FRONT ROYAL – In a twist from normal proceedings, a prosecutor and a defense attorney are trading barbs before a trial.
Heather Hovermale, who is prosecuting former Mayor Hollis Tharpe on a misdemeanor count of prostitution solicitation, on Thursday filed a motion seeking a change of venue, stating that defense attorney David Downes has spread "false and misleading information" that would result in an unfair trial.
While Downes does not represent Tharpe, he represents Cynthia Bailey, who owned the massage parlor at which Tharpe is being accused of soliciting sexual favors for money.
Upon Bailey’s arrest – which included counts of receiving money from prostitution and maintaining a bawdy place - the Front Royal Police Department sent out a news release detailing the charges.
Downes responded by putting out a news release that Hovermale states “was inaccurate and/or misleading on several fronts.”
Hovermale states that false aspects of Downes’ news release include assertions that Front Royal Police Detective Marc Ramey operated as an undercover officer and that Bailey was threatened by her and Detective David Fogle.
“To the contrary, Ms. Bailey was interviewed as a witness...she did not indicate that she was represented by a lawyer, and she cooperated fully,” Hovermale states.
She adds that people "attribute weight" to Downes’ news release because it came from a lawyer and that town citizens now have preconceived notions about whether Tharpe is guilty or innocent.
Hovermale adds that Downes “circulated false information to persuade the public that the police department and the Commonwealth were acting in an unprofessional manner with a vendetta against Mr. Tharpe.”
She states that Downes falsely claims that Bailey "was threatened" and uses "inflammatory language” such as “retaliatory police persecution” and “exploited their offices.”
Downes responded to Hovermale’s accusations via email with a quote from Hamlet: “The Lady doth protest too much, methinks.”
He states that the police department initiated “pretrial publicity” with its news release that “significantly omitted the dates of the offense, that one of the defendants had been previously charged and was represented by counsel, and that same suspect was recharged after she was interviewed by the police and then advised Heather Hovermale of her intention to exercise her Fifth Amendment privileges.”
Hovermale further criticized Downes' news release by stating that he preyed upon "citizen distrust in the government by referencing the Special Grand Jury appointed to investigate the misconduct of the Warren County EDA."
Downes states that this is a “classic example of the pot calling the kettle black” and that the police release stated: "Anyone who has any further information about this investigation is asked to contact Detective D. Fogle.” Downes adds it is a defendant’s Sixth Amendment right to collect information for self-defense.
“Not only did the police and prosecution initiate these dueling press releases but they have the temerity of claiming that only they can solicit additional evidence,” Downes states.
Downes adds that “undisputed facts” include that Bailey was arrested June 7, 2018, on a charge of prostitution and “the court file reflects that she had retained counsel” and that the case was dismissed without prejudice in October 2018.
On April 3, Downes states that Bailey was interviewed by police and that Tharpe was indicted on April 15. Downes states the day Bailey was indicted, Hovermale was given written notice of his client's intention to plead the Fifth Amendment.
The next day, Downes states that Hovermale responded: “Your letter is the first notification I have received that Ms. Bailey is represented in any matter much less the matter of Commonwealth v. Hollis Tharpe, the case in which she is a witness and, in many respects a victim.”
Downes states that Hovermale further responded: “It has been my intentions to request leniency of the Warren County Commonwealth’s Attorney for Ms. Bailey or perhaps even immunity for her from future prosecutions involving her massage parlor. I believe that given her victimization by Mr. Tharpe, she would be a good candidate for such consideration.”
Downes notes that on May 16, Bailey, her husband, son, daughter and “father of her grandchild” were arrested on charges stemming from alleged activities at the massage parlor.
“No one has accused Hovermale or the police of physical threats but rather the threats that were ultimately realized with multiple charges against Bailey and her family,” Downes states.
Also in the motion to change venues, Hovermale states that Tharpe’s case has been the subject of many news reports and further brought to the forefront of public attention through Tharpe’s Facebook posts, “which has resulted in hundreds of comments.”
On Facebook, Hovermale states that Tharpe “made statements in an attempt to influence citizens/potential jurors” by posting comments such as: “It was a day spa and not a massage parlor. Just thought people should know this piece of information.”
“Comments on social media indicated that the public passion in Warren County would make it impossible to seat an impartial jury. As such, a fair trial cannot be had for either party in Warren County,” Hovermale states.