ESD Day Trial, Day 17 UPDATED X2

Yesterday’s proceedings only lasted a few hours, and Erin Mayo’s testimony appears to be wrapped up. Judge D’Metria Benson ostensibly took the extended recess to rule on a variety of pending issues, including the admissibility of the phone call recordings between CFO Chris Burrow and J. Nathan Campbell. So that only leaves a few reasonable options for the rest of the plaintiffs’ argument.

1. Burrow gets back on the stand, at the very least, to finish his testimony and be cross-examined, and at the most, to answer to what is purported to be his voice giving Campbell advice and encouragement.

2. The Former Student, who claims she had sex with a coach in the ’90s and told Father Stephen Swann about it as recently as this year, testifies.

3. Marc Salz, Campbell’s former officemate, takes the stand.

4. Charla Aldous leads the entire courtroom in a flash-mob-style dance to Thriller.

Which one would you most like to see?

UPDATE 12:30 p.m.

And the winner is, No. 1. Burrow took the stand this a.m., emphatically stating he could “neither confirm nor deny” if it was his voice on the recordings. I’ll have more updates in a bit. I’m on print deadline right now.

10:20 a.m.

Before Burrow takes the stand, Chrysta Castaneda objects on the grounds that “any alleged recordings are not relevant to any issue this jury is going to decide.”

Benson overrules the objection, and Burrow takes the stand with Charla Aldous questioning for the plaintiffs.

10:30 a.m.

Burrow says he doesn’t remember intending to help Nathan Campbell when he called him in October.

The plaintiffs put up the transcript of a phone call between Campbell and Burrow, with photos of each and speech bubbles of text. A few jurors’ eyebrows go up.

Castaneda objects on relevance. Benson overrules. Castaneda objects on the validity of the tapes. Benson overrules.

“Sit down,” Benson says.

Castaneda, still standing, “Your honor,”

“Overruled. Sit down Ms. Castaneda,” Benson says.

10:35 a.m.

After playing the “hey buddy” voicemail, Aldous asks Burrow if it’s his voice on the recording.

“I cannot attest to the accuracy of this transcript or the authenticity of the tapes,” Burrow says. “I don’t recall this conversation.”

Aldous objects and asks him again if it’s his voice.

“It sounds like my voice,” he says. “But I cannot confirm or deny the validity of the tapes.”

Castaneda keeps objecting. Benson keeps overruling.

10:40 a.m.

Burrow says he called Campbell to get financial information related to the Center for Global Citizenship, (formerly known as the Global Awareness Center by other witnesses).

Plaintiffs play another recording that is largely inaudible.

“I couldn’t understand anything that was on that,” Burrow says.

Benson agrees it’s inaudible and doesn’t allow that portion of the recording to be used.

10:50 a.m.

Aldous asks Burrow if he was part of a three-person litigation committee for the civil trial.

“I wasn’t aware I was a formal member of a committee,” Burrow says.

Aldous represents that in the deposition testimony of ESD board chair John Eagle, the chair states Burrow was on the committee along with board member Joe Colonetta.

“I wouldn’t disagree with John Eagle’s testimony, but I wasn’t aware I was an official member,” Burrow says.

Aldous plays a recording where a voice tells Campbell, “There’s a legal committee with the board chair, a board member, and me.”

Aldous asks Burrow if that’s his voice.

“It sounds like my voice, but I can’t attest to the authenticity of the tapes or the transcript,” Burrow says. “I cannot say with accuracy or authentication that it’s my voice.”

11 a.m.

Castaneda again objects, this time on the grounds that the tapes were not timely presented to ESD (they received them on Thursday, Aug. 25).

Aldous says that’s a misrepresentation because she gave tapes to Judge Benson when she received them in the fall of 2010, and the judge decided to turn them over to the district attorney.

“I vehemently object to the mischaracterization that I withheld the tapes,” Aldous says.

Back to the recordings, Aldous asks Burrow if he can look the ladies of the jury in the eyes and say he never told a sexual predator that he wanted to tell him something that would be helpful.

“I don’t recall,” Burrow says.

Aldous asks Burrow if he’d ever offer help to a sexual predator.

“I would never help a known sexual predator,” Burrow says.

“Do you doubt that Nathan Campbell is a sexual predator?” Aldous asks.

“I do not doubt that he committed reprehensible acts,” Burrow says.

11:15 a.m.

Aldous goes back to the transcript of Burrow’s testimony from last week. She references a line of questioning where she she asked Burrow if he told Campbell that Jane couldn’t remember if she was 16 or 17 the first time they had sex.

In the transcript, Burrow said he had no recollection of discussing that with Campbell during their conversation. Aldous plays an alleged recording of the conversation, in which Burrow repeatedly explains that Jane doesn’t know for certain what her age was when the relationship turned sexual.

“Does this refresh your memory?” Aldous asks.

“I still do not recall the events as they’ve been portrayed on this recording, as I’ve said previously. I cannot tell if it’s accurate or not,” Burrow says.

Aldous asks if it “would ever be morally right” to help a sexual predator.

“I don’t think it would be morally right to assist any sexual predator in anyway, and I would not do that,” Burrow says.

Burrow also adds that he has no knowledge of Jane’s age and never has had any.

“So  you weren’t aware that one of the issues that ESD was bringing up in the civil lawsuit was whether or not Jane was 16 or 17 when they first had sex?” Aldous asks.

“I was not aware of her age at anytime,” Burrow says. “I am aware of the age of consent.”

11:20 a.m.

Now Aldous is asking questions about the ESD suburban. She asks Burrow is he was aware that Campbell’s inappropriate use of school vehicles was being investigated.

“I was not aware of his use of the suburban for anything other than school business until this case,” Burrow says.

Aldous plays a portion of the recording where Burrow allegedly tells Campbell that his inappropriate use of the vehicle “is probably true,” but he doesn’t want to know that.

11:30 a.m.

Aldous plays another clip where Burrow allegedly tells Campbell the case against the school is weak, and it’s just Jane’s word.

“Can you look at this jury and tell them you never told Nathan Campbell it was just Jane’s word?” Aldous asks.

“I can’t confirm or deny what’s in these transcripts,” Burrow says.

Brief recess from 11:45 to 11:55 a.m.

11:55 a.m.

Aldous asks Burrow if it “sounds like  him” on the tape.

“I can’t tell,” Burrow says.

Aldous asks Burrow about the “bide your time” portion of the tapes, in which Burrow purportedly instructs Campbell to do so three times.

“That part was particularly odd to me,” Burrow says. “It sounds like it was mechanically produced.”

Noon

Aldous now plays the “best possible outcome” portion of the recordings, where Burrow allegedly tells Campbell  that he and Rebecca and wish Campbell comes out of this “in the best, best way possible.”

“I don’t recall any of that,” Burrow says. “Particularly related to Ms. Royall, because she and I never discussed that.”

12:05 p.m.

Burrow confirms that he is on paid administrative leave pending an investigation into these conversations with Campbell. He still receives a full salary and benefits.

“Did you hear your voice on any of these recordings?” Aldous asks.

“I don’t know if it was my voice or not,” Burrow says.

“Are you telling the jury you never intended to help Nathan Campbell?” Aldous asks.

“I am,” he says.

Pass witness. Lunch recess until 1:30 p.m.

1:50 p.m.

Chrysta Castaneda is leading the cross examination for ESD.

Burrow says he believes the tapes have been tampered with.

Castaneda puts up a timeline of Burrow at ESD as it relates to the trial.

He was deposed on Sept. 24, 2010 and made the phone calls to Campbell in October of the same year. On Nov. 15 he was placed on paid leave.

2 p.m.

Burrow says he attended the deposition of John Doe, Jane’s father, and one hearing related to the case in his capacity as CFO and corporate representative.

Pass witness.

Aldous asks Burrow if ESD told him not to talk to Campbell or anyone involved in the case.

Burrow says yes.

“And you directly violated an order by ESD?” Aldous asks.

“Yes,” Burrow says.

“Just as Nathan Campbell directly violated school policies?” Aldous asks.

Burrow argues that Campbell blatantly violated a number of school policies.

ESD objects to the form of the question and Aldous moves on, asking Burrow about his earlier statement that he believed the tapes had been tampered with.

Burrow clarifies, saying he believes they “may have been tampered with” because of “all the clicks and noises and starts and stops.”

2:05 p.m.

Aldous asks Burrow if anyone from the board of directors at ESD or any other employee has asked to meet with him to discuss his contact with Campbell and the status of Burrow’s employment.

Burrow says he hasn’t had any meetings with ESD officials since Nov. 15, 2010.

Witness is excused.

Castaneda says she needs to bring up something outside the presence of the jury. Benson excuses the jury, and then reprimands Castaneda.

“If I need your help, I’ll ask for it,” Benson says.

Castaneda apologizes.

Brent Walker, attorney for the plaintiffs, argues to include the Former Student and an unrelated Former Parent as witnesses on two separate instances of alleged sexual inappropriateness. Walker also asks that the plaintiffs be allowed to recall Father Stephen Swann.

Benson says the court’s ruling remains the same and they may only call those witness on rebuttal.

2:10 p.m.

The plaintiffs rest.

Royce West calls the first witness for the defense, and a smartly dressed John Eagle takes the stand.

2:15 p.m.

Eagle says he has been chairman of the board at ESD for 11 years. One of his daughters graduated from ESD and the other is in eighth grade.

“I think it’s a wonderful experience for our children,” Eagle says. “It’s a faith-centered school … I think it provides them a balance.”

2:20 p.m.

Eagle says he thinks having ESD students attend chapel everyday “makes a difference” because it’s 20 minutes where they realize “it’s not all about them. It’s about the whole world and God.”

2:225 p.m.

Eagle says he was informed of the Farmers Branch police report about Campbell on Nov. 30 but was not involved in the investigation. He also says he found out about Jane’s expulsion the day it happened but the board had no input, as is customary.

Eagle says he’s known the Doe family “for a number of years.”

2:30 p.m.

Eagle says Burrow’s communication with Campbell is still under investigation.

West asks Eagle what else he needs to complete the investigation.

“We can’t complete it until we get a copt of the tapes,” Eagle says.

2:35 p.m.

Eagle says he’s reached out to John Doe.

“I feel very sorry for the Doe family,” Eagle says. “I’m a parent of two daughters, and I understand how they feel … I’ve communicated that I want to do everything I can to help them.”

Pass witness.

Aldous asks Eagle if Jane deserved to be treated as if she was created in the image of a loving God.

Eagle agrees.

Aldous, referencing Eagle’s quotes about the wonderful experience his daughters receive at ESD, asks him this.

“Knowing what you do about what happened to Jane, do you believe she was provided a ‘wonderful experience’ at ESD?” Aldous asks.

“I believe Jane has been provided with an excellent education at ESD,” Eagle says, adding that “this [the sexual relationship with Campbell] started in the summer.”

Aldous is visibly agitated by his last statement.

“Are you saying since it started in the summer, ESD has no responsibility for what happened?” she asks.

“No,” Eagle says.

2:40 p.m.

Aldous asks Eagle about the chain of command at ESD in regards to who has the ability to fire who.

West objects to Aldous’ tone, and Benson reprimands her.

“I’m sorry judge,” Aldous says. “I have four children. It just comes naturally.”

West says he has 7 children.

“Yeah, but I gave birth to mine,” Aldous says.

The courtroom bursts into a very rare fit of laughter.

2:45 p.m.

Eagle says he expects Swann to bring important student issues to the board’s attention, and he believes that he does.

Aldous asks Eagle a hypothetical question.

“If in fact, Steve Swann has a history of sweeping ugly things under the rug, would you ever tolerate that kind of behavior?” she asks.

Lots of legal maneuvering. Eagle is finally told to answer the question, which I believe is rephrased ever so slightly and read back to him.

“No, I would not,” Eagle says.

Eagle confirms he has the authority to fire Swann.

“Do you think the manner of expulsion was appropriate?” Aldous asks.

“I do think it was in Jane’s best interest to leave the school,” Eagle says.

“That was not my question, sir,” Aldous says.

Eagle says he has never met Jane.

2:50 p.m.

The “sad story” email is put up on the screen for the umpteenth time.

“Do you think that is the way a principal should talk about a child who has been the victim of a sexual assault?” Aldous asks.

“No, I don’t” Eagle says, adding it wasn’t an acceptable statement.

“Is it the basis for being fired?” Aldous asks.

“I would disagree with that,” Eagle says. “I think you have to weigh a lot more things than one private communication to decide if she should be terminated or not.”

Aldous asks Eagle what Mayo was thinking.

“I don’t know what she was thinking,” Eagle says. “We all wish she hadn’t written this, but a person’s contribution in life is a lot more than a piece of paper.”

“It’s a very unfortunate communication, and if we had it to do all over again, she probably wouldn’t have written that,” Eagle says.

Aldous asks Eagle if he could have fired Mayo if he wanted to.

“It’s real simple. There’s only one person I control, and it’s Steve Swann,” Eagle says. “If I thought what Father Swann did was inappropriate, I would fire him. My history shows I will never back down from a tough challenge.”

3:05 p.m.

Aldous starts referencing alleged instances of sexual abuse unrelated to Jane Doe.

“Would you ever condone Steve Swann telling a parent he was going to expel their daughter for making complaints about a teacher sexually harrasing her?” Aldous asks.

“No,” Eagle says.

“If you found out that Steve Swann tried to expel the first student to complain about a teacher that was subsequently fired two years later for sexual harassment, would that give you reason [to fire Swann]?” Aldous asks.

“I believe if I was given that info, I would start an investigation of the allegations and Steve’s response,” Eagle says.

3:15 p.m.

Aldous brings up the Former Student, who alleges that she had sex with a coach in the ’90s and told Swann about it in 2000 and 2011.

Eagle says he’s never heard of that.

3:30 p.m.

“Is the board of directors going to do anything about Steve Swann’s role given the way he handled this victim of sexual abuse?” Aldous asks, I believe referring now to Jane Doe.

“As in any case, we’ve got to get all the facts and then make whatever decision is appropriate,” Eagle says.

Pass witness.

UPDATE 3:30 p.m.

The plaintiffs rested their case around 2 p.m., and the defense, led by Royce West, called board chair John Eagle as its first witness.

We’re in a brief recess now. I’ll update more later as I’m able.

4:05 p.m.

Dr. David Thompson, chairman of the department of educational policies at UTSA, takes the stand with Castaneda questioning.

4:25 p.m.

Thompson says this is his first time to testify in court. He says he doesn’t think Dr. Edward Dragan, the plaintiffs’ expert witness on education, followed the correct methodology in his report and therefore Dragan’s opinions weren’t reliable.

4:30 p.m.

Thompson says ESD met the standard of care in its handling of all aspects of the case before the jury. Castaneda puts up a document Thompson has created on the matter. It says, in a nutshell:

1. ESD had no knowledge of Nathan Campbell’s proclivity for sexual predation.
2. ESD had a proper response when they did find out about it.
3. Jane’s separation from ESD was reasonable for her and her peers.
4. ESD offered Jane support after she left.

4:45 p.m.

Thompson says ESD met the proper standard of care in its hiring, supervision, and training of Campbell because they did a background check, they observed his teaching, and he signed a contract stating he would follow all school policies.

4:50 p.m.

The environment at ESD, Thompson says, is conducive to supervision because the classrooms and offices, such as Campbell’s, have windows.

“That’s very important in terms of the supervision process,” he says.

5 p.m.

Thompson addresses the “dog with bone” phrase that Campbell used to describe Jane on her report card in January 2009.

“It was a comment on her tenacity and work ethic and desire to do well in class,” Thompson says, later calling it “unremarkable.”

5:15 p.m.

There’s no need to monitor teachers’ laptops unless there’s a suspicion of misconduct, Thompson says.

“It would be very difficult and expend a lot of school resources to monitor all laptop activity of all teachers,” he says.

5:20 p.m.

The jury is sent home, and ESD starts an offer of proof on John Eagle.

Castaneda asks Eagle if ESD had an insurance policy in the amount of “at least $1 million” for the purpose of property damage and bodily injury.

Eagle says yes.

5:25 p.m.

Eagle says he, on behalf of ESD, offered to secure a home for the Does in another school district and pay the rent while Jane finished high school. He says this agreement was offered outside the presence of lawyers and was not accepted.

5:30 p.m.

Brent Walker, attorney for the plaintiffs, cross examines Eagle and asks him why ESD purchased a $25 million sexual molestation policy in 2008.

“We wanted to make sure the school was covered,” Eagle says.

Walker says the school purchased a $25 million insurance policy but is now claiming it’s subject to a $500K cap because of charitable immunity?

“That’s my understanding,” Eagle says.

Walker says the cap only applies if the school has purchased the correct kind of insurance, and that the policy ESD holds doesn’t cover what’s at issue in this lawsuit.

“None of the insurance policies that ESD has cover Nathan Campbell’s conduct, do they?” Walker asks.

“I’m not qualified to answer that,” Eagle says.

5:40 p.m.

Walker objects, saying he was told Eagle was the designated authority for this issue.

Castaneda says she can produce someone else, Benson asks her to do so. They get into a quibble, prompting Benson to say, “When you become the judge, you can decide.”

Benson rules that no evidence about settlements can be heard in the presence of the jury, but she never says the offer for ESD to pay the Does’ rent was a settlement offer. (A judge isn’t allowed to know if/what settlements have been discussed.)

Court is in recess until tomorrow morning.