Better Call Joe

saulVirginia State Bar investigators say they can prove that Richmond mayoral candidate Joseph D. Morrissey presented a “false and knowingly false” defense in 2014 against charges that he had sex with a 17-year-old receptionist working in his law office.

Since late 2015, the state agency responsible for regulating and disciplining lawyers has been investigating whether Morrissey misled the court as he fended off felony charges stemming from his relationship with Myrna Warren, who married Morrissey in June and now goes by Myrna Morrissey. While he ultimately entered into a plea deal to resolve the case and served three months in jail, Morrissey has maintained his innocence, claiming he was framed by the young woman’s jilted lover. Morrissey claimed the ex-lover had planted the lewd and incriminating text messages discovered by police. In recent court filings, however, bar investigators say they can show that Morrissey’s defense amounted to a “fraud perpetrated on the court.”

A trove of previously undisclosed records are attached as evidence to support the charges: secretly recorded conversations with investigators; case notes prepared by Morrissey and his lawyers; and a transcript of testimony provided by Morrissey’s former House of Delegates legislative aide. The aide, Carter Nichols, recounts how Morrissey asked to meet him at a Verizon store the day after police found the woman at Morrissey’s house around midnight in August 2013 — the event that sparked the Henrico County criminal investigation. “Joe told me … possibly explicit text messages had been exchanged and he had received photographs, as many as 10, some of which were nude, some of which she was featured in lingerie, and that he had forwarded those photos to a friend,” Nichols testified, according to a court transcript from this year. Morrissey went on to use Nichols’ cellphone to consult with his attorney. During that phone call, Morrissey posed a series of hypothetical questions about a client who received illegal photos of a minor on his phone, questioning what might happen if the phone were destroyed, according to Nichols, who testified that at the end of the conversation, Morrissey said he was the client and needed to retain the lawyer’s services.

Asked this week about the bar’s investigation, Morrissey said the state is “fishing” and that he stands by his defense. Asked about Nichols’ testimony, he said his aide’s story has changed but declined to comment further. “Myrna and I are married,” Morrissey said. “We have two children. We’ve bought a house. We are very happy and I, quite frankly, believe this matter was resolved and settled two to three years ago and anybody that wants to poke into things, have at it. I’m not going to be sidetracked from what I’m trying to accomplish.”

Morrissey, 58, has sought to move past the scandal, using photos of Myrna Morrissey, 20, and their children in campaign materials and calling his family an asset to his political ambitions. But the State Bar investigation raises the possibility of further revelations that could threaten his status as a leading mayoral contender.

Though a judge ruled that Morrissey’s plea deal precluded any criminal charges on allegations of perjury, he could face the loss or suspension of his law license if the State Bar finds he intentionally misled the court. Morrissey already lost his Virginia license to practice law once, in 2003. That was two years after a disciplinary panel disbarred him at the federal level, citing, in part, Morrissey’s “chronic disregard for truthfulness.” The Supreme Court of Virginia reinstated his state license in 2012, against the recommendation of the State Bar’s disciplinary board. Ned Davis, counsel for the State Bar, said he could not comment on disciplinary investigations and could not give a timetable for when the Morrissey inquiry might be completed. Bar complaints and investigations typically are handled internally, but beginning in December 2015, bar lawyers began filing subpoenas in Henrico Circuit Court seeking records, notes and other information from the case files of Morrissey’s attorneys to bolster their investigation. Morrissey initially attempted to quash the request but later relented and asked four of his lawyers to provide their files on the case to the bar, saying he wanted to avoid the appearance he had something to hide, according to a court transcript.

The bar followed up with an additional subpoena for files from the electronic forensics consultant hired by Morrissey, which Morrissey is opposing. As the parties have gone back and forth, a substantial amount of the bar’s evidence has been made public.

Among the newly disclosed documents is a transcript of a recording obtained by investigators that captures Morrissey and Myrna Morrissey discussing possible explanations for the explicit text messages discovered by prosecutors. According to the court filings, the couple made the recording in October 2013 as they listened on an open phone line while Myrna Morrissey’s mother met with detectives at a Starbucks to discuss the case and probe for information about the evidence prosecutors had gathered. When the text messages were raised early in the discussion, Morrissey comments that if Myrna Morrissey’s mother “was smart, she’d read them out loud.”

As the detectives began to discuss text messages that appeared to show the two discussing the Plan B morning-after pill to prevent a pregnancy, Morrissey raises a scenario that could explain the text. “You could have told me the night before, ‘I’ve had a relationship with so and so, I might be … ’” Morrissey said.

Later in the transcript, Myrna Morrissey says she told a friend she had gone to a party and “kinda did something” and “told Joe about it and how I took Plan B … ”

“Laying the foundation,” Morrissey replied. The text messages filed as evidence in Morrissey’s plea deal — the messages Morrissey disputes as fabricated but prosecutors say were genuine — show Myrna Morrissey discussing her plans to take the contraceptive pill in the context of an encounter with Morrissey described in graphic detail. While discussing the possibility of Myrna Morrissey’s friends backing up the story about the Plan B texts referring to a party, Myrna Morrissey asked Morrissey if she should “try to persuade” a friend. “Don’t persuade her to say this way,” Morrissey advised her. “Don’t say, ‘I need you to say this.’ Don’t do that. You just tell her what happened. Tell the story.” As the discussion concluded, Morrissey said: “We’ve got this Plan B taken care of.” At another point in the transcript, Morrissey asks Myrna Morrissey: “Do they not have the pictures?” “I don’t think so. I hope not,” she responded. At no point in the transcript of the roughly 40-minute recording do the two discuss the possibility that the texts were the work of a hacker.

A recurring theme in State Bar investigators’ filings is that the hacking theory appeared to be an afterthought. In an early memo to his lawyers, Morrissey suggests a defense that instead centers on the fact that he didn’t know Myrna Morrissey was underage. In the Oct. 4 memo, Morrissey called the text messages “merely flirtatious” and suggested his lawyers tell prosecutors: “If that’s all you have, you have nothing.” In an interview, however, Morrissey maintains it was a concern from the beginning. “I don’t care if it sounds like the dog ate the homework, it’s exactly what happened,” he said. He referred detailed questions about the bar’s evidence to one of his lawyers, Larry Catlett, who in turn declined to address them. Instead, Catlett called the bar’s investigation the extension of a vendetta held by the prosecuting attorney in the original case, former Spotsylvania County Commonwealth’s Attorney Bill Neely. “Really, I’m kind of shocked that they are even bothering to pursue this 3-year-old case that has been resolved, except for this guy, Neely, he’s got a personal vendetta against Joe Morrissey, and unfortunately, I think he’s sucked the Virginia State Bar into it,” he said. Catlett said Neely had all the evidence the State Bar now is pursuing when he and Morrissey agreed to a plea deal in 2014. “There’s really nothing new that the Virginia State Bar is looking for that the commonwealth didn’t already have in 2014,” Catlett said. “It’s all been out there for everyone to see.”

To bolster their hacking allegations, Catlett and Morrissey referred to secret recordings they said capture the alleged hacker, Britaney McKinney, admitting to planting the messages. They said they have offered to play the recordings for bar investigators, but the investigators declined the offer. They refused to provide a copy of the recording to the Richmond Times-Dispatch. McKinney has not been charged with any crimes in the alleged hacking. Chuck James, a former federal prosecutor representing McKinney, did not offer a detailed response to Morrissey’s claims, saying: “We leave it to law enforcement and the Virginia State Bar to determine Mr. Morrissey’s veracity, character and fitness.” The description of the state’s evidence against Morrissey contained in the plea agreement he signed contradicts Morrissey’s version of events. The document says no evidence was found that any messages were planted by McKinney and that, in addition to text messages, 15 other nude photos and semi-nude photos of Myrna Morrissey were found on Morrissey’s phone. In addition, the document says Morrissey’s own forensics expert found evidence that his client attempted to delete text messages. (Morrissey’s forensic consultant claimed in an early report to have found evidence supporting the hacking theory, but prosecutors said that report was incomplete and later reports that Morrissey’s lawyers provided through the discovery process contradicted its findings.)

According to the plea agreement, McKinney admitted that she logged into Myrna Morrissey’s Apple iCloud account from an iPod, which allowed her to monitor her text messages and appears to be the genesis of the hacking theory. But prosecutors said McKinney only had access to the text messages after the sexual texts had begun and said she would deny admitting any “hacking.” In addition to having the electronic evidence, the state was prepared to call numerous witnesses, including Morrissey’s own friend, Abe Massad, who the plea agreement said would testify to receiving nude photos of Myrna from Morrissey along with a boasting text about Morrissey having sex with the woman twice in his office. Neely said in an interview that he agreed to the plea deal with Morrissey only because he was concerned a jury might not find the allegations concerning given that both Myrna and Myrna’s mother were standing by Morrissey. He said he decided Morrissey’s offer to serve six months in jail was likely more than what a jury would hand down.

“I reviewed it with investigators, and we decided that was as good as we were going to get anyway,” he said. “It never occurred to me that he would turn around and put fraudulent evidence into the sentencing plea. Only Joe Morrissey could think of something like that.”