RICHMOND, Va. (WAVY) — For many, it’s still sinking in that former Gov. Bob McDonnell will spend two years in prison for public corruption. Judge James Spencer handed down the sentence on Tuesday, but right beforehand he addressed questions raised only by 10 On Your Side: Was there a conflict of interest? Was he the right trial judge to hear the McDonnell case?
Video from the Library of Virginia shows Delegate Bob McDonnell on the floor of the House of Delegates, February 22, 1997. He said, “I would nominate Wiley F. Mitchell of Virginia Beach to the State Supreme Court.”
McDonnell’s nomination was in opposition of a nomination for Judge Margaret Spencer, the wife of James Spencer. Make no mistake: this was not some frivolous event; it was contentious and it was important. Had she won that appointment, she would have been the first African-American woman appointed to the State Supreme Court. McDonnell and republicans in the State Senate worked against Spencer, and she lost.
In 1998, Margaret Spencer was up for a seat on the Richmond Circuit Court. Bob McDonnell again voted against her for that judicial seat. He was one of 18 to vote against her, but she won with 78 delegates voting for her.
Judge James Spencer has refused comment on this. But in court Tuesday, without naming WAVY News, Judge Spencer addressed the issues raised in our investigation about his history with Bob McDonnell.
“The name and personality of Robert F. McDonnell didn’t register on my radar screen until he ran for Attorney General. He didn’t fully register with me until he ran for governor … even then, the only thing I knew about him was what I could glean from political advertisements,” Spencer said.
Harvey Bryant, former federal prosecutor, former Commonwealth’s Attorney, and friend of Bob McDonnell, told WAVY.com in December he thinks Judge Spencer should have disclosed this past history. But neither Spencer nor McDonnell’s defense team brought it up.
“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,” Bryant said.
Bryant said judges make such admissions often, and the transparency is best for all sides. For strategic reasons that have not been explained, Team McDonnell did not bring up the past history. U.S. Code requires defendants to bring up concerns of bias and prejudice if there is a concern. McDonnell chose not to do that.
However, it is also clear the U.S. Code requires a Judge to disclose bias or prejudice: “He shall also disqualify himself … where he has a personal bias or prejudice concerning a party.”
In his statement at court, Judge Spencer left the impression he knew nothing of McDonnell’s leadership, at least in the House of Delegates, in the defeat of his wife for State Supreme Court. Judge Spencer made it clear before sentencing McDonnell: “The bottom line: I don’t know him, and he doesn’t know me.”
10 On Your Side asked McDonnell’s attorneys about this issue after sentencing, and they had no comment.
In the end, Judge James Spencer sentenced McDonnell to two years in federal prison, which is far below sentencing guidelines, showing great fairness and mercy. He was praised by Team McDonnell for that fairness and that mercy.
However, during the trial and before our investigation, it was clear Team McDonnell was very concerned about how the trial was developing with Judge Spencer, how Judge Spencer often ruled against them on motions, and how the jury instructions written by Judge Spencer greatly favored prosecutors. Evidence of this: McDonnell’s defense is appealing the convictions, claiming they were denied a fair trial. For example, McDonnell thinks the jury instructions defining honest-services fraud was so broad it led to the convictions.
Interestingly enough, what Judge Spencer did in the end with a very merciful sentence, he gave McDonnell the best day he’s had since his nightmare legal battle began almost a year ago.
Below is Judge Spencer’s entire statement he read in court addressing this issue:
I also need to say this, because there is no record on this issue that has been bandied about: The name and personality of Robert F. McDonnell didn’t register on my radar screen until he ran for attorney general. He didn’t fully register with me until he ran for governor. And like all my fellow Virginia citizens, I had to decide between competing candidates. And even then, the only thing I knew about him was what I could glean from political advertisements. The bottom line: I don’t know him, and he doesn’t know me.