When Civil Liability theories collide – Poe cross examination by EDA counsel provides intense clash of perspectives

The civil liability trial and counterclaim in the “Warren Economic Development Authority” (EDA, WC EDA, FR-WC EDA) versus Donald F. Poe and Earth Right Energy (ERE) took a turn for TV-worthy courtroom drama Wednesday morning when the defense called its first witness. That witness was defendant Donald, or as he introduced himself to the jury, Donnie Poe.

And while direct examination from defense attorney William Ashwell remained calmly factual based upon the defense “roadmap” of its perspective of the case, things got more interesting when that defense roadmap and the plaintiff’s counter-roadmap/theory of the case collided during cross-examination. When EDA lead counsel Cullen Seltzer reached the plaintiff’s main contention that over a million dollars exchanged between former EDA Executive Director Jennifer McDonald and Poe and the solar panel installation company he represents regarding what the EDA contends were illegally formulated contracts and financial transfers done by McDonald without her board’s necessary authorization, things got interesting.

In the wake of EDA staff and board witnesses testifying that they had never seen or been consulted on the contract agreements presented to him by McDonald, Seltzer asked Poe if he now realized those contracts had been brought to him without the legally necessary approvals by the EDA Board of Directors.

“I don’t know that – that’s what they say,” Poe replied of the testimony he had heard from plaintiff witnesses. Pressed by plaintiff counsel that in the wake of supporting witness testimony he should now know that the EDA money he had received was not legally transferred, Poe responded: “You’re a nice man, but I disagree. I’m an uneducated man but I get things done” as to the contractual agreements he said he had been led to believe were legally acquired in 2018.

Defendant Donald Poe, below, went head to head with EDA lead counsel Cullen Seltzer, above, with earlier case evidence in tow, in an intense, but friendly cross-examination late Wednesday morning.

Later, when Seltzer noted that only McDonald’s signature on the EDA side was on the contractual agreements moving hundreds of thousands of dollars, Poe responded, “That’s her job – she signed it.” As the cross-examination intensified Poe observed from the witness box, “I shouldn’t be up here; you shouldn’t be there, other people should be. – Do you work for free?” Poe asked Seltzer.

“So, is Mr. Whitten lying, are Mr. Llewellyn, Mr. Drescher lying?” Seltzer responded of testimony from the former EDA attorney and two board members during the 2018 development of those contract agreements.

“I don’t know he’s not,” Poe replied to the initial and subsequent queries, citing a lack of first-hand knowledge of the inner workings of the EDA during that time period.

Of the unreturned $945,000 of the approximate $1.3 million he received on three proposed projects, the EDA attorney observed, “You got a million dollars” to which Poe replied of work he had completed on two of those, “Good for me – I put an honest dollar in my pocket … I did the work.”

“I don’t think I can talk you out of it,” Seltzer replied to Poe’s insistence he had earned the money the EDA now says was stolen by McDonald on legally unauthorized transactions.

“I wish you could, it would be a lot easier on both of us,” Poe replied as the cross-examination begun at noon ended at 12:31 p.m., at which point the trial adjourned for lunch.

After three more defense witnesses called in the afternoon, including former EDA Clerk Missy Henry, ERE solar subcontractor Donald Carlson by remote hook up from Florida, and West Virginia attorney Floyd M. Sayre III, also by remote connection, the defense rested. Noting the case was running slightly ahead of schedule, Judge Bruce D. Albertson dismissed the jury with the same admonishment not to discuss or read about the case at 4:20 p.m. With counsel estimates on closing argument time-frames, an hour for plaintiff, an hour to hour-and-a-half for defense, Judge Albertson told the jury he hoped to turn the case over to them for deliberations by around the lunch hour or shortly after on Thursday.

EDA civil liability case defendant Donald Poe testified that one of about 25 jobs he has contracted with the county government included renovations around the new main entrance to the Warren County Courthouse he now finds himself on trial above.

With the jury dismissed, EDA counsel Seltzer made a motion to strike the defendant’s $27.3 million counterclaim. The amount was the contracted amount of the proposed solar installation on Warren County Public Schools nine school facilities. Seltzer argued that the fact that there was no legally required authorization from either the county School Board or Board of Supervisors for that contractual arrangement, that the contract was not valid was “uncontroverted” by any defense evidence.

The judge took the matter under advisement and told counsel he would try to have a ruling after jury instruction discussion that would commence after a 10 to 15-minute break taken at 4:22 p.m. Closing arguments are expected to commence shortly after the 9:00 a.m. reconvening of the trial, Thursday morning, July 14.