An Attorney General seeking a governorship, a well-heeled businessman paying a substantial amount toward the Governor's daughter's wedding, a disgruntled former employee being prosecuted for embezzlement, and an off year election make for some juicy legal stories.
The only thing clear is that there will be more chaos before
the waters settle down.
Todd Schneider -
Executive Chef and current source of angst for Governor McDonnell
Todd Schneider, the former executive chef at the Governor's
mansion in Richmond,
is being prosecuted for alleged embezzlement of (it appears) food from the
executive mansion. As part of his
defense he is seeking
substantial information about the McDonnell's use of goods from the
Executive mansion. The implication is
one of outright theft, but nothing beyond bare allegations from the accused has
surfaced. Still, the Washington Post broke
the story this morning that the FBI have been investigating McDonnell due to
alleged improper ties to Jonnie Williams the CEO of Star Scientific, Inc.
Star Scientific, Inc. appears to be a former tobacco company
that now produces dietary supplements.
It also appears
that much of Star Scientific's resources were spent on lawsuits defending
patents in the past decade.
What could this
possibly have to do with AG Cuccinelli?
Attorney General Cuccinelli has his own ties to Jonnie
Williams, having received gifts from Williams.
Cuccinelli also, up until recently, owned some stock in Star
Scientific. But what does this have to
do with Schneider?
Schneider claims,
that in 2012, Schneider was interviewed by the FBI, Virginia State Police, and
the Virginia AG's office regarding information Schneider had regarding improper
connections between Jonnie Williams and the McDonnell family.
The Attorney General's office then, one year later,
initiated prosecution against Schneider for embezzlement. It is not clear that there is any direct tie
between the conversations in 2012, and the evidence gathered for the
embezzlement charges.
Schneider's counsel, seeing an opportunity to defend their
client, are now seeking
to force the Commonwealth to turn over substantial documentation that
appears embarrassing to the McDonnell family.
AG Cuccinelli, seeing what a mess this was becoming sought
to be recused from the case due to a conflict of interest that likely
existed prior to indicting Schneider.
But wait, I thought the
Virginia Attorney General does not handle criminal prosecutions
Okay, I
have made a big deal in the past over the limited criminal enforcement
powers of the AG's office. The AG in Virginia is essentially
a civil attorney's office, although it handles criminal appeals. So, in searching for the local Commonwealth's
attorney who I felt should be prosecuting Schneider, I instead found this:
"Unless specifically requested by the Governor to do
so, the Attorney General shall have no authority to institute or conduct
criminal prosecutions in the circuit courts of the Commonwealth . .
." Va. Code §
2.2-511. Wow! That looks really bad,
did Gov. McDonnell insist on prosecution?!?!?!?!?! Did AG Cuccinelli prosecute without proper
authority?!?!?!?!?!
No.
The statute goes on to state "except in cases involving
. . . (v) the theft of state property . . ." Us lawyers always have exceptions. Va. Code §
2.2-511.
So the AG has the authority.
But that does not mean he had to utilize it. Yes, the AG's office, to handle this cleanly,
should have handed the prosecution off earlier.
We are where we are, so is the AG seeking to throw the book at
Schneider? Is the AG counseling people
to hide evidence? Is the AG promising to
get Schneider if that's the last thing he'll do? Nope, quite the opposite. The AG's office has filed it's mea culpa seeking to be relieved from
the case and appointing the Democrat Commonwealth's
Attorney from Prince William County (more on that later) to handle the
prosecution. This would include any plea
deals or decisions to drop the charges.
So the AG's office
probably should have handed this off sooner, but what does it matter?
Not content to simply seek to embarrass Governor McDonnell
with some interesting discovery, Schneider's counsel are seeking
everything. They have filed an
opposition to the motion to recuse, trying to keep the AG's office in the
case. I am not really sure why.
Moreover, yesterday Schneider's counsel filed a motion
to dismiss on the grounds that the indictment should never have been filed
by the AG's office due to the alleged conflict of interest in the AG's
office. Essentially their claim is that
because AG Cuccinelli can not prosecute the matter fairly, simply by filing the
case with an alleged conflict, Schneider should be let off for ALL alleged
criminal charges.
I am often asked the following question: "Mr. Prados, do you have any case
authority for that position?"
Either I'm prepared to hit that matter out of the park, or I'm about to
lose a substantive point. The major
cases cited by Schneider's counsel do not stand for the proposition that if a
prosecutor with a conflict of interest obtains an indictment against a Defendant,
that the mere existence of the conflict of interest allows the Defendant to be
free from all further prosecution. It
would be an absurd result.
In fact, in my opinion, the main Virginia
case they cite makes clear that the remedy available to Schneider is to
force the AG's office to recuse itself, something the AG's office is doing
voluntarily, and that Schneider's counsel has objected to.
So why the remarks
about the Commonwealth's attorney for Prince William
County?
Paul Ebert is the decades long Commonwealth's attorney for Prince William
County. Defense counsel felt it was important to
point out that Ebert himself was a poor choice for replacement counsel as
Schneider's counsel alleges "Mr. Ebert and his office have engaged in a
pattern of intentionally withholding exculpatory information from
defendants." If you have some extra
time you can read about this history in the Justin Wolfe case here and here.
So what happens next?
The parties are before the Court May 2 for a hearing on the
motion to recuse. No matter what
happens, a prominent Republican statewide official is going to be dissatisfied
with the decision. If the recusal motion
is granted, McDonnell will likely risk an extensive probe into his families
records. If the recusal motion is
denied, the case might be dismissed, but more importantly it puts AG Cuccinelli
in an ongoing difficult position.
I believe recusal will be granted and the motion to dismiss
will be denied. Contact me directly to
discuss all non-monetary wagers.
The only thing guaranteed is that this will get messier
before the truth becomes clear.
And my strongly held (albeit biased) belief is that AG
Cuccinelli did not do anything wrong.
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