White Collar Alert

Yesterday, former Virginia Governor Bob McDonnell was sentenced to two years in prison following his public corruption conviction for using the governor’s office to help a dietary supplement executive in exchange for loans, gifts, and, as we’ve noted before, a Rolex and a joy ride in a Ferrari. The sentence was significant because it marked a large reduction from the 10 to 12 year sentence recommended by the U.S. Probation Office and the 6 to 8 year sentence that the Court calculated using the Sentencing Guidelines.

So why did the Court grant such a large variance from the Guidelines sentence? Thanks to the Washington Post’s live blog of the sentencing proceedings, we’ve been able to draw some of the following conclusions:

First, character letters count. The defense did a spectacular job presenting the former governor as a decent, faithful, charitable man who has shown great remorse and who has already suffered significantly for his crimes. The defense filed over 440 character letters on McDonnell’s behalf. But it wasn’t the quantity of the support – which was overwhelming – but the content of most of the letters that had an effect on Judge Spencer.

Character letters are critically important to show the human side of a defendant, and to convince the Court that the criminal conduct was an aberration and that the likelihood of recidivism is low. Character letters can also be instrumental in demonstrating the collateral consequences of the conviction. Here, for instance, McDonnell’s supporters were able to tell Judge Spencer that had McDonnell not gotten into this mess, he would have been a front-runner candidate for President of the United States.

However, it’s important to make sure character letters don’t break the cardinal rule of good sentencing advocacy: denying responsibility and blaming others. This is a sure-fire way to irritate the judge. According to reports, Judge Spencer specifically said that, although many of the letters were moving, some “continued to cast blame on others or to see conspirators behind every tree.”

Second, character witnesses may help, too. The answer to the question of whether to call a character witness to testify on a defendant’s behalf is often, “it depends.” Character witnesses may backfire if not properly prepared, particularly if they don’t know the full extent of the underlying criminal conduct or the harm that the defendant may have caused. But McDonnell’s defense team called 11 witnesses to the stand to help further paint the picture of McDonnell as a good human being. It appears, at least in the eyes of defense counsel, that the character testimony mattered, particularly that of former Democratic Governor Doug Wilder, who counsel described as “one of the best defense witnesses I have ever seen.” While we all can’t have former governors testify as character witnesses (not to mention the first African-American governor of any state since Reconstruction), the stature of the witness is far less important than the content of the testimony.

Third, remorse, remorse, remorse. Although the prosecutor today concluded his remarks by stating that the former governor had “shown no true remorse in this case for these crimes,” the former Governor convinced the Court otherwise. McDonnell stood up and asked for mercy for his wife (facing sentencing February 20) and then accepted responsibility for his actions and said he would dedicate the rest of his life to help others.

Fourth, the Sentencing Guidelines are sometimes out of whack. Judge Spencer noted that the Guidelines range of seven or eight years, “would be unfair, it would be ridiculous, under these facts.” The Sentencing Guidelines, which calculate sentencing ranges based upon various factors, including the severity of the crime (which takes into account the financial loss to victims), the defendant’s role in the offense, and the defendant’s criminal history, are now only advisory, but they provide the initial framework for the Court’s sentencing determinations. Yet the Guidelines have steadily (and not necessarily slowly) increased over the years for white collar criminal offenses, resulting in lengthy sentences for first-time criminal defendants convicted of economic crimes. Judge Spencer recognized that “a price must be paid” and that “unlike Pontius Pilate, I can’t wash my hands of it all. A meaningful sentence must be imposed.” But looking at the totality of the circumstances – and thanks to the defense’s skillful use of sentencing letters, witnesses, and the clear articulation of the governor’s remorse – the Court refused to impose the lengthy sentence calculated under the Guidelines.