Judge Ron Read and attorney Michael Carter’s illegal activities in the Varlo Davenport case

An interesting thing took place in the case of the alleged assault by Dixie State University professor Varlo Davenport on a student in an acting class. The trial was vacated pending a motion by Davenport’s attorney, Aaron Prisbrey, which presumably will make the case that the Honorable Judge Ron Read recuse himself from presiding over the trial for communication ex parte with Assistant Attorney General Michael Carter, who is on staff counsel for DSU.

Setting aside for a moment the oddity of an assistant attorney general prosecuting a lower court class B misdemeanor, something that really stands out here is that neither this judge nor the attorney appear to know the law — or, worse, they do but aren’t abiding it.

If you are not familiar with the case, you can check the archives here at the Indy. Or, and I don’t mind giving some props here, the Dixie Sun and St. George News have published some good, comprehensive pieces on it. For the purpose of this update however, a little timeline would be prudent.

May 6, 2015, Davenport’s attorney filed a notice of intention to subpoena records from the college pertaining to the case and anything else related to the alleged event of Nov. 21, 2014.

May 26, 2015, DSU filed an objection.

June 12, 2015, Prisbrey replied to the objection and shortly thereafter filed a motion to compel. (It would be an audaciously suspicious six months before Judge Ron Read would rule on the motion.)

Davenport’s case was originally reviewed by a board of his peers, and in line with university policy, he was to be reinstated. However, newly appointed DSU president Biff Williams overrode the decision and fired him on the spot. Pressure from the outcry on campus, the community, and the media seemed to force Williams’ hand. He had already been caught making contradictory statements, and he went on record stating that once “all” of the information came out, the dereliction of due process would make sense. The best that can be ascertained is that he somehow had foreknowledge of this assault case, which had not begun to be investigated as such until three months later and would be declined for prosecution by the Washington County Attorney’s Office. The City of St. George would make the decision to prosecute Davenport, citing that this was normal procedure for cases not severe enough for county prosecution. However, it appears to be a bit of an anomaly for the City to take such cases.

Feb 10, 2016, Read finally ruled that DSU must provide Prisbrey with “any and all information” from the whistle blower site related to Davenport and the events of Nov. 21, 2014. However, the wording allowed only for things such as interviews and witness statements and not emails or other pertinent communication and evidence.

Are you thinking what I have been thinking for a long time now? What in the actual Hell is a public university engaging in when it utilizes an off-campus, unregulated, anonymous whistleblower site? The site is said to be spearheaded by DSU Board of Trustees member, prominent local businessman, and church leader David Clark. A topic for another day?

When Prisbrey noted his dissatisfaction with the limited scope of the discovery granted, Read maintained that it be set for another hearing due to the opposing counsel’s absence. It would not be appropriate for Carter not to be present as the nature of the discussion was substantive and would be considered communication ex parte. (It is important to note here that this demonstrates that Read knows the law and is submitting his proceedings according to it, at least here.)

A brief description of the term “ex parte” is found at Americanbar.org and reads as follows:

Feb 18, 2016, in another hearing, Prisbrey reiterated that the “boxes and boxes” of evidence campus police chief Don Reid refers to having in the Davenport matter, as well as the other exculpatory evidence, are rightly and legally things Davenport and Prisbrey are entitled to and that the previous ruling was not broad enough in scope.

Read amended the order to include “any and all” evidence pertaining to the events of Nov. 21, 2014, to include emails and communications.

Feb 26, 2016, Carter allegedly delivered some documents to the court. No court record is entered, so no proof of this exists. Prisbrey does not know.

Feb. 29, 2016, Carter goes to see Read in his courtroom at the end of the day, and they engaged in a substantive conversation wherein Read asked Carter if he wanted him to redact the identity of someone who had “pertinent and relevant information in the Davenport case” so that Prisbrey could only read the content of the email but not who it was from. No court entry of this conversation took place — but fortunately, it was recorded.

This conversation was substantive as it regarded the redaction of evidence: it gave procedural, substantive, and tactical advantage to the prosecution. And Read made no provision to promptly notify all other parties. Read was, along with the prosecuting attorney, breaking the law, and in essence a collusion of sorts to hamper Davenport’s defense took place.

March 3, 2016, not aware that documentation per the subpoena has been entered nor that it has been modified by the judge to the prosecution’s liking, Prisbrey filed a motion to hold Williams in contempt of court for failing to produce evidence ordered by the court.

March 7, 2016, Prisbey received a a handwritten envelope addressed to him containing a three-page document dated March 4, 2016, the day after the motion for contempt was filed. The document describes an email from a “concerned” former student with information relevant to Davenport. The school claims that it replied promptly but received no further correspondence from the concerned person. It is possible that the school never replied, as the person in question has confidentially disclosed that he or she never received a reply.

What is important to note here is the timing. It would appear that Prisbrey’s motion for contempt by Williams had some legitimacy that prompted an immediate response. But although the answer was given to the court, it wasn’t entered into any log or court record at all. Neither was the substantive follow-up conversation between Carter and Read in which they agreed to have relevant information redacted without Prisbrey’s knowledge.

Apparently, Read is familiar with how to protect the prosecution’s rights with regards to communication but not the defense’s.

March 16, 2016, it was revealed to Prisbrey in a reply from Carter that a substantive conversation took place pertaining to evidence ordered by the court to be handed over to Prisbrey.

This is the same manner in which Prisbrey also discovered that “boxes and boxes” of evidence had been gathered by Reid: the police chief wrote it in an email that Prisbrey would later read and ask about. But before that, the prosecution made no mention of the evidence and in fact appeared to be hiding it.

March 21, 2016, in a pretrial conference two days before actual trial was set to begin, Prisbrey confronted Read about the ex parte communication and was summarily told that it was not substantive but rather procedural. Prisbrey asked if there was audio of the meeting, and witnesses to the engagement say that both Read and Carter looked nervous upon hearing that question.

I have listened to the audio ad nauseum and will eventually publish it here, but take me at my word when I say that it sounds an awful lot like Read was going out of his way to help the prosecution keep Prisbrey from finding out who had information pertaining to Davenport’s case.

Setting aside the fact that it is highly suspect that the “any and all” information from the whistle-blower site was a single non-consequential email, from the academic and legal standpoints it is clear that Read violated the law, as did the prosecution, and that they did so knowingly. While it stands to reason that Read should recuse himself, as perhaps he should have in the first place as he was a former prosecutor for the City and had a clear conflict of interest, it is quite possible that the case for both Read and Carter to be disbarred could be made.

So, ask me why I give such a damn about this. Ask me why I keep it alive in print, online, and on the air.

Because I made a promise to someone not to let this story become yet another one of the good ol’ boy blunders in which our leaders along with the repugnant administration of DSU without conscience abuse entrusted and appointed authority to pick and choose who they will or will not decimate at whim. Because they get away with it when they endlessly drag it out in hopes that it will die and that, eventually, no one will notice or care anymore.

That’s why.

See you out there.