At a June 9, 2008, hearing in Loudoun County Circuit Court Judge Thomas D. Horne issued an unusual order from the bench. True to orders issued three months earlier, on March 8, by retired Virginia Circuit Court Judge Thomas A. Fortkort, Judge Horne ordered the Commonwealth's Special Prosecutor and the defense attorney for former state Senate candidate Mark D. Tate, to work together to set a date for a deposition. Specifically, King George County Commonwealth Attorney Matthew J. Britton and Middleburg Attorney Edward B. MacMahon were to schedule questioning of Loudoun County's current Commonwealth's Attorney, James Plowman, under oath, about his role in the events leading up to the May 21, 2007, indictment of Tate for perjury and campaign fraud on the eve of the 2007 Republican Primary.

Issued from the bench and not, apparently committed formally to writing until Judge Horne's June 9 Circuit Court hearing, Judge Fortkort's order required that questions to Plowman be limited to people and events relevant to the Virginia statutes of limitations affecting charges against Tate, some of which dated back to the 2003 GOP primary.

"Private Testimony" Challenged

On June 9, Judge Horne, Tate's attorney, and apparently the Special Prosecutor as well, seemed to agree that Plowman should testify in public.

James Plowman was a much-publicized, vocal and financial supporter of Tate's opponent in the GOP primary, Jill Holtzman Vogel of Warrenton. After reportedly leaking charges of Tate's pending indictment to the press, on the eve of the GOP primary, Plowman withdrew from the case. His replacement, Special Prosecutor Matthew Britton, dropped Plowman's indictments against Tate in October, 2007.

In November, Holtzman Vogel was elected State Senator. In January, 2008, after dropping all perjury charges, Britton convinced a grand jury to re-indict Tate on nine counts of alleged election fraud.

Not until April 2, 2008, however, under orders from Judge Fortkort, did Britton provide Tate's defense with a bill of particulars, stating the specific charges against Tate and providing the evidence supporting those charges.

What Plowman knew and when he knew about the allegations against Tate are critical to both statute-of-limitations issues, and to the defense's contentions that Tate was the victim of political dirty tricks.

All were still bound, however, by Judge Fortkort's March 9 bench order, stating that Plowman's deposition should be conducted "in private," a process usually reserved for testimony from rape victims or under age witnesses.

Under those circumstances, Judge Horne duly ordered that the date and time for Plowman's "private" testimony be set . . . but in a way that would allow him to hear testimony about why he should not rule that Plowman's deposition be made in public.

Specifically, Horne ordered that no less than one hour be set aside for him to hear opinions on the propriety and legality of a "private" deposition, before he ruled on the issue.

Noting that he fully expected to hear from the editors, publishers, and legal representatives of the news media covering the case, he ordered his bailiff to collect business cards from all the reporters present who would like their newspapers informed in advance of the hearing.

Reporters from the Washington Post, Winchester Star, Northern Virginia Daily, the Loudoun Times-Mirror, Leesburg Today, and the Middleburg Eccentric duly submitted cards. Most, if not all seemed certain that their papers would support a ruling in favor of public testimony by Plowman.

At press time, roughly two weeks after Judge Horne's order, no date has been set for the Plowman deposition and no newspapers have been contacted.

Pending the Plowman deposition, rulings on a number of key defense motions have been delayed and Tate's defense deprived of sworn testimony his lawyer deems critical to his case.