McDonnell Should Call for a Real Special Prosecutor

Monday, March 30, 2009

Bob McDonnell offers his service as a prosecutor as a unique qualification. It fits nicely with his “Top Cop” persona. Unfortunately the integrity of the very Commonwealth's Attorney’s Office in which he served is called to question over the dismissal of a Harvey Bryant challenger by a fellow Commonwealth’s Attorney and crony.

Bryant backpedalled from investigating a flyer passed out at polling places with significant minority populations which featured the smiling countenance of Will Sessoms, a candidate for Virginia Beach Mayor associated with the Republican Party standing beside the Democratic candidate for President, Barack Obama. He passed that investigation off to pal Mobley's office like a hot potato and, like Pilate, washed his hands of the matter. Mobley dragged his feet on the investigation, probably hoping no one would call him on it. There is no reason to believe that Bryant was bothered by the lack of progress. Meanwhile, a young member of the Mobley's office, Mark Hardman, started exploring a run for office against Virginia Beach’s Commonwealth’s Attorney who was Mobley’s fellow Republican and close acquaintance. Suddenly, Mark Hardman’s services were suddenly no longer required in Portsmouth for reasons about which Mobley has not been forthright. His spokesman denied Hardman's claim that he was fired because Mobley and Bryant are friends. Unfortunately for Mobley, that was very much the reason Mobley gave Hardman and Hardman will show it. Ouch. Now what else should we believe?

To some extent, this is not surprising. As I discovered in the military, there is no certain imperative that prosecutors be superior jurists. There are many fine layers who are prosecutors but military lawyers assigned to the prosecution side are sometimes the lawyers waiting to take or pass the BAR, some who have already failed, and those who are less than competent or unwanted on the defense side of the courtroom. It is morally intolerable when an innocent defendant receives a poor defense. It's a miscarriage of justice when a guilty defendant goes free. If there is an imbalance, I'm willing to accept the error on the side of the defendant. But being a prosecutor fails as a proof source for competence.

At least there was no evidence of or reason for any among the military prosecutors I encountered to cut deals among themselves to protect their pals. The beauty of a closed system, I suppose. Well, our system in Virginia isn't closed and it is apparent that it lacks integrity. Maybe it is the politicization of the office of Commonwealth's Attorney or maybe it is the culture itself. Where is the oversight from the office of the Attorney General?

As an aside, I have old friends who cut their teeth as prosecutors in Hawaii. They taught me the politics of the office when on one visit I went with them to two political functions; one each for the Republican and Democratic candidates for the same state office. At each one, they dropped a check in the hat for each candidate in equal amounts. Those were the days before a service like the Virginia Public Access Project revealed such conflicts in support. The fact was that their names needed to be on the contributor's list of each candidate to ensure they could keep their positions no matter the outcome.

So, there is a balancing act in public service after all, and Hardman lost his balance through no fault of his own. He was faced with an uneven weight: the loyalty to a friend that outweighed a moral and ethical imperative. The truth will set you free and the truth set Mark Hardman free from his position in the Portsmouth Commonwealth's Attorney's office and in the end may set Mobley and Bryant free from their positions. When Mark Hardman chose to work at the pleasure of his employer, he did not know that that pleasure would include helping Harvey Bryant fend off a potential challenge.

There may be a bright side to this. Mobley didn't realize that he had drawn attention to himself and his office. He certainly will now. It is interesting that after the original story broke about the firing and a blog I posted mentioned the failure to pursue the Sessoms flyer investigation, that Mobley’s office directed more effort to the investigation for whatever reason. And maybe those social conservatives who support both Mobley and Bryant will look a little closer at the moral litmus test they like to apply for character when they choose to support them.

And maybe constituents will think twice before they accept Taliban Bob’s service in the Commonwealth’s Attorney’s Office to show his veracity by inference. Not to mention his claim of working to enhance victim’s rights. Going forward we should look closely at the missed opportunities in that area while he served as Attorney General. But here’s a suggestion to persuade us that he means business about going after criminals: Bob McDonnell should demand that the investigation into the distribution of those flyers not end until person(s) responsible are indicted.