During a two-hour hearing in Loudoun County Circuit Court on Tuesday, March 11, Judge Thomas Fortkort set September 8-12, 2008 as a trial date in the on-again-off-again election fraud case first lodged against former Middleburg Vice Mayor Mark Tate in early March 2007.

Fortkcort gave Special Prosecutor Matthew Britton 21 days to refine his 9-count "summary" indictment of Tate for election fraud, and produce a "bill of particulars" stating in detail precisely what Tate is accused of doing wrong.

He also scheduled another hearing on pretrial motions for Monday, June 9.

Subpoenas

Denied were defense requests for subpoenas of: Tate's GOP primary opponent, Virginia State Senator Jill Holtzman Vogel; Vogel campaign supporter, Laurie LeTourneau, who first lodged complaints against Tate with the Commonwealth's Attorney James Plowman; Jamie Radtke, Political Director of the Virginia Conservative Action PAC (VCAP); Robin DeJarnette, Executive Director of VCAP; Warrenton Town Attorney and Fauquier County GOP Chairman, Whitson Robinson, and six others, all candidates for office who, according to Tate's defense team, "made substantial errors" in their financial filings with the State Board of Elections, were, like Tate, "required to amend same," and, unlike Tate, have not been prosecuted.

Tate's attorney, Edward B. MacMahon, noted his formal exception to Fortkort's ruling, arguing that the group's testimony, and documents in their possession, would help prove that Tate was the victim of both selective prosecution and political dirty tricks, with Jill Holtzman Vogel "at the center" of the effort to discredit Tate.

Plowman

Commonwealth's Attorney James Plowman, who launched the Tate investigation, subpoenaed Tate's personal financial records, and then withdrew from the case because of his close ties to the Holtzman Vogel campaign, will be required to testify under oath.

MacMahon would like to ask Plowman about his possible role, and that of others, in both developing the case and leaking the Tate story to the press and other unauthorized parties.

Judge Fortkort, ruled, however, that Plowman could be questioned only about the timing of the investigation and filing of charges against Tate, with special emphasis on questions shedding light on statute-of-limitations issues.

While narrowly defining the scope of Plowman's forthcoming sworn deposition, Fortkort framed those limits in classic and relatively broad terms. We want to know, Fortkort noted, just "What did he know and when did he know it?"

Britton's New Strategy

Special Prosecutor and King George County Commonwealth's Attorney Matthew Britton argued, with apparent success, that any discussion of a political conspiracy against Tate, and any actions by Plowman, Vogel, LeTourneau, and other political opponents of Tate were irrelevant to the current case against Tate.

Noting that he, on his own, had convinced an entirely new Grand Jury to re-indict Tate, Britton contended that the "contamination" of his earlier case by the defense's charges against Plowman, Holtzman Vogel, and their political friends and allies were moot. Britton also dropped his first indictments' difficult-to-prove charges of perjury, opting to focus his case narrowly on whether or not Tate had deliberately and willfully filed false financial statements with the State Board of Elections.

The "Particulars"

How best to define the charges against Tate appears to one of the most difficult for the Commonwealth to date. Tate's defense argues that Britton's "summary" indictment of Tate nowhere points out which of Tate's financial statements the Commonwealth believes to be in error and what evidence, if any, the state intends to present showing that those errors were conscious and deliberate falsifications.

Judge Fortkort gave Britton 21 days to answer precisely those questions. Any charges against Tate more than one year old, or filed more than three years after a reporting infraction are rendered moot by the relevant statute of limitations.

Commonwealth's Investigator Kept No Notes

In response to a defense request for the notes kept by the investigator assigned to the Tate case, Special Prosecutor Britton admitted, "They don't exist." Tate's defense noted that the Commonwealth had, in effect, already stipulated that they'd gone through stacks of documents, comparing four years of personal financial documentation to four years of reports to the State Board of Elections. How, MacMahon asked, could someone do that, decide which of Tate's reports were correct, which contained errors, and which were supposedly deliberately misstated, and not write down anything?

Tate Legal Defense Fund

The Tate case has produced deep divisions in Republican circles, predictable Schadenfreude among certain die-hard Democrats, genuine personal concern among Tate's friends across the political spectrum, and significant financial and emotional distress for Tate and his family. Late last year a group of Middleburg area citizens, noting that "Mark Tate is a good and thoroughly decent human who needs our help,' established the "Mark Tate Legal Defense Fund." The fund's letterhead carries the names of a number of the area's leading citizens: John B. Adams, Scott and Jennifer Andrews, Maggie Bryant, Middleburg Mayor Betsy Davis, Mark and Karin Ohrstrom, Steve and Sally McVeigh, Johnathan Miller, Mary Stokes, Jack Tochterman, Kenneth and Rebecca Tomlinson, Nick Vanoff, and Tim Witbred. An October letter from the group indicated that Tate's attorney, Ed MacMahon had "devoted countless hours to this case without a penny of compensation" and for "purposes of this fund . . . has agreed to bill only half his normal fee."

"If and when Tate is exonerated," Committee Member Kenneth Tomlinson noted, "unused monies will be refunded to contributors. Treasurer for the group, according to Tomlinson's letter, is Scott Andrews, P.O. Box 1960, Middleburg, VA 20118.