Book: Wild Justice

R >> Ruth M. Sprague >> Wild Justice





"This panel has simply followed the lead of the prosecutor,
Henry Tarbuck, and allowed him to continue to dictate to you
without question--without thought of equal treatment.

"I am aware, as you are, that a male faculty member was recently
convicted of child molesting, given a leave of absence and then
replaced in his position without loss of pay or tenure.
Is what you accuse me of doing worse than child molestation?"

Diana let the question hang in the air for several moments
while she looked at the panel. Only Henry and Anuse returned
her gaze, the women kept their eyes steadfastly on their papers
which they held like shields before them. Useless, she thought,
then aloud said, "Thank you. I have concluded my statement."

"I would like to clarify a few things," Henry began pontifically.
"The record will show that the remarks you have made are your opinions.
We will not respond to them. I want to make it clear, however,
that I am a chairman of a committee of the faculty--not the prosecutor."
There, he thought selfrighteously, that will show her that I can quote
my lawyer too.

"Secondly, we do not decide anything. We will not recommend anything.
We are merely the investigating committee which makes the report."




Chapter 36


True to form, Henry adjourned the second hearing with lies--
it didn't matter, he reflected, we have the power.

The hearing panel met the next day. Each person was given a copy
of the report that Henry had prepared. "Read it and when you have finished,
come over here and sign this original. I will require that you turn in
your copies today. You are to keep this report in confidence."

"When is Diana to be notified?" Timidly, Esther asked the question,
raising her eyes from the document she was reading.

"In good time. When it is deemed appropriate." Henry was terse
in his reply, warning that no further questions from the other
members of the committee would be tolerated.

Following this, Esther sent a letter to The Pope asking him
not to terminate Diana. Later, she would show copies of
this letter to the staff and faculty women who criticized
her for signing such a malicious report. "We had to sign it.
We had no choice, but see--I tried to help her!"

Henry sent a copy of the hearing panel's report to Diana late in March.
It was in the form of a memorandum addressed to The Pope. Even though
the report had been signed early in February, it was dated March 31st,
as were all the signatures at the end.

The report of six pages had four parts: Factual history;
Procedures followed; Findings on considerations; and Recommendations.
Surprise, surprise--after maintaining in two separate hearings
that the committee only gave a report and would not recommend any action.

Actually there was little in the report that came as any surprise.
The so-called `Factual history' was a composite of the testimony of Lyle,
Ian and Randy. It was carefully written. It reported that,
"Lyle had discovered several `suspicious' student feedback forms. . ."
when in fact he had said two.

The report was redolent with accusation. Phrases such as
". . .she forged. . ." and ". . .department could not
tolerate forgery. . ." were found throughout and put in a context
difficult to justify. One of these sentences read: "Given the opinion
of the handwriting experts that she had `forged student course
evaluations in a manner designed to denigrate the performance
of co-faculty members', the chairman of NERD decided to seek
termination for cause." Thus the document examiners were not
only given credit for identifying a person's handwriting,
but Henry claimed they were able to read the intent of the person
whom they said wrote the material examined. Nowhere in the
hearing were their clairvoyant abilities established.

Indeed, the entire section contained nothing of the events
as testified to by Diana and her witnesses.

The section on the `Procedures followed' was again taken
from what Henry had decided were the procedures followed
and wickedly slanted against Diana. It did not mention that
the reason thirty-two additional standards were sent to the
second document examiner was because he could not make a decision
on the basis of the standards sent to the first one. Instead, it
claimed that the second document examiner confirmed the results
of the first. It also omitted to add that the standards sent were
abysmally poor copies from microfiche, covered a period of 25 years
and included handwriting and printing of many different people.

Henry thought the section called `Findings on considerations', was a gem.
After he had finished writing it, he had leaned back in his chair
and mentally patted himself on the back. Here was contained the only
mention that there had been other testimony entered into the hearing.
Here, in the entire six page report, only 10 lines were devoted to
the witnesses for Diana. The testimony of Sarah, he tersely
dismissed with: "One student witness identified one of the suspect
critiques and claimed that she (the student) had written it,
but the claim was not substantiated because the student
would not have her handwriting examined."

Months later, the investigator for the Attorney General would note
that incident in the transcript of the hearing and make the following
comment in her report. "Did the committee really expect that the
hired experts could, at a point when opinions had been stated under oath,
seriously undertake a fresh analysis of the questioned document?"

Henry's report gave no indication that the standards were
unauthenticated or why Diana was not asked to write for
the document examiners to produce authenticated ones.

All of the testimony of Diana was totally ignored. It was as if
she had never appeared at the hearing--a non-person status like
that maintained against her by her department since the accusation
was first made.

Of course it follows that the `Recommendation' section would state,
true to the faculty handbook's rhetoric, that termination was recommended
since Diana had demonstrated a lack of professional and moral fitness.




THE COURT AND ATTORNEY GENERAL


Chapter 37


In the days following the hearing, the Belmont administration
directed its attention to the complaint brought against it in
the County Superior Court. On its behalf, attorney Simon Murrain
began the usual returns from the baseline destined to increase costs,
delay judgment and frustrate justice.

The analogy to tennis is not farfetched. One side, the plaintiff
via her attorney, Al Garret, serves. A volley of paper ensues
from both sides directed at each other, but under the supervision
and rule of the official, a judge.

Where the analogy loses ground is that very little action occurs
in the court. Sure, the plaintiff and respondent and the lawyers must
show up for hearings, but most everything goes on in the judges' chambers.

Simon Murrain had a great deal of practice in delaying tactics.
Over the last four years, seven people had brought suit against Belmont
for sex discrimination. All seven had been forced to withdraw
as their cases dragged on and on and their resources dwindled.
Simon's initial move this time was to have the case go to a higher court,
in this instance the United States District Court.

This move placed two additional burdens on the plaintiff and her attorney.
First, the cost of the proceedings was greater than at the district level
and second, the travel distance to attend hearings increased fifty-fold.

An advantage was also inadvertently given. The judge who was appointed
to sit at this session was known for his fairness and knowledge of the law.

Al Garret immediately filed an amended complaint to the federal court
which could rule on federal laws as well as state. In it, he listed
six charges against Belmont University: 1. Violation of due process;
2. violation of constitutional law; 3. violation of the state
administrative procedures act; 4. violation of the state
open meeting law; 5. violation of the state access to public records
and 6. violation of the fair employment practices act.

With the listing of these charges, he asked that the court issue
a restraining order, an injunction that would order the respondent,
Belmont University, to grant the plaintiff her right to a fair
and impartial hearing by the university and access to the documents
that had been withheld from her.

It was at this time, shortly after the final university hearing had ended,
that Diana began getting threatening phone calls. She was told to drop
the court proceedings if she didn't want something really bad to happen to her.

After the initial hearing on the complaint and before any decision
was handed down by the judge, Murrain filed a motion for summary judgment
on counts three, four, five and six--all of the counts related to state law.
In effect, he was asking the judge to throw out the four charges for lack
of validity.

His motion caused a veritable flurry of other motions from both sides
and effectively delayed the process of law by dividing the charges.
It also increased the cost to the plaintiff. It was a gamble for
the university. If it paid off, it would cut the charges down to two--
both federal, while disposing of all the others. If it didn't?
No problem, there were always appeals to be made that could
continue the process indefinitely.

At the hearing on these motions, Al Garret limited his argument to
a synopsis of his brief. He carefully related the applicable laws
and requested that the defendant, Belmont University, be ordered
to grant a fair, open hearing to the plaintiff, Diana. Also,
that the plaintiff be supplied with the student feedback evaluations
she had requested and that had been denied to her.

Al was an intelligent work-horse of an attorney. At 57, he took
his legal duties seriously. His heavy glasses with their
thick rims gave him a scholastic air. All that was needed
to complete the image of absent minded professor was a pipe.
He had diligently searched the literature for precedents
which he presented to the judge in a mild but measured tone.
A reasonable man, he projected this image to the court and made
a fine presentation. No sparkle, just facts and precedents
clearly presented.

When the judge turned his attention to the respondent, Simon
Murrain stood to address the court looking more like a walking
advertisement for expensive men's wear than an attorney.
Simon oozed charm with all the proficiency of a hangman leading
the way to the gallows. Close to Al in age, Simon was of a
different bent. His argument was presented with show and words--
it worked well with juries who tended to watch him instead of what
he said. Today, there was no jury present, but his modus operandi
didn't change.

"Your honor," he commenced. "The plaintiff was given a fair hearing
under the rules of Belmont University. She was given due process.
Despite the fact that she forged many evaluation forms causing untold
harm to two young faculty persons, the university made every effort
to treat her with fairness and consideration." He continued for some
time in the same vein, constantly and consistently referring to
the plaintiff as a forger--a criminal.

Gleefully, Murrain reflected, in court, we attorneys can say anything,
or most anything, we want to. We do not have to operate under the
constraints imposed on the rest of the populace and preface a charge
with the word alleged. Truth is not required of us either,
although most judges attempt to keep the elocution within
the bounds of propriety.

Another check in the system is the presence of the opposing
attorney who is supposed to function to limit any freewheeling
antics of his colleague by appealing to the judge.

But Al did not object to Simon's presentation. He felt confident
that the judge would rule on the law, not on the performance.
Besides, he rather enjoyed watching and listening to Simon's kind of theater.

Following the hearing, the wait began. How would the judge decide?
When would the judge decide?


Even though the hearing committee at Belmont had made its
report and recommendation to terminate, the actual termination
letter had not yet been sent. From the time she was accused,
Diana had found life at work to be difficult. As a plaintiff,
in a lawsuit against Belmont, it was nearly impossible.

Nearly, that is, because her students never wavered in their efforts
to encourage and help her. It was during this wait that factual
information was obtained concerning a dean at Belmont who had falsified
a faculty promotion sheet. The occurrence had been rumored,
but now the players were known. Al Garret had talked to the
principals of the event and obtained two affidavits attesting
to the misconduct and subsequent lack of punishment awarded
the dean who was still employed at the university.
The man had suffered no loss of rank or pay for his transgression.
These affidavits were added to the pile of papers already on file
with the judge.

Early in June, the Opinion and Order of the judge arrived.
Al Garret's third charge had been thrown out by the judge
who wrote that the law cited did not apply to Belmont University.
The other three charges were sustained.

On charge number four, relating to the open meeting law,
the judge wrote in part: "To permit this hearing panel to operate
outside the Open Meeting Law would be to enable the university
to take round-about steps to avoid its public duty."

He continued by describing the hearing panel as resembling,
". . .the type of secret activities the Open Meeting Law seeks
to prevent. . ." and suggested that if the panel had considered
any area to be extremely sensitive, it could have gone into
executive session. Even this he qualified--asserting that
it was subject to the plaintiff's right to a public hearing.

As to the public record law, charge number five, he ruled that
the plaintiff should have access to the evaluations requested.
"The Court finds," he wrote, "that Belmont must comply with
the Public Records Law."

Finally, on charge number six, relating to the fair employment law,
the judge found the evidence submitted to be sufficient to indicate
retaliatory, sexual discrimination.


A few days later, with this Opinion and Order from the court in hand,
John T. Pope, president of Belmont University, terminated the plaintiff,
effective immediately.

The Pope's action was expected by everyone except Al Garret,
Diana's attorney--he still thought he'd won the case.
Belmont had been thumbing its nose at the judicial system
as long as anyone could remember.

Diana Trenchant packed up the teaching and research accumulations
of nearly twenty-five years and left for home.

Neither the president nor any of the Vees could be reached for comment.
However, Bob Alastar, the PR for Belmont, called in the press.
"We have no comment," he asserted. "It is the university's policy
not to discuss personnel decisions with the press."

Now there was a new angle in the threatening phone calls to
the plaintiff. The caller would start out in a friendly fashion.
In a conversational tone, he would advise Diana to, "go down to
the courthouse and examine the court records for the past ten years.
Just check the directory for all the cases that Belmont has been
involved in and read the outcome. The court clerk will help you."
Then the voice would become threatening. "You will see that no one
has ever won a case against Belmont. It owns the courts and it
owns the lawyers. You'll lose all your money and you'll be hurt
in other ways. It can and will make appeal after appeal.
It can and will tie this case up for years. Give it up
before you get hurt."




Chapter 38


The investigation by the Attorney General continued. When she tried
to interview potential witnesses at Belmont, she was prevented
by the administration. "Do not even talk with her," was the gag order
that went out from the central administration of Belmont to every chair
and director. These lesser administrators were told to alert their
departments or units and advise all faculty, staff and students
not to cooperate in her investigation.

For a while, the investigation lagged. It was hoped that as tempers cooled
and reason reasserted itself, the university would be more receptive
to the questions posed by the A.G. It was, after all, to their benefit
to answer the questions. It was an opportunity to get their position
known because the report, when completed, would be sent to the EEOC.
It would have considerable influence on research grants applied
for by Belmont faculty.

The cooling off period solved nothing. Belmont administration was adamant.
They had done the right thing. There was nothing to investigate.
The incident had ended. The Pope had spoken.

Actually, The Pope was doing more than speaking--he was engaged
in composing excuses and explanations. Supporters of Diana had
sent the Judge's Order, or excerpts from it, to state legislators,
faculty, staff, students, alumni, trustees and any other person
that had expressed interest in the lawsuit. This had resulted
in hundreds of letters and phone calls to The Pope and members
of his administration as well as to the Board of Trustees.

"What is going on?" One of the first callers demanded,
having insisted, and gotten The Pope on the line.
"You fired a good teacher after a judge ruled that
she had not received a fair hearing?"

"Our hearing panel gave her a fair hearing, sir.
The newspapers have just blown this up to sell papers,"
The Pope replied, holding back his anger with difficulty
and making his voice sound terribly knowledgeable.

"The judge said you didn't. I saw his order. Was the
hearing open? Did you give her all the documents she
requested, or not?" The caller was insistent.

"Well, sir, it's not that simple. Our policy is to protect
the employee so we always have closed hearings. There was
no need to produce the documents in question. The hearing panel
was confident that they were not needed."

"I don't care about how your hearing panel or how your policy goes.
I'm asking about an excellent teacher who has served our university
for nearly a quarter of a century. If she did what you have accused her of
. . . good God, man! Five out of thousands--what difference could that make?
You've made yourself look silly."

The Pope took no more calls after that except from the trustees.
He could not escape their critical views but with the help of his
handpicked chairman of the board, he managed to placate most of them.

One secretary was placed full-time answering letters and
the Vees were called on to answer the phone calls and talk
to any one who came to the offices. Consumption of antacid
increased astronomically in "Vice Alley"--lair of the Vees.

PR man, Alastar and all the Vees were carefully coached to
suggest to the callers that Diana Trenchant had really done
something unspeakable and that the charge that was aired was
"only the tip of the iceberg." They also were told to hint
concerning her motives. She was "thought to have so desired the
chairmanship of the department. . ." or "she was delusional in her
assertion that she had written any course material, etc. . ." or
"she was not really the type of woman that normal women, those
with husbands or boyfriends, wanted to associate with. . ." or. . .


Meanwhile, back at the court, legal papers piled up anew.
Diana felt helpless, drawn along in a maelstrom of chaos.
A veritable barrage of verbiage flew to the court, like guided missiles,
from both attorneys. They were couched in legal parlance and
cushioned on expensive, patterned vellum. For every submission,
there was a filing fee, hours of research and multiple law-firm billings.
For each batch of documents sent to the court, copies were made to send
to the opposing attorney, the file and sometimes, even the plaintiff.

Occasionally, a hearing on one or another of the various
motions was called. When this happened, the lawyers and
the plaintiff were joined by the judge, his clerk and the
court stenographer.

Each attorney blew smoke--substantial as ghost poop.
The judge sat in the air high above the arena and pondered.
At times, he would interrupt and admonish. Periodically he
would ask a question and these were the interesting moments
as each attorney had a different answer.

The lawyer for the defense only knew what he had been told by
Henry Tarbuck and Henry only knew what he had been told by Lyle.

Diana's attorney knew only what she had told him and it was obvious
there was a lot that he hadn't remembered. How little the truth counted
in these proceedings, Diana thought as she listened to the screw up.
Neither of these men, who are being questioned and are the only ones
allowed to speak, were at Belmont when these events were occurring.
Most of the time they are way out in left field with their answers.
And here I sit, mute because the system demands it, unable to clear up
the confusion. All this money spent and the judge still doesn't understand
what the SmurFFs are. He asked for clarification and got gibberish.

There's the gavel. One more useless hearing is over with.


Then, just as winter was getting a firm grip on the land,
the Attorney General released her report. Diana and her
supporters were jubilant. The local paper printed and the
TV and radio blared: "A strongly worded report from the A.G.'s
office to President Pope maintains that professor was fired unjustly."

The A.G.'s thirty page comprehensive Letter of Determination (LOD),
made it clear right at the beginning that the Belmont administration
had refused to cooperate in the investigation. It emphasized that,
"The University declined to make available people and information."
At the end of the LOD, it reiterated Belmont's non-cooperation.

The LOD went on to state that the University had held
Termination for Cause Hearings. Sworn testimony was taken
which had been completely transcribed by a court reporter.
This transcript and the court records relating to the illegal
termination suit were used in this investigation since the
Belmont administration refused to cooperate with the Attorney General.

It took the form of a letter to The Pope. In stark contrast
to Henry's report, the LOD reviewed the history of the allegations
against Diana, giving the charges and the response to these charges,
equal weight and importance. This information was from the transcript
which contained the sworn statements of all the university personnel
involved in the hearing--those people who were prevented by the
administration from talking to the A.G. investigator. It also reviewed
the testimony of Diana and her witnesses. Reference was made to the
testimony of the three document examiners--two presented by Belmont,
the affidavit of the one submitted by Diana at the second hearing.

The point was made early on that the specific charge which resulted
in termination was that Diana had written seven evaluations out of
some one thousand submitted. Five of these were alleged to have injured
two faculty members. It emphasized that testimony indicated that there
were no performance problems with Diana. ". . .testimony from both sides
established that she was highly regarded by her students, was very dependable
and a hard worker."

It noted that while expert witnesses, the document examiners
and the university attorney, were used to testify against Diana,
she was not allowed an attorney to conduct a competent cross examination.
Stating that even though supportive documents were not presented
at the hearing, "the committee accepted testimonial evidence
on the contents of them," it concluded that ". . .this represented
the most serious deprivation of fundamental fairness that occurred.
Any concept of a fair administrative hearing, even one conducted
without regard to strict rules of evidence, could not include
the admission of testimonial evidence of the contents of documents
which were available only to the party presenting the evidence."

Commenting on the dissatisfaction of the committee with the
testimony of the first document examiner, the LOD stated that,
"Rather than reject the testimony and find Trenchant innocent,
the committee continued the hearing and hired another document examiner.
This one disputed the findings of the first and required more standards.
The documents provided by Belmont were exceedingly poor copies
of file contents, much of which was over twenty years old.
Most of these so-called standards contained the handwriting
of more than one person. At no time was any evidence presented
that showed the standards sent by the administration to the
handwriting analysts to be the writing of Diana."

Remarking on the fact that the committee was chaired by
Henry Tarbuck who had already decided that Diana was guilty,
the A. G. wrote, "The committee applied different rules
of evidence to her and her witnesses, it badgered them
and cautioned them against giving hearsay testimony.

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