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Former Virginia government Bob McDonnell obtains rare Supreme Court prison stay

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Around a year after law school graduation, I bumped into a classmate who excitedly asked me how I liked my job at a law firm primarily representing financial institutions and transportation companies. She loved her job doing immigration law at a big firm.

I responded about the discomfort I felt over how expensive are corporate law firms. I did not feel bad for the clients, because their ample revenues paid for our firm’s services. I did feel dissonance over the lack of real equal access to America’s courthouses. The size of a client’s bank account helps decide how much justice the client gets, not only in terms of attorney fees, but also in terms of paying litigation expense and also in terms of winning wars of attrition as litigation costs mount.

My law school classmate elegantly walked away from my downer talk after I had answered her question. I was being a downer; long ago I transcended that approach to recognizing that I can do my own part in improving equal access to justice. I easily could have just focused on the great litigation team I was working with and all I was learning and accomplishing. However, this equal access to justice issue had dogged me well before I had ever stepped foot in law school, and I thought she would share my concern, knowing her interest in true justice.

I was ecstatic a year later to become a public defender lawyer not only because that meant my career finally was in my ideal of criminal defense, but also because I relished giving great defense to indigent people whose own wallets could not determine the quality of legal service they would obtain.

Sentenced to two years in prison for public corruption, former Virginia governor Bob McDonnell has by now spent substantially more funds than any financial benefit he obtained from his convicted corruption, on top of great angst and likely losing any chance of becoming president or vice president.

Congratulations to McDonnell and his legal team for last month winning a rare Supreme Court order to stay his prison sentence pending his filing an application for the Supreme Court to reverse his conviction and Fourth Circuit affirmance thereof. McDonnell’s Supreme Court stay petition focused on the irreparable harm of serving most of his two-year term before the Supreme Court would likely take action on his case, on the argument that the proven facts were insufficient to constitute a crime, and on the argument that the jury selection process was in contravention of the law.

From an equal access to justice perspective, one could either urge that more criminal defendants’ sentences be stayed pending appeal, or could take a more Marxian approach to urge that the wealthy should get no more special treatment, and that McDonnell’s sentence should not be stayed. I prefer the first approach.

Unfortunately, courts are more likely to let so-called white collar criminal defendants than violent crime defendants stay out of jail pending sentencing, designation of a prison, and appeal, both because white collar criminal defendants are not generally seen by judges as a harm of violence while on the street and because a higher percentage of white collar defendants than other defendants have the financial resources to pursue such relief. How much of this dichotomy also arises from the number of judges who see white collar defendants as being more like their friends and neighbors than they see in blue collar defendants?

From here, Bob McDonnell’s lawyers will file a petition for Supreme Court review of his conviction. If the Supreme Court accepts McDonnell’s petition, the case will be argued before the court through written briefs and oral arguments, and the Supreme Court will issue a final written opinion in his case before the court’s annual term is finished. One million dollars sounds like a conservative pricetag for McDonnell’s team to work from now through the conclusion of Supreme Court litigation.

Win or lose before the Supreme Court, McDonnell’s reputation remains permanently tarnished, although less so if he wins. And if he wins, that lets him avoid losing — or lets him recover — his law license, which may prove lucrative for him.