It is impossible to assess, long-distance, how Bob McDonnell is holding up on cross examination. One article on Politico.com describes McDonnell as holding his own pretty well in the sparring with the prosecutor, Michael Dry; the Richmond Times-Dispatch seemed less impressed:
The first hours of prosecutors’ cross-examination of Bob McDonnell revealed a steely-eyed former governor who at times seemed testy, rattled and caught off guard.
Rather than try to assess how he’s doing under cross examination, let’s look at a likely schedule of events going forward.
Prosecutor Dry, when asked by Judge Spencer whether he was close to being done with his cross examination, said, “No.” (Judges usually ask questions like that for scheduling purposes.) Assume that Dry uses most of Tuesday on cross examination. McDonnell’s lawyers are then allowed to do a “re-direct” examination, which is supposed to be fairly brief and which is supposed to only go into things that were brought up on cross examination. So when Dry asked McDonnell “Isn’t it true that you and the wife that you claim to be estranged from went on vacations together 18 times in a 22-month period,” McDonnell’s attorney can come back and ask, “Now, Mr. McDonnell, when Mr. Dry asked you about those 18 vacations, and you said that they weren’t really vacations, what did you mean by that?” Judges try to make sure that the questioning doesn’t get back into just rehashing what has been said previously. So figure that cross and re-direct will take all of Tuesday, and probably into Wednesday.
Will there be other defense witnesses? Traditional wisdom is that if the defendant is going to testify, he testifies last. You do that so that your client can answer all questions, tie up all loose ends, and if one of the defense witnesses didn’t do a good job in explaining a point, you can make it all clear with your client. So it is most likely that Bob McDonnell is the last defense witness. But there are a few exceptions to this traditional wisdom.
- If there is something that was raised during cross examination of the client that needs to be bolstered. If there was someone who could testify that they say Bob and Maureen McDonnell on one of those vacations, and they were arguing a lot, such a witness might be called now.
- If there was some scheduling reason for putting McDonnell on when they did — for example, if they wanted to have McDonnell be the last witness of the week so that the jury would go home for the weekend remembering all weekend what a nice guy that Bob McDonnell was and how it was such a shame that his wife was such a “nutbag” — they might have chosen to leave some witnesses until after Bob testified.
- If there was some issue that the defense has just come to realize is more important than they had thought, they might put on a witness or two on this other area of interest. For example, we have not heard much yet from one type of witness that I was really expecting to hear from — the CEO’s of other companies that McDonnell helped. For example, the CEO of Federated Multi-National Job Creators, Inc. might be called to say, “Listen, folks, when we wanted to bring our widget factory to Virginia, Bob McDonnell got the Secretary of Commerce to make calls for us, he was on the phone to us daily, he came to our ribbon-cutting, he called up his buddy the Secretary of Transportation to see about having an exit added to I-64 to let us have easy Interstate access for our factory. THAT’s what having the Governor on your side looks like. An e-mail asking his staff to make a phone call is NOT what having the Governor on your side looks like.”
- If there are character witnesses who will come testify that Bob McDonnell is the most honest guy in the world and you can believe what he says, those witnesses can’t really testify until after McDonnell has testified. There have already been character-related questions asked of other witnesses, so this is not a hard-and-fast rule (and even less so in federal court than in state court, because of differences in the rules of evidence), but — particularly after a long cross examination — it is often effective to end with one or two character witnesses. It may be that the defense is intending to call some witnesses who combine the last two points — the CEO who says, “And by the way, Bob McDonnell was always straight up with me.”
In any event, if there are any remaining defense witnesses, they are likely to be brief.
Then Maureen McDonnell has the right to offer any evidence on her own behalf. I don’t expect her to testify, and it is possible that her attorneys won’t call any other witnesses of their own. (It has been very clear that this is a joint defense, and if Bob’s and Maureen’s attorneys have been talking and planning together, they will have worked out the order of the witnesses jointly also.)
Obviously, the big question in figuring out the timing is how long Michael Dry is going to take with cross examination, but assuming that his cross and the McDonnell re-direct take up Tuesday, let’s assume that any additional defense evidence will be in by Wednesday noon, and that the defense will rest then.
The prosecution then has the right to call rebuttal witnesses, though the main reason to do that would be if McDonnell raised issues in his testimony that hadn’t been anticipated, or that hadn’t already been addressed in the prosecution’s case-in-chief. I’d be surprised if those rebuttal witnesses took more than a day, so perhaps we’ll have all of the evidence completed by noon Thursday.
One matter that we in the public have not been seeing is discussion of what the jury instructions will be. I have looked at the jury instructions that each side offered to the judge (they were submitted on July 14), but Judge Spencer has not yet decided what the instructions will be. In most trials, he and his law clerk will have been working in odd hours — before the trial starts in the morning, or after everyone else has gone home in the evening — to come up with what the Judge will instruct the jury. Looking at what each side has tendered, I don’t think that there are more than one or two issues that remain unresolved that will take very long. But let’s assume that the judge and the attorneys hash out the instructions Thursday afternoon; this case could be ready for argument to the jury on Friday.
