, 2014

Schmidt case dismissed by judge

by Audrey Thomasson

LANCASTER—District Court Judge Robert A. Pustilnik last week granted a motion to strike the Class 1 misdemeanor charge of “false entry and destruction of public records” against former Lancaster County Commonwealth’s Attorney C. Jeffers Schmidt Jr.

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Schmidt was accused of disposing of case files in his final weeks in office after he lost a bid for re-election in November 2011 to current Commonwealth’s Attorney Robert Cunningham.

Schmidt was prosecuted by the Virginia Attorney General’s Office.

After hearing four hours of testimony from seven prosecution witnesses, and before the defense put on its case, Judge Pustilnik ended the trial, ruling that Assistant Attorney General (AAG) Mike Jagels failed to prove any fraud or deceit on the part of Schmidt. He also criticized Cunningham for making a criminal case out of something that could have been settled in civil court, saying he didn’t understand the harm when Cunningham has had the files all along.

In his opening statement, Jagels alleged that after Schmidt lost the election, he attempted to hamper Cunningham’s ability to do the job by throwing out case files and having staff sign documents that would not allow them to divulge information “of what went on in the office.”

Richmond defense attorney Craig Cooley said evidence would show the case was not about destruction of files pertaining to current or ongoing trials, that every file turned over to Cunningham was in perfect shape, and that Schmidt directed his secretary to download and preserve everything pertaining to cases from her computer to a disc for Cunningham.

“When Mr. Schmidt came into office, the files were bare,” Cooley said, alluding that Schmidt’s predecessor cleared out all files. Schmidt “determined that was not the way he was going to leave office—that he would keep it in good order.”

Cooley said Schmidt was Commonwealth’s Attorney for 26 years, but prior to 2000 the position was part-time and he maintained a private practice at the same time. The files Schmidt personally removed before leaving office were from his private practice and those removed by the custodian were closed files that had nothing to do with ongoing cases, Cooley said.

“Mr. Cunningham sought an injunction and said ‘I’m going to need this,’ “ said Cooley. After that, Schmidt met with his attorney at the time, Chris Stamm, and two sheriff’s investigators to check all the files on active cases to make sure they were in order.

“Some files that were put aside were mistakenly removed” when the janitor cleaned the office, said Cooley. When this was discovered, Schmidt recreated those files. However, Cooley noted “...the relevant and material portion of files is maintained in the clerk’s office...as a second source.”

First witness

Jagels’ first witness was the custodian, Billy Bowen.

Bowen testified it was his job to clean the county offices, including Schmidt’s. He said Schmidt left files to be discarded in boxes on the floor, which Bowen emptied into trash bags and threw in the back of his truck.

Jagels produced a picture of Bowen’s truck with bags of trash in the back. Bowen denied the bags in the picture were the ones from Schmidt’s office because he said he took the bags of files to the sheriff’s office at their request.

Under Cooley’s cross examination, Bowen said Schmidt did not tell him to remove the files as trash, but that it was his daily routine to remove anything on the floor. He said he did not look inside the files, but placed them in trash bags because they were easier to move.

Second witness

The chief of the Lancaster sheriff’s office investigative unit, Lt. Tim Self, testified that after being alerted that files were being removed, he intervened and recovered the trash bags, placing them in the evidence room of the sheriff’s department.

“I was contacted by Commonwealth’s Attorney (elect) Cunningham to escort him to the evidence room,” Self testified. “We opened a bag in the evidence room and saw case files from 2008 to 2011.”

On cross examination, Self said he did not see Schmidt with the bags, only the custodian.

However, after additional questioning by Jagels, Self said a short time after the custodian event he observed Schmidt placing two bags beside his car. Self said he took a picture, but admitted he was not aware of the contents of the bags.

“Are you aware of how long Mr. Schmidt was in private practice...how many personal files he accumulated, or Christmas toys or clothing that might have been in there?” asked Cooley.

“No, sir,” Self replied.

Third witness

Former assistant Commonwealth’s Attorney Julian Harmon Jr. testified he was aware his boss was removing files from the office, “The bulk were his personal files,” he said.

Harmon said he assisted Schmidt in taking the files to Schmidt’s car.

“How do you know it was personal?” Jagels asked.

“Because it came from the cabinets containing his personal files,” Harmon replied.

When asked about his boss tossing out information from case files, Harmon replied, “He was sorting through them to determine what was to be retained. I thought it was a lot of work and that he should have left it for Cunningham to deal with.”

“Did you sign a non-disclosure agreement at Schmidt’s request,” Jagels asked.

“Yes,” Harmon replied.

Jagels asked why he would sign such a document.

“I have great faith and trust in Mr. Schmidt, so I signed it,” he said. “I had no reservations about signing.” Since he was also losing his job, he said he believed the document was a formality to make certain cases were not discussed with people outside the Commonwealth Attorney’s office.

Harmon acknowledged he signed a document stating files being discarded were closed felony cases over 10 years old and misdemeanor cases over two years. He stated he didn’t check the files because he trusted Schmidt.

Harmon confirmed Schmidt took immediate steps to recreate files that were mistakenly thrown out. Jagels argued that it would be near impossible to replace files, but Harmon disagreed since all the original records were with the Court Clerk.

Harmon verified he signed a Library of Virginia document to be custodian of the records in his final days as assistant Commonwealth’s Attorney. However, he said he couldn’t remember if it was before or after Schmidt disposed of files.

Defense attorney James Breeden asked Harmon if Schmidt ever told him to do anything to undermine Cunningham’s administration.

“Absolutely not,” he replied. He said Schmidt asked him to go through his files and make sure they were up-to-date and ready for transition.

While Harmon said he saw files being tossed, he didn’t question it because Schmidt had reviewed with him the Library of Virginia rules on handling case files. He said Schmidt also asked secretary Lynn Moubray to download files from the computer onto a disc for Cunningham.

Fourth witness

Moubray was the prosecution’s next witness. She testified to working as Schmidt’s secretary for 21 years.

“Everyone (in the office) was upset when Mr. Schmidt lost the election” partly because of the uncertainty of their own positions, she said.

Speaking about the non-disclosure document, Moubray said she refused to sign it because she thought it might prevent her from working with the new Commonwealth’s Attorney.

“If I remember correctly, Mr. Schmidt said the judge said it was a good idea for employees to sign...I took it to Sheriff Crockett and he advised me to seek counsel” before signing, she said.

Moubray testified that it was routine for them to “strip out” or purge closed files of unnecessary papers when they were in the old courthouse because there was limited space. But she got concerned when Schmidt started stripping files in the weeks after the election.

Moubray admitted to taking a picture of the bags being thrown away. She contacted the sheriff’s office to collect and maintain them because she “thought the files might be needed.” However, she also confirmed the office files were only copies and that original forms were maintained by the Clerk of the Court.

On cross examination, Breeden asked what was specifically “stripped out.”

“Due to lack of space, if the appeal time was over or someone had died, we stripped out files of things similar to clippings, phone call records, drafts and duplicates,” she replied.

Moubray said she was aware Schmidt was removing his personal files and she saw him “stripping out” files. She also confirmed he instructed her to download her computer files to a disc for safe keeping because her computer was a “lemon” and needed to be reformatted.

“Did Bill Blocher, Cunningham’s campaign guy, ask you...to sneak in and download all the files but you refused?” Breeden asked.

“Yes,” Moubray replied.

“This sounds like Watergate,” said Breeden.

Judge Pustilnik said he had two questions for Moubray.

“After you saw Mr. Schmidt getting ready to trash files, did you ask ‘Why are you doing this? Might it be a bad idea?’”

“No,” replied Moubray.

“Why not?” asked the judge.

“I was going through some personal problems at that time,” she replied.

Fifth witness

Jagels questioned probation officer Michael Greene in an attempt to show code violations by identifying several files in the trash that were active or still eligible for appeal, based on letters Greene had sent.

The judge interrupted, asking only for “action” items. “It’s clear Mr. Schmidt discarded paper or records. The question is if he did that for the purpose of hiding those things not being acted on,” said the judge.

Greene said he couldn’t recall any action items.

Under questioning by Cooley, Greene confirmed he sent copies to the “clerk, judge, everyone.”

Sixth witness

When Cunningham took the stand, Jagels asked what his concerns were about missing files.

“I was concerned I wouldn’t be able to go forward and fulfill my duties as Commonwealth’s Attorney,” he answered.

Cunningham said he and Self examined one of eight trash bags collected. “I found 50 or 60 files—24 were felonies—most under 10 years and some were less than a year old,” he testified. “I sent Mr. Schmidt a picture of the bags next to his car and requested all files be returned to me. He never answered,” said Cunningham.

Jagels asked if any active files were missing from the office. Cunningham said he identified “10 to 12 missing files” including one on a juvenile case scheduled for court January 9, 2012. “Other files needed were not there. We couldn’t find a file on wire taps. We had to do the best we could using the Circuit Court files,” he said.

He testified he obtained an injunction to limit Schmidt from doing anything more and informed him that all files were to be turned over to him. During the weeks before taking office, Cunningham said he showed up at Schmidt’s office to begin the transition, but was told he needed an appointment.

“After the injunction, he said we couldn’t meet over any files,” Cunningham said.

Under cross examination, Cunningham denied Schmidt had made an attempt to reach out to him at a Christmas party.

Referring to Cunningham’s earlier statement, Cooley asked about his use of the term “some” when discussing files recovered that were within a year of the case. He had Cunningham read from his list and only one file was less than a year.

At this point, Jagels brought out another list of files which did not match Cunningham’s.

“The files were left in bags and never catalogued?” Cooley asked.


After Cunningham’s testimony, the judge addressed Jagels noting Cunningham had all the files but had left them in bags. “Couldn’t he go to the bags and find them?” Judge Pustilnik asked.

“Yes,” Jagels answered, “but the point is he was disposing of files” that were still active and in a way that was not in accordance with law.

“When you sought the injunction, you could have asked the judge to return the files,” the judge said. “If the Circuit Court judge declined to return the files, I don’t know how I can go past the judge in the District Court...We haven’t had any evidence of fraud. Every witness you put on, including the secretary, said they were work files. A circuit court judge could have ordered the files returned. If no one asked, why are we here?”

Seventh witness

Jagels called the director of records for the Library of Virginia, John Metz, to show Schmidt did not follow the state’s disposal rules for records.

During lengthy testimony, Metz described the process for destroying records by shredding, pulping or incineration and overwriting for electronic records. Also, he noted files must be maintained 10 years for felonies and one year for misdemeaners.

Metz said the Library “probably” sent out a letter of instruction on how to destroy files, but he could not produce any record of a letter.

“There is no list of specified items that cannot be discarded?” Cooley asked. “No letter of instruction on what to do with the files?”

“Correct,” said Metz.

“Not one word of what should be preserved?”

“Correct.” Metz said the rule was “very broad.”

After Cooley established that the library keeps records of who is assigned as the “custodian of the records” in every Commonwealth’s Attorney’s office, Metz admitted he was unable to find anyone ever registered in Lancaster.

“From 1984 through 2011, no letter was sent to the Commonwealth’s Attorney’s office saying they don’t have a custodian of records?” Cooley asked.

“No,” Metz replied after searching his papers.

Referring to a letter establishing Harmon in that position, Cooley asked, “Mr. Schmidt made the corrections to your satisfaction?”


“You don’t see Mr. Cunningham’s signature?”


Evidence questioned

At the end of Metz’s testimony, the judge again asked Jagels what evidence he had that proved fraud.

“It was deceit,” Jagels replied.

“He didn’t hide it,” said the judge. “He didn’t hide it. They were out in the open, everyone saw it.”

“Mr. Schmidt was in office for years and never destroyed files,” Jagels said.

The judge disagreed. “No, they did. Everyone said so.”

“But he never destroyed in mass,” Jagels argued. “He did it because he didn’t want the new guy to have any work product that would help Cunningham. Half the files were less than one year.”

“There was only one that was less than a year,” corrected the judge.

“There were a number of felonies within 10 years,” Jagels argued.

The judge and Jagels continued to spar over which evidence fell within the Library of Virginia’s rules for retention. Finally, Judge Pustilnik asked him to produce evidence of any public documents found in the trash bags.

“Certainly the probation letters,” Jagels replied.

“Those are private letters as defined...” replied Judge Pustilnik. The Library of Virginia said everything was handled appropriately except the way they were desposing them, he added.

“It was a disadvantage to Mr. Cunningham,” Jagels said.

“I have a great deal of problem with a Commonwealth’s Attorney using a criminal proceeding over those files,” said the judge. “And, in fact, they’re all still in your custody. Nothing has been destroyed...this should have been taken care of in civil court when you got the injunction. (Cunningham) should have asked the judge to release the files at that time...I don’t see how this could possibly be a criminal matter. Everybody thought the files were (Schmidt’s)... I can’t find any way, shape or form...that he did anything wrong. Maybe it was done in haste but nothing proved bad behavior.”

Jagels argued that Schmidt wasn’t following proper procedures in destroying the files.

“If they’re going to be destroyed, how could the public have any interest in them?” the judge asked. “You should have asked for relief at the time of need—at the civil trial and not proceeded to a criminal trial.”

Judge Pustelnik asked the defense for a motion to strike, which he then granted. Striking down the evidence as part of dismissing the case means the judge ordered the removal of all of the prosecution’s evidence to the court because it afforded no proof or value.

"The court's comments were very appropriate," Breeden said after the trial. He agreed that the case should not have been taken to criminal court.

“My family and I are very grateful to the people of Lancaster County for allowing me to work for the past 28 years to make Lancaster a better place to live,” Schmidt said after the trial. “I will continue to work to make the county a better place.”

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