Shortly after 6 p.m., Tuesday, April 9, Tabitha Zimmerman took the stand in her own defense against charges she was willfully negligent of signs of a pattern of abuse of her twins at the hands of her then-fiancé Chad Ritchie leading to the death of her son Malachi.
Asked by her attorney John Bell, “Did you ever see Mr. Ritchie lose his temper with the kids?” Zimmerman replied, “No.”
“Did you ever see him hit the kids?”
“No,” the 29-year-old Zimmerman again replied.
“Did you notice more bruises on the boys when they were with Chad Ritchie than with the babysitter?”
“Did it ever occur to you that Chad Ritchie would beat your children?”
“No, that’s not what I thought.”
“He was never abusive to you?”
“Did you ever see him abusive with his daughter?”
“No,” Zimmerman asserted.
The idea that Ritchie’s abuse of November 8, 2017, was an aberration, rather than a pattern matched Ritchie’s defense team’s arguments at both trial and his sentencing hearing last month.
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Tabitha Zimmerman’s testimony will resume when the trial continues at 9 a.m. Wednesday morning.
Earlier in the day as a sheriff’s deputy’s body camera videotape was played by the prosecution showing Zimmerman and her parents and son Micah at Warren Memorial Hospital awaiting news on Malachi’s condition; being informed he was dead; and reacting emotionally to that news and not being allowed to see his body, Zimmerman dropped her head onto the defense table and sobbed throughout.
Twenty-two-month-old Malachi Zimmerman died on November 8, 2017, and his brother Micah sustained injuries from physical abuse Ritchie, 29, admitted to inflicting on the boys while in his care as their mother worked a night shift at Rubbermaid where the couple had met.
The prosecution rested at 5 p.m. Tuesday after presenting 17 witnesses in the trial that began at 2:30 p.m. Monday after several hours of jury selection. Following Assistant Commonwealth’s Attorney Bryan Layton’s closing of the prosecution case, defense attorney John Bell moved to have the case dismissed due to a lack of evidence in support of the commonwealth’s admittedly circumstantial case against his client.
“The commonwealth has proved that Mr. Ritchie did harm to the children – the only question is, was this an event Tabitha Zimmerman could reasonably have foreseen and prevented,” Bell told the court.
Defense counsel pointed to the commonwealth’s own expert witnesses to argue a failure to present evidence in support of the prosecution contention that the abuse of November 8, 2017, was the culmination of pattern of abuse by Ritchie.
Ritchie entered an Alford guilty plea on the second day of his December trial, admitting the prosecution had evidence to convict without admitting guilt. Ritchie’s attorneys argued that while Ritchie had struck the twins to the head and body out of anger and frustration while babysitting them, the cause of Malachi’s death was aggressively and wrongly administered CPR (Cardio Pulmonary Resuscitation) performed by a panicking Ritchie as he tried to revive the boy who was not breathing.
The cause of Malachi’s death was cardiac arrest caused by internal bleeding from a ruptured intestine that bled into the child’s stomach cavity.
Pointing to the commonwealth’s own expert witnesses, State Forensic Pathologist Meghan Kessler who did Malachi Zimmerman’s autopsy; Winchester Medical Center Forensic Nurse Betty Fisher who examined surviving brother Micah the evening of the incident; and Pediatrician Ashley Blanzit who treated the boys on a regular basis, Bell told Judge Clifford L. Athey Jr. the prosecution had failed to provide any testimony corroborating previous injuries of the nature of those the boys received the day of Malachi’s death.
Bell noted that all of the commonwealth’s expert witnesses had testified under cross examination that none of the older bruises, scabs or marks on the boys were of a nature to raise abuse alarm bells without the presence of the newer marks admittedly inflicted by Ritchie and determined to be the cause of Malachi’s death and Micah’s injuries of November 8, 2017.
Arguing against dismissal, Layton countered that in a circumstantial case like this one it should be up to the jury to decide if sufficient evidentiary circumstances have been provided to achieve conviction. He cited case histories in which criminal liability from inaction had been upheld on a variety of fronts. He also noted that the prosecution experts had indicated that the signs of past blunt force trauma injuries of an abusive nature can vary from person to person.
“It should be up to the jury to decide,” Layton told the court.
After 10 minutes of deliberation in chambers and five minutes of prefacing his decision to the attorneys, Athey agreed that the trial should proceed to the defense case with the jury as ultimate arbitrators of guilt or innocence. In denying the defense motion to dismiss, Judge Athey noted that at this point in a trial a motion to dismiss must be viewed in the light most favorable to the commonwealth.
Clear Brook woman charged in South Royal Avenue traffic incident
A 44-year-old Frederick County woman has been charged regarding a Monday evening traffic incident on South Royal Avenue in Front Royal. According to the RSW Jail website, Susan Miller Harbaugh, from Clear Brook, Virginia, was booked on two charges, Driving While Intoxicated and Vandalism, Intentional Destruction of Property (monument).
Harbaugh was booked into the jail at 12:29 a.m. Tuesday morning, December 10, and released at 5:28 p.m. that afternoon.
According to Front Royal Police Sgt. Jason Winner, “On December 9, 2019, at approximately 9:50 p.m. FRPD officers were dispatched to the area of the 200 block of South Royal Avenue for a report of an accident. While responding to the area, officers were informed that a vehicle had left the scene of that accident and was traveling North on Royal Avenue.
“Officers located the vehicle that left the accident and conducted a traffic stop. It was determined during the accident investigation that the vehicle had struck a light pole on the side of the road.
That pole was knocked down into the roadway and was struck by another vehicle.”
Harbaugh was apprehended on North Royal Avenue.
Front Royal man arrested after reported shooting in the 200 block of Cloud Street
On November 27, 2019, at approximately 11:55 pm, the Front Royal Police Department responded to a report of a shooting in the 200 block of Cloud Street. When Officers arrived on scene, they encountered a male subject with non-life-threatening injuries, including a gunshot wound to his inner thigh.
Based on investigative findings, a suspect was identified as George Lee Good, 28, of Front Royal. Warrants were obtained on Good for 18.2-51 Maliciously Shoot or Wound; 18.2-53.1 Use of a Firearm in the commission of a felony; and 18.2-308.2 Possession of a firearm by a convicted felon. Other charges may be forthcoming regarding other involved individuals.
George Good was taken into custody without incident by Winchester Police Department during a DUI checkpoint. Good is currently at Northwestern Regional Adult Detention Center where he is being held without bond. This investigation is on-going and anyone with further information is asked to contact Detective D. L. Fogle at (540)636-2208 or via email email@example.com.
Warren County Sheriff’s Office seeking information after discovering a deceased male
On December 2, 2019, the Warren County Sheriff’s Office was called to the area of Digs Landing in the Rivermont area of Warren County for the discovery of a deceased individual. The remains are that of an unknown male with the following clothing description: green baseball style shirt with blue sleeves and a blue pocket and black denim shorts.
The deceased has not been identified at this time. Identification is pending findings from the Office of the Chief Medical Examiner. Further details in the matter are not being released at this time due to the ongoing investigation. The Warren County Sheriff’s Office was assisted at the scene by the Chief Medical Examiner’s Office and Warren County Fire and Rescue. The manner of death is considered suspicious and the investigation is ongoing. The Warren County Sheriff’s Office wants the citizens to know that this appears to be an isolated incident and there is no immediate threat to public safety.
Anyone with information is asked to contact Investigator Emily Young of the Warren County Sheriff’s Office at 540-635-4128 or at firstname.lastname@example.org. Citizens can also utilize the Warren County Sheriff’s Office website to submit a tip by going to www.warrencountysheriff.org. Anyone with information can remain anonymous.
Front Royal man arrested on two sex related felony charges
On November 25, 2019, Anthony Harry Sutton, 67, of Front Royal, Virginia, was charged and arrested with two felony charges: 18.2-67.2 Object Sexual Penetration and 18.2-67.1 Forcible Sodomy. These felony charges are in connection with an ongoing investigation regarding Mr. Sutton. Authorities were notified that a juvenile victim had reported to her mother allegations of inappropriate sexual contact by Mr. Sutton. Further details regarding this matter cannot be released at this time due to the pending nature of the investigation.
Mr. Sutton was taken to Rappahannock Shenandoah Warren Regional Jail where he is currently being held without bond. Further charges may be forthcoming as a result of this active investigation.
Anyone with any further information in reference to this case is asked to contact Front Royal Police Detective L.J. Waller at (540) 636-2208 or by email at email@example.com.
Removal Petition hearing on County Board continued to December
An as-yet undetermined date in December was set for the continuation of a hearing on the citizen-launched Removal Petition against the five sitting Warren County Supervisors. The hearing was on the Warren County Circuit Court docket Friday morning, November 22, at 8:45 a.m.
Judge Bruce D. Albertson heard motions and the reasoning for the continuance by video hook up from his home courtroom base in Harrisonburg. When a suggested date of December 6, when Albertson will be in court on EDA-related criminal hearings, did not work for one of the two defense attorneys, James Cornwell, the judge said he would like a specific December date agree upon within two working days.
As he had the previous day during hearings on EDA-related criminal charges, Commonwealth’s Attorney Bryan Layton notified the court of his intention to remove himself from EDA prosecutions with a newly-elected Commonwealth’s Attorney John Bell slated to take over at the turn of the year, prior to any EDA-related trials getting under way. And with Bell planning to recuse himself from EDA prosecutions to assure there is not even a perception of possible conflicts of interest that might impact future EDA legal proceedings, Layton suggested that despite his desire to continue with the EDA cases, that they, like yesterday’s criminal cases, be turned over to the office of Rockingham County Commonwealth’s Attorney Marsha Garst.
Rockingham Assistant Commonwealth’s Attorney Michael Parker appears poised to take on the bulk of cases Layton has been working, along with the EDA Special Grand Jury investigation. Layton again noted Parker needed time to get up to speed on the background of the various cases he is taking on.
Defense co-counsel Cornwell and Acting County Attorney Jason Ham had no objection, by remote phone hook up, to Layton’s call for the continuance of the Removal Petition hearing.
During Friday’s hearing it was reported that notice of certification of the required amount of signatures had been received from Warren County Voter Registrar Carol Tobin. That certification, which came despite the loss of 107 signatures that could not be verified as registered county voters, allows the Petition for Removal from office of the supervisors to proceed.
The filing required a minimum of 10% of the number of registered county voters who voted in the last election. That number is cited as 6,958, requiring a total of 696 countywide. Even with the 107 lost signatures, the petition contained 835 verified signatures.
The petition was filed October 18 as part of the grass roots public reaction to the Front Royal-Warren County Economic Development Authority financial scandal that has led to a number of dueling civil litigations surrounding the EDA’s attempt to recover $21.3 million dollars in allegedly misdirected or embezzled EDA assets. The EDA civil litigation alone has already cost the County and its taxpayers $1.31 million dollars in legal and investigative financial audit costs.
And with a $750,000 cap on attorney’s fees payable to the Sands Anderson law firm of Richmond removed by the supervisors on Tuesday, that number is anticipated to keep climbing over the coming year or more as the civil cases proceed and what is anticipated to eventually be in the neighborhood of a million pages of related documentation is submitted for those civil, and related criminal, cases.
The Removal Petition contends the County’s elected Supervisors were directly negligent and in dereliction of their official duties in allowing the alleged EDA financial embezzlements to develop under their indirect stewardship since at least 2014-15.
After the Front Royal Town Council voluntarily abdicated certain oversight functions several years ago when the County took over the Town’s operational funding of the EDA, the County Board alone now appoints EDA Board of Director members. It is those appointed members of the quasi-governmental EDA that have direct oversight authority of EDA staff, a defense motions filing in the Removal Petition case states.
The Removal Petition cites the board members’ three misdemeanor criminal indictments on misfeasance and nonfeasance charges filed September 20 as one primary legal basis of the recall. Those charges targeted the supervisors, along with current and former EDA board members, for an absence of due diligent oversight of the actions of former Warren County Economic Development Executive Director Jennifer McDonald in the final four months of 2018.
However, the fact those indictments were dismissed by Judge Albertson as non-criminal by Virginia Statutes, even dating to English Common Law under which they were filed, may complicate the petitioners’ argument.
Just two days before Friday’s hearing defense co-counsel Cornwell and Ham filed a Demurer with the court seeking dismissal of the petition. Grounds cited for dismissal include a lack of jurisdiction for the filing; a lack of legal authority for the supervisors to act directly to limit the activities of EDA staff; and “Legislative Immunity” precluding the Judicial Branch of State Government from a “quasi-criminal” investigation of a Legislative body such as the county supervisors regarding how they conduct their business.
It would appear that while the timing of the defense Demurrer filing might have precluded proceeding with arguments Friday, a December hearing date could see arguments on these crucial legal points of contention.
On October 28, Judge Albertson denied a petitioner’s motion to immediately remove the five sitting supervisors prior to any arguments on the legal dynamics of the Removal Petition.
Targeted by the Removal Petition are Daniel J. Murray of the North River District, Thomas H. Sayre of the Shenandoah District, Tony F. Carter of the Happy Creek District, Archie A. Fox of the Fork District, and Linda Glavis of the South River District. As of the turn of the year in the wake of Murray and Glavis’s retirements and Sayre’s defeat at the polls in November, only Carter and Fox will be impacted by the Removal action.
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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.
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 26th 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.
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.