his diet supplement business from the Governor's Mansion.

Simple is in the eye of the beholder, however.

Before he dispatched them to the jury room Tuesday, Judge James Spencer spent more than two hours giving the jurors detailed instructions spelling out the legal niceties underlying the 14-count indictment. Those instructions - cobbled together by Spencer after getting input from attorneys on both sides - could play a crucial role in the outcome of the case.

There's a reason why the McDonnells' defense attorneys have raised repeated objections to the instructions in their final form - and why prosecutors have voiced scarcely a peep. In several respects, the instructions undermine key defense arguments and provide openings for the jury to side with the government:

* Defense attorneys have argued that prosecutors have produced scant evidence of an agreement between Williams and the McDonnells to corrupt the governor's office.

But the jury instructions make plain that such an agreement need not be formal, written or expressed directly in every detail, not even orally. To convict the couple, the jury needs to conclude only that there were "knowing winks and nods." And that determination can be made purely on the strength of circumstantial evidence, which constitutes the bulk of the government's case.

It would be rare to find an explicit agreement in a public corruption case, said Adam Gershowitz, a law professor at the College of William & Mary. Someone like Bob McDonnell, "a smart lawyer, a former attorney general of the state, would be smart enough not to have written it down," Gershowitz said.

* The McDonnell defense team also has argued that Williams got little or nothing for his money.

Proving a bribery case requires a quid pro quo - a Latin phrase meaning "this for that." Defense attorneys have called the case "all quid and no quo," meaning for all the money he spread around, Williams didn't get what he most wanted: clinical trials for his anti-inflammatory supplement Anatabloc at state medical schools.

That's all true, but the jury instructions make it clear that it doesn't matter. To get a conviction, prosecutors need not prove that a conspiracy succeeded: An unsuccessful scheme is just as illegal as a successful one.

The key issue is whether the governor knew Williams was giving him gifts in exchange for services, said Henry Chambers, a law professor at the University of Richmond.

"Even if the governor had no intention of providing those services, that may very well be sufficient," Chambers said. "The real question is whether he was involved in taking what would amount to bribes, even if he never intended on coming through."

* Defense attorneys contend that the actions the governor took on Williams' behalf - arranging meetings for the businessman with state officials, hosting and attending events at the Governor's Mansion where his products were prominently featured - don't rise to the level of "official acts."

To convict the McDonnells, the jury must find that the governor performed official acts in exchange for Williams' favors.

The things McDonnell did were merely routine courtesies, his attorneys argue - the same kind of thing he did for many other Virginia businesses. They say official acts are things such as budget appropriations, board appointments and executive orders.

But the jury instructions say official acts can include actions clearly established as customary practices, even if not specifically laid out in state law.

Moreover, the instructions say it's not a defense to argue that McDonnell would have performed the actions anyway, regardless of what he got from Williams.

In the end, splitting legal hairs over what constitutes an official act may not matter so much to the jury as the appearance of a governor taking the sort of gaudy gifts Williams gave the McDonnells, said Matt Kaiser, a Washington attorney and former federal public defender.

"When you look at the gifts - the Ferrari, the Rolex, the loans, the wedding, the vacation homes and all of that stuff - it just looks really creepy," Kaiser said. "Nobody wants their governor doing that."

So do the jury's marching orders hold any rays of hope for the McDonnells? Yes, a few.

* The testimony of immunized witnesses must be examined and weighed with greater care than that of other witnesses, according to the instructions.

Williams, the government's star witness, testified under a grant of immunity from prosecution - not only from possible charges in this case, but in other matters, including a potential securities fraud case.

In judging Williams' credibility, the jury has latitude to consider whether his testimony might have been colored by his own self-interest - in other words, staying out of prison.

* The jury instructions say evidence of good character alone may give rise to reasonable doubt about the former governor's guilt. And if they have reasonable doubt, the jurors are bound to acquit the couple.

The McDonnell defense put two witnesses on the stand who have known the former governor for more than 40 years and spoke in glowing terms about his character, calling him an honest, truthful, law-abiding man of integrity.

* The jury's verdict must be unanimous. So if there's even a single holdout who stands his or her ground, there's no conviction.

The jurors' instructions provide little guidance on how to deal with what was perhaps the McDonnells' most novel defense: that their marriage collapsed to the point that they were barely speaking, making it unlikely that they would have been scheming together with Williams.

Except for a single obstruction charge that applies only to Maureen McDonnell, her fate is linked to her husband's. Because hers was an unpaid, ceremonial position, she is not considered a public official under the law. So she can be convicted on the corruption charges only if the jury finds she conspired with the governor.

But it's left to the jury to sift through the facts and make a judgment as to whether that conspiracy occurred.

Chambers called the broken-marriage defense "almost frivolous."

"You can conspire with someone you hate," he said. "You can conspire with someone you met no more than 10 minutes before. The idea that they were unable to conspire because their marriage was so broken is ridiculous."

Legal experts are reluctant to predict the outcome, but several said they wouldn't be surprised by a conviction, on at least some counts.

The federal law underlying the charges against Bob McDonnell is so broad that "if I were a betting person, I'd bet against any defendant who's charged with this," Gershowitz said. "He starts at a disadvantage, regardless of the evidence. For that reason, I wouldn't be sleeping easy tonight if I were him."

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Bill Sizemore writes about politics for the Virginian-Pilot.

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