Defense attorneys move to quash grand jury misdemeanor indictments

Former EDA Vice Chairman Bruce Drummond, waiting for his Woodstock-based attorney to arrive outside the Warren County Courthouse Friday morning, was cordial if, like all his fellow EDA misdemeanor defendants, non-committal on the record about this week’s legal turn of events. Royal Examiner Photos/Roger Bianchini

Thirteen of 14 EDA and County municipal officials indicted last Friday and booked Tuesday on three identical Special Grand Jury misdemeanor indictments regarding a lapse of responsible oversight of EDA financial affairs were in Warren County Circuit Court Friday morning, September 27. Missing was County Administrator Doug Stanley, who was represented by attorney John Holland. See Related Story:

Grand Jury indicts 14 County and EDA officials for lack of EDA oversight

A date of October 28 was set for motions arguments for nine of the defendants, including Stanley. Due to attorney scheduling conflicts matching defense motions arguments were scheduled for October 18 for current EDA Board of Directors Treasurer Tom Patteson and October 19 for County Supervisor Tom Sayre, R-Shenandoah District.

Three of Sayre’s fellow supervisors, Tony Carter, R-Happy Creek; Archie Fox, R-Fork; and Linda Glavis, I-South River, informed the court they were still in the process of retaining legal representation. A return date of October 21 was set for that trio for first appearance with counsel. Judge Clark A. Ritchie suggested those defendants inform their counsel of the preferred hearing date of October 28 for motions arguments if it would fit their schedules.

Whenever they are scheduled, from motion requests made by the defense attorneys present with or without their clients, those arguments will focus on an initial motion to quash the indictments against their clients, and failing that on Discovery pinning down more detail from the Commonwealth on the allegations leading to the Special Grand Jury indictments against the defendants.

Things were moving fast for slow charging, pocket cameras on Friday morning – Greg Drescher entering the Warren County Courthouse prior to convening of the 9 a.m. Circuit Court docket by Judge Clark Ritchie.

Current EDA Board member and Valley Health employee Mark Baker was the first defendant called before the bench on the 9 a.m. docket Friday morning. His attorney David Crump set the tone in seeking the motion to quash the indictments against his client for lack “of an actionable cause”. Crump is representing four of the defendants, Baker’s fellow Valley Health employee and EDA board member Tom Patteson, another current EDA board member Alexander Gray Blanton and former EDA board member Ron Llewellyn.

Assistant Commonwealth’s Attorney Bryan Layton, who following the departure of Brian Madden to a judicial bench appointment, is now leading the EDA Special Grand Jury inquiry into potential criminality related to EDA financial affairs and fraud allegations. Layton made a motion to amend two of the three counts against all defendants by adding the word “oversight” to counts two and three.

That amended wording, particularly as it applies to the five county supervisors, appears to address the fact that while the supervisors appoint EDA board members, it is the EDA board that has the direct oversight, including the hiring and firing authority over EDA staff.

County Board Chairman Dan Murray and his attorney Allen Manheimer head inside for the setting of hearing dates for the 14 new defendants charged for a lapse of oversight of EDA financial affairs over the last months of 2018.

The wording in question in Count Two states, “On or about September 1, 2018 through September 25, 2018, in the County of Warren, (insert defendant’s name), did unlawfully and negligently commit misfeasance by not properly exercising his/her powers of appointment (“oversight” inserted here), and removal, of Jennifer Rae McDonald in her position as Executive Director of Front Royal Warren County Virginia Economic Development Authority resulting in the unlawful diversion of more than $300,000 in public funds, in violation of Section 1-200 and 19.2-8 of the Code of Virginia, 1950, as amended.”

And in Count Three, “On or about October 20, 2018 through November 30, 2018, in the County of Warren, (insert defendant’s name), did unlawfully and negligently commit misfeasance by not properly exercising his/her powers of appointment (“oversight” inserted here), and removal, of Jennifer Rae McDonald in her position as Executive Director of Front Royal Warren County Virginia Economic Development Authority resulting in the unlawful diversion of more than $9,000 in public funds, in violation of Section 1-200 and 19.2-8 of the Code of Virginia, 1950, as amended.”

The un-amended Count One reads, “On or about September 1, 2018 through December 31, 2018, in the County of Warren, (insert defendant’s name), did unlawfully commit nonfeasance by failing to act to limit or restrict the powers, responsibility, and access to the public financial resources of Jennifer Rae McDonald in her position as Executive Director of Front Royal Warren County Virginia Economic Development Authority resulting in financial loss to Warren County, in violation of Section 1-200 and 19.2-8 of the Code of Virginia, 1950, as amended.”

There appears to be some legal confusion surrounding these misfeasance and nonfeasance charges. This reporter initially wrote he “must have been mistaken” in his September 8 story stating that only malfeasance was a criminal offense by state code of the three “feasances”, malfeasance, misfeasance, and nonfeasance. However after discussion with several attorneys, including Layton, it appears that may not be the case, precisely. See Related Story:

Criminal and non-criminal dereliction of public duty: Where might they apply in the EDA financial scandal?

For as Layton explained it to us Thursday at the courthouse, and as the list of charges in the misdemeanor arrest documentation indicates, the cited Section 1-200 state code references English Common Law. As we understood Layton’s explanation when something is indicated as a punishable offense without a direct state code reference, the legal groundwork for criminal charges goes back to the English Common Law basis for the structure of U.S. laws.

And Layton explained that as uncodified offenses, those charges are classified under Class One Misdemeanor offenses which carry sentences of up to one year in jail and up to a $2500 fine on each count.

Which is one reason attorneys for these defendants are likely to seize upon any potential legal vagaries regarding the basis of the charges against their clients to seek dismissal of those charges.

So things on the EDA legal front should get interesting as October 18, 19 and 28 roll around.

Beginning Oct. 18 through Oct. 28 defense motions to ‘STOP’ EDA misdemeanor prosecutions against public officials due to an absence of effective oversight will be argued at the Warren County Courthouse.