Former prosecutor: Judge should have disclosed history with McDonnell

Photo credit: @NBCNews

VIRGINIA (WAVY) — A former federal prosecutor is speaking out about the federal judge in former Gov. Bob McDonnell’s public corruption trial, due to a possible conflict of interest that was never disclosed.

In September, a federal jury found former Virginia Gov. Bob McDonnell and his wife, Maureen, guilty of corruption, fraud and bribery. Judge James Spencer presided over the trial and will sentence the couple in January and February.

What remains unclear is why Spencer never disclosed the past he and his wife, Judge Margaret Spencer, have with Bob McDonnell.

In 1997, then Delegate Bob McDonnell worked against Judge Margaret Spencer becoming a State Supreme Court Justice. McDonnell nominated someone else and said on February 22, 1997, “I would nominate Wiley F. Mitchell of Virginia Beach for the Virginia Supreme Court.”

Judge Margaret Spencer lost. Then a year later McDonnell voted against Judge Margaret Spencer for Richmond Circuit Court. He was 1 of 18 to vote against her, but she won the vote 78-18.

Recently, McDonnell’s defense made a motion for a new trial, citing “numerous legal errors that deprived Mr. McDonnell of a fair trial and allowed the jury to convict him on legally erroneous grounds that would ensnare virtually any public official.”

McDonnell’s lawyers also said in the motion that Judge James Spencer’s “jury instructions were legally erroneous because they allowed the jury to convict Mr. McDonnell on an erroneous understanding of an ‘official act.'”

Yet, Bob McDonnell and his attorneys also failed to address Judge Spencer’s possible conflict of interest before the trial began.

10 On Your Side spoke with former federal prosecutor and former Virginia Beach Commonwealth’s Attorney Harvey Bryant about the situation. Full disclosure: Bryant is an old Bob McDonnell friend, and has sent a letter to Judge Spencer supporting McDonnell as part of McDonnell’s sentencing in January.

“I have always believed … if the judge is aware of a potential conflict, then it is the burden of the judge to make each side aware of that conflict,” Bryant told WAVY.com.

Bryant — who has more than two decades of experience as both a state and federal prosecutor — believes Judge Spencer should have disclosed this history with McDonnell: “Assuming it comes to the Judge’s consciousness, at some point, then, it would have been appropriate to raise that issue and let the parties decide whether there was a conflict,” he said.

That opinion is based on federal code related to disqualification of a justice or judge:

28 U.S. Code § 455
Disqualification of justice, judge, or magistrate judge

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Bryant said he has seen federal judges disclose potential conflicts all the time: “I’ve seen judges routinely, on their own, without any one raising it, they say ‘I own stock in this company,’ or ‘I’m on the board of this bank.'”

The code also reads, “He shall also disqualify himself … where he has a personal bias or prejudice concerning a party.”

Defense Attorney Sonny Stallings said Bob McDonnell, who knew of the conflict, should have brought it up.

“If the judge feels he has no prejudice or bias, he has no duty to bring it forward,” Stallings said. “The duty, I feel, falls back on the defense to raise the issue, to remind the judge of the prior contact and the prior involvement.”

WAVY.com asked Bryant if it is legally possible for Judge Spencer to recuse himself from the sentencing aspect of the McDonnell case.

“That is a legal possibility,” Bryant replied. “It is not impossible for him now to say, ‘ok, I don’t think I should be involved in the sentencing,’ but for him to say that is almost equivalent for him to say, ‘I probably shouldn’t have sat on the trial either.’ So, I don’t expect Judge Spencer to recuse himself from sentencing, not now.”

Judge James Spencer would give 10 On Your Side no comment for this story, neither would McDonnell’s attorney Hank Asbill.

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