An under-reported dimension of the federal corruption trial of former Virginia Gov. Robert McDonnell is that the trial underscores prosecution power for largely secret reasons to destroy a defendant — or, conversely, to grant a wrist slap.
As the trial finished its second week, looming large is the difference between the 14 counts McDonnell and his wife Maureen currently face and the prosecution’s pre-trial offer of merely one count against the former governor if he would plead guilty.
The difference shows how our legal system grants prosecutors too much authority compared with that of judges and juries. Juries theoretically decide a case. In practice, prosecutors make the most important decisions by deciding how vigorously to pursue complex cases in terms of investigative resources and charges, including whether to accuse family members to rachet up pressure on defendants.
McDonnell and his wife are shown in a file photo widely distributed via flickr. They are accused of trading the governor’s office prestige for more than $150,000 in gifts, vacations and loans from Jonnie Williams, head of Star Scientific, a vitamin supplement start-up company.
A guilty plea by the former governor to one count would have left the former First Lady free from trial, and both of them free from the trial’s cascade of embarrassing evidence.
News coverage of the trial now makes it difficult for the couple and their children to re-establish their lives even if acquitted. An indictment alone, much less humiliating trial evidence, often destroys finances, savings, job prospects and often friendships and family relations.
And if the defendants are convicted of multiple charges they face mandatory minimum sentences that are far harsher than what a judge might impose for a guilty plea to one offense by one defendant.
The Justice Integrity Project has documented many instances where prosecutors ruthlessly prosecute some individuals while granting a wrist-slap or less to defendants who have done the same things. Misconduct is a factor also. USA Today published a series in 2009 that reported 201 criminal cases in which federal judges found that prosecutors broke laws or ethics rules. Overall, the abuses put innocent people in jail, and set guilty people free.
From our files (and searchable on this site through the tool at top right), examples include the continued imprisonment of former Alabama Gov. Don Siegelman for reappointing to a state board in 1999 a donor to a non-profit the governor supported. In an unprecedented by unsuccessful filing to the U.S. Supreme Court, 113 former state attorneys general argued that Siegelman’s conduct was not even a crime.
Another shocking example was been the unsuccessful federal prosecution from 2006 to 2009 of famed medical expert Dr. Cyril Wecht, shown in a photo. He was charged with 84 felony counts, most of which were for sending 43 faxes on personal matters during his 20 years as part-time coroner for Allegheny County in Pennsylvania. The fax-sending — with each instance counted as a separate felony charge — is conduct that almost any government employee has “committed,” whether by using a government-owned fax, phone or computer for a personal communication to a spouse, friend or someone else.
Wecht, an eminent and elderly consultant, author and medical school professor, had to spend $8.6 million in legal bills to avoid the possibility of imprisonment for the rest of his life for the fax-sending and similarly trivial accusations.
At the height of the Wecht prosecutions, the famed federal prosecutor in Chicago, Patrick Fitzgerald, was outed as using his government fax machine also for personal purposes. But Fitzgerald was not prosecuted, and undoubtedly was not even investigated. There is no reason Fitzgerald should have been, but there is even less reason that Wecht should have been prosecuted by Fitzgerald’s colleagues.
Seldom, however, do we see the contrast in the federal system so vividly displayed as in the McDonnell case unfolding in a Northern Virginia courtroom.