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McDonnell Opinion

This Monday morning brings an anticipated Supreme Court opinion. Shortly after 10 a.m.the Court will issue its opinion on whether to set aside the guilty verdict in former Virginia Governor  Bob McDonnell’s federal corruption jury trial.  Political columnist Jeff Schapiro writes a good summary of the events leading up to the Court’s opinion today. (

The conviction could be affirmed or reversed. Obviously, a lot is at stake for the whole McDonnell family. That includes the financial issue of whether he will receive his retirement pension. McDonnell was to receive 60% of his final governor salary as retirement, which was estimated to be about $3900 a month, if being received right now. If he chose to begin drawing his pension at age 65, his anticipated pension would be around $5400 a month.

The guilty conviction took that benefit away. So, not only will he be faced with his two year prison sentence today and a felony conviction on his record, but also a significant loss of income for the rest of his life.

If the conviction is set aside, he would get that money back. Otherwise, he will be directed to report to prison. Originally when McDonnell was told to report to jail by the 4th Circuit Court of Appeals, he had asked to be sent to the Federal Correctional Complex Petersburg, that is located in Hopewell, Virginia. As it stands, the Court would tell him when and where to report, if the conviction is affirmed.

These corruption charges related to political favors for money. As a side note, on this day in 1967, the first automated teller machine (ATM) was installed in London, England.


And for pic o’ day, some necessary planning ahead?


Supreme Court Thoughts

Some people like to announce things… to the shock of others. This blog deals with the Supreme Court… and their recent case announcement.

What About Bob was an old Bill Murray movie. Maybe I should have called this blog “Should Bob be worried”, based on Bob McDonnell’s court case that was heard in front of the Supreme Court as the last case of the session.

I thought that the case recited below that was heard by the Court a few weeks before the McDonnell appeal might have some analogy; but hopefully for Bob… not similarity. So, here’s some court stuff:

This Supreme Court opinion dealt with the facts of a lower court criminal case, involving a Baltimore body shop, that gave kickbacks to police officers who referred drivers with crashed and damaged cars.

In a 5-3 decision,  the U.S. Supreme Court ruled that although the defendant police officer  did not try to take anything from third parties, he could still be convicted of conspiracy to commit extortion under the Hobbs Act.

Several times between 2009 and 2011,  Officer Samuel Ocasio, while on duty, encouraged auto accident victims to take their cars to the Majestic Auto Repair Shop. The shop reportedly paid police officers a referral fee of between $150 and $300 for each referral. Officer Ocasio was  caught and convicted of three counts of extortion and one count of conspiracy.

His attorneys argued that he could not be charged with conspiring with the owners to get the payments, because a conspiracy conviction would need proof that they tried to extort property from a third party.

The Supreme Court majority opinion, written by Justice Samuel Alito, found that because Ocasio was acting  as a public officer while reaching an agreement with  body shop owners to get cash payments,  and that the conviction should stand. He was joined in the majority by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Their opinion in part read:

In order to establish the existence of a conspiracy to violate the Hobbs Act, the government has no obligation to demonstrate that each conspirator agreed personally to commit—or was even capable of committing—the substantive offense of Hobbs Act extortion,” Alito wrote. “It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it.”

Justice Clarence Thomas wrote in dissent:

Under a correct understanding of Hobbs Act extortion, it is illogical and wrong to say that two people conspired to extort one of themselves. As explained, in a Hobbs Act extortion case, the only perpetrator is the public official; the payor is a victim and not a participant.”

Another dissent opinion by Justice Sonia Sotomayor, and joined by Chief Justice John Roberts disagreed with the majority’s interpretation of the Hobbs Act. When conspirators want to extort something from someone, she reasoned, they frequently look for victims outside their group.

“’ I But in upholding the conspiracy conviction here, the Court interprets the phrase extorting property ‘from another’ in the Hobbs Act contrary to that natural understanding,” Sotomayor wrote. “It holds that a group of conspirators  can agree to obtain property ‘from another’ in violation of the act even if they agree only to transfer property among themselves. That is not a natural or logical way to interpret the phrase ‘from another’ I respectfully dissent.”

I wonder if that gives us any insight into how the court will rule on our former Governor’s conviction, here in Virginia. Former Governor McDonnell needs those same 5 votes to go his way. A 4-4 tie will only serve to reaffirm his conviction. Like all politicians…he is still looking for the votes.

Court opinions are based on what? Not mood and attitude. As some coaches used to say about how hard practice was going to be, “It’s based on mood and attitude. My mood and your attitude”.

That leads me to our pic o’ day… and some body shop sign humor:


Some Court News

Yesterday we learned that the Federal 4th Circuit had denied former Governor Bob McDonnell’s appeal. Not one of the fifteen Judges of the Appeals Court voted to reconsider the original panel’s decision to uphold his conviction. Now, his lawyers say that they are proceeding to the next level… The U.S. Supreme Court.

I had several at the office get that alert on their phones. They would mention it to me and then wonder aloud whether he now had to report to jail. While it’s not something I wish on him, it’s the next logical question. Maybe the Supreme Court will think that there is something novel about this case to hear it.  They won’t be influenced by the lower Court’s decision. The benefit of being a Supreme Court Justice!

That was yesterday’s news. Today, I have my eyes on a court in New York City. Tom Brady, Roger Goodell, and representatives for the NFL Players Association will appear before U.S. District Judge Richard Berman for a settlement conference at 11 a.m. in the Daniel Patrick Moynihan U.S. Courthouse.

I expect that the Judge’s settlement conference will see if there is any possibility for the NFL to reduce the four game suspension of Brady, while the Judge will put Brady and his representatives in another room and see if they are willing to accept some form of suspension in settlement, to forego their appeal.

It’s hard to tell if the Judge will lean on the parties like he would in a civil case settlement conference. There has been suggestion that if Brady acknowledges wrongdoing, that the NFL would be willing to reduce the suspension.

As a Colts fan, I have my definite opinion on this. Thankfully for both of us… I have a word limitation goal on my blog!! I will be interested at the news around lunchtime.

And for pic o’ day…


Blogging Goals

If I started the blog with a discussion of “Hands up, don’t shoot”; or I countered with  “pants up, don’t loot”, it might be considered a very controversial blog. In fact, I am told that the more controversial that someone writes, the more chance heated comments are posted or that the blog will go viral.

I look back over my blogs the last few years and I can say that they lack the panache of some controversy. This morning, Virginia has a former Governor about to be sentenced at the Federal Courthouse. It was and is important news. Yet, I did not blog about it. Just not in the wheelhouse of this blog.

When I think of the blog in the new year, I think of it like a legal seminar. “They” always say that if you go to a seminar and you get one helpful thing for the practice, then it has been a successful seminar.

So, what does this mean in my stream of consciousness about blogging for the upcoming year? Well, I hope to give you something each time that will stick with you. I don’t think that it takes controversy to stand out. Still, I hope it’s more than a dry recitation of the Pythagorean Theorem.

My goal is at least one good nugget. Something like Robert Louis Stevenson saying that, “Sooner or later, we all sit down to a banquet of consequences”.

And our pic o’ day is about trust:


The Chief of Stuff

I thought that this was a nice human interest story from the “heart” of Richmond.  I think it qualifies for a legal blog, since it involves the executive branch of Virginia government.

(Picture from Times-Dispatch)

Adam Zubowski has been Governor Bob McDonnell’s right-hand man since the Governor took office. The 28-year-old is affectionately know as Chief-of-Stuff because he is the aide who is constantly near, holding papers, handling items that are given to the Governor at various events; and arranging scheduling logistics to keep the Governor on schedule.

Now, he is leaving his job. But, he is definitely staying close by. That’s because he proposed to the Governor’s daughter, Jeanine. According to Adam quoted in the article, he definitely knew when to ask for the Governor’s blessing… he knew the best time to get the Governor’s attention in a “jumble of deadlines”.

Zubowski plans to start a new job in government relations for Smithfield Foods before year’s end. He and Jeanine plan to get married in early 2013 and live in Virginia Beach.

Pic o’ day makes me smile. It looks like a team… team of mischief!

The McDonnell Veto Part 2

     Some blogs that I start, seem to have the initial excitement of an Amish Prom. I never fancy my blog to be hard hitting journalism and I try to stay generally away from the real politics.

     I am just  following up on Part 1  to give you some McDonnell facts to consider, as to why he would veto a House Bill that was overwhelmingly supported by republicans, democrats, the medical and insurance industry, and trial lawyers. I present…. you decide. Hmm, that almost sounds familiar. 

     I don’t expect this blog to cause hot taut tears, like the ones that Mr Bundchen had, coursing down his cheeks, when he was drafted by the Patriots in the 6th round of the NFL draft.(Tom Brady Crying) (OK, my anti- opinion is coming out here about Tom Brady and the Patriots… just can’t heppp it!) See what I’m doing here. A little bit of bias against Tom Brady, as an example of  what might have caused the Veto.

     The American Tort Reform Association  (ATRA)  says on their website that they formed because   “We are the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation.”

     ATRA states that they “identify and champion elected officials and judges who want to fix the system”.  Their intent is to “stop regulation through litigation”.  Their President of this national organization, Sherman Joyce, is a Virginia licensed attorney, so he is well aware of the laws going into effect in Virginia.

     For argument sake, let’s assume that these goals sound OK on the surface. Unfortunately, anything extreme can be dangerous. By “fixing the system”, what they have shown by their actions is to get matters away from juries because those crazy runaway juries can be influenced by “snake oil salesman” with law degrees.

     It’s no secret that business suffers when they have to answer to regulations. They can’t dump where they want to; they have to seek approval and sometimes get turned down on drugs and products to market; and they are held accountable for representations that are made. Take it out of a jury’s determination and limit accountability, helps make better quarterly profits.

     So why would this somehow be related to Governor McDonnell’s veto. Well, look at the goals of this organization. Then, notice where they have given money for campaign contributions. Why would they want to “champion” his candidacy? 

     In 2005, the American Tort Reform Association gave a donation of 200K into an organization called the Virginia Conservative Action Pac  (VPAC). VPAC then endorsed Bob McDonnell for Attorney General and …… donated 200K to his campaign. One of my previous blogs outlined additional ATRA contributions to McDonnell, so let me move on to another consideration.

     Eli Lilly manufactured and distributed a drug called Zyprexa. Its purpose was to treat depression and, specifically,  schizophrenia. Its warning label did not properly list the horrible side effects such as diabetes and other related death causing issues, that were then treated and paid for by many Medicaid programs in each state.

     Separately, Eli Lilly paid over 1.2 Billion to resolve individual claims. Then, state Attorney Generals brought action to get monies back from their Medicaid programs.  West Virginia, as one of the smaller states, received 22.5 million back in its coffers. Even Montana received 13 million.

     In Pennsylvania where they were based, Eli Lilly paid a fine of 1.42 Billion for fraud charges that were brought by Prosecutors there, because of the marketing and false labeling. Again, this was totally separate from any payout for the civil suits brought by over 30,000 people that were prescribed the drug.

     Let me try to get to my point quickly, because I think you know where I am headed.  32  states and  the District of Columbia were also paid 62 million for the reimbursement of medical bills that were paid by these states, from the Eli Lilly conduct. Now, google “Virginia and Eli Lilly settlement” or anything like that with “Zyprexa” and see what comes up. (Waiting…Waiting) If you have clicked on the 62 million settlement and listing of states, you will also see Virginia not listed.

     In 2002, amid great fanfare, Governor Mark Warner announced 6 million of state money that was going to a new Eli Lilly plant in Prince William County.   In 2007, Eli Lilly stopped the expansion and operation and decided to go to Italy instead. No Warner parade over that one.

     What am I saying?  Our politicians usually are driven by money and their future plans. I’m suggesting that just as Bob McDonnell, as Attorney General, did not want to go after a pharmaceutical company for reimbursement to the state, he doesn’t want to be connected to any increase in a cap number; even when it makes sense for all sides and is agreed upon. This veto is a continuing trend.

     It took about 7 days to overturn his veto in the General Assembly. But,  he can now say that he voted against a cap increase. Plus, his past actions did not go after a Pharmaceutical company. By the way, look at the members of ATRA. Does it surprise you what I might suggest about the Big Pharma involvement?

     The mantra of politicians is that cap increases cost patients money; drive doctors from the state and drive up insurance costs. This comes straight from the politician campaign textbook. You’ll find others saying the exact wording.  However, you’ll never see statistics connected to that claim. Instead, connect the dots to campaign contributions for others that want to “champion” jury limitations and lack of Big Business accountability. 

     Someone is already probably getting his talking points together for his next campaign ad. He had to know that his veto was going to get overturned, didn’t he?

     I leave it to you to consider.     That’s just a taste of the trail of influence.  THE END.   I promise… No part 3

Bedtime for Governor McDonnell’s Veto

     I just saw an article about a lawyer who defends railroads,  in lawsuits. She described people that get injured or killed by  trains as trespassers. The defense is that you shouldn’t get in the way of that train.  I wouldn’t have thought up that kind of defense; but, I guess, it works as a defense or they wouldn’t use it.

    When Ronald Reagan was running for President, he received a great deal of joking over his role in “Bedtime for Bonzo“. It was the story of a professor who was determined to prove his point with the help of a chimp. That choices of right and wrong are effected by your environment and other influences.

     I’m not sure that I ever was able to really watch the movie in its entirety, but I do remember that it didn’t stop him from being elected President; though I suspect that he personally disagreed with the premise of the movie.

     There were some great quotes in the movie.  One man was discussing a shady character. “When he  was buried,  there wasn’t a dry eye in the cell block”.  

     In this last Virginia General Assembly, one bill sailed through the house and Senate. It’s purpose was to increase the  dollar cap on a possible recovery in  malpractice lawsuits.

     It passed the House of Delegates by a margin of 89-8. The Senate then passed it on a 40-0 vote and sent it to the Governor for signature and into law. It had been passed by both governing bodies because it was a compromise between the Medical Society of Virginia, the Virginia Hospital and Healthcare Association, and the Virginia Trial Lawyers Association. Basically, all sides agreed to this bill.

     The real math of the bill was to raise the malpractice cap from the current 2 million, to a cap of 3 million over the next 20 years. The cap would be raised by 50K per year until it reached the 3 million in the year 2031. HB 771 basically was considered a mathematical increase over 20 years, with an eye toward the time value of that period of years.  

     Despite the compromise and expected passage and signature of the Governor, Governor McDonnell vetoed the bill and stated that, “While I commend the affected stakeholders for working diligently together; increasing the medical malpractice will ultimately lead towards higher health care costs for doctors, hospitals, businesses and, most importantly, patients”.

     In my next blog, I will speculate as to why Governor McDonnell vetoed this bill. I’ve always wanted a part 2.  I captioned this blog “Bedtime for Governor McDonnell’s Veto” because I think that his veto has a reason. When the Legislature overturned the Governor’s  veto and  made HB 1459 a law, they were, by an overwhelming vote in both chambers, disagreeing with the Governor’s statement.  It officially goes into effect on July 1.

Governor McDonnell Loves Speed

One of my all time favorite television commercials showed dogs hanging out of the windows, of various trucks, and the announcer saying, "Dogs Love Trucks". It motivated me on several levels. I wanted a truck; I wanted a dog; and I had a strange desire to put my head out of the window of a moving truck and try barking.

In advertising, cagey veterans of television persuasion claim that you should figure out how to weave animals, kids or "free" into your advertising. I guess that's why we still have the ETrade Baby to teach us about smart finances.

Prior advertising for the State of Virginia has been the campaign of "Virginia is for Lovers". Now, we may have a possible new campaign, courtesy of a bill that the new Virginia Governor wants to be enacted as law. The new campaign might be something like "We'll get you where you're going, hopefully". See if you agree?

I titled this "Governor McDonnell Loves Speed". The Governor is pushing new legislation on speed limits. Pilot Online reports that on Wednesday, a bill to raise the speed limit on interstate highways, from 65 mph to 70 mph, has passed in the house subcommittee and is now advancing to the full House Transportation Committee. The basis for the passage was described by a representative of the National Motorists Association, who spoke in favor of the bill, by saying that, "speed limits should be posted at the prevailing speed of traffic".

The opposition to this bill primarily came from the insurance industry and the Sierra Club. Statistics were cited that showed that a 5 mph increase had statistically coincided with an increase in accidents; as much as 15%. Plus, common sense says that injuries could be more severe, as a result of crashes occurring at a higher rate of speed.

Stacey Johnson, the Governor's press secretary, has called the governor's position a "common-sense step to get traffic moving faster in the Commonwealth". Plus, Johnson added the logic that, "If speed limits reflect real travel speeds, then traffic will flow more uniformly, thus making the roads safer." The legislator that sponsored the bill in the house, Delegate Charles Carrico, also added that, "You can get killed in a 30 mile-an-hour crash. People are going 70 anyway, let's be brutally honest".

One final note on this. Some of my blogs really don't require my personal analysis because the statements speak for themselves. I think this is one of those blogs. However, maybe there can be some unique support for this in the form of tax and revenue. Maybe the next bill will be about an increase in gas taxes, because more speed creates more gas consumption, creating more revenue for the Commonwealth. Another idea: Now we need more toll booths to help slow down traffic, which will create more revenue. To sell those ideas, we just need some dogs, babies and some free balloons for travel.   


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