Thoughts on the Fourth Circuit’s Ruling in the McDonnell Case

For a while things were going well for former Virginia Governor Bob McDonnell’s appeal of his convictions for corruption related offenses.  The Court allowed him to remain out of custody while the appeal was pending and the panel who heard his case – Judges Motz, King, and Thacker – was pretty favorable by Fourth Circuit standards.

But the Court ruled against him on every issue.  In a published decision issued last Friday.

The media has (appropriately) given most of its attention to the Fourth Circuit’s decision to uphold the relatively broad definition of “official act” given to the jury by district judge Spencer.  This case makes it clear that in corruption prosecutions the government is not required to prove that the public official discharged some duty explicitly assigned to him by law in exchange for a benefit – merely exercising his or her influence may be enough.  This holding will undoubtedly have its effect on future prosecutions and the behavior of public officials in general.

There are some other interesting takeaways as well.  Appellate practitioners take note – one of McDonnell’s assignments of error related to the district court’s denial of his motion to sever was deemed waived because it was raised in his reply brief at the trial level.  Definitely a word to the wise.

The Court also passed up an opportunity to critique the pitiful voire dire practices common in federal courts.  McDonnell’s lawyers challenged the district judge’s decision to conduct group voire dire on most questions, rather than individual.  In many state courts, the individual voire dire is the rule, rather than the exception, even in cases much less sensational than the prosecution of a former governor.  But the Fourth Circuit found no error in the jury selection.

Finally, it should be noted that McDonnell’s legal team had a tough job on appeal.  With only one exception, the issues they raised were subject to the “abuse of discretion” standard of review, which entitles the trial judge to great deference on appeal.  Even with great lawyers, that standard is hard to overcome on appeal.

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SCOTUS decision on criminal threats in United States v. Elonis

We have previously commented on United States v. Elonis, a criminal threats case before the Supreme Court this term.  The decision came down today, in favor of the defendant.

The defendant had been convicted at trial of threatening several individuals on Facebook.  The trial judge refused to instruct the jury that a conviction required proof that the defendant intended to make a threat.  Although the jury was told that the government must prove that a reasonable person would interpret the defendant’s words (or “posts”) as a threat, it did not have to prove the defendant meant his words to be taken that way.

The Supreme Court decided these instructions were error and that the statute required proof of the defendant’s intent to threaten.  The ruling was based on the Court’s long tradition of interpreting criminal statutes to require intent unless the legislature clearly intended otherwise.  The question of whether proof of “recklessness” was sufficient to meet this burden was left open.

Unfortunately for state court practitioners, the Court did not decide whether the First Amendment requires proof of intent to threaten.  Because federal law required proof of intent, it was not necessary for the Court to decide if the Constitution did as well.  The case will therefore have limited application outside the federal courts.