Delays in EDA criminal cases due to transfer of prosecutorial authority

On Thursday, November 21, four Front Royal-Warren County Economic Development Authority criminal defendants saw preliminary hearings, and in one case trial dates over the objection of Donald Poe’s attorneys, continued to future dates. Those defendants were former EDA Executive Director Jennifer McDonald, her husband Samuel North, former EDA small business client B&G Goods principal William Lambert, and former EDA solar panel contractor Earth Right Energy principal Donald Poe.

A date of January 10, at 1 p.m. was set for motions hearings and possible trial date settings on joint defense-commonwealth motions in McDonald’s, North’s and Lambert’s cases. Only Poe co-counsel William Ashwell objected to the delays, noting his client was in a somewhat different position that the other defendants.

That position is trial dates on all four charges against Poe already set for December 6 (perjury to the grand jury) and three financial charges of obtaining or conspiring to obtain money by false pretenses set for a three-day trial January 22 to 24.

Ashwell told the court his client was “pretty anxious to clear his name” adding, “I think we need to get things going now.”

Noting the defendant’s objection, Judge Bruce D. Albertson included the Poe cases in the continuations granted Thursday to the 1 p.m. docket on January 10.

The Warren County Courthouse will see both new and familiar faces in coming hearings and trials related to the EDA financial scandal. Royal Examiner File Photos/Roger Bianchini

As explained by Commonwealth’s Attorney Bryan Layton, primary among the reasons for those continuations is the naming of a new prosecutor’s office to handle the EDA-related criminal prosecutions. Layton has been leading the Special Grand Jury empaneled to investigate potential criminality tied to the $21.3 million dollar EDA civil litigation since former Warren County Commonwealth’s Attorney Brian Madden left the office to assume a judicial appointment in Frederick County.

However, with a newly-elected Commonwealth’s Attorney, John Bell who was hand to observe Tuesday’s proceedings, poised to take office at the turn of the year Layton notified the court he was withdrawing as special prosecutor for the EDA grand jury investigation into EDA affairs.

And Bell told the court due to peripheral past legal representations or political affiliations, he would recuse himself from EDA prosecutions to “avoid any appearance of impropriety so the people of Warren County are assured there are no thumbs on the scales (of justice).”

Chief 26^th Judicial District Circuit Court Judge Albertson, himself a replacement after all Warren County Circuit Court judges recused or left for higher court appointments prior to pending recusals, accepted Layton’s recommendation of the Rockingham County Commonwealth’s Attorney’s Office to take over the EDA criminal prosecutions.

Rockingham Assistant Commonwealth’s Attorney Michael J. Parker was present to represent the office of Rockingham Commonwealth’s Attorney Marsha Garst. Courtroom discussion indicated Parker would take the point for Rockingham’s work on the EDA cases.

Related to various motions hearings scheduled for Thursday afternoon’s 4 p.m. docket, Layton noted the “voluminous material” related to the EDA cases and asked the court for “an extra period of time to get Mr. Parker up to speed.”

That voluminous material was referred to as a “terabyte” of digitized information ordered by the Virginia Supreme Court to handle what has been referred to in previous hearings as 700,000 to one million pages of related documentation.

Despite his counsel’s objection and Poe not joining the other defendants in waiving their rights to speedy trials, Earth Right Energy principal Poe will join the other three defendants in court for hearings on January 10 on the 1 p.m. docket.

Donald F. Poe outside the courthouse following an earlier hearing.

Judge Albertson continued Poe’s scheduled jury trial on his perjury charge from December 6, to the previously scheduled first day of an anticipated three-day trial on the EDA financial fraud charges, January 22, with the following dates available were that trial to go beyond one day.

Albertson also set a hearing for the aborted December 6 perjury trial date to set a new date for Poe’s now in limbo financial charges trial.

Albertson also granted North attorney Frank Reynold’s request for a Bill of Particulars on the three charges his client faces related to actions cited as occurring “on or about August 1, 2015” to be responded to by January 8, two days prior to the newly scheduled motions hearing date.

Reynolds, like Lambert attorney Phil Griffin, told the court he and his client did not want to have to navigate the perhaps digital planetary-sized “terabyte” of EDA financial fraud-related documentation for information on a limited, yet thus-far unspecified accusation against his client.

McDonald is facing 32 felony financial fraud indictments; her husband North three; Lambert three, and Poe four, including the perjury charge, related to information contained in the $500,000 County-EDA contracted Cherry Bekaert financial fraud investigation of EDA financial affairs during McDonald’s executive directorship of the EDA.

Jennifer McDonald on the job, here circa 2016 with then EDA Board Chair Patty Wines, during her decade long tenure as chief executive of the Front Royal-Warren County Economic Development Authority.