There's regular justice, and then there's priority-access justice

Former governor Bob McDonnell got his day in court today. It was his day in the Supreme Court actually, a day that few criminal defendants ever get. Based on how it went, it appears that McDonnell's conviction will be overturned. I think that's probably the right outcome. I personally am not as concerned as Justice Breyer that the fraud statute at issue is "so open-ended that no member of Congress could ask any government official to look into the private matter of interest for a political donor."  It seems to me that it might be a good thing if congressmen did not get special government favors for their donors, but I don't see why it's a good idea to send one former governor to prison for a couple of years for doing what politicians do.

What bothers me about this case is how differently the machinery of justice works for a wealthy, politically connected guy like McDonnell than it does for everyone else. McDonnell lost his direct appeal, like most defendants do, and lost again when he asked the appellate court to rehear his case.  That is where it ends for just about everyone.  Sure, there is the theoretical prospect of getting your case reversed by the Supreme Court, but the Supreme Court hears less than 100 cases a year, out of the many tens of thousands of cases decided by the lower courts.  Most criminal defendants don't even bother to ask the Supreme Court to hear their case because the odds that it will are so remote.  But McDonnell didn't just ask the Supreme Court to hear his case, he went the extra step and asked the Supreme Court to keep him out of jail while it decided whether to hear his case.  And the Court granted his request!  Most defendants, even if they are out on bail before trial, get locked up after they are convicted.  McDonnell was one of the few to get bail pending his appeal to the court of appeals.  But getting the Supreme Court to give you bail after your direct appeal is over is pretty much unheard of.  

McDonnell then got the Supreme Court to agree to hear his case even though it didn't really seem like the sort of case that the Supreme Court takes on.  The Court likes to settle "circuit splits" -- legal questions that the lower courts have decided differently.  The Supreme Court will rule on circuit splits involving obscure provisions of ERISA or the Federal Insurance Contributions Act ad nauseum, but they don't really get into the sorts of grievous injustices meted out every day in the criminal justice system, like a 76 year old man sentenced to life without parole for possessing marijuana. What was so special about McDonnell's case is that it was threatening to a lot of powerful people.  And those people lined up to support McDonnell, making it seem like his conviction was going to turn politics as we know it into crime.  He had groups of attorneys general, governors, legislators, and law professors file briefs supporting him. There is a lot of scholarship suggesting that having that kind of support matters, but in this case we don't have to wonder.  At oral argument, Chief Justice Roberts singled out one brief filed by a bunch of former white house lawyers, both democrats and republicans: "I think it's extraordinary that those people agree on anything. But to agree on something as sensitive as this and to be willing to put their names on something that says this—this cannot be prosecuted conduct. I think is extraordinary."

Hey, Mr. Chief Justice, lock me in a room with a bunch of former white house lawyers for half an hour, I bet I could get them to all agree with me on one or two of my cases.  But I don't have that kind of access.  My clients are poor people, not wealthy former governors.  My clients and I can't get white house lawyers to return my calls.  Some of my cases are winners, but I can't get a bunch of impressive people to go out of their way and file a brief telling the Supreme Court to hear my case.  McDonnell can, and it's what's gonna keep him out of jail.

At the end of the day, the feds overreached in this prosecution.  McDonnell's conviction will be overturned, and he won't have had to suffer a day in prison on his wrongful conviction.  That's a good thing.  But it only worked out that way because he is rich and powerful.  Anyone else would never have gotten bail after they were convicted and lost their appeal.  Anyone else would never have gotten the Supreme Court to hear his case.  Plenty of people spend years in prison before they get their conviction overturned.  Sometimes they serve their entire sentence before they win on appeal.  Plenty of people have been locked up for decades when they were completely innocent the whole entire time.  We hate to think that our justice system is divided into coach and first class, but it is.  The McDonnell case is a stark reminder of that.