ST. GEORGE – With a trial date rapidly approaching, the judge in Varlo Davenport’s case denied subpoenas for several witnesses including Dixie State University President Richard Williams. The case has suffered from numerous delays and complications, but a trial date is set for July 13-14.
Davenport, a 15-year tenured theater professor, was fired from Dixie State after a student alleged he assaulted her during a routine classroom acting exercise.
A faculty review board cleared Davenport and recommended he be reinstated. However, Davenport was charged with a single class B misdemeanor assault by St. George City. The DSU faculty senate also voted to clear Davenport, said his attorney, Aaron Prisbrey.
At the hearing, Judge Karlin Myers quashed several subpoenas for witnesses including Williams. However, the witnesses will be “standing by,” Prisbrey said.
”So I’m wondering if anyone else gets this special white-glove treatment where a subpoena gets squashed,” Prisbrey said, ” … but they can just hang around until the judge decides it’s time for them to come on down.”
Myers denied subpoenas requested by Prisbrey for DSU President Richard Williams, DSU Director of Public Relations Steve Johnson, department chair Mark Houser, Vice President of Student Affairs Frank Lojko and Utah Assistant Attorney General Michael Carter.
“I’ve never heard of anything like that in 22 years that I’ve been practicing law,” Prisbrey said. “I’ve never heard of any other judge quashing a subpoena for witnesses that have relevant information.”
Myers did order a subpoena for Dixie State University Public Safety Director Don Reid, who conducted an investigation into the alleged assault months after the incident occurred.
Myers said if there is a problem with inconsistent statements that goes to a witness’ credibility, then Williams, Beatty and Houser need to be available to testify for those statements, court documents state.
During the hearing, Myers insisted that Prisbrey “present his case” by telling the judge what the witnesses were going to say, Prisbrey said. So the determination about whether or not to subpoena the witnesses was made on the basis of what he thought they might say, he said.
Delays and complications
The case has been plagued by delays and complications.
Judge Ronald Read stepped down after Prisbrey alleged in a motion filed April 1 that an illegal ex parte communication took place between Read and the prosecution; that is, communication occurred between them without the defense being notified or present.
Read more: Davenport case: Judge Read steps down
It also took many months for Davenport and Prisbrey to receive relevant documents from Dixie State University.
Prisbrey has been asking for the information since August 2015. Feb. 19, Judge Read ordered that any relevant information be turned over to Prisbrey. When documents were finally turned over there were only five pages, rather than the boxes of evidence Prisbrey was expecting.
During a hearing June 10, St. George City Attorney Robert Cosson argued repeatedly that his office has complied with all of the orders and insisted that all of the information requested has been turned over. Doajo Hicks, Dixie State University’s general counsel, was present at the hearing and also denied the existence of any additional emails.
When the emails were finally turned over to the defense in response to Myers’ order, there were an estimated 15,000-17,000 of them, Prisbrey said.
Carter, who represents DSU for the state, failed to appear at a May 23 hearing; causing yet another delay.
Hicks said at the May 23 hearing that Carter was out on medical leave and that 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 then told Myers that Carter’s mail was apparently just sitting on a desk unopened at Carter’s DSU office.
At the June 30 hearing, a request by the defense for access to Davenport’s classroom videos was discussed. In an objection and supplemental response to the defendant’s discovery request filed with the court June 28, the prosecution objected to the request and asserted that the university had not provided the videos to St. George City.
The same videos were referenced in a report given to the defense “months ago,” the objection states, and the report states the videos were reviewed and that there were no video recordings for the date and time of the incident that triggered charges against Davenport.
However, the videos were brought up at Thursday’s hearing, according to court documents. Myers ordered that if a security video Reid had referenced exists, it should be delivered to Prisbrey as soon as possible.
After a court recess, however, Utah Assistant Attorney General David Jones, who took over prosecution from Carter, informed the court he had contacted the university and that no security video exists although the matter was researched.
Trial date set
A jury trial is scheduled for July 13-14 at 9 a.m. at the Washington County Justice Court, 87 N. 200 East in St. George. There is a possibility the trial will take three days instead of two, deputy court clerk Janet Thorpe said.
Four jurors and possibly an alternate will be impaneled for the trial, Thorpe said. A jury of four is specified in Utah Code 78B-1-104 Jury composition in cases which carry a potential penalty of incarceration of six months or less.
Jury selection is expected to take some time, Thorpe said, because 45 jurors have been called.
Due to media coverage of the case, Myers requested in June that 45 jurors be summoned for potential jury duty rather than the usual 25-27 in order to avoid any potential delays during jury selection.
Cosson and Myers have declined to comment on the case.
Ed. note: Corrected names of those who declined comment.
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