In Loudoun County Circuit Court on Friday, September 21, a substitute Judge, John F. Daffron, from Chesterfield County, heard arguments and handed down a series of rulings generally favoring Mark Tate's defense against charges of election fraud and perjury, initially raised by supporters of his Republican Primary opponent, Warrenton lawyer Jill Holtzman Vogel.

Tate, an outspoken Republican conservative and former Middleburg vice mayor, was defeated by less than 100 votes in his 2003 primary run against moderate Russ Potts.

He was indicted on the eve of the 2007 primary election, and lost to Holtzman Vogel by a significantly larger margin.

Tate's Defense Attorney May Continue to Serve

Arguably, Friday's most important ruling simply allowed Tate to keep his defense attorney, Edward B. MacMahon, Jr., of Middleburg.

Special Prosecutor Britton had moved to have MacMahon removed from the case on the grounds that, as a Tate supporter in 2003, MacMahon could be called as a potential witness.

MacMahon, in response, filed a lengthy sworn affidavit, attesting to his political and professional dealings with Tate.

On Friday, Judge Daffron flatly denied the Commonwealth's motion to remove MacMahon, echoing an earlier decision issued "without prejudice" by Judge Charles H. Duff.

Commonwealth Must Clarify Charges

Judge Daffron also ruled on Friday that the Commonwealth's detailed statement of the charges and evidence against Tate, the "bill of particulars" ordered to be produced in July of this year, was inadequate.

Tate's attorney argued that the Commonwealth had responded to the Court's order to produce a concise statement of charges and evidence by delivering an undifferentiated phonebook," a mountain of paper, including copies of documents, reports, checks and bank statements, with no indication whatsoever of which ones were relevant to the case, which were not, or how any of them related to the charges against Tate.

Judge Daffron, noting that it was well that he could approach the case from an "out of town" perspective, said that he'd read and reviewed the Commonwealth's "bill" on Tuesday, before the Friday hearing; that he'd done so again on Wednesday; and again on Thursday; and that he still couldn't tell what Tate was charged with.

Noting MacMahon's observation that his client was due to stand trial in eight weeks, Daffron denied motions to quash nine of the eleven indictment against Tate, but ordered Special Prosecutor Britton to produce "a more particular bill of particulars" by Tuesday, September 25, in anticipation of yet another hearing on pretrial motions related to the clarified indictments.

A defendant has a right to know the charges against him and the evidence supporting those charges, Daffron noted. The Commonwealth, he said, should provide a "bill" that is simple statement, written in declarative sentences, he said.

Special Prosecutor Britton promised to meet Judge Daffron's Tuesday deadline.

Investigator's Notes

A consequence of a 1963 Supreme Court decision, usually referred to as the "Brady Rule," requires that prosecutors provide defendants with any and all evidence that could either help prove they were innocent, or show that the witnesses against them were prejudiced, had conflicts of interest, or even criminal records.

Judge Daffron denied a defense motion on Friday that would have required the Commonwealth to deliver the complete text of notes taken by the Commonwealth's investigator during the course of his investigation of Mark Tate.

Noting the Commonwealth's argument that making the complete text of such notes public might well be illegal, Daffron nevertheless ordered Special Prosecutor Britton to review the notes carefully, with a keen eye for any "Brady" material they might contain, and turn them over if appropriate.

In response to MacMahon's observation that it would be difficult to know if the notes contained "Brady" material if he were not allowed to see them, Judge Daffron observed that the trial judge in the case could allow review of the material, and hear motions related to them, "in camera," in the judge's chambers, out of sight of the jury. Any exculpatory evidence found would, necessarily, be made available to the defense.

"An Obscene Abuse of Power"

In making his case for issuing a subpoena, compelling testimony from Commonwealth's Attorney James Plowman prior to the Tate trial, Ed MacMahon noted pointedly: 1) that the Virginian State Board of Elections had never charged anyone with perjury or election fraud for reporting errors like those with which his client is charged, and 2) that Plowman, as Commonwealth's Attorney, was guilty of an "obscene abuse of power" in the actions he took against Mark Tate.

Citing former Leesburg Today reporter Charlie Jackson's sworn statement about his "off-the-record" conversations with Plowman, MacMahon reiterated what he believed to be clear evidence of Plowman's efforts to plant negative news stories about Tate, and his "reading" to Jackson from "Tate's bank records" well before he recused himself from the case.

Comments from bloggers on the web, according to MacMahon, also seem to indicate that Jackson was not the only "reporter" with whom Plowman was "shopping stories."

Plowman's motives, MacMahon noted, are clearly relevant to the Tate case, as is what MacMahon termed "abuse of subpoena power . . . for political ends."

MacMahon also claimed to have witnesses willing to testify that Plowman had improperly and illegally sat through Grand Jury sessions in the Tate case.

Special Prosecutor Britten argued that Plowman's testimony would be peripheral to the case against Tate, even if MacMahon's charges were true.

Plowman as a Witness? Not Yet.

Judge Daffron ruled narrowly on the Plowman subpoena, and "without prejudice." Noting that Commonwealth's Attorneys are given "great latitude" in their choice of cases, Daffron reminded those present that Commonwealth's Attorneys are elected officials, and that citizens always have the recourse of "the ballot box" in cases in which they believe power is being abused.

Indeed, Daffron noted, that throughout the history of the State, Commonwealth's Attorneys have been political creatures, usually among the most important political leaders in the communities they serve.

Citing what he termed the "Chanticleer Principle" (a crowing cock does not make the sun rise) Daffron noted that, on the basis of the evidence before him, some of it, at best, "ambiguous," he had no grounds to issue an immediate subpoena for testimony from Plowman.

On the other hand, Daffron noted that, given the circumstances of the case, Tate's attorney would have been "remiss" had he NOT raised the issue of impropriety on the part of Plowman.

Daffron's "without prejudice" ruling thus left open the possibility of compelling testimony from Plowman at a later date.

Indeed, Judge Daffron concluded his remarks on the motion by noting pointedly that questions about Plowman's behavior and handling of grand jury testimony could well be raised before the Trial Judge, or with the Virginia State Bar.

Tate's trial in Loudoun County Circuit Court is currently scheduled to begin at 9:00 AM sharp on November 26, well after the November elections.