McDonnell Lawyers Told to Slow Filings 'For the Sanctity of the Trees'

By William Peacock, Esq. on March 20, 2014 | Last updated on March 21, 2019

Former Virginia governor Bob McDonnell and his wife's indictment was good reading, but the hilarity didn't stop with the initial pleadings. Thanks to a recent spate of filings, some with little to no basis in existing laws, the judge in the case, U.S. District Judge James Spencer, asked the prosecutors and defense attorneys to limit their filings "for the sanctity of the trees."

Judge Spencer also dismissed McDonell's request to allow a related civil case to move forward, in hopes that evidence favorable to the defense would emerge, stating that the defense was "dancing through fantasyland," reports The Washington Post.

Stay tuned folks. This is probably going to be one heck of a show.

Judge Won't Overrule Other Judge, Civil Trial Still on Hold

Shareholders for the nutritional supplement company that McDonnel was alleged to have provided favors for, Star Scientific, have filed a lawsuit against the company and its founder, Jonnie R. Williams Sr. McDonell's attorney, James Burnham, argued that while their request, for Judge Spencer to order the civil trial to be allowed to proceed, was novel, ruling to the contrary would be "akin to the government discouraging witnesses from talking to defense attorneys," reports the Post. In short, he's hoping to use the civil trial as a fishing expedition for helpful evidence.

Judge Spencer wasn't convinced, first noting that he hadn't ruled on the issue yet because he could not find case law "that came anywhere near it," before pointing out that a different federal judge had already approved the prosecutors' request to delay the civil trial.

Prosecutor Richard Cooke argued that not only could the defense talk to the potential witnesses in the civil case, but that the government had not encouraged them to withhold information from the McDonnells' team. He also noted that the rules of evidence prohibit the defense from accessing forced civil depositions (which limits the utility of any civil trial). From the advisory committee notes to Federal Rule of Evidence 402:

"For example, Rules 30(b) and 32(a)(3) of the Rules of Civil Procedure, by imposing requirements of notice and unavailability of the deponent, place limits on the use of relevant depositions. Similarly, Rule 15 of the Rules of Criminal Procedure restricts the use of depositions in criminal cases, even though relevant."

Mixed Results for McDonnell

While the defense did have some of their requests granted, such as a subpoena for U.S. Food and Drug Administration and Securities and Exchange Commission records on Williams, the rest of the day was filled with bad news. Not only was their novel request from "fantasyland" denied, and the request for less paperwork made, but Judge Spencer also signaled that he didn't see the case in the same light as the defense, calling it "not particularly complex."

The Post notes that the defense's strategy is to portray the allegations against McDonnell as a novel stretching of federal law. "The defendants have been essentially operating on the assumption, and urging the court to operate on the assumption, that the government is going to do wrong," Judge Spencer said. "I don't make that assumption."

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