ESD Trial, Day 23 UPDATED

You know what’s fun about lawyers? Even when both sides have officially rested their respective cases, the fight rages on.

We’re in the 8th week of a family’s civil suit against the Episcopal School of Dallas related to a teacher’s sexual relationship with a student. Although it seemed the courtroom was ripe for closing arguments last week, we’re now in a bit of limbo.

Judge D’Metria Benson declared the court in recess for three days on Sept. 8 so that “new evidence” could be investigated. It would appear from the sheepish grins of the plaintiffs’ attorneys that the evidence is coming from their side, but there’s been no confirmation of that.

The trial resumes at 9:15 a.m. I’ll have updates as soon as humanly possible.

MOTHER OF ALL UPDATES: CLOSING ARGUMENTS WILL BEGIN TOMORROW AT 2 P.M.

UPDATE 10:10 a.m.
Still haven’t started for the day. Judge Benson just called the lead counsels from both sides into her chambers.

10:15 a.m.
Fastest chambers meeting to date. Attorneys are headed to the courtroom, and so am I. See you on the outside.

UPDATE 1:45 p.m.

As I type, I’m officially late for the afternoon proceedings. But know this, Swann took the stand and denied telling Bill Black that his daughter needed to leave ESD. Swann also said he didn’t “hear” Black say that his daughter had been inappropriately touched by a teacher at ESD, and instead remembered the meeting to be about an accusation of staring. Black denied that staring was part of his complaint on the stand last week.

10:50 a.m.

Chrysta Castaneda says the Texas rule of priest-penitent privilege is “stronger than any in the nation.” ESD brings this up because they are claiming that Father Stephen Swann’s conversations with Former Student about her sexual relationship with Mike Marsh were confidential because he’s a priest, and he couldn’t testify about them.

“It is morally absolute. There are no exceptions to the rule,” she says.

The plaintiffs are saying that Swann lied about his knowledge of other allegations of sexual abuse at ESD between an employee and a student.

Brent Walker says the privilege “is not unlimited” as Castaneda said it was.

“It’s now being offered to excuse Father Swann’s materially false testimony,” Walker says. “Unfortunately for ESD, just because something is under priest-penitent privilege, it doesn’t give them the right to deny it ever happened.”

“Just because he’s going to sit up there with a collar on doesn’t mean he gets to say everything he’s been told is privileged,” Walker says.

11:05 a.m.

Castaneda says the assertion of the privilege would have been premature during Swann’s deposition, and also adds that Swann said he couldn’t recall rather than a definitive no.

“There is no perjury statement,” Castaneda says.

“He lied under oath,” Walker says.

Benson rules that she will allow questions about whether or not Swann lied because it was his obligation to assert the priest-penitent privilege if that was his reasoning for not revealing pertinent information to this case.

11:15 a.m.

Swann, holding his face in a frown, takes the stand.

Swann says his recollection of the meeting with Bill Black and his family was that a math teacher had stared at his daughter in the commons and made her uncomfortable.

Aldous asks Swann if Black said, as he has previously testified to, that the math teacher touched his daughter inappropriately.

“I didn’t hear him say that,” Swann says.

Aldous asks Swann if he’d heard previous complaints about this math teacher before Black came forward.

“Perhaps subsequent, but not prior to that,” Swann says.

11:20 a.m.

Aldous brings out the math teacher’s personnel file, which has a letter from Rebecca Royall dated Dec. 7, 1989. The letter, thrice stamped “confidential,” reprimands the teacher for being overly familiar with female students.

“I do mean physical contact,” Royall wrote in the letter.

She also stated, “You cannot depend on a student to set the boundaries of safety/protection for himself/herself,” and told the math teacher that as the adult, this burden was on him.

(Side note: This contradicts the testimony of ESD’s expert witness, Dr. Rycke Marshall, who said Jane could have set boundaries and limited Campbell’s access to her.)

11:25 a.m.

Aldous asks Swann if he could’ve seen this letter in 1993 when Black complained about this teacher.

Swann says yes, he could have seen it, but he can’t recall if he did.

Now Aldous brings up a letter from April 26, 1993 to the math teacher from Swann. According to Black, this letter predates the incident of inappropriate touching and comments with his daughter, which he alleges happened in the fall of 1993.

Swann says he cannot confirm whether this letter was written before the Black incident.

“It’s interesting it’s not signed,” Swann says of the letter, which bears his name at the bottom but no signature.

11:30 a.m.

The letter references a meeting between the math teacher, Royall, and Swann about reports that “some female students” perceived that this teacher sexually harassed them. The 1993 letter makes note that these claims are “of similar content” to the ones made in 1989.

Swann says his memory of this letter is that it was in response to meeting with the Blacks.

(Side note: No one has testified that Royall was present at the meeting with the Blacks.)

In the April 1993 letter, Swann wrote, “[Math teacher], you have my confidence,” and later, “Please be extremely careful as you are of significant value to this institution.”

Aldous asks Swann if he wrote the letter.

“I never signed it,” he says. “They may be my words.”

11:35 a.m.

Aldous asks Swann if he told Black that his daughter had to leave ESD.

“That is not true,” Swann says.

Aldous asks Swann about specific elements of Black’s testimony, such as the fact that he said Swann was “shocked” to learn that the math teacher had behaved inappropriately with a female student.

“I can’t recall the conversation,” Swann says, adding that he does recall meeting with the Blacks in their home.

Aldous asks Swann if he told the Blacks their daughter had to leave ESD after she’d come forward about the math teacher touching her.

“I did not say that,” Swann says.

“That’s exactly what you did to the [Doe] family 18 years later, is it not?” Aldous asks.

“I did not say that to the [Blacks],” Swann says.

Swann goes on to say he never asked the Blacks for 24 hours for him to reconsider forcing their daughter out of ESD, and he doesn’t recall asking the Blacks if they were threatening him.

11:40 a.m.

Aldous shows Swann’s handwritten notes from the meeting with the Blacks at their home. In it he has written:

“Administration wants problem to go away,” “Won’t go away,” and “How can I risk bankrupting ESD.”

Swann said he was quoting Black when he wrote those notes.

Aldous asks Swann if he ever told the Blacks that their daughter could stay as long as they kept quiet about their claims against the math teacher.

“I did not do that,” Swann says.

Swann says he didn’t have sufficient evidence to fire the math teacher in 1993.

“Despite the fact that he’d been reprimanded in 1989?” Aldous asks.

“That was not sexual contact,” Swann says.

On June 30, 1996, Swann offered to buyout the math teacher’s contract and allowed him to resign after another student came forward with complaints similar in nature to the Blacks’ accusation.

“It took your school, sir, 7 years before you actually made that man leave ESD, did it not?” Aldous asks.

Swann says the math teacher’s actions, while inappropriate, did not have a sexual component and therefore weren’t grounds for termination.

“The decision to release [the math teacher] was based on prior events that were not reported as sexual,” Swann says.

11:50 a.m.

Swann’s notes on the meeting with the math teacher when he offered him the buyout in 1996 state:

“Be brief,” and “refer to 1989, 1993 complaints,” and “new complaint identical to 1993.”

“Don’t you think the right thing to do would’ve been to terminate him?” Aldous asks.

“It certainly would if there’d been a charge of sexual activity,” Swann says. “There was no charge of touching or anything like that.”

Aldous references the letter from April 1993 when Swann wrote “sexually harassed.”

“Is it not enough that a female student at ESD said [the math teacher] was sexually harassing them? Is that not enough to terminate a teacher?” Aldous asks.

After a long pause, Swann says, “Looking backward, and knowing [the math teacher], I think he was inappropriate, and I wouldn’t have used [the term] sexual harassment.”

Noon

Aldous asks Swann if he’d heard that the math teacher had inappropriately touched a student, would it have been grounds for termination?

“For immediate investigation and termination,” Swann says.

Aldous asks Swann if he can understand why a parent would be upset at ESD if their daughter was made to leave the school for complaining about the inappropriate behavior of a teacher.

Swann asks if this is a hypothetical question. Aldous says yes.

“Then yes,” Swann says.

12:10 p.m.

Aldous quotes Swann’s deposition from September 2010, when Swann said he’d told her about “each and every instance of an inappropriate relationship — or allegations of an inappropriate relationship — between a teacher or an employee and a student at ESD.”

“When you told me [that] in your deposition, that was not true, was it?” Aldous asks.

Swann takes a long pause and leans back in his chair.

“I didn’t remember [the Black claims] because it was not a serious, inappropriate, sexual [relationship],” he says.

Aldous asks Swann if at that time, he recalled the relationship between the Former Student and Mike Marsh.

“Yes, I did,” Swann says, adding that he never told Aldous about it because he didn’t think he was “free” to do so.

“When I asked you this question in Sept 2010, you never told me that [Former Student] had had an inappropriate sexual relationship with Mike Marsh, did you?” Aldous asks.

“I did not,” Swann says.

12:15 p.m.

Swann says he recalls telling the Former Student that she’d “given the school a gift” by coming forward and that he wanted to use her story to educate students, staff, and the board of directors so that future students could be protected.

Swann says he also recalls asking the Former Student to write a letter that he’d show to the ESD community every September.

“I do not recall receiving it,” Swann says, later clarifying that he “never received it.”

“The truth of the matter is, contrary to what you told [Former Student] you were going to do, you never used her letter to educate the school community. You never told the board of directors what this young lady told you about, did you?” Aldous asks.

“I don’t recall,” he says. “I may have discussed it with the board chair.”

Swann says the information the Former Student shared with him helped him understand that “the predator was never the person you expected to be a predator,” adding it wasn’t the guy lurking on the side of the field, it was “the popular one” everyone liked.

12:20 p.m.

Aldous asks Swann if he knew that Marsh went on to work for Mesquite ISD where he had two charges brought against him of inappropriate conduct with a student (one was dropped).

“I don’t recall that,” Swann says.

“You don’t recall [the Former Student] telling you that?” Aldous asks.

“Yes, that’s a different question,” Swann says. “I’m trying to recall the conversation … I didn’t know there were two charges. I didn’t probe or ask questions.”

“Are you aware as you sit here today that two former ESD teachers are registered sex offenders?” Aldous asks.

Castaneda objects, and after a bench conference, the jury is instructed to disregard that question.

“Father Swann, at your deposition in Sept 2010, you did not disclose there were complaints about a teacher who is still employed at ESD, did you?” Aldous asks.

Castaneda objects, and after a bench conference, Aldous is allowed to proceed.

Aldous says there were complaints about a teacher’s inappropriate behavior with a student in November 2007.

Swann says he doesn’t recall that.

Aldous says that same teacher, coincidently also a math teacher, was let go in January 2011 for sexually inappropriate comments toward students.

“Are you aware it took ESD 4 years to take action in this case?” Aldous asks.

“No, I am not,” Swann says.

“Before Nathan Campbell sexually abused [Jane Doe II], you sir knew there’d been other incidents of ESD teachers being sexually inappropriate with students?” Aldous asks.

“Yes,” Swann says.

Swann says he knew he had an obligation to educate the school community about sexual predators.

“ESD failed to uphold that duty, did it not?” Aldous asks.

“We educated our faculty every two years, and the health classes covered these issues,” Swann says.

12:30 p.m.

Aldous asks Swann if he had it to do all over again, would he change anything.

“You can imagine how much time I’ve thought about the decision,” Swann says. “And I keep coming back to rescuing a child who was floundering.”

“You’d do exactly the same thing?” Aldous asks.

“I’d pick her up out of that pond and make sure she was on solid, more solid, ground,” Swann says.

Pass witness. Lunch recess until 1:45 p.m.

2:20 p.m.

Castaneda is cross-examining Swann. She asks him what the procedure is for confession in the Episcopal Church.

“The procedure is to listen to the person who is asking for a hearing,” Swann says. “It’s not an interrogation.”

Castaneda asks Swann if he wears his collar at school. He says yes.

Swann says the Former Student spoke “in very broad terms” about her sexual relationship with Marsh.

“Did she tell you why she was coming to you?” Castaneda asks.

“She said ‘I want or I need to tell you about my relationship with Coach Marsh,” Swann recalls on the stand.

2:40 p.m.

Swann says the Former Student never brought him a letter as he requested.

“Why, if you were going to sweep this under the rug, would you ask her to write a letter to the board of directors?” Castaneda asks.

“I wasn’t trying to sweep anything under the rug,” Swann says. “I wanted people to know she’d come to me.”

2:45 p.m.

Swann says he didn’t renew Marsh’s contract because he’d learned that Marsh had videotaped himself having sex with a woman and extorted $15,000 from her.

Swann says he wasn’t worried about Marsh suing ESD, as the Former Student asserted in her testimony.

Swann says if he’d known about the relationship between Marsh and Former Student when it was happening, he’d have fired Marsh, called the girl’s parents, and alerted the police.

“Have you at all times before and after your deposition been aware that it was illegal for a person younger than 17 to have sex with an adult?” Castaneda asks.

“Yes,” Swann says.

3 p.m.

Castaneda reads from the trial transcript on Aug. 8 when Aldous asked Swann if he’d ever tried to “sweep anything under the rug” about a coach and a student having a sexual relationship at ESD.

The transcript says (after a host of objections and a few rephrases), Swann responded “Yeah.”

Castaneda says the court reporter got it wrong, and that Swann actually said no.

“I never use the word ‘yeah,’” Swann says.

Switching gears, Castaneda asks Swann what about Aldous’ questions on the “legal definition” of sexual assault was confusing to him.

“During testimony and during the deposition, I perceived that Aldous used abuse and assault interchangeably,” Swann says.

Swann says he’s known the age of consent “forever,” and also is aware of the state law that concerning student-teacher relationships.

3:05 p.m.

Swann says he called Hockaday after Bill Black told him that the math teacher had been fired for stalking a student there. Swann says Hockaday told him that the teacher left “in good standing.”

Swann says the idea that the Black’s daughter needed to leave ESD came from the Blacks, not him.

Castaneda shows Swann’s handwritten notes from the meeting with the Blacks that were referenced earlier. She points out a line that says “Will call Jon, I encouraged.”

Swann says he told the Blacks to call Jon Mosely, who was the board chair at that time, but he doesn’t believe they ever did.

Pass witness.

3:15 p.m.

Aldous takes over for the plaintiffs and shows that Swann used the word “yeah” 14 times in his deposition testimony.

“I totally apologize for my poor grammar,” Swann says with a smile.

Aldous asks Swann about his statement that he’d have fired Mike Marsh, told the Former Student’s parents, and called police if he’d known about the affair in 1993.

“Would you also have done to [Former Student] what you did to [Jane Doe] and separated her from the school?” Aldous asks.

“I would like to think we’d have done the same thing in meeting with the family and deciding if it was best for her to stay,” Swann says.

Aldous asks Swann if he ever considered that in making the decision to expel Jane Doe, he was “sending a message” to the students at ESD that if you report sexual abuse, you’d have to leave the school?

“The message I’d hope students would get out of that is: If ESD is a place where you thrive, it’s a place you ought to stay,” Swann says.

Witness is excused.

3:25 p.m.

Jury is sent out of the courtroom so ESD can present an offer of proof on Swann.

Castaneda goes through the Book of Common Prayer and the Rite of Confession.

“The secrecy of a confession is morally absolute for the confessor [priest] and must under no circumstances be broken,” the passage reads.

Castaneda asks Swann what that means to him.

“It probably means eternal damnation if I break it,” Swann says.

Swann says he believes the Former Student came to him “in a spirit of confession.”

Castaneda asks Benson if the jury can hear this testimony. She says no.

Aldous presents her own offer of proof and asks Swann if he thought he was subject to eternal damnation, why did he tell a board member about it?

“I didn’t use her name,” Swann says.

Witness is excused, again, but Castaneda attempts to continue to ask questions. Benson gives her the evil eye.

3:35 p.m.

Castaneda presents an offer of proof on Dr. Rycke Marshall.

Marshall says she doesn’t consider the relationship with Former Student and her ESD track coach, Mike Marsh, to be sexual abuse or sexual assault because the girl was 17 and there was no force involved.

Benson says the testimony won’t be heard in front of the jury.

3:40 p.m.

Both sides officially close. The jury is instructed to come back tomorrow at 2 p.m. for closing arguments.