Grounds for Sayre-McDonald civil suit to be argued on December 19

A photo Tom Sayre had taken of himself with Jennifer McDonald on June 18 celebrating the ITFederal groundbreaking behind EDA headquarters. Social Media File Photo

FRONT ROYAL – Legal arguments on the substance of the civil defamation lawsuit brought by local attorney and Shenandoah District Supervisor Tom Sayre against Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald will be heard in Warren County General District Court the afternoon of December 19.

However, Judge W. Dale Houff, who dismissed the criminal misdemeanor filing of a false police report case against McDonald in that courtroom on October 31, will not preside over that hearing or trial, if the court rules on December 19 that there are grounds for the civil case to proceed. During a November 16 hearing, Sayre attorney Timothy Bosson requested Judge Houff be replaced due to potential conflicts of interest.

Houff agreed and signed an “Order of Disqualification” recusing himself from the Sayre-McDonald civil case because “the plaintiff is a local attorney that regularly appears before this court.” Consequently, Winchester General District Court Judge Ian Williams is slated to preside at the December 19 hearing in the civil case at 2:30 p.m.

In the wake of McDonald’s criminal case acquittal, her attorney Lee Berlik has said he will move to have Sayre’s $25,000 civil defamation case dismissed. It is also anticipated he will ask the court to hold Sayre responsible for his client’s legal fees. And listed among the top-four defamation attorneys in the D.C. Metro Area those fees might not be cheap. It is also likely McDonald would file a counter-defamation civil action against Sayre were his civil case to be dismissed or if she were to prevail in a civil trial.

However, Sayre attorney Bosson asserts he has evidence not introduced during the Halloween Day prosecution of McDonald in the false police report case. He also notes that the standard for conviction in civil and criminal matters differs. While in criminal court the prosecution case must be proved “beyond a reasonable doubt”, in civil court the standard of proof is that alleged behavior was “more likely than not” to have occurred.

On Friday afternoon, September 21, Sayre filed a $25,000 defamation lawsuit against McDonald. Sayre’s suit revolves around the reported stone-throwing vandalism at her home that McDonald reported at 9:02 p.m. on Thursday, June 15, 2017. Sayre contends that a note found at the scene following the vandalism that contained his phone number and the notation “do not call Tom at work” was planted by the EDA executive director as a means of implicating him in what he believes to be a “faux” or false crime set up by McDonald herself.

Things were a little chillier between McDonald, left, and Sayre, right, during an early October board of supervisors work session – Royal Examiner File Photo

During the October 31 false police report trial it was revealed that in addition to Sayre’s phone number, the phone number of former Town Manager Michael Graham was also on the note found at the scene of the vandalism. The note described as “a

piece of trash” near her front door was pointed out to sheriff’s office investigators at the vandalism scene by McDonald. It contained instructions about planned incidents at McDonald’s property designed to scare her, as well as a reference that “Norma Jean” was awaiting “files” related to an incident believed to be the EDA office break-in; as well as instructions “Do not take this sheet with you …” and “Do not call Tom during business hours …”

Norma Jean Shaw is editor of the Royal Examiner.

‘Fabricated’ evidence – but by whom?

And while Judge Houff granted McDonald attorney David Crump’s motion to dismiss the criminal case against his client before even presenting a defense case, news reports of the trial quoted the judge commenting that it was “fairly clear” that the note alleged to have been dropped by a suspected perpetrator at the McDonald property was likely “fabricated” and that “something is made up and is horribly wrong with this.”

Shaw, Sayre and Graham all testified during the McDonald misdemeanor trial that they had no knowledge of the note with their name and/or numbers attached to it and had nothing to do with any incidents targeting McDonald’s home or the EDA headquarters.

The Front Royal Police have placed the EDA office break-in in the department’s “inactive” or “leads exhausted” file. However, FRPD Investigator Landin Waller told Royal Examiner that as a felony breaking and entering case there is no statute of limitations on reopening the case were additional evidence to come forth.

In fact as was reported last year, on June 17, 2017 about two months after the EDA office break-in and one month after the McDonald property vandalism, in a letter signed by then-Board Chairman Greg Drescher the EDA Board of Directors “formally” requested that the town police place their investigation on “inactive status”.

Drescher wrote that the EDA had hired a private investigator “to handle the investigation” though it was later elaborated that McDonald had actually hired the PI, Ken Pullen. The FRPD case file indicates that Pullen later communicated to law enforcement that he believed the EDA office and McDonald home property incidents were related. The McDonald property incidents were investigated by the Warren County Sheriff’s Office.

In the FRPD case file acquired by Royal Examiner via a Virginia Freedom of Information Act (FOIA) request, the town police also noted there was a concern both departmentally and among EDA officials about keeping the names of several public officials cited by McDonald in a police interview as potential suspects in the EDA break-in out of the public eye as the investigation proceeded.

According to the case file McDonald was asked by town police Investigator Waller if she “could think of anyone that might be mad enough to do something like this” regarding the EDA break-in during which a photo of McDonald was pinned to her meeting room chair by a knife and several other photos were left behind with scratch marks on her face.

“She informed me that there is a group of people who have made derogatory statements about the Work-Force Housing Project in the Royal Examiner …She listed Councilwoman Bébhinn Egger, Mike Graham, Stan Brooks, Shae Parker, Tom Conkey, Roger Bianchini and Norma Jean Shaw as persons she felt were angry with her,” the police summary of the interview states.

In the loop and under the bus?

Egger, Brooks, Parker and Conkey are all former Front Royal town councilmen, Brooks has also been mayor, and as stated above Graham is a former town manager. Bianchini and Shaw are Royal Examiner’s  editorial staff. While Shaw and McDonald seemed to have a more contentious relationship due to that reporter’s lines of inquiry about McDonald and the EDA’s financial dealings, Bianchini and McDonald appeared to maintain a good working relationship as evidenced by a series of June 2017 texts from McDonald to him related to developments at her home property that were included in the police file.

The FRPD case file indicates no sign of forced entry into the old Avtex Admin building or the EDA office in that building shared with the Northern Shenandoah Valley Regional Commission; or of any helpful forensic evidence.

Interviews with McDonald and the two other EDA staffers who work out of the office, Marketing Director Marla Jones and Secretary Missy Henry, indicated only those three had keys or knew an office combination lock that Henry told police had been changed a few days before the office break-in. Jones also told police that the working relationship between the three was excellent and there was no animosity between the EDA staff.

As far as additional evidence available to the civil case plaintiff, it has also been noted by several court observers at the McDonald misdemeanor criminal trial – Shaw and Bianchini were barred from the courtroom as witnesses in the case – that Commonwealth’s Attorney Brian Madden left several potentially crucial witnesses uncalled as part of the prosecution case. Those uncalled witnesses who were available to testify included FRPD Investigator Waller, EDA Marketing Director Marla Jones, and EDA Secretary Missy Henry.

Waller headed the town police investigation into the EDA office break-in and developed evidence related to the McDonald property vandalism.

Jones told police investigators that Bianchini was in McDonald’s office between 3 p.m. and 4 p.m. on Thursday, June 15, 2017, when he told FRPD investigators he received the information about the rock-throwing vandalism. Jones also told police that McDonald had no morning meetings on Friday, June 16, 2017, when McDonald attorney Crump asserted this reporter was scheduled to meet with his client, rather than the previous afternoon.

Jones told police that McDonald told her about the vandalism incident “Around 9 a.m.” the morning of June 16, 2017. Investigator Waller then asked if McDonald had any meetings that morning. “No, we talked most of the morning,” Jones replied of McDonald’s June 16, 2017 schedule the morning after the vandalism.

It was on Henry’s calendar that McDonald attorney Crump insinuated at trial his client had a 9:30 a.m. June 16 meeting scheduled with Bianchini. That alleged Friday-morning meeting was pivotal to the defense scenario that Bianchini received the information about the vandalism from McDonald the morning after it happened, rather than the prior afternoon about six hours before she reported the incident.

The false police report case revolved around Bianchini’s statement to FRPD around 10:30 a.m., Friday, June 16, 2017, that he had learned details of the home vandalism incident from McDonald in her office the previous afternoon around 3 p.m.

In seeking the maximum $25,000 civil compensation available in General District Court Sayre cites: “reputational harm … since it was clear numerous people in the Town and County had heard about the allegations against Tom” and “that if he was indicted and/or convicted for these crimes he could lose his law license, be unemployable, be removed from the Board (of Supervisors), and he and his family would suffer immensely.

“Tom lost significant sleep, suffered acute anxiety, could not focus at work, sought counseling from his Priest, spent countless hours seeking to clear his name and repair damage to his reputation.”

And on December 19 attorneys will argue if there is a substantive legal argument that Sayre’s lost sleep and acute anxiety had enough of a basis in documentable evidence to be argued as a civil case before the court.