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.
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.
Roy’s Express in Front Royal robbed
On February 21, 2020, the Front Royal Police Department responded to Roy’s Express, located at 239 North Royal Ave, Front Royal, for a reported robbery. Upon arrival, it was determined that a white male had entered the store and demanded money from the clerk. The suspect took an undisclosed amount of cash and fled the store on foot. No weapons were displayed during the incident.
The suspect is described as a tall, thin, younger white male. The suspect was last seen running in the area of Chester Street. The Front Royal Police were assisted at the scene by Frederick County Sheriff’s Office K9 tracking team. The suspect has not yet been located. The investigation is on-going.
Anyone who may have information about this case is asked to please contact Detective Waller at 540-636-2208 or by email at firstname.lastname@example.org.
Open air fire causes wildfire, occupant charged
Just after 2:00 pm on Tuesday, February 18, 2020, Warren County Fire and Rescue units were dispatched to the 1800 block of Oregon Hollow Road for a reported brush fire which was threatening multiple structures.
Units quickly arrived on the scene to find approximately 3/4 of an acre of wooded area involved in fire with the fire spreading away from any structures. Firefighters were able to quickly control the blaze before any structures were damaged. It was determined that the fire was caused by an open air fire spreading to the wooded area when winds increased.
The occupant of the home where the fire started was issued a summons by the Virginia Department of Forestry for violation of VA Code 10.1-1142. The occupant faces being guilty of a class 3 misdemeanor and may be liable for the full amount of all expenses incurred in suppressing the fire.
This incident should serve as a reminder as to why the 4pm Burn Law is in effect between February 15th and April 30th.
Briefly, the 4pm Burn Law regulates the open air burning before 4pm and after midnight. This law was adopted to reduce the number of wildfires during this period of risk associated with weather conditions that include elevated winds, lower relative humidity, and dryer forest floor fuels.
For more information on the 4pm Burn Law, visit www.dof.virginia.gov/fire.
Units on the call:
- Engine 1
- Brush 8
- Brush 9
- Brush 10
- Tanker 3
- Tanker 8
- Tanker 9
- Ambulance 4
- Fire Marshal 1
- Forest Warden 1 (Department of Forestry)
Suspect arrested and charged for fraudulent use of stolen debit card
On January 14, 2020, the Front Royal Police Department initiated an investigation into fraudulent use of a stolen debit card. The stolen card was used at BB&T, Target and 7-11. Jessica Nicole Shell was identified as the suspect and warrants were obtained for §18.2-192 Credit Card Theft and §18.2-178 Obtain Money by False Pretenses.
On February 10, 2020, Shell was arrested by the Hardy County Sheriff’s Office in West Virginia where she was detained until extradited on February 13, 2020. Ms. Shell was transported to Rappahannock Shenandoah Warren (RSW) Regional Jail and is currently being held without bond. The court date for these offenses are set for February 25, 2020, at 9:00am, in Warren County General District Court.
Anyone with further information in reference to this case is asked to contact Front Royal Police Detective L. Waller at 540-636-2208 or email@example.com.
Front Royal man arrested and charged with larceny at Peebles Department Store
On Tuesday, February 11, 2020, James Lathon, 56, of Front Royal, was arrested and charged with §18.2-95 Grand Larceny, §18.2-96 Petit Larceny 3rd+ offense, and §18.2-103 Concealing or taking possession of merchandise. This is in connection with an ongoing investigation of several larcenies that were reported at the Peebles Department Store located at 425 South Street in Front Royal. The Regional Manager of Peebles made contact with the police department after his employees observed the same individual enter their store on 3-4 different days and walk out with unpaid merchandise.
Mr. Lathon was arrested and transported to Rappahannock Shenandoah Warren (RSW) Regional Jail and is being held without bond. Mr. Lathon was additionally charged with a violation of his probation. The court date for these offenses is set for February 25, 2020, at 10:00am, in Warren County General District Court.
Anyone with any further information in reference to this case is asked to contact Front Royal Police Detective M.R. Ramey at (540) 636-2208 or by email at firstname.lastname@example.org.
Juveniles charged in dumpster fire incident, officials warn of youth fire setting behaviors
On Thursday, January 2, 2020, at 12:57 am, the Warren County Department of Fire and Rescue Services was dispatched to the area of 40 Crescent Street for a reported dumpster fire.
Units arrived on scene to find a garbage dumpster significantly involved in fire. Crews were able to quickly contain the fire, there were no reported injuries. The cause of the fire was investigated by the Warren County Fire Marshals Office which determined the fire to be caused by an intentional act.
A joint investigation conducted between the Fire Marshal’s Office and the Front Royal Police Department Criminal Investigations Division determined that the fire resulted from the actions of two juveniles. After consultation with the Warren County Commonwealths Attorney’s Office, petitions have been sought for these two juveniles in Warren County Juvenile and Domestic Relations Court.
Anyone with further information pertaining to the fire incident is encouraged to contact Fire Investigator Austin Cucciardo at email@example.com or (540) 636-3830, or contact Detective Dave Fogle at firstname.lastname@example.org or 540-636-2208.
This type of incident should serve as a reminder that youth fire-setting behaviors put our community at risk. If a child you care about has played with matches, lighters, fireworks, candles, etc. or has set a fire, or has shown a curiosity of fire that worries you, the Department of Fire and Rescue Services Youth Fire-setter Intervention Program may help. The Youth Fire-setter Intervention Program provides a simple risk assessment for youth to help understand their situation. It also provides fire safety education for the child and other family members. Everything is confidential and intended to help keep your family safe from fire. This is not a punitive program; rather a program to prevent a tragic incident from occurring. The goal is to help families learn about the dangers of fire setting and provide assistance and support to families with fire-setting concerns.
Anyone who feels they have a juvenile that can benefit from participation in this educational program is asked to contact the Department of Fire and Rescue Services Youth Fire Setter Intervention Program at 540-636-3830.
Alford pleas, dropped charges end ‘bawdy house’ saga with no jail time
After about 20 minutes of attorney and attorney-client discussion outside the Warren County General District Courtroom after the scheduled 2:30 p.m. starting time Wednesday afternoon of a motions hearing in the cases against Cynthia Atkinson Bailey and three family members accused of offering prostitution services out of a Front Royal massage parlor, a plea agreement was announced.
Bailey took an Alford plea to two misdemeanor charges, one of prostitution and of operation of a “bawdy (defined as gross, indecent or overly graphic) house” and had the remaining felony charges against her dropped by the Commonwealth. In an Alford plea a defendant pleads guilty without admitting guilt, only that the prosecution may have enough evidence to convict. Felony charges dropped included pandering or making money from prostitution; and cruelty to children, involving a teenage niece answering the phone and scheduling appointments for the Blue Valley Services business.
Noting that Bailey, 55, has no previous criminal record, Assistant Commonwealth’s Attorney Matt Beyrau informed Judge W. Dale Houff that Bailey would be sentenced to 30 days in jail and fined $500 on each guilty plea, with all jail time and $400 on each count suspended. Bailey will also be on unsupervised probation for 12 months.
A similar agreement was then announced for Bailey’s daughter Brandy Nicole Atkinson, who had a misdemeanor prostitution charge amended to disorderly conduct, also a misdemeanor. She received the same suspended sentence, fine agreement and 12 months of unsupervised probation as her mother.
Bailey’s son Jesse Thomas Atkinson and Brandy Atkinson’s fiancé Joshua Allan Stamper had peripheral charges to the bawdy house operation dropped by the prosecution. It was noted that Stamper was incarcerated on unrelated charges at the time his trio of co-defendants were arrested on May 15, 2019. Defense counsel indicated Stamper, who appeared in court in orange and white striped jail clothes, was still serving a two-year sentence on that unrelated conviction.
Cynthia Bailey and Jesse Atkinson were represented by David Downes; Jonathan Silvester was counsel for Brandy Atkinson and Stamper. Had the plea agreement not been reached, defense attorneys were prepared to argue for exclusion of much of the prosecution’s evidence in the case.
So, with a whimper, not a bang, ends the massage parlor/bawdy house saga that embroiled and led to the resignation of Front Royal Mayor Hollis Tharpe last May; and led to some testy press release exchanges between Bailey attorney Downes and the Winchester Special Prosecutor’s Office and Front Royal Police Chief.
Tharpe was indicted on a solicitation of prostitution charge on April 15, 2019, a month before Cynthia Bailey and her family members’ May 15 arrests. According to an FRPD press release issued on May 16, the arrests were the result of an ongoing investigation that began in late January of 2018.
Tharpe’s April 15, 2019 Grand Jury indictment, ironically signed by Tharpe’s eventual successor as Interim Mayor Matthew Tederick as grand jury foreman, references a May 31, 2018 incident in which Tharpe allegedly offered “money or its equivalent to another for the purpose of engaging in sexual acts … and thereafter did a substantial act in furtherance thereof against the peace and dignity of the Commonwealth …”
Queried after his interim mayoral appointment, Tederick called his grand jury role in Tharpe’s situation a coincidence, noting he received the grand jury assignment before the Tharpe case was brought forward.
Cynthia Bailey was initially arrested one week after the referenced Tharpe massage parlor incident, on June 7, 2018 on a charge of prostitution. That charge was dropped by the Commonwealth on October 2, 2018.
Tharpe’s misdemeanor solicitation case was eventually dismissed at the request of Special Prosecutor Heather Hovermale during a July 15, 2019 hearing due to Bailey’s invocation of her Fifth Amendment right to not self-incriminate due to the related charges hanging over her head.
Prior to that Downes and Hovermale and eventually the Town Police Chief whose officers were involved in the investigation of the Blue Valley Services operation, had engaged in dueling press releases. Downes first expressed the opinion the prosecution against Bailey was retaliatory in nature because of law enforcement’s interest in the then mayor of Front Royal and Bailey’s uncooperative stance regarding that investigation. That led to official denials by the involved prosecutor’s office and law enforcement.
For his part, Tharpe admitted visiting the massage parlor operated by Bailey at 312 Biggs Drive. However, the 67-year-old Tharpe told this reporter he visited Biggs Drive for legitimate massages on his aging and aching body. Tharpe lost a November 2019 special election attempt to regain his mayoral seat in a two-way race with Councilman and former Mayor Eugene Tewalt.