McDonnell case a win for the little guy

Published 7:06 pm Monday, July 4, 2016

By Andrew Page

Everyone wants to believe in justice. People want to believe they live in a society with a governmental system that produces more rights than wrongs. While sometimes it appears that justice may be for the few rich and powerful, our aspirations rest in a trust that the legal system produces liberty and justice for all.

On June 27, the U.S. Supreme Court vacated the convictions of former Gov. Bob McDonnell on charges of corruption. The decision by the nation’s highest court was unanimous, which is unusual, considering the political divide amongst the justices in recent decisions.

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Some believe McDonnell got special treatment because he is powerful, rich or both. Others believe he was completely vindicated as a victim of a political assassination attack. Both are wrong.

The Supreme Court did not exonerate McDonnell. Instead, the court’s decision rested on jury instructions used in the trial.

Jury instructions set forth the law a jury is to follow when applying the facts from a trial. Typically, both the government and the defendant’s counsel in a criminal jury trial submit jury instructions they believe supply the law of the case. The court will typically accept agreed-upon instructions.

If there is a dispute, the trial judge makes a ruling as to whether the instruction should be included. If the court decides against either the government or the defendant’s use or rejection of a jury instruction, the losing side can object on the record to set up for appeal.

The jury instruction relied upon by the Supreme Court in its decision rests on the definition of “official act.” The government presented an instruction that provided an overly expansive definition of “official act” in the eyes of the court. McDonnell’s counsel objected to the use of the instruction, but the trial court used the instruction over his objection.

Because the Supreme Court ruled the instruction was overly broad, the court vacated the conviction.

Some argue this decision allows for more political corruption. But those who hold that view did not read the end of the opinion. Gov. McDonnell also argued that there was insufficient evidence for conviction. The Court did not at this point agree, but instead remanded that question back to the trial court, giving the government an option to retry the case in light of its ruling on the definition of official act.

It will be up to the government whether to spend the requisite time and money to re-prosecute the governor.

This is exactly what we want the legal system to do. As has been attributed to legal scholar William Blackstone, “Better that 10 guilty persons go free than that one innocent should suffer.” It is better that a politician have a conviction vacated than a future innocent person be found guilty of an invalid law.

Some pressured for a conviction solely because the governor held a position of trust. But that’s not what the legal system is meant to correct. That is what elections are for. Criminal laws are meant to protect the public against crimes. Crimes cannot be vague, ambiguous or unclear.

A criminal law must clearly outline the act that the person must perform in order to commit a crime. The definition of “official act” as relates to the governor was not clear. Therefore, he could not be convicted of the crime as written in the jury instruction.

This result is a blessing to even us “little people” who do not hold positions of trust or power. For the Supreme Court to rule unanimously that a law must be clear in order for it to be a crime is a benefit for all of us.

The government cannot just randomly try and convict us solely because it is unhappy about our actions or suspicious about our conduct. The U.S. Constitution requires due process and notice.

From the lowest criminal to the highest political actor, the Constitution provides liberty and justice for all who know how to exercise its power. And that is the beauty of the American legal system.

Andrew Page, a Franklin resident, is a law partner in the law firm of Randall | Page, P.C. His email address is