It was a who’s who of the controversy swirling around the audit and investigation into EDA finances and its aftermath on Wednesday morning, May 22, on the second floor of the Warren County Courthouse.
A motions hearing on the EDA civil litigation filed on March 26 was slated for the 9 a.m. Circuit Court docket before Judge Clifford L. Athey Jr., while the Special Grand Jury empanelled by Athey on March 27 to investigate potential criminality tied to the EDA financial investigation and civil litigation was beginning three days of witness testimony across the hall.
It appeared that all people named as civil defendants, save Truc “Curt” Tran who was represented by counsel, were present along with relatives, attorneys, former EDA co-workers and Front Royal Police investigators who worked the EDA office break-in case. The interesting mix created a standing room only crowd in the second-floor hallway, as well as some confusion as to which circuit courtroom was whose ultimate destination.
In opening the motions hearing Judge Athey noted that he would be leaving the circuit court bench in September for a seat on the Virginia Court of Appeals, so would not be the judge who would ultimately hear this civil case. He surmised the 26th District’s Chief Judge would assume that role.
But it was Athey who would hear and rule on a bevy of motions before him on Wednesday.
The judge agreed with defense attorney calls for more detail in the six-counts tied to the EDA civil complaints seeking a minimum total of $17.6 million from nine defendants, five people and four Limited Liability Corporations (LLC’s) tied to those five people – Jennifer McDonald, Donald Poe, Justin Appleton, Truc “Curt” Tran and Daniel McEathron.
Attorneys for the Sands-Anderson law firm that filed the suit on the EDA’s behalf have drawn heavy defense counsel criticism for listing all defendants together in one lawsuit seeking a lump-sum amount from all – “implausible conspiracies” was the term used by Jennifer McDonald attorney Lee Berlik in his motions filing.
And while there is a great deal of specificity as to acts and amounts of money in the 160 paragraphs preceding the 39-paragraphs comprising the six counts, such detail is absent in the listing of those counts of: 1/ Fraud and Fraud in the Inducement; 2/ Conversion; 3/ Conspiracy; 4/ Unjust Enrichment; 5/ Breach of Fiduciary Duty of Loyalty; and 6/ Ultra Vires (improper) Transactions and Agreements.
While not an attorney, for this long-time court observer it is surprising that the EDA civil action wasn’t broken into separate suits involving the various acts, entities and amounts of money cited in the first 160 paragraphs of the civil complaint. And while I would have asked Sands-Anderson and EDA civil case attorney Cullen Seltzer about that strategy, he was not speaking on the record following the approximate half-hour hearing.
Athey gave defense attorneys 21 days to file memos in support of their Demurrers and Motions for Bills of Particulars on the cases against their clients; and the plaintiff counsel 21 days to file Briefs in opposition to the defense assertions; and an additional seven days for defense responses to the plaintiff Briefs.
Those defense and plaintiff filings will be argued at the end of the Motions Day of July 17.
As to a motion to Quash the complaint against Earth Right Energy and its principals Donald Poe and Justin Appleton, Athey set a hearing for next Wednesday, May 29, at 9 a.m.
There was an interesting revelation by plaintiff attorneys in the wake of Jennifer McDonald’s co-attorney Jay McDannell’s request for the now seven-month, three-quarters of million dollar “forensic audit” of EDA finances the County has fronted the EDA money for. McDannell sought that detail so as to better understand and prepare a defense for his client on the financial misappropriation allegations against the former EDA executive director.
Noting the EDA and County retention of the accounting firm of Cherry Bekaert, out of its Richmond office, Seltzer said there could be a problem with the 10-day time period Athey ordered for provision of the McDonald attorney-requested audit materials.
“We’ve been hearing this for six months – it’s time to put up or shut up,” Athey told the plaintiff attorney.
Seltzer then appeared to indicate that Cherry Bekaert had not done a “forensic audit” as it has previously been referenced in County and EDA discussion, but rather what was later termed an intrinsic fact-finding. He also said a “final audit gap complaint” was not yet prepared or available for submission to discovery motions. Previously EDA officials have indicated that after the EDA board and staff have reviewed the most recent draft of the Cherry Bekaert financial investigation in closed session, the hard copy has been shredded.
“Whatever they’ve prepared – file it,” the judge instructed plaintiff counsel.
McDonald attorney McDannell also addressed the potential of criminal prosecutions against his client from the Special Grand Jury investigation going on across the hall on Wednesday. McDonald’s counsel, as well as other case defense attorneys, have pointed to the potential of Fifth Amendment assurances (the right not to self-incriminate) from testimony in the civil case were criminal indictments handed down by the special grand jury’s related investigation into their client’s actions.
Athey noted that no indictments have yet been filed and observed that similar arguments were put forth “in every divorce case where adultery is alleged”. The judge appeared to side with the plaintiff in this argument, noting that the issue could be revisited were criminal indictments, in fact, handed down against defendants in the civil case.
McDonald’s counsel also argued to quash a portion of plaintiff subpoenas on his client’s finances related to her legal representation. In explaining the request Seltzer noted that the former EDA chief executive is accused of “defrauding a significant amount of money from the EDA” and wondered if some of that money was being used to fund her defense.
“Is she using stolen money to pay her attorneys,” Seltzer asked.
However, Athey granted the defense motion to quash that portion of the plaintiff subpoena for financial records.
McDonald served with eight new felony warrants from EDA investigation
The Fairfax Adult Detention Center confirmed Monday evening that former EDA Executive Director Jennifer McDonald had eight additional felony sealed indictments served on her Friday, June 21. Six of those new charges are embezzlement of over 200 and two are obtaining money by false pretenses over $200.
The date of the new warrants matches the final day of witness testimony last week before the Special Grand Jury empanelled to investigate potential criminality related to the EDA financial fraud investigation Warren County has spent $600,000 on thus far on behalf of the EDA.
The six new McDonald warrants mirror the first four warrants she was served with by Virginia State Police on May 24, two on the embezzlement felony and two on obtaining money by false pretense felony. No further information on exactly what aspects of the EDA financial fraud investigation the new charges relate to was immediately available.
However, an educated guess might be that they relate to the two felony counts of embezzlement of EDA assets McDonald’s former administrative assistant, Michelle “Missy” Henry was arrested for on Monday afternoon, June 24.
As recounted in our related story Henry’s name was prominent in the Cherry Bekaert financial investigation of EDA operations regarding the B&G Goods business the EDA financed in the old Stokes Mart building at East Main and Water Streets in downtown Front Royal.
McDonald has been incarcerated since May 24, twice being denied bond as a flight risk by Warren County Circuit Court Judge Clifford L. Athey Jr.
The former six-figure salaried EDA executive director was transferred to the Fairfax Jail from RSW Regional Jail on June 11. At the time RSW Jail Superintendent Russ Gilkison explained the transfer as an effort to normalize McDonald’s jail experience. Due at least in part to the high profile nature of the EDA financial scandal and high-running emotions throughout the community about it, McDonald had been kept in isolation for protective custody since her booking at RSW. The move to Fairfax where she and her cases are not front page news will allow McDonald to mix in with the general inmate population.
Henry is due in court Tuesday morning on the 9 a.m., morning docket. Legal representation and bond are likely topics of that hearing. It is not clear when a hearing on McDonald’s new criminal charges might be held or whether she would appear with her criminal attorney, Fairfax-based Peter Greenspun.
UPDATE: Second former EDA staffer arrested on embezzlement charges
RSW Regional Jail officials confirmed that former Front Royal-Warren County Economic Development Authority Administrative Assistant Michelle “Missy” Henry was being processed into the facility Monday afternoon, June 24. Henry was booked at 4:37 p.m. on two felony counts of embezzlement for the “unlawful use, disposal, conversion, embezzlement of property of the EDA”.
Henry’s arrest comes exactly a month after former EDA Executive Director Jennifer McDonald’s arrest, also by the Virginia State Police, on May 24. McDonald was arrested on four felony counts related to the EDA fraud investigation, two of Fraud-Obtain Money by False Pretenses in excess of $200; and two of Larceny-Embezzlement in excess of $200. It is believed those charges relate to credit card payments McDonald attributed to Afton Inn redevelopment work.
Dates attached to the Henry’s warrants are for actions occurring between October 1 and December 30, 2016 and September 1, 2014 to December 30, 2016.
Henry’s name figured prominently in one of 10 new allegations attached to plaintiff filings in the EDA civil litigation ordered by Judge Clifford L. Athey Jr. on May 22. Henry was cited for involvement in dispersal of assets tied to the B&G Goods retail operation in the old Stokes Mart building that the EDA purchased in 2014, as well in a possible scheme related to the building’s purchase.
“MCDONALD is suspected of colluding with HENRY, LAMBERT, and possibly POE to acquire the Stokes Mart property under false pretense to facilitate several different embezzle schemes of which payments herein as repairs and maintenance for B&G or paid directly to LAMBERT are approximately $21,000,” CPA fraud investigator Cherry Bekaert wrote.
LAMBERT is believed to be Billy Lambert, who with Glen Simms were the B&G Goods proprietors, to whom the EDA issued a small business loan. Poe is believed to be Donald Poe, one of the proprietors of Earth Right Energy which is named in a solar business operation also cited in the EDA civil litigation.
It is also believed that McDonald’s sister, Kathy Butler, was in a relationship with Lambert at the time of the EDA’s involvement with B&G Goods. Emails between McDonald and Henry in the Cherry Bekaert summary suggest a possible plan to conceal some activities from “Billy” around the sale off of store materials and a van in the wake of the November 2016 closing of the business.
“Suggest how we can maybe sell inventory. And get that van back to sell. He tell garnett HE got title free and clear and that’s not the edas…blah blah…Or whatever u think is the best way to handle this,” Henry emailed McDonald on December 19, 2016.
“I’m on my way to see Billy now what does he think is going to happen to that $36,000 loan,” Henry added in an email to McDonald the following day.
“That’s what we are going to tell him selling the van would help pay. Maybe put it that way that we were thinking the van would help pay that off,” McDonald replied to Henry on December 20, 2016.
Several emails exchanged between Henry and McDonald on February 4, 2017, further address a financial split from the sale of items sold following the closing of B&G Goods.
“How much money would make u happy for me to have before we start splitting what is bought* in at the store?” McDonald wrote to which Henry replied, “I wud b ecstatic to get u back all u put in…but that’s unreasonable.”
“$15,000 and then we split everything from there?” McDonald suggested, adding several messages later, “I made even more that $15k so please let your conscious rest easy” and concluding the
February 4, 2017 email chain to Henry, “And now i can feel better bcuz I felt bad that u were out money”.
The Cherry Bekaert report further states, “On 02-27.2019 we learned through WHITTEN that he and the EDA Interim Director ANZIVINO questioned HENRY about her involvement with B&G after learning of the above text exchanges.
“HENRY admitted that both she and MCDONALD personally invested money in B&G. HENRY revealed her investment was $7,000 but apparently said nothing about what MCDONALD had invested. WHITTEN also did not recall the EDA BOD giving approval for a $30,000 loan to B&G as mentioned above. HENRY was asked about DABOYZ (McDonald real estate company) paying of B&G’s loan but apparently stated she didn’t know why that was done.”
Missy Henry’s arrest comes in the wake of several days of interviews conducted by the Special Grand Jury last week. That Special Grand Jury was empanelled to investigate potential criminality tied to the EDA fraud investigation and consequent civil litigation.
The new court filings in the civil litigation from which the above messaging and summaries are included are from the “work papers” of contracted investigative public accounting firm Cherry Bekaert. Cherry Bekaert was contracted in mid-September 2018 and has only recently appeared to have wrapped up its investigation as a consequence of a decision by the Warren County Board of Supervisors not to commit additional funding to the $600,000 already spent for the investigation into indications of fraud in EDA financial operations over the past decade.
The initial result of that investigation is the EDA civil litigation filed March 26 seeking $17.6 million dollars in misdirected or embezzled EDA assets, a number now up over $21 million dollars.
Information received by Royal Examiner was that the Virginia State Police were at the residence Henry shares with husband Garnett at on Browntown Road Monday afternoon.
Norma Jean Shaw contributed to this report.
BREAKING NEWS: Former EDA administrative assistant Michelle “Missy” Henry arrested by VSP
WARREN COUNTY – Michele “Missy” Henry, who worked alongside former EDA Director Jennifer McDonald, who is currently jailed on a number of charges related to embezzlement of funds from the entity, was arrested Monday (June 24) without incident at her home by the Virginia State Police.
Henry has been charged with two counts of felony embezzlement and is currently being held without bail. She is scheduled to appear in Warren County Circuit Court on Tuesday, June 25 at 9 a.m.
This is a developing story that will be updated as information warrants.
Town files suit against EDA, McDonald to recover $3 million of Town assets
After months of unsuccessful efforts to be included with the EDA and County in information gathered on Front Royal-Warren County Economic Development Authority financial improprieties as it applies directly to money that it may be owed, the Town of Front Royal has filed suit to recover an estimated $3 million dollars of Town assets from the EDA and its former executive director, Jennifer McDonald.
The civil action for lost Town taxpayer assets was filed at 9:04 a.m. on June 21, just minutes after the opening of the Warren County Circuit Court Clerk’s Office. Served as agents of the EDA were EDA/County Attorney Dan Whitten, at his Warren County Government Center office, and newly-hired EDA Executive Director Doug Parsons, at his EDA Kendrick Lane EDA office. McDonald was served at the Fairfax County Adult Detention Center where she is now housed without bond on four related felony criminal charges. Judge Clifford L. Athey Jr. has deemed McDonald a flight risk was she to be released on bond.
The aggressively-worded complaint targets, not only McDonald for believed fraud, but the EDA Board of Directors and legal staff for “inexplicable” lapses of oversight in allowing the possible continuation of fraud against Town interests for at least three months beyond a confrontational August 2018 meeting between Town and EDA officials.
The Town complaint demands a jury trial to recover assets it admits it does not yet have a completely accurate estimate of due to the EDA legal counsel’s rejection of multiple FOIA inquiries about the result of the Cherry Bekaert investigation of indicators of fraud in EDA financial operations.
Of course the Town now has access to those almost 3,000 pages of documentation and its 100-page working paper summary on file in the EDA civil litigation court file. An initial exploration of those documents by Town staff perhaps led to the upping of its estimated losses from the $291,000 of debt service overpayments discovered by Town Finance Director B.J. Wilson in May 2018, to the $3 million dollars now cited as of June 21, the first day of summer 2019.
In addition to its own independent, contracted auditor’s confirmation of Wilson’s May 2018 discovery of years of debt service overpayments, the Town Complaint cites a subsequent August meeting with McDonald, then EDA Board of Directors Chairman Greg Drescher and EDA/County Attorney Dan Whitten at which, “It was Town employees and agents who, on August 23, 2018, caused McDonald to admit, in person and while in the presence of the EDA/County Attorney and in the presence of the Chairman of the Board of Directors of the EDA, that McDonald had personally submitted false, and thereby knowingly and fraudulently, billing invoices to the Town for payment.”
Citing his public schools administrator’s work schedule, Drescher announced he was stepping down as EDA board chairman the following day. He has since resigned from the EDA board. Drescher and Ron Llewellyn submitted their resignations on March 22, effective the following day as the Cherry Bekaert investigation was winding down.
Also on the day following the apparently volatile August 23 Town-EDA staff meeting, or very close to it, the Town Complaint notes its contact of the Virginia State Police requesting “a complete law enforcement investigation of the EDA and McDonald” which it adds was begun “immediately” and continues “to this day.”
It was VSP that arrested McDonald on May 24 in the wake of Special Grand Jury indictments handed down from the investigation into potential criminality related to EDA financial activities and the EDA civil litigation filed March 26.
It is here on page seven of its nine-page complaint, where the August 23 meeting is addressed, that the Town zeroes in on what it characterizes as an ongoing pattern of “inexplicable” negligence by the EDA Board of Directors.
“Notwithstanding the events of August 23, 2018, the EDA Board of Directors, inexplicably, allowed McDonald to retain her position as Executive Director of the EDA with all of her rights, privileges and duties as before, with no known restrictions as such,” the Complaint begins in paragraph 18, subsection D, adding the word “inexplicably” three more times to describe the EDA board’s lack of disciplinary action or even the implementation of increased oversight of its executive director in the subsection D paragraph.
“The EDA Board of Directors inexplicably did not immediately fire or otherwise discipline McDonald … inexplicably did not restrict McDonald’s access to the EDA offices or her duties … inexplicably did not immediately call law enforcement to investigate McDonald or her activities … not withstanding that the Town’s auditor on that date rightfully and appropriately personally called out McDonald for committing fraud upon the Town in the presence of McDonald … the EDA’s Chairman of its Board of Directors and in the presence of the EDA’s attorney,” paragraph 18-D reads, adding a fifth and final “inexplicably” to describe the failure to place their executive director on administrative leave pending a resolution of the fraud allegation made by the Town auditor on August 23, 2018.
Of that series of “inexplicable” EDA board lapses the longest paragraph in the complaint – at one-and-a-half pages – concludes of the period between August 23 and December 2018, “…McDonald was able to continue to and did in fact misappropriate and embezzle EDA’s moneys and taxpayers’ moneys. In fact, according to widely published accounts, on November 28, 2018, McDonald as Executive Director was able to convince the EDA’s Chairman of the Board of Directors to sign a deed of conveyance to a highly publicized and controversial workforce housing project property worth hundreds of thousands of dollars to a third party for a consideration of only ten dollars, concerning which the Chairman was publicly quoted in the press as saying that he had no reason not to trust McDonald when she handed him the deed to sign without him reading the deed, even though at the time she was under State Police investigation, federal government law enforcement investigation, and the EDA and McDonald were under the aforementioned Financial Study for this very same misappropriation and embezzlement of moneys.”
Paragraph 10 of the complaint states that, “As a result of the incorrect and incomplete documentation the Town has received to date from the EDA and McDonald, it is unknown to the Town when the moneys were misappropriated by the EDA and McDonald; or who are the identities of all the persons or entities who might have been involved … or where the moneys misappropriated are now located or if it is now in the United States of America, or if it is even now recoverable.” The following paragraph cites the potential of a statute of limitations kicking on some of the longer misdirected Town money.
The outset of the civil complaint notes that it is currently the Warren County Board of Supervisors that “solely appoints the Board of Directors of the EDA”; and that with the EDA it is the County that funds the EDA’s operational budget, with the Town playing no current role in either. In the wake of the County’s assumption several years ago of the Town’s portion of the EDA’s operational budget as part of the continuing Route 340/522 Corridor agreement compensation negotiations, the Town does continue to contribute to portions of the EDA debt service payments, as illustrated by the discovered years of debt service overpayments continuing into 2018. The Town also contributes by way of a fair-funding formula split for projects of mutual town-county interest.
In what may flirt with an editorial observation, it would appear to this long-time local municipal reporter that the Town voluntarily withdrew from EDA oversight and board appointment authority, rather than being compelled to do so by the County’s assumption of its EDA operational funding. That is because that assumption was done as part of negotiated County compensation to the Town for the extension of Town central water-sewer utility into the county to facilitate corridor commercial-industrial development. So if not in the filed civil complaint or open court, behind closed doors town officials might want to whack themselves on the back of the hand for not maintaining more operational oversight of how the EDA was functioning, particularly as much of that functioning continued and continues to involve in-town projects.
Liar, Liar, Pants on fire..
At the Front Royal Town Council Work Session on June 10th, Councilman Eugene Tewalt brought up the Work Force Housing project, again. This project was brought to Council in 2016 and a special use permit was granted on November 14, 2016. This permit was issued to the EDA and allowed for three 12-unit apartment buildings, for a total of 36 apartment units intended to be owned by the EDA and rented for workforce housing.
In an interview with Royal Examiner publisher Mike McCool, Tewalt said he would like those permitting exceptions rescinded because the Town was lied to about who the actual developer of the property would be and more.
The Royal Examiner’s camera was at the worksession – watch the Council discussion of the matter.
Here’s the what is outlined in the special permit:
This SPECIAL PERMIT incorporates the application and all plans as submitted with the application and the following conditions:
1. The special use permit is only valid for 36 apartment units on the subject property, and includes a special exception to Town Code 148-820.H.3 for the proposed extension of Royal Lane as shown on the preliminary site plan. The apartment units shall be marketed as workforce housing.
2. The portion of the proposed access road extension of Royal Lane that is part of the adjacent parcel, identified as Tax Map Parcel 20A17-1-14A, shall be dedicated to the Town prior to issuance of any construction permits.
3. The remaining portion of the proposed access road extension of Royal Lane, as identified on the preliminary site plan, shall include all necessary access and utility easements, as well as a right-of-way reservation to the Town. Such reservation shall legally authorize the Town to dedicate the roadway as a public street when determined by Town Council, such as, but not limited to, when extension of the road is feasible.
4. All site improvements and utilities shall be constructed and paid for by the Applicant, and all applicable utility connection fees shall be paid at the time of application for a zoning permit to construct the apartments, unless otherwise waived by Town Council.
5. A complete final site plan application shall be submitted that adequately addresses the technical requirements of the Town Code and the review comments included in the staff report. Provided that the final site plan generally conforms to the preliminary site plan, as submitted with this application, Town Staff is authorized to approve the final site plan.
6. A playground, sitting area, and bicycle racks shall be provided. The playground shall meet the standards of the Public Playground Safety Handbook (2010), published by the U.S. Consumer Product Safety Commission, or comparable alternative standard approved by the Building Official and Planning Director.
7. Town Council, or other designated representative, may inspect the property at any reasonable time to ensure compliance with local regulations, including, but not limited to, the conditions placed on this special use permit. Upon inspection of the property, if it is found that the property is not in compliance with local regulations, including but not limited to, the conditions of this special use permit, the Town may revoke this special use permit after notice to the applicant and public hearing.
8. The proposed apartment units shall be marketed as workforce housing, and shall not be used as subsidized housing for “very-low” or “extremely low” incomes, as classified by HUD.
9. The final design of the apartment buildings shall substantially conform to the building elevation drawings submitted by the EDA.
This SPECIAL PERMIT applies only to the property noted herein and is not transferable to any other property.
Not only communications, but Sayre net worth at issue in motions hearing
Attorneys in the Jennifer McDonald defamation suit against Tom Sayre argued a variety of issues during the June 19 Discovery Motions hearing in Warren County Circuit Court. At issue was the scope Discovery materials Sayre is compelled by the court to produce in response to plaintiff motions, including a reply to what the Shenandoah District County Supervisors’ net worth is.
On that latter issue Sayre attorney Margaret Fonshell Ward argued that while such information may eventually be relevant in such a civil damages case, it is not subject to a Discovery Motion by the plaintiff at this point in the pre-trial proceedings.
“Right now is not the time – it can be addressed later,” Ward told the court of establishing her client’s net worth.
McDonald attorney Lee Berlik countered, citing a Fairfax case he is handling involving an airline, in which such Discovery was allowed.
“I agree it is the defendant’s burden of proof (in establishing their net worth) but the plaintiff has the option of seeking the information,” Berlik argued, observing, “If it turns out Mr. Sayre is a billionaire … he may not want the jury to know that it wouldn’t be a burden for him to pay” the damages being sought.
Those damages in McDonald’s February-filed counter suit to Sayre’s $25,000 defamation suit filed in September 2018, total $600,000, including $350,000 in punitive damages.
Both McDonald and Sayre’s defamation suits revolve around the infamous “conspiracy to terrorize McDonald” note discovered at the scene of a stone-throwing vandalism at her property McDonald reported to law enforcement the evening of June 15, 2017.
As observed in yesterday’s lead hearing story, while dismissing the false police report charge against McDonald on Halloween the judge observed that something was “horribly wrong” about the note.** And Berlik himself observed during Wednesday’s hearing, “The note remains a mystery.”
But back to the net worth question attached to McDonald’s defamation suit against Sayre, Athey agreed with the plaintiff and granted its Discovery Motion for Sayre’s net worth.
Sayre attorney Ward asked that the information “not be disclosed beyond Mr. Berlik”.
“Do you have a problem with that?” Athey asked Berlik.
Berlik replied that he would like to check with his client before definitively answering that question.
“Okay, the two parties will know each other’s net worth – but perhaps not the public,” Judge Athey observed of the status of that Discovery Motion.
As for plaintiff Discovery Motions for Sayre electronic or other communications, Athey ruled the defendant must provide a log of his phone records for 21 days surrounding the June 15, 2017 vandalism report, including the evening it occurred. Berlik argued that since the note included an instruction to call the numbers in the note “when anything has happened” what numbers Sayre may have received calls from in the aftermath of the reported vandalism incident are relevant.
The judge agreed; and Sayre’s attorney did not object to a focused request for phone records.
Athey also agreed that specific defendant communications in 2018 could also be relevant, and ordered them produced as well as relevant materials sought from 2017.
As for three months of Facebook communications or messaging, Berlik cited vagueness in the defendant response, “We don’t believe they’re there.”
The response to the plaintiff’s additional query, “Did you look?” was silence, Berlik told the court. The judge told defense counsel that a more appropriate response would be, “They may be there – I’ve looked, I didn’t find them.”
McDonald’s attorney also cited a lack of response to his request that the defendant provide any evidence that McDonald did fabricate the note or stage the rock-throwing incident. Athey observed that his experience of such cases was that there was no such evidence to produce.
However, the judge did not address how the 2900 pages, or even the 100-page summary thereof, of the Cherry Bekaert financial fraud investigation he ordered produced in the EDA civil case might impact such a related defamation case Discovery request, at least on the circumstantial side of the equation as to possible motive.
Of course, Cherry Bekaert devotes an entire 18 bullet point sub-section titled “Scope Limitations” describing limits placed on its inquiry “by the EDA BOD (Board of Directors) and County Board of Supervisors” that set fact-finding limitations to its EDA inquiry. See more on that in a forthcoming Royal Examiner story and in this linked story.
** Footnote: The note pointed out to investigators responding to her report of the June 15, 2017 rock throwing vandalism details instructions and information tied to what appears to be a conspiracy to terrorize McDonald for some unstated purpose: “She either does this the easy way with us or we make her life hell. No one should get hurt in this, but scared absolutely,” paragraph three of the note reads in part.
The concluding of four paragraphs of instructional text in the typed or computer-printout note upon which no fingerprints were apparently found included the admonishments, “Do not take this sheet with you (reporter’s note: OOPS), but make sure to keep it in your car with our numbers. Do not call Tom during business hours cannot have anyone hearing the conversation, so call me first,” followed by a 202 number that evidence at McDonald’s October 31, 2018 false police report misdemeanor trial indicated was former Town Manager Michael Graham’s, followed by Sayre’s local legal office number.
On October 31, 2018, Graham testified he knew nothing of the note; and Sayre is alleged to have publicly asserted he believes McDonald fabricated the note and incident in order to discredit him professionally and politically – leading to the dueling McDonald-Sayre defamation lawsuits.