Special Prosecutor Matthew Britton dropped all charges of election fraud and perjury against former Middleburg Vice-Mayor, Mark Tate, at a Monday, October 15 hearing in Loudoun County Circuit Court. Britton told Circuit Court Judge Herman A. Whisenant that the "appearance" of impropriety by Loudoun County Commonwealth's Attorney Jim Plowman played a major role in his decision, noting later that he would "re-submit" the charges to a "new grand jury."

Without objection, Judge Whisenant quickly agreed to grant Britton's motion to drop all charges against Tate. Tate expressed his pleasure with the decision.

Problems with Britton's Case

Tate's attorney, Ed MacMahon of Middleburg told the Eccentric he believed Britton dropped the charges against Tate for another reason as well: Tate was innocent and Britton had little or no chance of making ill-defined, worse-documented, and clearly politically motivated charges stick in front of jury of Tate's peers.

Had Britton not dropped the charges against Tate, MacMahon said, he would have fought and won the case for Tate in court. Asked if Britton might not have been hoping for a plea bargain in the case, MacMahon shot back: "He knew that would never happen; that we would try the case no matter how long it took; and that we would win."

If Britton re-filed the case, MacMahon continued, Tate was still innocent, he would still defend him, and the Commonwealth would still lose. By all accounts, Special Prosecutor Britton had great difficulty even articulating the specifics of the eleven charges against Tate, and thus, found it difficult to provide Tate's defense with a clear notion of the evidence supporting whatever those charges might have been.

Judge John F. Daffron admitted in open court that he'd tried no less than three times to decipher the Commonwealth's "bill of particulars" outlining the Commonwealth's charges and the evidence supporting the Loudoun County Grand Jury's indictments.

At a hearing on September 21, clearly frustrated, Daffron gave Britton less than a week to produce something intelligible, or, in the judge's words, a "more particular bill of particulars."

No one, in the history of the Commonwealth, MacMahon noted further, had ever been charged with felony fraud and perjury on the basis of even clearly-defined financial reporting errors. In particular, he noted, there was no basis in law for charges of perjury. There are penalties for making mistakes, or filing late reports, he noted, but nothing even vaguely approximating the sort of inviolable oath required for the state to punish error with the penalties due for perjury. Lack of both precedent and time, observers noted, thus complicated Britton's deadline-driven efforts to sort through what MacMahon had characterized as "stacks" of unorganized photocopies and draw up a second bill of particulars.

In several instances, Britton also appeared to be in the embarrassing position of trying to file and document charges against Tate, well beyond the statute of limitations for doing so.

Even if there had been supporting evidence (which Tate and his attorney have repeatedly asserted was clearly lacking) such charges would have been thrown out of court.

Worse still for Britton, most if not all of the "stuff" in his new bill of particulars was, according to MacMahon, simply, "wrong." Indeed, according to according to Tate's defenders, much of Britton's prosecutorial "evidence" clearly supported Tate's innocence.

Copies of checks allegedly written improperly to Tate's personal account, for example, showed up clearly and properly written to his campaign account; copies of "missing" checks appeared within pages of allegations of their non-existence.

The Plowman Problem

Tate and his defenders, in and out of court, have consistently claimed that the former Vice Mayor was the victim of political dirty tricks designed to undercut his 2007 primary campaign against Warrenton Republican, Jill Holtzman Vogel.

Indeed, Britton himself has complained that circumstantial evidence of an intramural Republican "Swift Boating" of Tate has been widely discussed in the media.

Had Tate been tried, preliminary court rulings clearly indicated his attorneys could have subpoenaed emails and other records from a wide and deep cross section of the State Republican party and the Holtzman Vogel campaign.

Commonwealth's Attorney Plowman, for example, had publicly endorsed Holtzman Vogel for the Republican 27th District Virginia State Senate nomination. He launched his investigation of Tate on the eve of the primary election, and on the basis of complaints filed by another Holtzman Vogel supporter and campaign volunteer, former Massachusetts religious activist and political organizer, Laurie LeTourneu.

LeTourneau's complaint focused on errors in Tate's financial reporting records, dating back to his near-victory over moderate Republican Russ Potts in the 2003 Republican primary.

Holtzman Vogel's Warrenton-based law firm is nationally known for its expertise in the intricacies of campaign finance. Although Plowman formally removed himself from the Tate case, citing obvious "conflict of interest,'' widespread media reports and a sworn statement from a former Leesburg Today reporter, linked him to repeated efforts to promote negative stories about Tate in the press. Other sources alleged that Plowman leaked information gathered by Grand Jury investigators and spread early news of Tate's pending indictment to senior State Republican Party officials, Holtzman Vogel supporters and the press.

Britton noted in court that even the "appearance" of impropriety justified starting the legal process against Tate all over again with a new grand jury, presumably one "untainted" by association with Plowman and his activities, both alleged and on the record.

Judge Whisenant apparently agreed.

Anti-Plowman Reaction

Commonwealth's Attorney Plowman's alleged and documented contributions the Tate/Holtzman Vogel affair have resulted in calls for his resignation, rumors of calls for disciplinary action by the Virginia State Bar and reports of a last-minute write-in campaigns to unseat him on November 6. All appear to have been intensified by Special Prosecutor Britton's dropping of the charges against Tate.

A blogger at "tooconservative.com," noted that Plowman's "lack of interest in investigating his fellow party members and the local power brokers . . . makes him suspect in many eyes. . . . An honest and ethical government simply cannot persist in such an environment . . . ." The same blogger called for Plowman's resignation, and jokingly recommended writing-in the name of Jared Fogle, the Subway sandwich chain's spokesperson, on the November 6 Ballot.

More serious are rumors of a campaign to write-in and elect Leesburg lawyer John P. Flannery in Plowman's place. Bloggers on NotLarrySabato.com have noted, " . . . .if nothing else, Flannery's candidacy will work to bring more information about the state's most corrupt commonwealths attorney, and this unfathomable abuse of the court system, to light."

Sources in the Loudoun County legal community have also told the Eccentric that they are "100% certain" that reports of Plowman's conduct will be referred to the Virginia State Bar Association for review and possible action.

Republicans for Schultz

Perhaps the most striking result of the Tate/Holtzman Vogel Affair has been its role as a catalyst in building or consolidating support among both moderate and conservative Republicans for the Democratic Candidate for the 27th District Senate Seat, Karen Schultz.

Supporters of the 27th's long-time Senator, Russ Potts, had long voiced concern about Holtzman Vogel's close ties to the religious right and the Karl Rove, Dick Cheney, G. W. Bush wing of the GOP.

Locally, Middleburg Town Council member Bundles Murdock, a self-proclaimed Reagan Republican, was outraged at the charges leveled against Tate. Citing Holtzman Vogel's apparent violation of Reagan's 11th Commandment, "Thou shalt not speak ill of fellow Republicans" and her long-time friendship and support of Tate, she was handing out pro-Tate fliers on the day his indictment was announced. She now actively supports Democrat Karen Schulz.

"I like her character, her values and her willingness to listen to everyone." she told the Eccentric. "She has a great family. One of the things she said that impressed me so much is that she wants to "give back" to her community and state. I am all for politicians who want to give rather than GET which is what we have in Loudoun county."

Murdock also hosted a "meet and greet" event for Schultz, and now finds herself on the Schultz contributors' list alongside Salamander Hospitality's Sheila Johnson, even though Murdoch was one of the Middleburg Town Council's most consistent opponents of the Salamander Inn project, Republicans of national stature have also endorsed Schultz, among them: Walter Kansteiner, Assistant Secretary of State for African affairs in the G.W. Bush administration, Langhorne Washburn, Assistant Secretary of Commerce during the Richard Nixon and Gerald Ford administrations; Jerry Warren, Deputy Press Secretary for Nixon and Ford; and Bruce Smart, Undersecretary of Commerce for Ronald Reagan.

Citing "qualities we miss in segments of the current Republican Party, such as personal ethics, fairness, a willingness to listen, and consensus -building'" they are sending a letter and running ads asking fellow Republicans in the 27th District to join them as "Republicans for Schultz."

Mark Tate, who found himself just 100 or so votes short of winning the 27th's Senate seat in 2003, greeted a host of well-wishers at the restaurant he and his brother manage in Middleburg shortly after the charges against him were dropped. After months of seeing himself pilloried in the press and by much of the party he served for so long, he had surprisingly little to say. Most often quoted were just three words: "I'm really happy."