ESD Trial, Day 22 UPDATED
I thought this day would never come, but at long last both sides have officially rested. Of course, there’s still this matter of rebuttal, but I’ll take whatever signs of this trial ending I can get. With a bit of luck, we’ll have closing argument before the end of next week.
UPDATE 12:45 p.m.
Wow, today’s testimony has been quite revelatory. No use in stealing my own thunder. To the play-by-play.
10:50 a.m.
The defense officially rests in the presence of the jury, and the plaintiffs call their first rebuttal witness. A man who I will henceforth call “Bill Black” takes the stand.
Charla Aldous asks Black why he contacted her and asked to testify in the Doe case.
Black says after reading a blog post about the case, he was appalled.
“When I heard some of the testimony given by [Stephen Swann], I was concerned it might not be totally truthful,” Black says.
10:55 a.m.
Black says when his daughter was a sophomore at ESD in 1993, she told her parents that a math teacher (who is now deceased) had inappropriately touched her and made sexually suggestive comments.
“It really traumatized her,” Black says on the stand.
Black and his wife called Swann and asked to meet with him the next day, Saturday. Swann agreed and met the Blacks at their home.
When Black told Swann about the allegations, Black says Swann was shocked and promised he would “solve the situation.”
On Monday, Swann asked the Blacks to meet at ESD. When they arrived, Swann told him that the school was no longer a healthy place for their daughter, and if they wouldn’t withdraw her, she’d be expelled.
“We were absolutely aghast that they would kick our daughter out of the school for complaining about a teacher,” Black says on the stand. “We were dumbfounded. We were shocked.”
The jury looks alert and interested at this point, and several jurors shift in their seats and lean closer.
Black says his daughter (who went on to graduate from an Ivy League college) was a top student at ESD.
Black said at the meeting, his wife told Swann that if the school went through with kicking out their daughter, they’d contact every mother of every girl who had this math teacher as well as arrange a meeting with the board of directors to tell their story.
“At that point, Father Swann looked at us and asked for 24 hours to reconsider,” Black says on the stand.
The Blacks agreed to it, and in the meantime began researching other schools for their daughter as well as the math teacher’s employment history. Black says he discovered before coming to ESD, the math teacher had been terminated from another local private school for stalking a student. Black says he reached out the family of the student and confirmed the story.
11 a.m.
Black says on Tuesday, Swann called the Blacks and offered them a deal: If they didn’t tell their story, their daughter could stay at the school, and she’d never have that math teacher in class again.
Because their daughter wanted to stay, and because they hadn’t found another top-tier private school with a vacancy, Black says he made the deal with Swann.
“We felt like we sold our soul to the devil,” Black says.
“We did it for our daughter,” he says. “You do what you do for your kids.”
11:05 a.m.
Aldous asks Black why he came forward after all this time.
“When I saw in the paper that Father Swann had testified that there hadn’t been other instances of sexual inappropriateness that he knew of, I just knew it wasn’t true,” Black says.
Pass witness.
Chrysta Castaneda is cross-examining Black. She asks him if he’s aware that the blog is not a certified transcript of the court proceedings.
He says yes.
She asks him if he’s aware that Father Swann did not write the blog.
He says yes.
Castaneda then brings up Swann’s deposition testimony (which has not been shown in open court), where he addressed an incident involving the former math teacher in question “starring at a student” in the commons.
Black says he was not aware of that testimony, but that it also did not describe the interaction between his daughter and the math teacher.
“I’m upset that Father Swann wanted to kick my daughter out of school because we reported a sexual predator,” Black says with gusto.
Castaneda confirms that the incident occurred 18 years ago.
“And you’re still mad 18 years later?” she asks.
“Yes,” Black says.
11:10 a.m.
Castaneda asks Black if he’s aware that Father Swann and his wife visited Black’s daughter at college.
Black says no.
Castaneda asks Black if he knows whether or not Swann investigated the situation with the math teacher.
Blacks says he only knows that Swann said he “considered” the situation.
Castaneda offers that Black was the one who first suggested his daughter should leave ESD.
Black is visibly upset by this claim.
“He told us it was their decision,” Black says, adding some colorful descriptions of the ensuing conversation.
“My wife called him a sanctimonious son of a b*tch,” Black says.
When Black and his wife said they would go to the board of directors, Swann asked if they were threatening him.
“You bet your sweet ass we are,” Black recalls saying at the time.
Prior to the threat of expulsion by Swann, Black says they “had never considered going elsewhere [for their daughter’s high school education].”
11:15 a.m.
Pass witness.
Aldous asks Black if he’s aware that ESD offered the math teacher a buyout of his contract and allowed him to take a leave of absence.
Black says that is his understanding of how the math teacher eventually left ESD.
Pass witness.
Castaneda asks Black if he thinks ESD deserved equal access to the facts. (Black did not return Castaneda’s phone calls and only met with her 30 minutes prior to his testimony today).
“All you had to do was ask Steve Swann [what happened],” Black says.
Witness is excused.
11:20 a.m.
The plaintiffs call Former Student to the stand as their next witness.
FS says she learned about the Doe case from a news clipping given to her on Aug. 1.
“It seemed to me the whole truth wasn’t coming out in the press,” FS says.
11:25 a.m.
FS says during 1992-1993 while a student at ESD, she had a sexual relationship with her track coach Michael Marsh. At the time the relationship became sexual, FS was 17 years old.
She did not tell anyone about the relationship until 2000, when Marsh was convicted of indecency with a child. FS testified at his criminal trial. Marsh is now a registered sex offender.
In 2000, FS told Swann about her relationship with Marsh, and asked him if he’d known about it. Swann told her he hadn’t known, and that he was proud of her for stepping forward.
11:30 a.m.
Aldous asks FS why she went to Swann in 2000.
“I wanted him to know that even though it was a Christian school, it wasn’t invincible to these types of harms,” she says on the stand.
FS says Swann told her she’d “given the school a gift” by coming forward with this information.
11:35 a.m.
FS says Swann told her he’d “released” Marsh from ESD by not renewing his contract in 1993. Swann said he’d done this because of a rumor that Marsh had videotaped a woman at Cooper Aerobics Center and tried to extort money from her.
FS says she asked Swann if he’d found out if Marsh had any inappropriate contact with other ESD students. FS says Swann said he’d been “afraid to ask.”
“Father Swann was more fearful of being sued by Mike Marsh than he was of asking students if any inappropriate behavior had occurred,” FS says on the stand.
11:40 a.m.
FS says Swann asked her if she’d be willing to discuss her experience with the Board of Directors and the student body. FS told Swann at the time (in 2000), that she didn’t feel strong enough to do that.
In place of speaking in person, FS agreed to write a letter that Swann said he’d read to the students and the board.
“My coach had interacted with me in such a way that I was deceived into having a sexual relationship with him,” FS says.
In the letter, FS says she discussed the damage keeping the relationship a secret had caused her.
“Never, in my wildest imagination [while in the relationship in high school], did I think I’d be testifying criminally in a trial against my coach,” she says.
FS recalls that Swann told her it was great that she’d come forward so he could use that information to educate students and staff so that future students could be protected. She also recalls that Swann said he’d read the letter every September to students.
Aldous asks FS if she went to Swann as a priest in 2000.
She says no.
11:50 a.m.
FS says she met with Swann again in May 2011.
“I felt a strong conviction from the Lord that I should talk to Father Swann about all that had happened to me,” she says. “I was now at a point in my life where I was strong enough to speak out publicly.”
“I wanted to do everything I could to help him help the school learn about the damages of sexual abuse,” she says.
Again, FS says she did not consider Swann her priest.
“I spoke to him because he was the headmaster of the school,” she says.
FS says when she told Swann that she was ready to speak to the student body, he told her she needed “to think long and hard and pray about it because [ESD] was a very difficult community to share that kind of information with.”
11:55 a.m.
FS says Swann asked her if she was aware a lawsuit was pending against the school regarding a teacher’s sexual affair with a student.
Swann told FS he’d try to connect the two women after the lawsuit was over.
Aldous asks FS why she is a witness in the case now.
“When I read in the news that Father Swann didn’t know the definition of sexual abuse or that it was a felony crime for a teacher to have sex with a student regardless of age, I thought it was within his role as headmaster to know those things, especially give all our conversations,” she says.
“I’m here to testify so you will know the truth that Father Swann was aware of the inappropriate sexual relationship that happened to me,” FS says, adding, “I wanted to make sure [the jury] knew the truth.”
Pass witness.
Castaneda asks for a break so she can prepare to cross-examine this witness. Benson says no.
Castaneda asks FS if she ever engaged in sexual activity with Marsh on ESD’s campus. FS says they kissed on campus and asks Castaneda to define “sexual activity.”
FS says she had sex with Marsh at his apartment and in other locations.
Castaneda asks if the relationship ended finally in 1995.
FS says there were “a handful of times” after 1993 that the abuse continued, but the relationship ended in 1993.
Castaneda asks FS if she had sex with Marsh after he separated from his wife. FS says she doesn’t recall having intercourse with Marsh at that point.
Castaneda asks FS if she planned to marry Marsh.
FS says he planned that they’d marry when she was 25 and he was 35.
12:10 p.m.
FS says she testified in Marsh’s criminal trial that the relationship had been consensual.
FS says she doesn’t recall if Swann was wearing his clerical collar when they met in his office in 2000.
Castaneda says it was a Mesquite High School student, not an ESD student, who made the criminal charges against Marsh that led to him being placed on the sex offender registry.
12:15 p.m.
Castaneda asks FS if she ever told Swann that she wasn’t going to him as a priest.
FS says no.
Regarding the letter Swann asked FS to write, Castaneda asks if FS remembers who she gave the letter to at ESD.
FS says she remembers going into the school with the letter in her hand, and coming out of the school without it, but she doesn’t remember “specifically handing it to anyone.”
“If Father Swann believes himself to be under the Priest Penitent Privilege, do you release him and allow him to testify?” Castaneda asks.
Aldous objects, saying only the person confessing is under the privilege and no one can “release” a priest.
Castaneda rephrases.
“In you mind is it OK for Father Swann to talk about this?” she asks.
“Yes,” FS says.
Pass witness.
12:20 p.m.
Aldous asks FS if she had sex with Marsh on out-of-town ESD track trips.
She says yes.
Aldous asks FS what she believes about her relationship with Marsh now, in retrospect.
FS says she doesn’t believe the relationship was consensual because she doesn’t think she “was able to consent” to a sexual relationship with her coach while in high school.
Pass witness.
12:25 p.m.
Castaneda asks FS if she’s aware that her (FS) parents started a petition drive to keep Coach Marsh at ESD when Swann didn’t renew his contract in 1993.
FS says she wasn’t aware of that until 2000, when Swann told her in his office.
Witness is excused.
Lunch recess until 1:45 p.m.
2:35 p.m.
After a length meeting in chambers, Aldous & Co. announce they agree to call witnesses out of order. Swann, who was previously slated to take the stand as the third rebuttal witness for the plaintiffs, leaves the courtroom.
Castaneda calls the Former Student’s stepbrother, who will be called “Joe Jones,” to the stand.
Jones says his daughter is in pre-kindergarten at ESD and the reason FS was on campus in May 2011 was to watch her field day events.
Jones says he did not know FS planned to speak with Father Swann while on campus.
Castaneda asks Jones if he is happy with the education and environment at ESD.
“Very much so,” Jones says.
Pass witness.
Aldous asks Jones if he contacted Castaneda or Locke Lord (the firm representing ESD) and offered to testify.
Jones says he did not contact them, and goes on to explain that when he learned his step-sister was going to testify in the Doe Case, he emailed Father Swann.
“I did not want Father Swann [or anyone else in ESD’s administration] to view us as having the same beliefs she displayed,” Jones says.
But he never received a reply from Swann, and instead he was contacted by Shonn Brown of Locke, Lord, Bissell & Liddell and asked to testify.
Witness is excused.
3 p.m.
Benson tells the jury “there are some matters that have come up that require further investigation,” and sends them home early.
The trial will resume Wednesday, Sept. 14 at 9 a.m.
I am officially intrigued.
