The Greene County Commonwealth’s Attorney’s Office has filed a motion to drop the felony theft cases against two Stanardsville men for allegedly harvesting hay on vacant county property for personal gain.

Monroe District Supervisor David Cox and Richard Eppard were indicted in May by a special grand jury, empanelled by Commonwealth’s Attorney Matthew Hardin in early 2019. The trial for the pair is still on the docket for Dec. 16-17.

Hardin filed the motion for nolle prosequi on Oct. 29, the same day as a motions’ hearing, requested by the defense, seeking disclosure of discovery.

In Hardin’s motion, he states two Virginia code sections (Va. Code 19.2-214 and 19.2-213) appear to conflict with each other about whether the special grand jury or a regular grand jury should have decided on the indictments.

A special grand jury is a rarely used tool to investigate whether a crime has taken place, as special grand juries have the power to subpoena witnesses and documents during their investigation.

“The two statutory subsections do not comport with one another regarding whether an indictment ought to be returned by the special grand jury itself or by the regular grand jury following a report,” Hardin said in court records. “An investigative report exists in this case, which could lead to the conclusion that the report ought to have been considered and an indictment returned by a regular grand jury.”

Hardin went on to say he feels a conviction would be “vulnerable to appeal on the grounds that a special grand jury had no power to indict or, as the defense recently argued, on the grounds that the indictment does not set out sufficient information to allow preparation for a defense.”

Janice Redinger, Cox’s attorney, asked for the full special grand jury testimony during the motions’ hearing on Oct 29.

She said, “I have nothing in front of me that supports a charge” and has to assume it’s within the testimony, which is “necessary to form a proper defense.”

Additionally, Redinger asked Hardin to disclose any political bias against her client. Both men lost in last week’s election. Hardin was on the Republican ticket, who presented a candidate to run against Cox.

“It is widely understood in the community this case is politically motivated,” Redinger said.

Redinger said in five other special grand juries in the past 10 years, the defense team always received a copy of the transcript.

“We won’t disseminate it further,” she said.

In his motion, Hardin said he is “concerned that potential witnesses may be exposed to retaliation in their employment or otherwise, such that nolle prosequi is preferable in this matter if it protects the identity, safety and employment of the commonwealth’s witnesses.”

A hearing on Hardin’s motion is scheduled for Greene County Circuit Court for 1 p.m. Nov. 19, according to Hardin.

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