Former Gov. Bob McDonnell is asking the full 4th U.S. Circuit Court of Appeals or a panel of the court to reconsider his appeal of 11 corruption convictions.
A three-judge panel of the Richmond-based appeals court upheld the convictions on July 10, holding in part that McDonnell: “received a fair trial and was duly convicted by a jury of his fellow Virginians.”
U.S. District Judge James R. Spencer had sentenced McDonnell to two years in prison, but he remains free pending his appeal to the court.
The appeals court panel’s ruling left McDonnell with the option of appealing to the U.S. Supreme Court or asking that all of the 4th Circuit’s 15 judges reconsider the appeal.
Carl Tobias, a professor at the University of Richmond School of Law who has long studied the Richmond-based appeals court, said he believes it is unlikely the judges will grant what is called an “en banc” rehearing in the case.
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Tobias said it takes a majority of the judges — eight — to grant such a rehearing. “The real issue, I think, is how can they possibly get the eight they need out of the remaining 12 judges,” said Tobias.
“I don’t think there is much new here. These are arguments that have not succeeded thus far,” said Tobias of the 16-page request McDonnell’s lawyers filed on Friday.
He said the three-judge panel’s ruling earlier this month, “was a strong and comprehensively written opinion.”
“Other judges often defer to unanimous opinions,” Tobias said. To grant an en banc hearing the case must be of great public interest — as this is — or to clear up a conflict in prior court rulings — something McDonnell’s lawyers contend, but Tobias said he is not sure about.
“I don’t see eight votes,” Tobias said. He believes the court will expedite the request and could rule as early as next week on whether it will grant the hearing, but probably by mid-August unless a number of the judges decide to write separate opinions.
Henry W. Asbill, one of McDonnell’s lawyers, said he expects McDonnell will not have to report to prison pending a decision on the request.
Tobias agreed, noting that citing the request for a rehearing, the court Friday stayed issuing a mandate in the case.
The petition for a rehearing argues that the three-judge appeals court panel erred in approving jury instructions on “official acts.”
They also contend the panel erred in approving the failure of the trial judge to specifically ask whether they had formed an opinion on guilt as a result of pretrial publicity.
“The panel thus holds, in the highest-profile criminal case in Virginia history, that the defendant was not entitled to ask whether the jurors who will decide his fate had formed opinions based on admitted exposure to pre-trial publicity, despite the defense providing four different formulations of that question,” McDonnell’s lawyers wrote.
McDonnell’s lawyers conclude by arguing: “The panel’s decision establishes an unprecedented and opaque line between lawful politics and federal felonies, while eliminating the basic protections that ensure impartial juries in publicity-saturated cases. Rehearing is amply warranted.”
The appeal of former first lady Maureen McDonnell, convicted of nine counts and sentenced to one year and one day, is set to be heard by the 4th Circuit in October. The trial judge threw out one of Maureen McDonnell’s convictions on a charge of obstruction of justice.