David Downes

FRONT ROYAL — Lawyer David Downes, who is representing the owner of a massage parlor accused of giving sexual favors for money, is calling into question the methods of police and prosecuting attorneys in the case.

In a news release, Downes laid out the timeline that he believes led to what he called “selective criminal charges” against his client, Cynthia Bailey, 55, of Front Royal.

Downes later told a reporter that in his 30 years as a lawyer he never put out a news release regarding a case but felt the need to speak up regarding the case.

Bailey last week was charged on counts of prostitution, receiving money from prostitution and maintaining a bawdy place. Three others — Joshua Stamper, Brandy Atkinson and Jesse Atkinson — were also charged stemming from incidents at the business in question.

Former Mayor Hollis Tharpe’s direct indictment on a misdemeanor count of prostitution solicitation for an incident that occurred on or about May 31 appear linked to the case, based on comments Tharpe made to a reporter about the Biggs Drive parlor. Although Tharpe said he is not guilty, he did confirm that he believes his charges result from a visit made to the location.

Downes states in the release that on June 7, Front Royal Police detective Marc Ramey, acting as an undercover agent, solicited oral sex at the Biggs Drive location. Bailey was subsequently arrested on a count of prostitution, which four months later in court was dropped by the prosecution.

Downes states that on April 3, Front Royal Police Detective David Fogle and Winchester Assistant Commonwealth’s Attorney Heather Hovermale “made an unannounced visit to Bailey.” Hovermale is prosecuting the portion of the case involving Tharpe, as Warren County Commonwealth’s Attorney Brian Madden recused himself from the matter in August.

Downes states that during that visit, Bailey was threatened with charges of operating a business without a license, prostitution and federal tax evasion. Also during the visit, Downes states that Fogle and Hovermale were only interested in Tharpe and “asked her questions only about him.”

On April 15, the same day Tharpe was charged, Downes states that Hovermale was notified that Bailey still had legal counsel “because she was still subject to prosecution for the underlying offense of prostitution.” Downes adds that Hovermale was also told that Bailey would exercise her Fifth Amendment right “based on the threats of multiple criminal charges.”

Downes points out that Bailey was arrested last week and charged for alleged incidents that occurred between May 1, 2018 and June 7, 2018. He adds that Fogle should have known that the prostitution charges based on incidents before May 15, 2018 are barred from prosecution due to a one-year statute of limitations for misdemeanors.

Downes states in court filings that if Fogle “was unable to more precisely identify when the illegal conduct occurred, than the entire prosecution should be barred without probable cause to believe that the subject offenses occurred within the one-year statute of limitations.”

He adds that “the lack of a more specific time frame renders the defendant unable to prepare her defense where an alibi defense might be appropriate.”

In the filings, Downes also requests that a slew of items be turned over, including records of any promises made to Bailey by police or prosecutors and video and audio statements of the defendant.

Downes also seeks communications from April 15 through May 25 between Hovermale and police officers or the Warren County Commonwealth’s Attorney’s office. Specifically, Downes states that he seeks “communications showing that this prosecution is in retaliation” for Bailey’s intention to plead the Fifth Amendment, which would possibly dismantle the prosecution of Tharpe.

Front Royal Chief of Police Kahle Magalis said over the phone Monday that there seem to be several factual inaccuracies in Downes’ statement but declined to comment any further. He added that Hovermale and Warren County Assistant Commonwealth’s Attorney Bryan Layton are expected to release a statement on Tuesday regarding the matter.

Hovermale and Layton could not be reached for comment.

Downes states in the release anyone with “further information regarding retaliatory police prosecution or selective criminal charges motivated for improper purposes” should contact Downes or the special grand jury that is investigating misconduct at the Front Royal-Warren County Economic Development Authority.

– Contact Josh Gully at jgully@nvdaily.com