After hearing combined arguments from attorneys for 11 of 13 County municipal and Economic Development Authority defendants present on why ancient English Common Law did not create 21st Century legal grounds for criminal prosecution regarding unintentional dereliction of the oversight duty of their office, Judge Bruce D. Albertson ruled for those defendants.
Also on Monday Albertson denied a Removal Petition request that all five sitting County Supervisors be immediately removed from the conduct of their office prior to the resolution of a Show Cause Hearing on that Removal Petition filed October 18.
“For me as a judge to act now is potentially influencing the outcome of the election,” Judge Albertson observed in denying immediate removal.
However in a possible harbinger of things to come, the judge added that “there are other conceivable outcomes civil and criminally” as to a potential final resolution of this citizen-elected official dispute.
On a motion by defense counsel for the supervisors that petition was sent to the County Registrar for verification that the required 10% of county voters in each voting district signing the petition, were in fact registered county voters. A return date of November 22 at 8:45 a.m. was set to get the result of that Registrar’s Report.
More on that initial Removal ruling later, but first to the court decision quashing the criminal charges against those county supervisors, the county administrator and past and present EDA board members.
After retiring to chambers to consider his ruling after an hour and seven minutes of legal arguments and counterarguments, 13 minutes later Judge Albertson returned to sustain the collective motions to quash the three misdemeanor indictments against all 11 defendants whose attorneys were present and participating in the arguments.
Upon that ruling, an observing co-counsel for Tom Sayre and Tony Carter, whose counsel was not present due to a scheduling conflict, both rose to ask that they or their client be included in the ruling, drawing some laughter from a packed courtroom.
“That makes sense,” Judge Albertson said, allowing the joining of the two in the judgment as had been discussed earlier were the ruling to go that way.
Albertson noted he was unable to find any evidence codifying misfeasance and nonfeasance as prosecutable misdemeanor offenses in the Commonwealth of Virginia, even under English Common Law at the base of U.S. law. He said the only related legal reference to the two charges he could find was in a 1967 civil case in England.
“What else is out there? It’s like finding a black hole by the gravity moving around it,” Albertson said, noting that the closest DCC Code that was found to bring the charges under was “solicitation”.
Solicitation of what, the court may have asked.
Acting Commonwealth’s Attorney Bryan Layton argued that while “as ill-defined as it may be, there is a legal precedent” for the charges, in arguing against the motions to quash the indictments.
Several attorneys jumped on that argument.
“ ‘As ill-defined as may’ be is repugnant to Virginia Law,” David Crump, who represented four defendants, replied to Layton’s assertion of precedent.
“ ‘As uncertain and vague as it is’ supersedes due process and fairness and is repugnant to the Virginia Constitution,” David Silek, representing former EDA Treasurer William “Billy” Biggs, added.
As Royal Examiner reported on September 8, of the three “feasance” failings of public office only malfeasance is codified as criminal by the Virginia Legislature, and that as a misdemeanor offense, though one that could lead to more serious charges.
The dividing line between malfeasance and misfeasance and nonfeasance is intent.
Malfeasance is defined as “intentional conduct that is wrongful or unlawful” while nonfeasance is defined “as a failure to act where there was a duty to act” and misfeasance is described as “conduct that is lawful but inappropriate”.
All the charges relate to the County and EDA Boards’ continued allowance of former EDA Executive Director Jennifer McDonald to operate without oversight, restrictions or direct supervisory control as a financial investigation of EDA affairs was closing in on her between September and late December 2018. McDonald resigned under mounting pressure from that Cherry Bekaert financial fraud investigation on December 20, 2018, admitting to liability for the return of $2.7 million in EDA assets. The EDA claims her liability is much higher.
The misdemeanor indictments cited McDonald’s movement of around $309,000 to her own benefit during that four-month period at the end of 2018, setting the groundwork for the charges. While the EDA civil litigation is seeking return of a total of $21.3 million now, due to the one-year statute of limitations on misdemeanor charges, earlier transactions could not be included in the indictments.
Removal on hold
Helping fill Circuit Courtroom B Monday morning were a number of citizens involved in the Removal Petition filed against all five County supervisors on October 18. As noted above, they left disappointed.
Not only was their request for immediate removal of the Warren County Board of Supervisors denied, but the foundation of their petition, the criminal misdemeanor indictments against the supervisors regarding a lack of due diligent oversight of EDA operations the last four months of 2018 were quashed as not legally prosecutable by Virginia law, no matter how deep you dig back to its roots in English Common Law.
Following adjournment, Removal Petition attorney Tim Johnson said he did not believe the quashing of the criminal indictments was a major blow to the Removal initiative. While no longer under criminal indictment for a lack of supervisory oversight of EDA finances at the hands of an executive director under increased scrutiny, misfeasance and nonfeasance can be “grounds for impeachment of a high official” Johnson told the press outside the courtroom.
So involved supervisors still on the board in the wake of the November 5 Election can be held accountable for past failures, Johnson believes. As noted during the hearing two of those supervisors, Board Chairman Dan Murray and Linda Glavis are not seeking reelection. Tom Sayre is running for reelection against Walter Mabe in the Shenandoah District. And Archie Fox and Tony Carter are not up for reelection for another two years.
With the citizen petition filed with the Court, the Commonwealth’s Attorney’s Office has taken up the Removal case for the plaintiffs. Acting Commonwealth’s Attorney Bryan Layton called the citizen loss of faith in their County elected officials “an unusual circumstance in my experience”.
In arguing for the plaintiff’s request for the immediate suspension of the supervisors said he believed “the damage to the public trust is so severe” as to justify the immediate suspension of their powers to govern.
County Attorney Jason Ham and co-counsel Jim Cornwell countered that there was no basis in the facts of the citizen petition to justify such a radical suspension of the municipal government function.
Cornwell said in arguing four such cases he had never seen immediate removal authorized by the court. The only case he was familiar with where the judge did order removal, with a six page Opinion he noted, was a Norfolk City Treasurer who had been convicted on six embezzlement charges – “Here’s there’s none of that,” Cornwell argued. “There is some vague reference that ‘something may happen.’ There is no evidence, it is a feeling of some people … Why suspend on an opinion?” he asked the court.
At the request of the Commonwealth, Albertson retired to chambers to watch Royal Examiner videos of two county meetings, on October 1 and October 25, with counsel from both sides before rendering that decision. Arguing on behalf of the petitioners, Layton said he believed the videos illustrated the unusual and high level public “loss of faith in the Board of Supervisors” due to the EDA financial fraud situation.
Court adjourned at 11:20 a.m. and reconvened at 11:42 a.m. following the video viewing.
Judge Albertson observed of what had been viewed, as one video segment that “devolved into yelling” and another that had been “very respectful” in its conduct of public speakers expressing themselves.
County Attorney Ham summarized what he had seen as less than ten people expressing public dissatisfaction at the hiring of legal counsel for the supervisors at taxpayer expense. He argued against overturning the electoral will of the full voting population of the county for a vocal minority of its citizens.
Layton countered that while only 10 citizens may have spoken publicly, many more were there in support of those 10; and the citizens’ petition when verified would represent 10% of the voting population, not just 10 citizens.
However Judge Albertson denied the immediate removal request.
He called it a “drastic remedy” adding that the Removal Petition itself was a “drastic measure” itself and perhaps a “pressure valve” on public discontent.
And as noted above, he worried over a judicial action that could influence a looming legislative election just two week away and alluded to other possible legal directions this citizen-elected official dispute might take.
RSW inmate found dead day after checking in to serve DUI sentence
On Friday morning, January 10, Rappahannock-Shenandoah-Warren County Jail (RSW Jail) announced the death of an inmate the previous day. William Rodger Wines, 54 of Front Royal, was found unresponsive during a routine security check at 12:39 a.m. Thursday morning. He was pronounced dead at Warren Memorial Hospital less than an hour later.
According to an RSW Press Release, Wines had reported to the jail the previous day, Wednesday January 8, to serve “a delayed confinement/non-consecutive sentence for Driving While Intoxicated, imposed by the Warren County General District Court.”
Wines arrest date on the DUI charge is listed as August 19, 2019 on the jail website. It appears his conviction dates to January 8, the day he reported to the jail. His “Inmate Status” is described as “weekender”.
Of the circumstance of the discovery the press release issued late Friday morning said, “On January 9, 2020, at approximately 12:39 a.m., while conducting security rounds, Mr. Wines was found unresponsive. RSW medical staff was immediately notified, responded to the scene and emergency medical treatment was administered. Warren County 911 Emergency Medical Services were called and responded to the scene. Mr. Wines was transported to the Warren Memorial Hospital where he was pronounced dead at 1:21 a.m.”
RSW staff contacted the Warren County Sheriff’s Office to conduct an investigation into Wines death – “Further information will be released later based on the ongoing investigation by the Warren County Sheriff’s Office,” the RSW press release concluded.
McDonald has bad day in civil court – how bad remains to be seen
Former Front Royal-Warren County Economic Development Director Jennifer McDonald remains free on bond.
On Friday afternoon, January 10, former Front Royal-Warren County Economic Development Director Jennifer McDonald was found guilty of civil contempt regarding the movement of a piece of property frozen by the court during earlier EDA civil litigation hearings; and had a default judgment regarding a failure to respond to civil court orders for information on her two real estate companies, go against her as well.
McDonald was fined $375 to cover County-EDA legal costs pursuing the civil contempt judgement, and ordered not to repeat what she and her sister Gail Addison into whose name the frozen real estate parcel was moved, testified was a simple mistake. Those two sanctions were all EDA attorneys were seeking in the way of punishment on the civil contempt ruling.
As for the default judgement for failing to heed court-requested documentation on her two real estate companies, DaBoyz and MoveOn8 named along with her as three of 14 defendants in the amended EDA civil litigation, a date of April 17 was set for attorneys to argue McDonald’s liability on that ruling.
Judge Bruce D. Albertson will hear, not only those civil case arguments on April 17, but further motions arguments from a number of EDA-related criminal case defendants who were in court on the 1 p.m. docket.
On Friday afternoon Judge Albertson also granted the Commonwealth’s request to nolle prossed (drop) all current EDA-related criminal charges against Earth Right Energy principal Donald F. Poe.
Prosecutor Michael Parker restated the reasons cited in his written submission of the previous day, regarding the amount of material recently received concerning the Poe prosecutions and gaps in that material and a lack of time available with Poe’s first criminal trial on a count of perjury slated to begin January 22.
Poe attorney William Ashwell did not object to the prosecution’s request.
“We could jump up and down and say we want (the charges) out altogether now … but functionally this is a great example of the State acting as gatekeeper (of legal processes),” Ashwell told the court.
The amount of material involved in the EDA civil and criminal litigation – cited as approaching a million pages – played into many of the motions arguments heard Friday. Like Special Prosecutor Parker of the Harrisonburg Commonwealth’s Attorney’s Office before him, EDA civil counsel Cullen Seltzer told the court that the amount of involved material and documentation was in issue in their respective cases.
Seltzer said the volume of material made it impractical and prohibitive cost-wise to reproduce traditionally in hard copy. He said a data base was being created with portions flagged to different defendants’ names to ease the online search process.
In arguing against the civil contempt charge against his client, McDonald attorney Peter Greenspun, pushed into dual criminal and civil case duties due to McDonald’s financial problems that led her initial civil case attorneys to withdraw, pointed out once the real estate movement mistake was discovered, the sisters’ corrected their mistake.
“When the attorney said, ‘wait, can we do this,’ she did everything to restore the situation without court intervention,” Greenspun told the court.
Greenspun argued that the involvement of local attorney David Crump in the transaction indicated it was, in fact, a mistake rather than an act of contempt of a court order installed by initial EDA Judge Clifford “Clay” Athey Jr.
“This was not done in a parking lot or a jail cell – her conduct was not contemptuous; it was a mistake that was corrected,” Greenspun told the court.
However, EDA co-counsel Lee Byrd pointed to Addison’s own testimony to argue that deceit was a motivation in the transfer. Addison said the move was made so she, a former real estate agent, could market the parcel in her name rather than her sister’s due to “the bad name” McDonald had developed as a result of the EDA litigation.
And while Greenspun pointed out the jailed McDonald was not present for any of the three-day hearing at the end of which Athey froze some McDonald real estate assets, EDA counsel pointed to the courthouse documentation on the court order freezing McDonald assets and scoffed at the idea the experienced real estate agent wouldn’t know how to find out which of her assets had been frozen by the court.
“Their only excuse is ‘I wasn’t aware’ – they can’t say the order didn’t exist,” Byrd told the court.
And it was the plaintiff argument that held sway with the judge.
Former Case Manager at Northwestern Community Services Board pleads guilty to federal charge
A former case manager at the Northwestern Community Services Board [NWCSB] pleaded guilty yesterday in U.S. District Court in Harrisonburg to illegally accessing the health care information of another individual, United States Attorney Thomas T. Cullen announced today.
Melissa Thomas, 45, of Winchester, Va., pled guilty yesterday to one count of accessing the individually identifiable health care information of a minor child for whom she was not the case manager.
According to court documents, Thomas worked as a case manager at NWCSB from September 2009 through January 2014. In December 2013, an individual lodged a complaint that Thomas had accessed her minor child’s health record, breaching confidentially. Thomas was subsequently investigated by the NWSCB and the Office of Inspector General for the Department of Health and Human Services and it was determined she willfully and knowingly violated the law by illegally accessing the record of the minor child. Thomas was terminated from her employment for the illegal access on January 7, 2014.
The investigation of the case was conducted by the United States Office of Inspector General for the Department of Health and Human Services Roanoke Field Office. Assistant United States Attorney Ronald M. Huber is prosecuted the case for the United States.
Donnie Poe EDA criminal charges dropped – but could be re-filed
On Thursday, January 9, Rockingham County Assistant Commonwealth’s Attorney Michael Parker filed a motion to nule prossed (drop) charges brought by a Warren County Special Grand Jury against Earth Right Energy principal Donald F. Poe, at least for the time being.
The Special Grand Jury was empanneled to investigate potential criminality tied to the $21.3 million Economic Development Authority (EDA) financial scandal. Parker was appointed special prosecutor for EDA criminal cases in December following the announced recusal of incoming Warren County Commonwealth Attorney John Bell and his staff and the withdrawal of Acting Commonwealth’s Attorney Bryan Layton as his tenure in the department drew to a close.
During previous hearings related to the EDA civil and criminal litigations it has been noted that the EDA financial scandal and consequent investigations has generated an unusually large amount of documentation, cited at between 700,000 and one-million pages.
In the prosecutor’s motion to drop the charges at this point Parker wrote, “The Commonwealth received its portion of discovery, purportedly containing all evidence that has been considered by the special grand jury to date, via hard drive on 12/30/2019. Initial review of that hard drive indicates that it may be missing a substantial number of exhibits considered by the grand jury.
“It would be imprudent for the Commonwealth to prosecute any criminal matter for which the investigation has not concluded.
“Even if the ongoing investigation reveals nothing further with respect to Defendant, the Commonwealth cannot prepare for trial when its existing evidence remains unclear.”
Of the decision not move forward with the Poe prosecutions with a motions hearing and possible three-day trial on the perjury charge against Poe looming on January 22, Parker told Royal Examiner in a Thursday afternoon email, “This decision was not made lightly. As the gatekeeper of criminal charges, it is my responsibility to determine whether to prosecute and how to prosecute. Making those decisions requires a thorough grasp of the evidence supporting any allegation. Unfortunately, I am not fully caught up with the ongoing special grand jury investigation, thus I do not have a thorough grasp of the evidence that might pertain to Mr. Poe’s charges. I believe it would be unethical to attempt a prosecution under these circumstances.”
Motions hearings for Poe and other EDA criminal and civil defendants are scheduled for Friday afternoon, January 10. Parker said the motion for the nolle prosequi dropping of the charges against Poe will be heard during those hearings on the 1 p.m. Warren County Circuit Court docket.
“If the motion is granted by the Court, the charges will be dropped without prejudice to the Commonwealth. This would not prevent the Commonwealth from prosecuting the same charges in the future,” Parker explained in a Thursday afternoon email.
Attorneys appointed for accused Brinklow murderers, hearing date set
On Wednesday, January 8, attorneys were appointed to represent the accused murderers of 20-year-old Tristen Brinklow. A preliminary hearing date of April 1, at 2 p.m. was also set for both Richard Matthew Crouch, 35, and George Lee Good, 28.
On December 31st, both men were indicted on three charges, First Degree Murder, Abduction by Force and Concealment of a Dead Body, related to Brinklow’s late September death. In a first court appearance Thursday, January 2, it was determined the two men, who were already incarcerated on unrelated violent crime charges, qualified for court appointed attorneys.
Eric Wiseley was present in the courtroom to accept appointment as Crouch’s attorney. Reportedly in court in another jurisdiction Thursday morning, Ryan Nuzzo was appointed to represent Good. Comments by Warren County General District Court Judge W. Dale Houff indicated Nuzzo was aware of the pending appointment and had submitted a list of available dates to appear on his new client’s behalf at a first preliminary hearing.
Crouch appeared first on the 11:30 a.m. docket. Commonwealth’s Attorney John Bell told the court it appeared that Wiseley, whom it was noted has represented Crouch on previous charges, had no professional conflicts regarding potential witnesses.
Wiseley asked the court to appoint co-counsel to help in Crouch’s defense due to the severity of the charges. He informed the court that Marguerite Wood had indicated she was amenable to the appointment. The Commonwealth had no objection to the dual appointment. Wiseley did not request a change in his client’s bond status – Crouch was being held without bond at RSW Jail at the time the new charges were filed.
During discussion of potential preliminary hearing dates 90 days out, five of which in April were rejected due to various scheduling conflicts, Bell told the court it was likely the case against Crouch would move more quickly than Good’s.
After about 10 minutes in the courtroom Crouch was escorted out by deputies. Three minutes later Good entered the courtroom. With his attorney situation already addressed and the April 1 date accommodating Nuzzo’s schedule as his counsel established, Good was in the courtroom for less than two minutes.
Prior to his departure Judge Houff told the defendant he could consult with his attorney on any motion for a change in his bond status. Good is incarcerated in the Northwestern Regional Adult Detention Center (NRADC) in Frederick County. He is also being held without bond on previous charges.
As previously reported those charges relate to a non-fatal shooting on the 200 block of Cloud Street in Front Royal on November 27. Good was taken into custody in Frederick County on December 7 during a DUI checkpoint stop. In addition to the November 27 incident charges, Good accumulated additional charges related to possession and transport of a firearm by a convicted felon at the time of his Frederick County arrest.
According to court records, Crouch’s most recent previous charges date to a September 24, 2019 domestic or family member incident involving the alleged abduction and assault of a woman named Iness Driss. The criminal complaint states that Crouch got Driss to enter a truck driven by his mother with the promise of getting something to eat. However, once she was in the truck Crouch told his mother, Maria Crouch, to drive to their house.
Driss said her requests to be let out of the vehicle were ignored and an attempt to leave the vehicle was unsuccessful, apparently due to child safety locks being engaged.
The criminal complaint states, “Later Richard brought Driss back into the Town of Front Royal where Richard choked Driss to the point of unconsciousness at least three times. Richard has threatened Driss on this occasion, and several others, that he would kill her, her parents, and her children. Driss believes that Richard was trying to kill her.”
The new indictments against Crouch and Good date Tristen Brinklow’s death to September 28-29, 2019.
Harrisonburg man sentenced for distributing fatal mixture of heroin and fentanyl
Richard Mansfield, a Harrisonburg man who was previously convicted of distributing a fatal mixture of heroin and fentanyl, was sentenced today in U.S. District Court in Harrisonburg to nine years in prison, United States Attorney Thomas T. Cullen announced.
Mansfield, 39, pleaded guilty in September 2018 to one count of distributing a mixture and substance containing heroin and fentanyl.
According to evidence presented to the court by Assistant United States Attorney Jeb Terrien, on December 12, 2017, Mansfield sold a mixture of heroin and fentanyl to Matthew Jason Murphy. The following day, December 13, 2017, Murphy was found deceased following a drug overdose. A medical examination and toxicology analysis determined that Murphy died from fentanyl and heroin intoxication.
The investigation of the case was conducted by the Drug Enforcement Administration, Virginia State Police, and Harrisonburg Police Department, with the assistance of Rockingham County Commonwealth’s Attorney Marsha L. Garst. Assistant United States Attorney Jeb Terrien prosecuted the case for the United States.