What do the Sayre-McDonald lawsuit and the Titanic have in common?

A photo Tom Sayre had taken of himself with Jennifer McDonald on June 18, 2018 celebrating the ITFederal groundbreaking behind EDA headquarters. Social Media File Photo

FRONT ROYAL – “This will be a damaging loss for whoever loses,” Judge Ian Williams observed Wednesday of the time, effort and expense being put into the Tom Sayre defamation lawsuit against former Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald at the General District Court level – a level where the maximum award is $25,000. 

“It’s very curious – but I’m giving you more time to arrange the deck chairs on the Titanic,” Williams added of additional time he granted Sayre attorney Tim Bosson and McDonald counsel Lee Berlik in an attempt to reach a legal consensus on filings in the case. – “There will be no more hearings on this,” the judge warned of dueling evidentiary motions before the new trial date of August 2, at 1 p.m. The Winchester-based judge explained he had to change the original trial date from June 21 due to a conflicting trial assignment. 

As the March 20th motions hearing drew to a close after an hour-and-forty-five minutes, Judge Williams bemoaned the time and legal effort being put in on preliminary motions. He asked the attorneys what they made an hour. Bosson replied $350, Berlik $425 (I’m definitely in the wrong line of work). 

Noting that amounted to $775 for every hour put in by both sides on the case, the judge marveled at the work being done on a case with a $25,000 award cap. 

The most recent result of all that legal work was plaintiff Tom Sayre prevailing on a series of evidentiary motions argued Wednesday afternoon in his $25,000 defamation suit against McDonald. 

Overruled by Judge Williams on March 20 were defense motions to: 1/ a “plea and bar” which would have essentially thrown the plaintiff’s case out as having not established the grounds, including malice, upon which the civil suit is based; 2/ to further reduce the number of complaints on statute of limitations violations; 3/ remove additional detail on specific complaints in the case added since the initial filing; 4/ and prevent any plaintiff subpoena of records of EDA/McDonald Private Investigator Kenneth Pullen as privileged information. 

On that latter issue, plaintiff counsel Bosson told the court that he had verified that the EDA Board of Directors had initially hired Pullen in the wake of the May 17, 2017, EDA office break in. However, he said the EDA board had turned the private investigator’s contract over to its then executive director as incidents of alleged trespass and vandalisms reported by McDonald at her home escalated over the following month. 

The fact that then-EDA Board Chairman Greg Drescher requested Town Police to drop their investigation of the EDA office break in, in favor of the EDA’s private investigator’s handling of the case has been a sticking point for EDA critics, particularly former Town Councilwoman Bébhinn Egger’s father Mark Egger. The elder Egger has repeatedly questioned the board of supervisors on lapses in county oversight of the EDA; as well as seemingly conflicting stories regarding who hired the PI and why Drescher, speaking for the EDA board, sent a letter asking for a halt to the FRPD investigation. 

Jennifer McDonald and EDA board Chair Greg Drescher fielded some tough questions from County Supervisors Tom Sayre and Archie Fox at a June 6, 2017 joint work session of the supervisors and EDA. Royal Examiner File Photo/Roger Bianchini

Judge Williams authorized a subpoena of Pullen and his records from June 6 to August 16, 2017. However, Bosson told the court he had been informed by the EDA that they do not have any documents related to Pullen’s investigation; and that either “Ms. McDonald has them or they’ve been destroyed.” 

But the court ruling on Pullen and his records will allow information in a series of July 14, 2017 emails between McDonald and this reporter subpoenaed by the plaintiff and referenced several times in Wednesday’s hearing, to be corroborated or not corroborated by the private investigator, if not on paper, on the witness stand. 

As Bosson noted during Wednesday’s hearing, in those emails McDonald alleges “a culprit” in the alleged June 15, 2017 rock-throwing vandalism at her home had been identified and was being approached by Pullen to wear a wire on a suspected accomplice in an alleged plot to terrorize her. Bosson told the court that based on information from the recipient of those McDonald emails the references to “the first Putin” and “our photo boy” as a director of the operation against her are references to Mr. Sayre. The alleged plot to terrorize McDonald was outlined in the crumpled, typed note the WCSO incident report indicated was pointed out in her yard to sheriff’s office first responders investigating the June 15 vandalism reported at 9:02 p.m. 

As Royal Examiner previously reported, that note investigators assumed to be dropped by the vandal at the scene contains two phone numbers, Tom Sayre’s office number and former Town Manager Michael Graham’s cell phone number; as well as references a “Matt” being run off by a barking dog of McDonald’s; getting “files to the Examiner” because “Norma Jean will be waiting for them”; and instructions “not to call Tom during business hours…” and, drum roll please, “Do not take this sheet with you …” 

The incident report appeared to indicate no fingerprints found on the note. 

All those implicated by name and known to authorities testified at McDonald’s misdemeanor false police report trial that they had no knowledge of the note or any plot against McDonald. While dismissing the case against McDonald on October 31, 2018, General District Court Judge W. Dale Houff commented that there was something “terribly wrong” about the note. However, Houff ruled that Commonwealth’s Attorney Brian Madden had not established enough evidence or motive as to why McDonald would fabricate such a situation.* 

As for defense attorney Berlik’s complaint that plaintiff counsel Bosson has not been responsive to subpoenas of plaintiff records in a timely manner, Bosson noted that many of the responses were being delivered to the McDonald team in Circuit Court where the defendant has become the plaintiff in filing a $600,000 defamation suit against Sayre. 

“They filed the exact same thing in circuit court and will receive them there – I don’t understand why we are here,” Bosson said of the defense’s beef over the subpoena responses. 

“Do you think the two of you can agree on anything,” Judge Williams asked the attorneys. When Berlik began, “Not now,” the judge countered, “If you can’t do it, I can go through all of (the subpoenas) and choose (what’s in and what’s out) and you can live with it … we’re not having another hearing on this.” 

In making his case to reduce the scope of the defense subpoena submission, Sayre attorney Bosson pointed to his own four subpoenas totaling 20 specific requests in the wake of the judge’s earlier hearing admonishment to the attorneys not to turn evidentiary subpoenas into fishing expeditions. Bosson compared his numbers to the defense filing of seven subpoenas totaling 89 specific requests. 

While setting a series of dates for submissions and responses approaching the new trial date, the judge set May 10 for the final product – “either separate orders or one agreed-upon order,” Williams observed, adding, “If you achieve that (an agreed order) I may invite you all up here for champagne.” 

Williams then glanced to his left at Front Royal Town Attorney Doug Napier listening to the proceedings, offering to include him in the celebration of functional legal compromise; leading Front Royal Police Captain Crystal Cline to Napier’s left to inquire if she might be included in that celebration as well. 

Back on the serious legal train, Napier told the court that the town government could not respond to a defense subpoena of town personnel text messages because “we just don’t have them.” 

Napier was also present representing the Town in attempting to join the plaintiff in the effort to quash certain defense motions on the table that day. However, Napier acknowledged that two attempts he had made to notify Berlik of the Town’s planned joining in that motion had failed to reach McDonald’s attorney. During the hearing Napier simply deferred to the plaintiff’s arguments on the motions to quash. 

FOOTNOTE: Despite McDonald’s criminal case acquittal, it is noteworthy as previously reported by Royal Examiner, that the prosecutor did not call the Town Police investigator who developed the false police report case against McDonald, nor the State Police officer who filed the warrant, nor an EDA employee whose recorded FRPD interview appears to corroborate this reporter’s timeline on meeting with McDonald about incidents at her home prior to the report of the vandalism rather than the following morning as asserted in her criminal case defense. Madden also did not present evidence regarding motive given to him by one prosecution witness – Royal Examiner Editor Norma Jean Shaw’s exploration of McDonald’s use of large amounts of cash in purchases and down payments in her personal real estate business; as well as Shaw’s inquiries into the identify of a “secret investor” in the since-aborted police academy project slated for EDA land in the Happy Creek Technology Park. That investor was believed to be ITFederal principal Truc “Curt” Tran. Tran has since said such an investment was discussed, but never agreed to. A file containing that information stored in an obscure place in McDonald’s office was the only thing she reported missing from the May 17, 2017, EDA office break in. Without a shovel being turned on the site, the EDA reports it spent over $500,000 on the police academy project before its abandonment. 

Tom Sayre and ‘Curt’ Tran in EDA parking lot on Dec. 20, 2018, the day Jennifer McDonald resigned via email during extended EDA board review of her job performance. Royal Examiner File Photo/Roger Bianchini