Town targets Special Prosecutor’s Office over EDA prosecution delays

Less than a week after its September 23 press conference during which the County and EDA boards were vilified as obstructions to good-faith negotiations in resolving the year-and-a-half debt service impasse on the new town police headquarters, the Front Royal Town Council took a strategic turn in its EDA bad guys play.

In a familiarly aggressively worded resolution the Front Royal Town Council took aim at a new target; and asked past targets, the County and EDA’s, cooperation in that targeting. As reported in Royal Examiner’s lead story on the September 28 council meeting, that target is Harrisonburg-based EDA criminal case Special Prosecutor Michael Parker.

Queried on the resolution’s author, co-sponsor Lori Cockrell said she had turned the inquiry over to the interim town manager who “took it from there”. Tederick told Royal Examiner that once handed the issue by Cockrell, in the absence of town legal staff at the end of last week he had drafted the resolution which was given an eventual okay from the legal department to proceed with.

Minus Mayor Tewalt and Councilwoman Thompson a Front Royal Town Council majority has collectively maintained an aggressive tone recently in public statements regarding EDA financial and now prosecutorial issues. Royal Examiner Photos by Roger Bianchini – Royal Examiner Video by Mark Williams

The goal of getting answers and explanations on delays to potential criminal prosecutions related to the EDA financial scandal is a desirable and understandable one. However, is the negative language peppering the resolution appearing to suggest some level of prosecutorial ineptitude tied to a political mandate to “expeditiously proceed to trial on these matters” really necessary or a desirable strategy?

From the resolution’s language it appears to have been written without Town representative discussion with the prosecutor’s office on the legal dynamics of the situation. And without fundamental information from the prosecutor’s office on its process in the EDA criminal investigation is it wise to become publicly aggressive with someone you need and want in your corner as that legal situation progresses?

Okay, it’s been a long time – a little over nine months as the resolution notes since the Harrisonburg Commonwealth’s Attorney’s Office was handed the job of criminally prosecuting those believed involved in aiding in and/or benefitting from former EDA Executive Director Jennifer McDonald’s alleged embezzlements and misdirection of EDA assets to her own purposes.

Past explanations

However, Special Prosecutor and Harrisonburg Assistant Commonwealth’s Attorney Michael Parker explained at the time he dropped all criminal indictments filed by the EDA Special Grand Jury under the direction of original prosecutors Brian Madden and Bryan Layton to avoid running into speedy trial issues that could have seen those charges dismissed on defense motions and never re-filed, he would do things differently than had been done previously with the EDA Special Grand Jury.

The primary difference, he explained, would be what he called a more normal process, perhaps one without political pressures for immediate legal gratification at play, where no indictments would be filed until the grand jury had completed its investigation into all potential defendants. That strategy would prevent the kind of looming speedy trial issues Parker inherited after newly elected Warren County Commonwealth’s Attorney John Bell and his staff recused themselves from the EDA prosecution due to personal, social and/or professional ties to many of the defendants.

Parker also inherited a voluminous amount of evidence cited at over a million pages of documentation that even got the attention of the State Supreme Court as to filing and Discovery motions issues.

Is the Front Royal Town Council’s ‘demanding’ legal movement toward EDA-related criminal prosecutions without discussion on the status of the prosecutor’s investigation a wise move? – One local attorney thinks not.

So, is the silence from the Special Prosecutor’s Office ominous as in a failure to proceed with a workable case, or perhaps “golden” in that it implies that sufficient time is being taken to assemble and coordinate evidence to facilitate successful prosecutions once the grand jury has completed its work and indictments are forthcoming?

New demands

On Monday, September 28, a five-person, partisan Republican political majority of the Front Royal Town Council, with independent and “Beer Party” endorsed Letasha Thompson dissenting, answered that question on prosecutorial silence from its perspective.

“WHEREAS, the Special Prosecutor, Michael Parker, who was designated by Marsha Garst, Harrisonburg/Rockingham County Commonwealth Attorney, to prosecute these matters, moved to dismiss all of the True Bills returned by the Special Grand Jury based upon his professed inability to provide discovery to the defendants and his lack of preparation to competently prosecute (emphasis added) the over seventy-five True Bills, previously issued against McDonald and other defendants,” paragraph four of the resolution brought to council by Council members Cockrell and Chris Holloway reads as it moves past three background introductory paragraphs to target council’s newest EDA villain for a lack of criminal results, or even at this point, action.

The resolution’s final paragraph asks last week’s EDA villains, the Warren County Board of Supervisors and Economic Development Authority Board of Directors, to join the Town in approving the resolution “on behalf of Town and County residents demanding justice on behalf of our mutual constituents”.

But will the resolution which seeks the reconvening of the EDA special grand jury within 60 days of approval of the Town Resolution work to the benefit of town residents seeking justice in the EDA situation?

Politics and the Law: Do they mix?

According to local defense attorney, Virginia Beer Museum proprietor and “Beer Party” founder David Downes, that remains to be seen. Apparently having seen the resolution text in the agenda posted on the Town’s website prior to the meeting, Downes came to Monday’s meeting with prepared remarks on the proposed resolution and its legal versus political contexts.

With the resolution’s sponsors Holloway and Cockrell seeking election this November, Holloway to mayor and Cockrell to her appointed council seat with County Republican Committee endorsements, Downes wondered at the level of partisan politicking that might be involved in the pair bringing this resolution forward at this time.

“Why are councilmen running for office the only councilmen ‘seeking justice for citizens of Front Royal as a result of the EDA scandal’,” Downes asked in opening his critique of the Cockrell-Holloway introduced, Tederick-drafted resolution.

Is it a coincidence that the two resolution sponsors are council’s two members currently running for office, attorney David Downes asked in suggesting an unhealthy mix of politics and legal matters.

Having noted his 33-year career as a criminal defense attorney in this community, Downes wondered at the advisability of what he saw as a mix of political posturing and critical legal analysis of complex and still pending criminal cases.

Why, he asked, hadn’t council simply resolved to ask its mayor “our Town representative to simply call” Harrisonburg Commonwealth’s Attorney Marcia Garst or her appointed EDA Special Prosecutor Parker to inform them of the Town’s concerns and desire for an explanation on causes for delays in resurrecting criminal EDA financial scandal prosecutions.

“Why wait two months,” Downes asked of the resolution referenced 60-day demand for reconvening of the EDA Special Grand Jury.

However, the attorney also wondered at the legal advisability of the Town Resolution’s demand “to expeditiously proceed to trial on these matters”.

“This is exactly the kind of resolution I would want if my client was involved in the EDA scandal,” Downes told council, explaining, “I would want the prosecutor to feel rushed and not read all one million documents – which works out to reviewing over a thousand documents per day for three solid years – because they will not be prepared for trial and double jeopardy will preclude my client’s prosecution.

‘Please be careful what you wish for,’ defense attorney David Downes warned council of moving too quickly into legal minefields.

“Please be careful what you wish for and end the political grandstanding a month before the election,” Downes concluded to council and the resolution’s sponsors.

Over an hour after Downes remarks as the resolution came before council as the agenda’s final open meeting item, Holloway denied a political motive.

“Earlier we were accused of political grandstanding – No, it’s called demanding justice and that’s what we’re here for, the citizens of Front Royal, not for a political party,” Holloway asserted. “Our citizens demand justice and they deserve justice and I think this is a step in the right direction,” Holloway added of a resolution seeming to suggest EDA criminal prosecutor ineptitude and perhaps unwillingness to bring charges forward in what Downes had also noted is a court system slowed considerably, particularly as to jury trials, due to COVID-19 pandemic social distancing precautions.

“Are we taking into account that the Virginia Supreme Court has stayed virtually all jury trials between … April 17, 2020, and today? … In other words, Warren County is not currently prepared to try ANY jury trials due to COVID-19,” Downes told council during his public concerns comments.

Cockrell read a prepared statement explaining her support in introducing the resolution with Holloway into the meeting record. She cited door-to-door campaigning during which “hundreds of town citizens have asked me why those who embezzled money from the EDA have not been brought to justice. It is obviously first and foremost on their minds,” Cockrell said in opening.

Lori Cockrell addresses constituent concerns over delays in EDA criminal prosecutions in prefacing a vote on the resolution she and Chris Holloway brought to council Monday, Sept. 28.

“This request is based upon my many conversations with citizens on their front porch, walking down the street, or just this past weekend at my class reunion. I believe the community wants us to work together to bring the criminals to justice first, and then leave for another day how any monies recovered should be distributed as a result of these crimes,” Cockrell added with a somewhat surprising turn in that the proposed resolution said nothing about ending the Town suit against the EDA.

That Town civil suit is seeking virtually all the alleged $21.3 million in misdirected or embezzled assets cited in the EDA’s initial civil filing against what has climbed to 15 defendants. A second EDA civil action added nine defendants and $4.45 million in alleged misdirected EDA assets. Cockrell cited McDonald’s recent bankruptcy filing, suggesting that criminal liability and restitution could present an alternate method of recovering McDonald assets now under bankruptcy court control.

Cockrell’s statement indicated a desire to see that justice is done on the EDA situation to the benefit and will of her constituency and seeks the resolution as a means of achieving Town-County-EDA cooperation. However, the career educator’s perspective is not a legal one from which she might have been able to answer some of her constituent questions about reasons for delays in the EDA criminal prosecutions referenced in prosecutor Parker’s initial explanation of his grand jury strategy or attorney Downes’ observations on the legal obstacle course the prosecutor is facing.

So hopefully a council majority has not jumped the gun in seeking to force prosecutorial movement as November 3^rd approaches before approaching the prosecutor’s office about the status of their investigation. Perhaps someone on the County side might initiate such a conversation with the Harrisonburg prosecutor’s office prior to a decision on joining the Town in approving the resolution as currently crafted.

Following adjournment of the open meeting, Gary Kushner, left, and Councilman Meza discuss Kushner’s public comments critique of council press conference assertions the previous week regarding liability and what was known about available interest rates on the FRPD headquarters construction project initially financed by the EDA.

Watch the video in this related Town Council story:

Council debates CARES reimbursement for Electric Department purchase as Monday’s Main Event – more EDA-related target shooting – approaches