Henry civil case attorney argues insufficient evidence to proceed against her

As noted in our related story on the continuation of arguments on the penalty phase of a January default judgment ruling against former EDA Executive Director Jennifer McDonald, the primary arguments made by EDA civil case plaintiff and defense counsel on May 8 were whether there were substantive grounds in the EDA’s amended civil suit to charge McDonald’s former Administrative Assistant Michelle “Missy” Henry with intentional acts rising to the level of conspiracy or breach of fiduciary duty, with which she is accused.

Michelle ‘Missy’ Henry after arrest on related criminal charges. Many criminal charges related to the EDA civil case have been dropped by the prosecution due to pending speedy trial statute issues looming from early indictments being filed by the initial, now withdrawn prosecution team leading the EDA Special Grand Jury, prior to completion of its work. However, criminal charges could be refiled when the new prosecutor is ready to proceed toward trials. Courtesy Photo/RSW Jail

Henry attorney John Cook told the court that the allegations against his client indicated nothing more than unintentional negligence, not rising to the level of conspiring to defraud her employer, the EDA Board of Directors.

On Henry’s behalf, Cook argued that to view McDonald’s subordinate as responsible for checking on the performance of her superior in such matters as submission of alleged forged documents was “a shocking reversal of the employment relationship”.

His client should not be held responsible if evidence of criminal behavior originating with her superior passed through her hands, Cook argued.

EDA attorney Lee Byrd responded that such arguments were more suitable further along in the movement toward trial. Byrd told the court that Henry’s “knowledge of (specifics of alleged crimes orchestrated by her boss, McDonald) are fair game for defense Discovery motions”.

“He’s right, we don’t have Ms. Henry’s fingerprints (on specific alleged criminal acts), we have Ms. McDonald’s,” Byrd told the court, adding, however, that as the case proceeds toward the trial “a more complete picture of what Ms. Henry has done” will emerge supporting the plaintiff’s case.

Jennifer McDonald on the job during her tenure as EDA executive director, here at a town council work session. Regarding civil liability by her former administrative assistant, Michelle Henry’s attorney asked the court if a subordinate should be held responsible for keeping tabs on the legality of the actions of their superior. Judge Albertson has taken the arguments under advisement.

Byrd told the court Henry “abused” the responsibilities of her office in support of McDonald’s alleged financial crimes. And due to the “clandestine and covert” nature of such crimes, details of allegedly involved participants often take time to develop in the context of what the plaintiff hopes to prove were jointly conducted activities.

In asking for a ruling at this point in the case, Cook told the court that having to proceed toward trial based on currently sparse criminal evidence against her would bankrupt his client.
Judge Albertson took the arguments under advisement without comment.

Counsel present for Henry and defendants April Petty and Jesse Poe then all agreed to their availability for the 9 a.m. docket on June 18, for further motions on the EDA amended civil litigation against McDonald et al.

As noted in our related story McDonald attorney Peter Greenspun was disconnected from the proceedings by that point due to another legal commitment, so it was not clear if that date and time would be set for the McDonald default judgment arguments forecast by her attorney to take two to three days to complete.

See Royal Examiner’s related story on the delay on arguments regarding penalties from a January civil case default judgment against McDonald.

McDonald default judgement penalty arguments continued to future date