Attorney general misses hearing, Davenport case delayed again

Judge Karlin Myers presides over a hearing Monday for Varlo Davenport case, St. George, Utah, May 23, 2016 | Photo by Sheldon Demke, St. George News
Judge Karlin Myers presides over a hearing Monday for Varlo Davenport case, St. George, Utah, May 23, 2016 | Photo by Sheldon Demke, St. George News

ST. GEORGE – Another hearing in Varlo Davenport’s misdemeanor case was continued Monday after the prosecuting attorney, Utah Assistant Attorney General Michael Carter, failed to show up in court. Carter represents Dixie State University.

Davenport was let go from Dixie State despite his 15 years of tenure as a theater professor after a student alleged he assaulted her during a classroom acting exercise. A faculty review board cleared Davenport and recommended his reinstatement. Instead, Davenport was charged with one class B misdemeanor assault by St. George City.

Read more: New judge, trial date set for Varlo Davenport as case drags on

“The thought crosses my mind, I mean, is this a tactic?” Davenport said after the hearing. “Is this a case of arrogance  … maybe if we drag it out longer it will just go away?”

“On a certain level, it steels the resolve rather than it engenders walking away,” he said.

At the hearing, held in the Washington County Justice Court, St. George City Attorney Robert Cosson said Carter was out on sick leave, and neither he nor Carter had received notification of the hearing.

Inside the courtroom at Varlo Davenport's hearing Monday, St. George, Utah, May 23, 2016 | Photo by Sheldon Demke, St. George News
Inside the courtroom at Varlo Davenport’s hearing Monday, St. George, Utah, May 23, 2016 | Photo by Sheldon Demke, St. George News

Doajo Hicks, Dixie State University’s new general counsel, confirmed Carter was out on medical leave and said neither he nor Carter were served with notice of the hearing. However, the court administrator produced a certificate of delivery showing Carter did receive notice of the hearing.

Hicks appeared in the courtroom as an observer, but later joined Cosson at the prosecution table at Myers’ invitation.

Hicks said he received an email from Carter informing him of the medical leave April 20; the notice was sent April 28.. It is unknown when Carter will return to work. Hicks said the hearing notice was sent to Carter’s office at Dixie State.

“So all the mail from the last month is just sitting on a desk unopened?” Myers asked Hicks.

“Pretty much,” Hicks replied.

Myers directed Hicks to inform the Attorney General’s office of the situation. By statute, an attorney general has to represent the university, Hicks said.

“I’m somewhat hesitant to go forward without (Carter) being here because that has been the nature of the problem, is ex parte communication,” Aaron Prisbrey, Davenport’s attorney, said.

Still in contention is whether the prosecution has delivered evidence requested by the defense.

A motion filed by Prisbrey holding Dixie State University president Richard Williams in contempt for refusing to obey a judge’s order to turn over documents related to Davenport’s defense was not ruled on by Judge Ronald Read prior to Read’s disqualification, Prisbrey told Myers.

After much discussion, Myers decided the hearing could not be held without a representative of the Attorney General’s office, and Prisbrey agreed.

“It’s a little unusual that Mr. Carter’s been out sick since April 20 and didn’t let anybody know,” Prisbrey said after the hearing. “Apparently there’s nobody down at Dixie College with the wherewithal to open legal correspondence in support of the Attorney General’s office.”

The hearing was continued until June 10, and will be combined with a pretrial hearing.

New judge

Judge Karlin Myers was assigned to the case on May 18 after Read disqualified himself. Myers is a judge at the Hurricane Justice Court.

Myers was assigned the case by the Washington County Commission, the governing body for the Washington County Justice Court.

“We chose Myers because he is a licensed attorney with experience in criminal matters,” Commissioner Zachary Renstrom said. “It’s a complex case, so it’s good to have someone with experience.”

Read’s disqualification came in the wake of Prisbrey’s motion to disqualify him. The motion cited “substantive ex parte communications between the Court and Carter without notice or the opportunity to respond being given to the defense.”

Read more: Davenport case: Judge Read steps down

Prisbrey found out about the contact in a filing by Carter in mid-March and asked Read about it in a March 21 hearing, according to an affidavit filed in support of the motion to disqualify.

“The Court admitted that the ex parte communication took place,” the affidavit states, “but denied that anything substantive was discussed.”

Prisbrey called the ex parte communication “incredibly egregious.”

Email: japplegate@stgnews.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2016, all rights reserved.

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12 Comments

  • Jeannette May 24, 2016 at 1:00 am

    It sounds as though Utah’s legal system needs to be revamped. The State Attorney, university counsel, and prior judge seem very unprofessional!

  • fun bag May 24, 2016 at 1:44 am

    the mormons trying to make an example of him, letting everyone know that you don’t challenge the mormon power structure within in the courts. they also need the conviction to justify the termination of employment. the cliquishness among so. ut mormons is obscene. they should keep in mind: what goes around comes around…

  • fun bag May 24, 2016 at 1:51 am

    and the city deciding to take on the case is ridiculous. Does the supposed victim even want the case to be prosecuted. Is she in the same ward as the clique doing the prosecuting. A lot of you mormons really should … what is it they say .. let those without sin cast the first stone… or don’t throw rocks if you live in glass houses… ok LOL

  • Chris Zinda May 24, 2016 at 7:19 am

    Malfeasance not opening legal correspondence. Sanctionable.

    Unprofessionally laughable.

    The Spectrum must follow up on this line of accountability.

  • htown May 24, 2016 at 8:35 am

    Why not rule in favor of those who show up. If the shoe would have been on the other foot, there would be a default issued and possibly a warrant. This is wrong.

  • anybody home May 24, 2016 at 9:29 am

    It would be easy to call this a joke, but it’s not a joke. It’s irresponsible behavior on the part of the those out to get Mr. Davenport. And Dixie State is certainly responsible for this latest “snafu.” I use that term lightly because it seems more deliberate than a simple misunderstanding. Mr. Davenport is being jerked around by the Mormon system and is likely sorry he ever set foot in Utah.

    Handcart philosophy is one thing, but when it comes to proper communication in the 21st century, handcart philosophy is absolutely wrong. Open the d**ned mail!

  • Overwatch May 24, 2016 at 11:27 am

    Is anyone in this community of law abiding moral people paying attention to how many citizens are being overcharged by Law Enforcement and the prosecutors office in Washington County? Is the news media following up with what happens to all the citizens that are charged, displayed on bookings and in the news, only to have prosecutors and police not show up with evidence of any crime? Is it possible that Mr. Davenport is getting treated like so many others? Is the system in Washington County being wrongfully used so that anyone the “Powers at be” don’t like are guilty until proven innocent? And if you don’t have the time, money and wear withal to fight with these powerful people then they win by default?

    Yes!

    Is this a tactic Mr. Davenport? Yes!
    Is it arrogance? Yes!
    Maybe if they drag it out it will just go away? Don’t let it Mr. Davenport. Although you are mad, sad, frustrated and angry, you are the face for many others that the same tactics have been used on. Unfortunately most don’t have the time, money and wear withal to fight this corruption. Apparently the tactic has been used for so long, by so many of the powerful people in this community, those people don’t even realize how wrong it is. And nobody seems to have what it takes to stand up for whats right in the USA anymore.

    • fun bag May 24, 2016 at 12:55 pm

      if you’ve decided to take a jury trial rather than a plea and challenge the system they will stack charges, add multiple counts of the same charges, and anything to make the charges as severe as possible. it’s unethical, but it’s how it’s done here in the mormon theocratic courts. And mormons will usually convict, because the prosecutor is a mormon authority figure, and obedience to mormon holy figures rules the day in mormon land.

    • fun bag May 24, 2016 at 12:57 pm

      if you don’t like it write the governor, i’m sure he cares

  • tedstevens May 24, 2016 at 3:32 pm

    I heard, word of mouth, that this all has to do with the guy that took Varlo’s place as head of the department. A “backroom deal” was made and DSU President Williams was just waiting for the golden opportunity to remove Varlo. This was his perfect chance…except it wasn’t. I’m sure now DSU President realizes he will be in deep crap if any of this comes out. It will tarnish the name of the University and that would harm the reputation of both DSU and the City of St. George and the President would most likely have to resign. The good ole boys running things in the big SG can’t have any of that.

  • ladybugavenger May 24, 2016 at 8:10 pm

    Mr Davenport much respect to you. Stay diligent, keep fighting. You are wearing them down.

  • .... May 24, 2016 at 11:51 pm

    I went fishing today !

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