Judge allows Shaw-Sayre communications Discovery, but not third-party

The Warren County Courthouse remains ground zero for EDA-related activity

FRONT ROYAL – Attorneys for Jennifer McDonald, Tom Sayre and one involved third party argued motions related to plaintiff Discovery filings and responses in Warren County Circuit Court late Wednesday morning. The motions involve McDonald’s $600,000 defamation lawsuit against Sayre filed in February.

Five months earlier in September 2018 while McDonald was still EDA executive director, Sayre filed a $25,000 defamation suit against McDonald. Both suits revolve around the name “Tom” accompanied by Sayre’s phone number found in McDonald’s yard following a reported vandalism on her property on June 15, 2017.

At issue Wednesday were responses or a perceived lack thereof to plaintiff McDonald attorney’s request for social media and other electronic communications records of Sayre and that third party, Royal Examiner Editor Norma Jean Shaw.

Sayre’s and Shaw’s first names, as well as Sayre’s phone number and other names and numbers were on a crumpled note pointed out by McDonald to Warren County Sheriff’s Office investigators responding to her report of a rock-throwing vandalism at her home at 9:02 p.m. Thursday, June 15, 2017.

The note portrays a multi-person conspiracy surrounding, not only incidents alleged to have occurred at McDonald’s Faith Way, county home in the May-June 2017 timeframe, but also an alleged May 18, 2017 break-in at the Kendrick Lane EDA office in Front Royal. The latter was a scene at which there was no forced entry apparent. The latter was a scene at which there was no forced entry apparent, and only three staff members, McDonald, Missy Henry and Marla Jones with keys.

The entry is easy if you have a key, as Interim Executive Director John Anzivino illustrates during his brief tenure.

On Halloween Day 2018, McDonald was acquitted of a misdemeanor charge of filing a false police report in the June 2017 vandalism incident in what some cynical observers have called a “Trick or Treat” – as in no available corroborating or motive evidence being presented – prosecution. The case was developed by the Front Royal Police before being turned over the Virginia State Police, based on information received in an already scheduled FRPD interview, at 10:30 a.m. Friday morning, June 16, 2017, with this reporter. That information was that McDonald told Bianchini about the vandalism during a lengthy 3 p.m. meeting in her EDA office the afternoon of June 15, about five to six hours before she reported it occurring.

Among the records McDonald attorney Lee Berlik was seeking in Discovery were three months of social media, online messaging and text communications – May 1 to July 31, 2017 – between Shaw and Sayre, Shaw and Mark Egger, Shaw and a colleague at Royal Examiner (who do you think) and Shaw and Commonwealth’s Attorney Brian Madden.

After much discussion and Shaw attorney David Downes invoking of the press privilege of source protecting, Judge Athey allowed discovery of any Shaw-Sayre communications, but not that of Shaw with a private citizen (Egger), a colleague at work (Bianchini) or the commonwealth’s attorney (Madden).

Private citizen Mark Egger, here pointing to a blow up of a check written to private investigator Ken Pullen by the EDA, or was it Jennifer McDonald? Either way, they both employed him to replace FRPD in investigating the EDA office break in.

“Communications with the plaintiff are one thing … but where you cross the Rubicon is requesting communications with other parties. I understand your point that she may have been an accessory but her communications in her professional capacity” with third parties were off limits, Athey told Berlik in prefacing his decision in apparent agreement with Downes that media has a professional right to keep some source communications private in the conduct of their profession.

As for the apparent conspiracy alluded to in the note containing Sayre’s phone number, as well as that of former Town Manager Michael Graham and the names “Tom”, “Norma Jean”, “Matt” and “the Examiner”, Berlik admitted some question exists when he told the court, “Whether it is authentic or not remains to be seen.”

What Berlik did not admit was his client’s connection to any such questions.

In fact, in prefacing his dismissal of the misdemeanor filing a false police report charge against McDonald on October 31, 2018, Judge W. Dale Houff commented, “There is something horribly wrong about the note.”

Following his Discovery Motions decision Athey questioned attorneys on the trial date for the Sayre-McDonald defamation case scheduled in General District Court downstairs. Told August and that both sides have indicated an appeal of the verdict is likely, Athey set a hearing date for the McDonald defamation case on the Motions Date of September 18, at 9 a.m. The judge indicated the likelihood of setting a trial date on the McDonald lawsuit then and observed the two cases could potentially be joined at that point.

The NOTE

The alleged conspirators’ “note” with its names and numbers appearing to implicate “Tom”, “Norma Jean”, “Matt”, Graham’s 202 phone number, and even “the Examiner” is likely to play a big role in both trials.

The note and vandalism it is allegedly tied to, among other incidents of trespass and vandalism at McDonald’s home and the EDA office complex came at a time Royal Examiner staff, then-Councilwoman Bébhinn Egger (Mark Egger’s daughter), and others eventually including Sayre and county board colleague Archie Fox were raising questions about the validity of multiple EDA projects being forwarded by McDonald as EDA executive director.

The FBI, along with VSP and perhaps the IRS, dropped by to say ‘hello’ at EDA offices on April 16, 2019.

Shaw, particularly, was deep into an investigation of large amounts of cash being used by McDonald in her personal real estate business transactions. Those real estate transactions, along with questioned EDA projects like ITFederal and Workforce Housing among others, lie at the heart of the EDA civil litigation now seeking recovery of $21.1 million in allegedly misrepresented, misdirected or embezzled assets.

Arrested by VSP on May 24, McDonald is now jailed without bond as a possible flight risk on four felony financial criminal charges, two of Fraud, Obtaining Money by False Pretenses in excess of $200; and two of Larceny-Embezzlement in excess of $200. Those appear related to the EDA civil suit “Afton Inn Embezzlements” allegations of falsifying work invoices to pay off credit card debts. The evidence on those charges appear fairly cut-and-dried evidentiary-wise compared to some other allegations in the EDA litigation.

The Special Grand Jury

However, as the civil defamation motions were being argued Wednesday on the second floor of the Warren County Courthouse, the Special Grand Jury convened to investigate potential criminality tied to the EDA civil litigation was meeting for what appears to be the first of several days of witness testimony this week.

Speaking of social media, the rumor of additional indictments being imminent have been floating on social media for weeks since those initial four indictments were handed down on May 24. One large question connected to any next round of sealed grand jury indictments is whether they will simply pile more on to McDonald’s legal plate, or add additional defendants into the mix.

Not directly related to the above question but more on the familiar faces sightings ledger, one encountered on the second floor of the Warren County Courthouse after the adjournment of the defamation hearing belonged to former County and EDA Attorney Blair Mitchell. Mitchell, who retired in April 2017, told media present he had testified for about an hour before the special grand jury but declined to elaborate on the nature of the questions he was asked.

But noting his retirement date and corresponding EDA business of the previous years, we can probably make an educated guess at some of those questions relating to Mitchell and McDonald’s interactions on projects cited in the Cherry Bekaert accounting investigation of EDA finances over the past decade. High on that list may well be Leach Run Parkway Easements, myriad other real estate transactions, not to mention the advent of the ITFederal and Workforce Housing Projects – (Come on, TELL US, Uncle Blair!!!)

Things seemed so much smoother – well mostly – then as Jennifer McDonald illustrates, circa 2013, with a playful pose with, from left, then Town Manager Steve Burke, Town Attorney Doug Napier and then County-EDA Attorney Blair Mitchell.