Dropping of EDA criminal cases a prosecution tactic, not vindication

The criminal prosecution of EDA defendants has stopped – for now, due at least in part to the prosecutorial decision to begin issuing indictments before the special grand jury completed its investigation. Royal Examiner File Photos/Roger Bianchini

In a statement emailed at 12:47 p.m., Friday, April 17, Front Royal-Warren County Economic Development Authority criminal case Special Prosecutor Michael Parker informed the media that all criminal charges against the four people indicted by the EDA Special Grand Jury related to the EDA financial scandal would be dropped without prejudice. A hearing on those indictments has been scheduled for Friday afternoon.

“Today Judge Albertson will sign orders of nolle prosequi with respect to all criminal matters that were brought as a result of the special grand jury investigation. This applies to all defendants and all counts. As with Donnie Poe, these are dismissals without prejudice. That means the same charges, and more charges if appropriate, can be brought at any time in the future,” Parker wrote.

Donald Poe after an earlier court hearing

Those defendants are former EDA Executive Director Jennifer McDonald, her former Administrative Assistant Michelle Henry, McDonald’s husband, Samuel North, and former B&G Goods principal William Lambert, as well as Poe, who had his charges dismissed without prejudice in January as a perjury trial date was approaching.

“I assure you I am not pleased about this. I also assure you this is not the end,” Parker continued in his written statement, adding, “However, while it is my duty to bring justice to the guilty, it is also my duty to be just and ethical in my conduct at all times, to everybody. That includes people who have been accused but have not yet been found guilty. At the current time, I am unable to satisfy certain basic obligations I have to the defendants, which have existed since before I was appointed on the case. I cannot ethically keep this status quo. In fact, if I tried to keep the cases active, I’d run the risk of a judge at some point, dismissing them with prejudice, so that I could not bring them back.”

Jennifer McDonald was first charged about a year ago, as her financial felony indictments gradually climbed to over 30. At least, for now, all those charges have been dropped.

Contacted by phone following the release of his statement, Parker said it was “overwhelmingly likely” that some criminal charges would be refiled when he and the Virginia Court and grand jury system were not operating under restrictions imposed by the COVID-19 pandemic emergency response. He pointed out some of the criminal charges were filed a year ago, with COVID-19 (Coronavirus Disease-2019) impacts potentially slowing court processes for months, if not a year into the future.

However, while he observed that COVID-19 cases were “exploding” in Harrisonburg and Rockingham County where he and EDA case Judge Bruce D. Albertson are based, Parker stressed that the COVID-19 impacts were not the primary factor at issue in his decision.

Parker was appointed special prosecutor in late November 2019 following the withdrawal of original EDA Special Grand Jury prosecutors Brian Madden, who left to a judgeship appointment, and his Assistant Commonwealth’s Attorney Bryan Layton, who lost the November Commonwealth’s Attorney election to John Bell. Bell and his entire staff recused themselves from all EDA cases due to past or continued professional or personal connections to some EDA defendants.

And as been previously noted, the investigation into EDA finances and the consequent civil and criminal investigations and filings have generated an estimated million pages of documentation.

“This is a protective measure to keep these charges viable,” Parker said in support of his written statement. That statement also addressed the special grand jury process begun about a year ago, and twice extended for six months.

“This has nothing to do with the special grand jury. Their work has been tireless, diligent, and unfortunately thankless,” Parker wrote, observing, “Their excellent work will continue when it is safe to return, and appropriate charges will be brought when they conclude. If I had been appointed to this matter from the very beginning, this is the procedure I would have followed anyway: the grand jury investigates, the grand jury finishes investigating, the grand jury makes recommendations, and I choose what to prosecute.”

Parker fell short of criticizing the previous prosecutors leading the EDA grand jury.

“I would have proceeded differently,” Parker said of the special grand jury’s process prior to his arrival of issuing rounds of charges at intervals as their investigation proceeded. “I’m not laying any blame on those who came before me. They may have had a plan had they continued with the grand jury. However, I would have proceeded in the more traditional manner and brought the charges after the investigation had concluded.”

“I have a legal obligation not to keep people on the hook indefinitely,” Parker observed of the prosecutorial situation he found himself thrust into about 4-1/2 months ago.

So while now “off the hook” criminally, if not civilly, the quintet of now-former EDA criminal defendants are aware their new-found situation may not last forever. McDonald, Henry, Poe, North, and Lambert are all also named in the EDA’s original $21.3 million amended civil litigation against the former EDA executive director and 14 co-defendants.

As reported previously, that litigation was recently expanded by the addition of a second civil action against nine new defendants seeking an additional $4.45 million.