Facing civil contempt and jail McDonald moves on without counsel

Do either of these buildings look familiar? They certainly do to attorneys for both the EDA and EDA civil defendants as we approach the seven-month mark since the EDA civil suit was filed March 26. Royal Examiner File Photos/Roger Bianchini

Attorneys for five people cited as defendants in the Warren County Economic Development Authority (EDA) civil litigation and four associated Limited Liability Companies, were in Warren County Circuit Court at 9 a.m. Thursday morning, October 17, for motions hearings. Those defendants represented included Jennifer McDonald, Donald Poe and April Petty, who were present with counsel; and Poe’s Earth Right Energy LLC partner Justin Appleton and ITFederal principal Truc “Curt” Tran, the latter two represented by counsel.

Motions arguments began with Petty’s request to be excluded from the amended complaint (see related story). Motions regarding general amended litigation issues were quickly addressed by Poe, Appleton and Tran’s attorneys without discussion.

Other than Petty’s motion to be withdrawn from the amended lawsuit, the only disputed legal arguments heard by presiding Judge Bruce D. Albertson involved primary EDA civil case defendant, former EDA Executive Director Jennifer McDonald and her civil attorneys from the Berlik Law Firm.

Berlik Law filed a motion of its intention to withdraw as McDonald’s civil case counsel on October 9. However there would be another hour and 20 minutes of legal arguments on behalf of their client before the motion to withdraw was before, and granted without objection from McDonald, by the court.

Prior to that court granting of her counsel’s motion to withdraw from her civil case defense, as Berlik Law attorney Jay McDannell argued Fifth Amendment Discovery issues, a show cause contempt filing against McDonald, and a disputed payment to the law firm, McDonald was seated in the spectator section of the courtroom next to attorney Lee Berlik.

Former Jennifer McDonald civil case attorney Lee Berlik – Berlik’s firm has its own dispute with EDA attorneys now over a $10,000 payment made by McDonald to the firm under heading of Afton Inn legal expenses. Photo Berlik Law website

During arguments on the plaintiff’s show cause motion on contempt against McDonald, McDannell told the court that McDonald had attempted to move a court-ordered frozen property in her name through her sister while incarcerated in order to help pay legal fees. He called the movement of a property enjoined by the court not to be moved a “mistake” rather than an intentional defiance of the earlier court order by Judge Clifford Athey Jr. Athey froze properties in McDonald’s name alone for potential asset recovery by the plaintiff. Properties held with others were left unencumbered in that initial court ruling.

McDonald’s attorney noted that the property enjoinment order had been verbal, not written and McDonald had been confused as to which properties were frozen. “There is nothing indicating that the Pinehill Road property was acquired wrongfully,” McDannell told the court.

“She is under enormous financial distress,” McDannell said of his client’s situation despite being at the center of a $21.3 million embezzlement case. He noted that Athey did not freeze all his client’s real estate holdings because she has a right to raise money to defend herself against the charges, civil and criminal, leveled at her.

When the attorney withdrawal motion was reached at 10:50 a.m. McDonald joined McDannell at the defense table while Berlik remained in the spectator seating. After McDonald told the court she did not object to the Berlik Law firm’s withdrawal, Judge Albertson briefed her on moving forward without legal representation.

“I can’t help you – you have to understand the rules of evidence. If you ask me a procedural question I’ll stare back at you,” Albertson told McDonald.

McDonald, pictured at the time of her last arrest on Aug. 23 when the last felony indictments against her were handed down by the Special Grand Jury, was warned by the court Thursday that she could face a return to jail if found in contempt of a civil court order regarding frozen real estate assets.

Noting his setting of December 12 for a hearing on the EDA’s show cause motion for contempt of civil court regarding her attempt to move the frozen real estate asset, Judge Albertson told McDonald that she faced the possibility of going back to jail at that time.

“On that day all the powers of contempt are at my disposal,” he informed McDonald.

And in an apparent reference to the earlier explanation of her attorney that the lack of a written court order had led to her confusion about which properties she could legally move, Albertson said that written order or not, “I’m telling you to be here that day,” for the Show Cause Contempt hearing.

While she still had legal representation at Tuesday’s hearing, arguments revolved around the above referenced plaintiff Discovery motions seeking information about a defense document McDannell produced at an earlier hearing. Former EDA and County Attorney Dan Whitten identified the document as a forgery. It indicated a closed session EDA board vote authorizing McDonald to purchase property through her real estate company for the EDA. Whitten said he was at the meeting and the vote, which would have violated FOIA (Freedom of Information Act) laws, never occurred.

A second believed forged document referenced by lead EDA attorney Cullen Seltzer were EDA meeting minutes believed to have been altered to show that McDonald informed the EDA board early on about her relatives’ involvement in the Workforce Housing land transfer to the EDA.

Berlik Law attorney Jay McDannell has taken the lead in Jennifer McDonald’s civil case defense over the past few months. McDannell presented extended arguments on his client’s behalf on the firm’s final day of representation of her.

McDannell continued the defense stance that production of potentially incriminating evidence in the civil court process should not be allowed to proceed criminal case resolutions because of McDonald’s Fifth Amendment right not to self incriminate.

Another Discovery issue is the plaintiff’s request for information on a $10,000 wire transfer payment to Berlik Law made by McDonald under the heading Afton Inn Project legal expenses. The amended EDA civil complaint seeks recovery of that money as embezzled EDA assets. The Berlik Law firm is contesting the return of the money as reported in an earlier story on the filing of the amended EDA civil suit.

When Berlik Law’s motion to withdraw from the case was reached, EDA Attorney Seltzer told the court regarding the disputed payment, “I think they have to withdraw, they’re defendants now.”

Other than accepting the Berlik Law motion to withdraw from the case, Judge Albertson took the other matters under advisement.

UPDATE: McDonald family members, business associates added as defendants in EDA civil suit

Some McDonald assets frozen, jointly-owned exempted in EDA civil case

EDA Attorney accuses former executive director of forging document

Sheriff, ITFed principal Tran, Donnie Poe named with McDonald in EDA civil suit