McDonald criminal plea hearing postponed

The anticipated entry of pleas on the initial 12 felony criminal financial charges against Jennifer McDonald did not occur on Monday, July 15, due to judicial recusal. Royal Examiner File Photo/Roger Bianchini

The entry of pleas to the 12 felony criminal charges of embezzlement or fraudulent misdirection of EDA assets by former Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald has been put off to a yet-to-be determined date. McDonald’s plea hearing was scheduled as part of the 9 a.m. docket on the July Grand Jury-Term Day on Monday, July 15.

However newly-seated Circuit Court Judge William W. Sharpe, who is moving from Domestic Relations Court to replace Judge Clifford L. Athey Jr. who is taking a seat on the Virginia Appeals Court on September 1, entered a written recusal from EDA-related cases on Friday, July 12. In the wake of that recusal notice neither McDonald nor her criminal attorney Peter Greenspun were in court Monday. McDonald was transferred from RSW Regional Jail to the Fairfax Adult Detention Center on June 11. Greenspun’s office is in Fairfax.

In his recusal Sharpe writes, “It is necessary for this judge to recuse from all cases that may relate to the Warren County Economic Development Authority and Jennifer McDonald, in order to ensure that all parties can be confident the judge has no association with any persons who might be involved in a particular case, either as parties or a witness.”

Sharpe prefaces that statement by pointing out that, “a number of persons who are named as defendants in the pending EDA civil action against Jennifer McDonald and other parties, as well as members of the EDA Board and persons who it appears may be material witnesses in the civil action filed by the EDA, as well as other related civil actions or filed and possible criminal proceedings arising out of the same transactions, are personal friends or former clients or persons with whom the judge has otherwise had regular associations.”

Discussing the recusal with Assistant Commonwealth’s Attorney Bryan Layton outside the courtroom, he observed that Sharpe knew many of those involved from his Rotary membership. In fact this reporter ran into Judge Athey outside the courthouse on Friday, July 12. During a brief conversation about the coming week’s EDA-related hearings Athey explained that he would be phased out of the EDA hearings equation during the coming week to accommodate both his pending move to the state appeals court and the transfer of judicial authority over the EDA civil and criminal cases to other 26th Judicial District judges.

Athey was aware of Sharpe’s recusal and even commented that had he not been moving off the Warren County bench as the EDA cases progressed toward evidentiary hearings and trial he likely would also have recused for similar reasons to those stated by Sharpe, personal or professional familiarity with involved parties. He said he felt it acceptable to hear early motions prior to evidentiary testimony becoming involved in order to keep the cases moving forward in their early stages.

Athey’s primary rulings thus far have been to deny McDonald bond as a flight risk in her criminal cases and an order that EDA civil counsel produce the evidentiary basis for what is a currently a nine-defendant civil suit seeking recovery of a total of over $21-million dollars. That order led to the release into court files of public accounting firm Cherry Bekaert’s “working papers” from its contracted investigation of indicators of financial fraud in EDA operations.

Above, former EDA Executive Director Jennifer McDonald was arrested by Virginia State Police on May 24, making her the first person to face criminal charges stemming from the EDA fraud investigation. McDonald’s Administrative Assistant Michelle ‘Missy’ Henry, below, was the second person arrested in the case. Henry has been jailed since June 24 awaiting a once-delayed bond hearing. Photos RSW website

On Monday Assistant Commonwealth’s Attorney Bryan Layton said it was unclear how the coming judicial appointments might impact other scheduled EDA hearings this week. Motions in the EDA civil action are scheduled for the 9 a.m. docket Wednesday, July 17 and former EDA Administrative Assistant Michelle “Missy” Henry’s already once-delayed bond hearing is scheduled on the 9 a.m. docket Friday, July 19.

Henry was arrested by VSP on sealed special grand jury indictments on June 24. Retired substitute Judge Thomas Horne deferred a decision on bond for Henry on June 25, citing his unfamiliarity with the case. It now remains unclear if the ongoing judicial juggling may again delay a bond decision for Henry this week.

The Warren County Special Grand Jury empanelled to investigate potential criminality connected to the EDA civil case is also scheduled to meet through the latter part of the week.
In a not directly-related criminal case, former Front Royal Mayor Hollis Tharpe has a motions hearing scheduled Monday afternoon at 2:30 p.m. on his solicitation of prostitution misdemeanor case.

Ranking presiding 26th Judicial District Judge Bruce D. Albertson will be responsible for appointing judges to hear EDA-related cases that Sharpe has recused himself from. According to the Virginia Judicial website, active 26th District judges besides Sharpe and the soon-to-be-departed Athey, include Clark A. Ritchie, Kevin C. Black, Alexander R. Iden and Thomas J. Wilson.

However, it is possible Judge Albertson could appoint another substitute judge, including retired court officers who still help the district fill its judicial requirements when shortages and recusals occur.