In it, but not of it. TPM DC

McDonnell's 'Crazy Wife' Defense Is Totally Unprecedented

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AP Photo / BOB BROWN

When the former governor the took the stand, he cast his wife as a mercurial thorn in his side — not to mention that of the entire Executive Mansion staff. Under questioning by the defense, various other witnesses described Maureen McDonnell as a hoarder, "diva-ish" and "pathologically incapable of taking any kind of responsibility." One former aide testified that the governor was "in denial about Mrs. McDonnell’s mental capacity."

For his part, McDonnell testified that he considered his marriage “on hold” while in the governor’s mansion and further revealed that he moved out of his home just before the trial began, opting to live with his parish priest in order to prepare for court each day away from Maureen McDonnell. Defense attorneys are hoping that all this testimony proves to jurors that communication between the McDonnells was too strained for them to have been able to conspire together to promote Williams’ company.

Barbara “Biz” Van Gelder, a criminal defense attorney with Dickstein Shapiro, said it’s not unusual in a criminal case for one spouse to claim that he or she wasn’t aware of what the other spouse was doing, particularly in regards to finances. For example, a couple may share a joint account that just one spouse manages.

But “this is much different. This is saying not that they do that portion of the shared work, but this is like, ‘I’m not even talking to them so I don’t know,’” she told TPM.

Julie Rose O’Sullivan, a law professor at Georgetown and a former federal prosecutor, agreed that the McDonnell defense’s “crazy wife” theory was a departure from cases she’s seen.

“What we used to see when I was prosecuting was the ‘stupid wife’ defense in cases where a husband and wife appeared equally culpable in some business fraud scheme,” she explained to TPM in an email. “Inevitably, the wife's lawyer would say that she just signed what her husband asked her to and that she had no head for numbers, etc., etc.”

Indeed, the McDonnells’ defense attorneys are arguing the opposite: that the first lady was the primary point of contact with Williams and that she accepted loans and gifts from the businessman because she developed a “crush” on him that filled the void left by her crumbling marriage. As O'Sullivan put it, the McDonnells' defense strategy could just as easily be referred to as a "stupid" or "hen-pecked husband" defense.

Andrew Cowan, a criminal defense attorney at Gallo and a former federal prosecutor, pointed out that it’s rare for a husband and wife to be indicted together in the first place. But he said that he’s not aware of any prominent case where one spouse put the blame squarely on the other as McDonnell has done in this trial.

“The more that he describes his wife as crazy, then it begs the question of well, if your wife was crazy, why didn’t you stop her?” he told TPM. “Why didn’t you shut her down? Like many defenses, this one is also a two-edged sword.”

Certain gifts that McDonnell himself received from the wealthy businessman, such as golfing trips and a ride in Williams’ Ferrari, don't quite fit that narrative (The Washington Post has an excellent graphic visualizing all the luxury goods, vacations and loans given to each member of the McDonnell family for reference). In those cases, McDonnell acknowledged that he shouldn’t have accepted the gifts but argued that Williams’ largess never earned him more than basic constituent access to the governor’s office.

So how might the "crazy wife" defense shake out once the trial goes to jury?

Van Gelder pointed out that defense attorneys are may be pushing this "guy's theory" in hopes that some of the seven male jurors sympathize with the governor.

"Maybe [Maureen McDonnell] is unflattering," she told TPM. "But the fact is, is the juror thinking this guy is a cad, or been-there-done-that, 'I have a wife just like that, I come home and this is all I hear?'"

Cowan believes that the broken marriage story may not be enough to convince a jury that the McDonnells were unable to conspire to promote Williams' company.

"I think it'd be very difficult to make an argument that communication between the couple had broken down to the point where they couldn't even conspire ... jurors are entitled to infer the existence of a conspiracy from the circumstantial evidence," he told TPM. "They can look at all the evidence and say 'Yeah, there was an agreement between the two of them to do this.'"

Airing the former governor's marital problems and painting his wife as unstable also won't get McDonnell off the hook for those gifts and loans he did know about, if jurors believe the prosecution's contention that he accepted them in exchange for official acts benefitting Williams' company.

"If at the end of the day the jury says, you did enough, you knew enough, then this is really not only a trainwreck for a political career, it’s also an incredible trainwreck to publicly display all of this for naught," Van Gelder said.

This post has been updated.

About The Author

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Catherine Thompson is a news writer for Talking Points Memo. Before joining TPM, she worked as a research assistant to investigative reporter Wayne Barrett and interned at The L Magazine. At New York University she served as the deputy managing editor of NYU's student newspaper, The Washington Square News. She can be reached at catherine@talkingpointsmemo.com.