IRGINIA: IN 11-03 CIRCUIT COURT FOR THE CITY OF PORTSMOUTH ONW EALTH OF IRG I I Plaintiff, v. Docket No. (3117000428 MARK M. WHITAKER, Defendant. In Re: Issued to Scott Dang/terry MOTION TO OUASH SUBPOENA NOW COME The Virginian-Pilot and Scott Daugherty5 by counsel, and move this Cour: to quash the subpoena issued for his appearance on behalfc?the Commonwealth of Virginia. The reasons for this Motion are more particularly set forth in the Memorandum in Support of Motion to Qnash Subpoena, which is being ?led simultaneously herewith and is hereby ineorporated by reference. Af?davits of Scott Daugherty and Jeff Reece are attached hereto as lilxhibits .i,yh i :.?hnm Of Counsel Conrad Mi Shnmadine (VSB No. 4325) 8; SAVAGE, PC. 440 Monticello Avenue, Suite 2.200 Norfolk, Virginia 23510 Phone: 757.628.5500 Fax: 757.628.5566 Counsel for Scott Daugherty hereby certify that on the 20th day oi?March, 20} 8, a true: and correct copy ofthc foregoing was served Via etcotronic transmission on the. t?t'tltowing; Andrew M. Robbins, Deputy Attorney Of?ce of?thc Conmtonweaith?s Attorney 107 Nort Kent Street Winchester, VA 2260] Don Scott, Esq. Don Scott Law Firm 355 Crawford Street, Suite 602 VA 23704 and Jon M. Babineatl, Esq. Jon M. Babincau, PC 109 East Main Street, Suite 4-13 Norfolk, VA 23510 Comma/for .Dcffi-?n-tdam Hi" My -- "3?4th Conrad M. Shumadinc in.) 1N '1'1-113 (i?t'?lli?l~ 130R '11 11-5 (111"! 01-" Plaintif? No. MARK M. W1 HTAKER. Defendant. In Re: Issued to Scott Daugherty Ali]? 1 DAV ll DA LEG ICRTY I11 1 01-5 This day personally appeared helbrc me. a Notary Public in and for the jurisdiction aforesz?titl. Scott Daugherty. who made oath and stated that the ibllox-ying facts are true: 1 . 1 am a iom?nt-tlist employed as a reporter hy '1?he \t?irginian-Pilot. 1 was t-tssigncd by my editors to report to the public on the felony indictments issued by the Special Grand against Mark Whitaker and all matters related to those and Mark \Vltitz-tkct?s trial on those charges. 2. Because Mark Whitaker is a member ofthe City Council ot?the City of Portsmouth and because claims have been made that these criminal charges politically motivated and the. result ot?a int-'cstigation. my editors have directed me to give special attention to the matters imtolyecl in this case. 11" a n'tember Council committed 20 felonies. this is a matter ot?cnormous public importance. lt?thc charges are frivolous and were the result ot'ot?ticial misconduct based on political this is an equally serious and important story. EXHIBIT Flirt-16373 3. From the time The Virginian-Pilot learned ol? the int-?estigation into iViarli Whitaker. have written at ieast if? stories which have been published in the rotated to these charges and the nubile discussion ol?these charges. 4. Mark \Kt?hitaker agreed to an with me because he wanted the public to know that he he did nothing, wrong. and to express his view that the charges were frivolous and politically motivated. 5. On ()ctoliier 31. 3017. The Virginian-Pilot pnhiished an article onlinc i wrote reflecting that interview it was published the next day in the newspaper?s print edition. The articie is attached hereto as Exhibit 1 to this At'tidz-tvit. As the article states. Mark \K-"hitalter said he. was not guilty and that he did not know who executed the document on which the charges were based. As the article rcliccts. Mark Whitaker claimed the charges were politically motivated even going so for as to compare Sheriff \ltt'atson?s role in his indictment to the role oi? King, i-ierod in the cruci?xion oi" Jesus. 7. ll~ Mark \lr?hitakcr had provided me with any information suggesting or tending to suggest that he was admitting; that he was guilty ot?tlte offenses. i would have included it in the article I wrote about the. interview since any such admission would have been highly newsworthyaware Mark Whitaker said nothing in the interview that suggested or tended to suggest that he was guilty titan)" criminal ot?l?ense. 9. As a I feel an obligation to provide the public both the position ot"a criminal detendant as well as what is stated in the indictment. lt?l am not allowed to cover criminal trials on any occz-ision where a defendant and publish his prt?itestations of innocenccr this creates a substantial impediment to my being able to provide the public with both Ex.) sides. This is especially signilicam in a case. involving a sitting public of?cial who denies guilt and who has asserted from clay om: 1l1ai the charges arc and politically 1110111111130 and when: his posilion ihai charges are polilically Hunk-11111311 has been chamg'iioncd by (?11110.13 in the I did 1101 any notes 110111 my interview of Mark Whitaker. and I have no ii1d?p?11d<3111 ol?any relevant dolails ol? the interyimy from or in addition to the 11111111'1111-1111111 disclosed in the story 1 111111112. And further the alliaal aaymh 11111. .. 2 851111911110er ll1clo1CLoii1u Allzdax- 11 ?as1-1ck11onlcdacd below me ol Ma:cl1,2 H8. by Scott an individual known 111110 211C or who has produced 51.1l'licle.11t and approprialc identi?cation. 1 . Notary/Pal)! 1 01111111331011 explicsSav-ahowva .6152, 5E 1186131111111011110 5 7318343 3 1.111 COMM EXPIRES: 3 13113112022 2011 1&5? 1111111111131 {1111111111111\\ LA) 3192018 The VirginiamPilot Wednesday, November 01, 2017 A4 Councilman did nothing wrong, two of his alleged victims say BY SCOTT DAUGHERTY THE VIRGINIAN-PILOT L. TODD SPENCER THE Portsmouth Councilman Mark Whitaker, who faces 20 felony charges, said the investigation was a setup and lashed out at the city?s sheriff and commonweaith?s attorney. PORTSMOUTH An unlikely pair have stepped forward to help Councilman Mark Whitaker clear his name as he prepares for trial this month on 20 felony fraud and forgery charges. Two of the three victims named in Whitaker?s indictment say he did nothing wrong. They signed affidavits over the summer indicating they gave the assistant pastor of New Bethel Baptist Church permission to sign their names on checks. ?If Mark Whitaker signed my name to any documents, he did so with my permission,? said Malinda Starkley, chair of the church?s Trustee Ministry and listed as a victim on 14 charges. Caroline Larosiliere, Whitaker?s sister and the victim on a single count, echoed Starkley?s comment in her own af?davit and in an interview. have never been a victim of my brother,? she said. 3f19!2018 The Virginian-Piiot Wednesday. {\iovembeir O1, 2017 1 A4 Defense attorneys Jon Babineau and Don Scott asked the court this week to dismiss the 15 counts involving the two women, arguing there was insuf?cient evidence. In a motion mailed Monday to the of?ce of the Portsmouth Circuit Court clerk, they noted the two affidavits and that the prosecution can?t prove its case without Starkley and Larosiliere. They requested an evidentiary hearing. Special prosecutor Andrew Robbins declined to comment, citing court rules governing pretrial publicity. Sheriff Bill Watson, however, defended the investigation that was conducted by two of his employees with the assistance of the US. Treasury Department. ?This shows they have nothing,? Watson said. ?They are graSping at straws.? Whitaker, 52, is set to stand trial Nov. 27 on 11 counts of forgery, seven counts of passing forged checks and two counts of identity fraud. The charges, handed down in April by a special grand jury in Portsmouth, stem from an investigation instigated by Watson into Whitaker?s church, its development company and its now?defunct credit union. Whitaker and his father, James, are pastors at the Greenwood Drive church and are involved in its development company. Whitaker also headed the credit union before it was liquidated in August 2015. Court documents reveal little about the government?s case, except to identify Starkley, Larosiliere and Kevin Blount as victims. Blount, president of Valor Contracting in Portsmouth, declined to comment. In an interview Monday with The Virginian-Pilot, Whitaker cast additional light on the transactions at the heart of the case. He said they revolve around seven loans that members of his church took out in 2013 from the credit union to help with a stalled redevelopment project next door. He said the loans totaled $35,000, and all of it was paid back with interest. ?There?s no loss,? he said. The loans, he said, were necessary because the church?s development company had to clean up a demolished apartment complex. The company purchased the 2!5 3i19f2018 The Virginian-Pilot Wednesday, November 01, 2017 A4 property about eight years earlier with plans to redevelop the land, but ?nancing dried up. Whitaker said the credit union?s board, of which he was only one vote, signed off on the seven $5,000 loans in accordance with its policies. He said he took out one of them in his name. What happened next, Whitaker said, is the subject of the 14 charges involving Starkley. He said the credit union typically used a stamp with her name on it to sign the checks. The investigators say he wrongly used it. The defense attorneys claimed in their motion that the investigators have no proof Whitaker ?executed any document.? And when asked by The Pilot, Whitaker said he didn?t know who stamped the checks in question. ?The checks were pie?stamped,? he said, explaining that at least three credit union employees regularly used the stamp. ?As long as the board approved it, it didn?t matter (who used the stamp)? Regarding the liquidation of the church credit union, Whitaker stressed that ?all loans were paid. All member shares were paid.? The two af?davits from the alleged victims and the defense motion also offer additional insight into the underlying investigation. Larosiliere, a pediatric dentist in Maryland, said investigators talked to her for only about 10 minutes in April, and that they seemed more interested in the size of her home than her brother. Starkley said she felt intimidated and afraid when they showed up at her house. The defense attorneys claimed the investigators misled Starkley about the case before she testi?ed to the special grand jury and provided her untrue information upon which she relied. Larosiliere added that she never even testified before the grand jury. think it was all a setup,? Whitaker said of the investigation. The defense motion comes less than a week after Whitaker?s attorneys asked retired Hampton Circuit Judge William Andrews to toss all 20 charges on the 3:5 3119(2018 The Virginian-Pilot Wednesday, November 01, 2017 A4 grounds that the special grand jury process was mishandled. They attacked the indictments on two fronts: First, that Portsmouth Circuit Judge William Moore Jr. should have recused himself before impaneling the grand jury, not after. Second, that Moore never should have assigned Capt. Lee Cherry and Investigator Brett Johnson of the Portsmouth Sheriff?s Of?ce to assist the grand jury, in part because Cherry and his boss had previously spoken out against their client. The defense also asked for Robbins to be removed from the case, arguing he should have prevented Cherry and Johnson from providing the grand jury with ?false, misleading or otherwise untrue evidence.? In his interview, Whitaker lashed out at Watson and Portsmouth Commonwealth?s Attorney Stephanie Morales not Robbins. He argued Morales, who cited a con?ict of interest and recused herself from the case early on, was in league with Watson. He claimed she agreed to step aside and request the special prosecutor in exchange for Watson?s political support. ?She should not have allowed her of?ce to be used for political gain,? he said, arguing she knew of Watson?s history with former Mayor Kenny Wright and his decision to charge him with felony eluding after the sheriff confronted him over an expired inspection sticker and followed him on a slow?speed chase. He said she should have turned away his investigators when they came to her with their ?ndings. Whitaker, who has a master?s degree from State University and a law degree from Ohio State University, noted that he turned down lucrative job offers in order to return to Portsmouth and work with his father. He said he was ?deeply troubled and saddened? when he learned of the investigation. Whitaker went on to recount the cruci?xion of Jesus and compare Morales to Pontius Pilate and Watson to King Herod. ?She washed her hands of it like Pontius Pilate washed his hands of Jesus,? he said. ?An innocent man.? Watson denied collaborating with Morales and stressed he was not endorsing her or her challenger, defense attorney T.J. Wright. He called Whitaker ?full of 4.35 The Virginian-Piiot 1 Wednesday. November 01. 201? A4 crap? and argued he should go to prison simply because he has not been standing during the pledge of allegiance at recent City Council meetings. In a statement, Morales also defended her decision to step aside when presented with the evidence against Whitaker. She said politics played no role, and she would do it again. reviewed the facts of the con?ict and far from washing my hands, I proactively upheld justice by requesting approval from the circuit court?s chief judge for recusal due to the existing con?ict,? she said, noting that the City Council exerts some control over her budget. ?The citizens of Portsmouth can count on me to recuse myself anytime I have a con?ict of interest so that a fair and independent prosecutor can be brought in Scott Daugherty, 757-446-2343 515 lN 130R 'l?l-lli (fllY Oi" VlliGlNlA. . Plaintilt Docket No. 17000428 MARK M. Defendant. In Re: Subpoena Issued to five]! AFFI DAV 01*? (Hill? RIEICC OF (Lll'l?Y to-wit: This day personally appeared before me. a Notary Public in and l?or tliejtil'istliction aforesaid, .tet?l? Reece. who made oath and stated that the following t?acts are true: l. I am the senior editor ol?l?hc Virginian?Pilot and, in that capacity, I assigned Scott to cover all matters relating, to the indictments ol" Mark Whitaker and his trial. 2, Because Mark Whitaker is a public official and because there are allegations that the charges are politieall}r this trial is a matter ot'enm'mous public importance. 3. One ol'the reasons I wanted Mr. to cover this case was so that he could develop the and expertise to provide the. most comprehensive. and accurate to the public. ltl'l?he Virginian-Pilot is forced to assign a new reporter with no background in the ease to cover this trial? it will not be. able to provide as comprehensive. complet and accurate reportage as it be able to provide il?Mr. Daugherty were allowed to cover the trial. there is no t-Vay any other reporter can duplicate what Mr. has learned over his months ol? investigation. 4. The \t'irginiawl?ilot l?eels that it has a public responsibility to provide as much inlorn'iation about a criminal trial as it can possibly obtain. It believes it has a responsibility to the public to allow a defendant who protests his imiocenee to make that assertion public. it feels EXHIBIT that 11 docs not ?1111111111l1s11c, 1?csponsibili1y by reporting only on that 11 hicb is contained 111 the. i11clic111'1e11t. ll lhe \?111111111111 Pilot had obtained any i111111?111z-11ic111 indicating oi enclinsl 10 $119,131. that 'Vlazk Whitalccl \1 as guilty crimes. it would bin included 111 Ibc published articles. he 11w. x} mm is not to 11111-101 the. prosecution oi but is to 111m 1ch public wicb the. most cc111111lete and accumtc inlounatlon posse! I (1. it the 1est1li oi 1111131 1131111111; 11 criminal is that {be muspiipm to cm c1 1,11111111111 [11:11 Is signi?cantly i11111c-1i1?cci because it loses bc dbili?u to utili/c cm c111? this t1 sicmticant dciu'ient to the 11cws1111;1e1?s being .1l1lc to 11101 1cic balanccd inforinz-Ilion to {be 111111 ic ll1e newspaper is laced with the llobson?s choicc c1l?aliou in}; 111tc1v1cu to bc, by 11 reportcr with no background 11nd thus no 1111111111 to concluc 11 1111] and ammo: 1111c 11111.11 1c? 01 to 111% the ability to LlilliXC? the rcpoi'tu \1 itb the 11cm] ouncl and expertise in the coverage ol?thc trial has 11 ml and the outcome wiil be one of the moat i111po11ai1t stoi 1U, ztbe (111cil1l1cc1i'iicial wiil be convicted olilielonics oi (1pul1l1coibc1di mil cxonciatccl \1 heic he z-illeges i111111'operly assertec politically clmigjcs And further the alliant not ibe iotcnoing it ?as z?1clc11m1lccigcc lbclo1c 111c. this by lclli Race. (111 individual known unto me or who has produccd sui?licicnt (111d tippiopi 1111c identi?cation. (ii) Muimimim ?ill/j :sz My C.?c1111111ission expil'cs: I/gi 1/02> :9 M) Ru cgis stration No: 7 73l Pic? ?l E-l53?lH-l3 I REGISTRATIONNQ, ??11 7318943 3E COMM. expiaiis c, 0113112022 ?41111111111?:1\