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Defense calls commonwealth's attorney to give evidence of political influence
More drama unfolded in the Mark Tate case earlier this month when the defense and prosecution filed new motions, fueling a debate on the worthiness of the testimonies of potential witnesses.Tate, a Middleburg restaurateur who ran for the Republican nomination for State Senate in 2003 and 2007, was indicted May 21 on two counts of election fraud and nine counts of perjury, and faces a jury trial in late November.
Special Prosecutor Matt Britton renewed his effort to remove defense attorney Edward MacMahon as Tate's attorney. Britton argues that MacMahon, who wrote checks to the Tate's 2003 campaign, is a potential witness and victim of Tate's misfilings. Britton's previous motion to dismiss the defense attorney was denied in a July hearing after a judge said Britton did not have enough evidence to show whether MacMahon was a substantial witness.
Meanwhile, the defense was forming its case against the commonwealth, saying political motivation and electioneering led to the timely criminal charges against Tate, which were filed three weeks before the June 12 Republican primary election.
MacMahon filed a motion Aug. 7, calling Loudoun Commonwealth's Attorney Jim Plowman as a witness for the defense. In his motion, MacMahon accuses the attorney of political bias, which resulted in the trumping up of charges against Tate.
"The Commonwealth's attorney is a public supporter of Mr. Tate's opponent [Jill Holtzman Vogel (R-Upperville), who ran against Tate in the Republican primary last spring]," said the defense's motion.
MacMahon said the defense will prove that while leading the investigation of Tate's campaign finances, Plowman conspired with the Vogel campaign and Tate's other opposition.
Tate lost the primary to Vogel, who now faces Karen Schultz (D) and Donald Marro (I) in November for the 27th District State Senate seat.
"The defense intends to call Mr. Plowman as a witness and requires this information to show the jury the political motives of the prosecution both before and after his recusal was ordered," MacMahon said.
Plowman filed a motion April 17, replacing himself with Britton, King George County commonwealth's attorney, as the prosecutor. Plowman says MacMahon is acting out of line with what the law says he can do.
"He can't just call me as a witness," Plowman said. "You can't call another member of the bar without asking permission from the court."
The defense has accused Plowman of misconduct since the beginning of the court procedures, saying Plowman's political motives were reason to dismiss the charges against Tate. The motion to dismiss the charges was quashed at a July 20 hearing.
Plowman said his actions favored then-candidate Tate.
"We actually took measures to protect [Tate]," he said. The subpoena for Tate's financial records was sealed from the public until the commonwealth had evidence of the alleged misfilings, Plowman said. These documents may still be sealed, he said, adding that this was done to prevent a negative impact on Tate's campaign.
"It's silly," he said. "He says [the charges are] politically motivated, [but] really they're criminally motivated. I think it's obvious what they're doing."
The motion to call Plowman was filed with the court a week before Britton filed the commonwealth's bill of particulars, which lays out the charges against Tate as requested by the defense.
The defense's Aug. 7 motion complained that "the defense has not yet been provided with the Bill of Particulars ordered in this case."
Britton had until Aug. 13 to file the bill, a deadline that he met.
In the bill of particulars, Britton said, 'The defendant perpetuated an ongoing fraud in his 2003 and 2007 campaigns."
According to Britton's bill, this fraud includes filing false reports with the State Board of Elections, falsely swearing to those reports, accepting money for his campaign and depositing that money into his personal bank account(s), and falsely claiming that he had made loans to his campaign and then paying himself back for those false loans.
Britton said there are more than 250 false entries in Tate's campaign finance disclosures.
But according to MacMahon's motion, these misfilings are commonplace in any campaign.
He says an investigation has determined "through the State Board of Elections, that many state candidates are in violation of reporting laws and not one has ever been indicted for any such charges as Mr. Tate faces."
"The State Board of Elections has no authority to determine if the reported information is accurate or not," said Chris Piper, manager of the State Board of Elections Campaign Finance Division. "These decisions are left up to the commonwealth's attorney."
Piper went on to say, "In my four years with the agency, I am not aware of any state candidates for the General Assembly or statewide office being indicted on campaign finance reporting violations."
A date to consider the motions of the defense and prosecution is being set by Judge Burke F. McCahill. It is likely a hearing date for the motions will be set over the next few days.
The Tate case is set for trial Nov. 26 through the 29 at the Loudoun County Courthouse in Leesburg.
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