ESD Trial, Day 24 UPDATED

We finally made it. Closing arguments kick off at 2 p.m. in the county courtroom of Judge D’Metria Benson. By all reasonable estimations, the jury will begin deliberating tomorrow.

A few notes on that: Juries in county courts are comprised of 6 people (in this case, 6 women), and the verdict requires at least a 5 to 1 decision. If the jury finds ESD not liable on all counts, the trial will be finished. However, if the jury finds the school liable on any of the counts, then they will have to deliberate on the amount, which will be handed down in a separate decision.

Other things: Benson denied ESD’s request to designate John and Jane Doe as “responsible third parties” in the suit. This is something like the third time ESD’s brought this issue up after Benson initially ruled against it.

I’ll have the play-by-play on closing arguments at some point this evening. Stay tuned.

UPDATE 10 p.m.

So I was hedging my bets when I said “some point this evening” and now I’m barely making it in on my own deadline as I didn’t get out of court until 8 p.m. But here goes. Oh yeah, and I also scored some exclusive interviews with the dismissed alternate jurors. I’ll put those up in a separate post. Keep checking back.

2:50 p.m.

Benson finally takes her seat on the bench. It is packed house, standing room only with an overflow courtroom. Stephen Swann, John Eagle, and Rebecca Royall are all present for ESD. Bill Black and Former Student are present for the plaintiffs.

Brent Walker for the plaintiffs and Cynthia Timms for ESD argue objections to the charge Benson has approved for the jury.

Walker, taking about two minutes, gets his charges overruled.

Timms, taking about 45 minutes, gets her charges overrruled.

The audience groans.

3:40 p.m.

The jury is called into the courtroom. Benson begins reading the charge, which is 22 questions with subsections.

4:15 p.m.

Benson says the jury will decide if ESD is a charitable organization and of it’s subject to the charitable immunity $500,000 cap. (Both sides had asked Benson for a directed verdict on this issue.)

Charla Aldous begins her closing arguments with this statement:

“We do not know why many things happen in this world,” she says. “God’s ways are above our understanding.”

She tells the jury they “will be the voice that speaks about what ESD did to [Jane Doe II].”

At this point, Aldous pulls out a giant poster of a smiling Jane, in what appears to be her ESD uniform. Aldous says when Jane came to her, she didn’t look like this.

“She was broken. She was downtrodden. She felt abused. She felt shameful. She felt she was dirty and that she’d done horrible things,” Aldous says.

Now, Aldous says “there’s no doubt” that Jane is doing really well.

“Because [Jane] is strong, maybe, just maybe the next child who is not that strong … will be protected,” Aldous says.

4:20 p.m.

“I’ve never, in 27 years, had a case like this,” Aldous says, adding that it was incredibly unusual to have evidence such as the Bill Black and Former Student incidents come forward once the trial was going on.

“I had no clue the things that would come out, the people that would come forward,” Aldous says.

“It has given me and the [Doe] family a peace that we’ve done the right thing in bringing this lawsuit, so ESD understands [that it] can’t treat people like this anymore,” Aldous says with emotion.

4:25 p.m.

“God alone knows Steve Swann and his intentions,” Aldous says. “But you, ladies of the jury, are the ones to decided has Steve Swann appropriately held forth the principles that he tells each and every family that enrolls at ESD?”

4:30 p.m.

“The defense has tried to convince you that [Jane] was flirty, that she was a bad person, but it doesn’t matter if she was. She was a child,” Aldous says.

“John Nathan Campbell knew how to pick ’em,” Aldous says. “He didn’t pick the pretty, blonde cheerleader.”

Aldous says despite the testimony of ESD’s expert witness Dr. Rycke Marshall, Aldous believes Campbell is a sexual predator.

“Any 34-year-old man who seduces, and grooms, and sleeps with a 16-year-old girl is a sexual predator,” Aldous says passionately.

Aldous moves to the report card comments that Royall initially said should have been a red flag and later called unremarkable.

“Sexual predators like Nathan Campbell test boundaries,” Aldous says. “They look to see if someone is watching them … Every time he tested boundaries, he got away with it.”

“ESD has said ‘we’re not at fault because the sex started in the summer,” Aldous says.

“But for Nathan Campbell being a teacher at ESD, and but for [Jane] being a student at ESD, this sexual abuse would never have occurred,” Aldous says.

4:35 p.m.

Aldous now discusses Jane’s forced withdrawal.

“ESD would have you believe they did this for [Jane’s] best interest,” Aldous says. “But look at what they didn’t do: Pick up the phone and call [Jane’s] parents or her therapist.”

Aldous brings up the allegations that Jane gossiped about her relationship with Campbell.

“Even if she talked about it, do you think she deserved to be punished?” Aldous asks. “So what if she was talking it about it? Bring her in and ask her about it, and tell her to stop.”

Aldous describes the way Jane was made to leave ESD “absolutely unacceptable” and “cold-hearted.”

She says it’s really for ESD to say that they thought it was in Jane’s best interest to leave ESD, but there are clues to what “they were really thinking,” such as the “sad story” email Mayo wrote.

Aldous says in Mayo’s testimony, she said she regretted the statement that she didn’t want “the girl haunting the hallways with her sad story for the rest of the week.”

“Yeah, I bet she does,” Aldous says. “Because it shows what ESD is really about. They didn’t want [Jane] tarnishing ESD’s clean, pristine reputation.”

4:40 p.m.

Aldous addresses the Chris Burrow tapes.

“The CFO of this organization, what does that tell you about its culture, and its true intent and motive?” Aldous asks.

“This is your charge, ladies of the jury: to decide if ESD will be allowed to treat children like this in the future.”

Now Aldous starts going over each of the 22 jury questions. The first one is about whether or not ESD had appropriate polices and procedures in place, and if they enforced them.

She asks the jury to say they did not.

Aldous brings up the Bill Black testimony, and Swann’s version of events, where he said the whole incident was about a teacher staring at a female student.

“I’m sorry, give me a break,” she says.”What parents would ask a rector and a headmaster of a school to meet with them on a Saturday because a teacher had simply been staring at their daughter?”

Aldous tells the jury when it is awarding damages, to remember that even though Jane is doing well on the surface now, it doesn’t mean she always will be.

“Because of what happened to her at the hands of Nathan Campbell and ESD, she will have problems the rest of her life,” Aldous says. “Those are scars that will not heal.”

“I cannot tell you what this amount is … Is it 2 million? 4 million? 5 million? 10 million?” she asks. “That is for you to decide.”

4:50 p.m.

Aldous says this case is not about what Campbell did, but what ESD did. In response to a specific jury charge, she specifically asks them to find ESD 72 percent responsible and Nathan Campbell 28 percent responsible.

“ESD did knowingly, through Nathan Campbell, cause the sexual abuse of [Jane],” Aldous says.

Aldous says Jane was sexually abused by her teacher, but then ESD caused secondary victimization when they forced Jane out of the school.

Aldous says the Mayo “sad story email” shows “reckless and conscious disregard for the welfare of [Jane].”

4:55 p.m.

“ESD cannot prove to you that their actions were taken with nothing but [Jane’s] best interest at heart,” Aldous says.

Royall and Mayo defrauded the Does by knowingly presenting false information to compel Jane’s father to withdraw her from the school.

“Did they threaten this man? You bet they did,” Aldous says.

“I hope you award a just amount that truly compensates this child for what was done to her,” Aldous says.

5 p.m.

Aldous says the Does paid $250,000 in tuition for Jane’s education at ESD.

5:05 p.m.

Aldous goes into the 501(c)(3) issue.

“Just because ESD says it’s a charitable organization, doesn’t make it so,” Aldous says.

“A charitable organization, ladies of the jury, ESD is not,” she adds.

“There are times I have probably gotten over zealous and a little too passionate, and for that, I ask for you forgiveness,” Aldous says. “But once I quit caring, that’s when I need to put up my law license.”

Aldous then asks the jury to “follow their hearts” and “form their own convictions.”

5:20 p.m.

“Yes, all children are created in the image of a loving God,” Aldous says, quoting the ESD mission statement. “And yes, that includes [Jane].”

Aldous closes, and the crowd in the courtroom empties by about half.

Chrysta Castaneda takes over for ESD. She begins with the same Teddy Roosevelt quote she used in opening arguments.

“In any moment of decision, the best thing you can do is the right thing. The worst thing you can do is nothing.”

“This case is about how ESD did the best thing and the right thing for [Jane],” Castaneda says.

5:25 p.m.

Castaneda says when ESD found out about the sexual relationship between Jane and Campbell, they acted immediately to end it.

“Because ESD acted to lift [Jane] out of a position where she could not thrive and put her in a place where she could, she has survived and thrived,” Castaneda says, adding that Jane graduated from high school and got a scholarship to a prestigious university.

“The difference was made because ESD, in a moment of decision, took the right action,” Castaneda says.

5:35 p.m.

Castaneda puts a slide up that says “Distractions and Red Herrings” to what the real case is about.

“Nathan Campbell wasn’t sued by the [Does],” she says. “It’s not about sexual abuse. It’s not about a sexual predator. It’s not about grooming.”

Castaneda also says it’s not about what happened to Bill Black or the Former Student, or any actions “of a deceased math teacher,” or Chris Burrow making a phone call, or ESD blaming Jane.

“ESD has never used the words like dirty, or shameful … those words have only come out of Ms. Aldous’ mouth,” Castaneda says.

Regarding the testimony of Tolly Salz, Castaneda says Aldous “tortured her on the stand for four hours.”

“This case is not about trial as therapy for [Jane],” Castaneda says. “This case is about the evidence and the law. This case is about a hard choice that was the right choice.”

5:45 p.m.

Castaneda brings out a pile of papers that looks to be about a foot high. She thumbs through them and says they are Jane’s phone bills during the time she was sexually involved with Campbell.

Castaneda represents that Jane sent 10,103 texts and Campbell sent her 8, 718 texts. The pair had 3,978 phone calls.

“No inappropriate content was found on [Campbell’s ESD iPhone],” Castaneda says. “No inappropriate content was found on his ESD computer.”

“ESD couldn’t have found out about any of this relationship because it took place off the ESD network,” Castaneda says.

5:50 p.m.

When Campbell got his cell phone bill, which listed hundreds of communications with Jane, Castaneda says he never gave it to ESD.

“He was hiding things,” she says.

Regarding the credit card bill, she says Campbell would reserve a room with his ESD card and then pay cash.

“If it doesn’t show up on the bill, how is ESD supposed to find it?” she asks, adding that the “one and only” room that ever showed up on his bill was pre-approved for guest from India (who never used the room).

5:55 p.m.

Castaneda shows an email Jane’s mother sent to one of her other daughters in which she told her to “put her detective skills to rest” about Nathan Campbell.

“Thank God that ESD didn’t put its detective skills to rest but sprang into action,” Castaneda says.

6 p.m.

“ESD did what it could do to keep [Jane] at the school for as long as it was healthy,” Castaneda says.

Regarding Nathan Campbell, Castaneda says this:

“He knew it was wrong. He knew he was to blame, yet he’s not here. He’s not a defendant in this lawsuit.”

6:05 p.m.

Castaneda says the rumors were increasing at ESD because Jane was participating in them.

“That’s why it was no longer a safe place for her,” Castaneda says. “So ESD made the hard choice.”

Castaneda says Jane’s father was asked to withdraw her so that she “could understand people were acting in her best interest.”

6:10 p.m.

Castaneda, moving onto the jury charge, says ESD’s polices “couldn’t be clearer.”

“ESD was not negligent in the relationship between Nathan Campbell and [Jane],” Castaneda says. “ESD did what it needed to do to prevent these relationships. Sometimes they happen anyway.”

“Nathan Campbell did this,” she says. “Nathan Campbell caused this. He should be 100 percent responsible.”

6:15 p.m.

Castaneda says Campbell was not “an agent” of ESD.

6:20 p.m.

“Separation of a student is always difficult,” Castaneda says. “But in every case in ESD’s 34 years of experience, it turns out to be for the best.”

Castaneda says the process to remove Jane was “fair and equitable,” and that ESD acted in “good faith” and with “scrupulous honesty” in all their dealings with the Doe family.

“ESD told [the Does] what they knew when they knew it, but [the Does] didn’t want to hear it,” Castaneda says.

“In exchange, what does ESD get?” she asks. “They get a lawsuit.”

6:25 p.m.

Castaneda says ESD didn’t commit any fraud against the Does because fraud requires a detriment to be incurred.

“[The Does] obtained benefits from withdrawing their daughter,” Castaneda says, noting the refund of a semester’s tuition and college recommendations.

“ESD asks that you hold [Jane] more than 50 percent responsible,” Castaneda says in response to a direct jury charge. “If she’d abided by the requirements set forth by the school, she wouldn’t have left.”

6:30 p.m.

“ESD is a charitable organization. There is no contrary evidence,” Castaneda says. “The final red herring is why are the plaintiffs talking about form 990 docs? It doesn’t have one thing to do with Nathan Campbell and [Jane].”

6:35 p.m.

Royce West takes over for the defense.

“No good deed goes unpunished,” West says “This lawsuit is an example of that.”

West says ESD did everything “reasonably possible” to assist Jane in her recovery.

“When no one else would, ESD made the tough decision, which was the right decision,” he says with conviction.

6:40 p.m.

West goes over a handful of Dr. Laura McCracken’s therapy notes from her sessions with Jane.

“The reality is, [Jane] was fixated on the perpetrator — the man who has not been sued,” West says.

West asks the ladies of the jury to look at the evidence “objectively” and to use their “common sense.”

“Why in the world would Steve Swann try to sweep allegations of sexual affairs under the rug? Why would he do that?” West asks.

6:45 p.m.

“[Jane] wasn’t the only student at ESD,” he says. “You’ve got to ask yourself, did they do what was reasonable?”

West says this case is really about the money.

“It’s about the Benjamin’s” he says.

6:50 p.m.

“Who should be liable? Nathan Campbell, not ESD,” West says.

West calls the days leading up to Jane’s exit from ESD as “a ball of confusion.”

“Someone had to make a decision in this case, and a decision was made by ESD,” he says.

West says Jane has thrived as a result of leaving ESD.

“The plaintiffs are asking you to punish ESD for making a decision,” West says. “Mentally, emotionally, academically, she’s doing fine. So you punish good people — administrators who found themselves in a ball of confusion.”

ESD closes its case.

6:55 p.m.

Aldous is allowed to offer a response.

“I am in absolute shock that ESD stood up and said this case is not about sexual abuse, or sexual assault,” she says. “Thank God you can let ESD know this kind of conduct is not tolerated.”

“Through your voice and people like the [Does], who stand up for what’s right, maybe our society can be better educated and we can stop blaming the victims,” Aldous says.

7 p.m.

Aldous addresses Swann’s recent invocation of the priest-penitent privilege on conversations with Former Student about her sexual relationship with Mike Marsh.

“If it weren’t so despicable, it would be laughable,” she says.

All the thanks Former Student got for coming forward, was two 30-minute sessions on boundaries trainings in 2004 and 2008 for ESD faculty.

“It is a pattern of conduct that’s been going on since 1993, that we can prove,” Aldous says.

7:05 p.m.

Aldous brings up the “yeah” issue from Swann’s testimony yesterday.

“It’s almost silly, but it just goes to show you the lengths Steve Swann and this school will go to avoid responsibility and sweep things under the rug,” she says.

If ESD thought they were acting in Jane’s best interest when they forced her to leave ESD, “God help us on what they would do if they were actually kicking [a child out of ESD],” Aldous says.

7:10 p.m.

“I really believe that ESD hoped this would all be swept under the rug and their school would continue to look all nice and all fancy with no blemishes,” Aldous says.

7:20 p.m.

“I hope what we’ve done will help sexual abuse victims in the future,” Aldous says. “I’ve got to say in a way it feels good to give this burden to you because now it’s in your hands.”

Closing arguments are finished. The jury will begin deliberating at 9 a.m. tomorrow.

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