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.
“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.
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.
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.”
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