Jack Gillean’s defense team moved for a directed verdict at the close of the state’s case on Tuesday afternoon that, if granted, could result in an acquittal on Wednesday.
Gillean faces five counts of commercial burglary for a series of professors’ office break-ins at UCA in 2011 and 2012 in which tests were printed, photographed or copied before their exam dates. It is alleged that Gillean gave Cameron Stark, who had been a student employee in Gillean’s office at the time, a master key knowing that it would be used in the break-ins.
Stark was arrested in 2012 after being linked with the break-ins. He was granted immunity by the 20th Judicial District Prosecutor’s Office shortly after his arrest, provided that he would testify that Gillean, then UCA’s chief of staff, gave him Gillean’s set of master keys with the understanding that Stark would use them to get into his professors’ offices to steal copies of tests.
According to defense attorney Sam Perroni, who assisted in preparing the Gillean case, the motion for directed verdict asks Judge Ed Clawson to consider whether photographic reproductions of tests are "property" for the purposes of applying the state commercial burglary law, and even if they are property, if they can be said to be worth $1,000 — the threshold for felony theft.
Commercial burglary is defined in Arkansas as entering a commercial structure "with the purpose of committing . . . any offense punishable by imprisonment."
Basically, the motion argues that even if Gillean did have criminal involvement in Cameron Stark’s entry into UCA professors’ offices, it couldn’t satisfy the elements of commercial burglary if:
• Stark’s alleged theft was of something that can’t be considered property, and so no theft was committed and Gillean is not charged with mere breaking and entering,
• or if Stark and/or Gillean entered to steal something valued at less the felony amount.
While burglary is generally defined as entering a dwelling or commercial structure with "intent to commit a felony" inside, Arkansas law replaces the idea of "felony" with "any offense punishable by imprisonment." In Arkansas, any theft of property that is valued at $1,000 or less or "has inherent, subjective, or idiosyncratic value to its owner or possessor even if the property has no market value or replacement cost" is a class-A misdemeanor. A.C.A. § 5-36-103 (b)(4). Class A misdemeanors may be punishable by a year in jail, depending on the circumstances, but most often the real-world penalty for misdemeanors is fines and community service.
Several UCA professors whose tests had been stolen, according to key witness Cameron Stark’s admission under immunity, have been called as witnesses in the Gillean trial, and all have testified in response to the prosecutors’ questions as to the intrinsic value of their exams as an element of academic integrity. "They’re priceless," one professor testified on Monday.
But while intrinsic, the value is intangible. A ruling on Gillean’s motion for directed verdict may come early this morning.
Tom Courtway was called as a witness on Tuesday, testifying about the three days between Stark’s arrest and confession under immunity and Gillean’s resignation on June 15, 2012.
Courtway said that he was convinced that the key, which Gillean had reported as lost, had actually been given to Stark. It was in Stark’s pocket when he was arrested.
Courtway said that he was also satisfied by the corroborative information provided by Jeff Scarborough, who was named by Stark as a person who could confirm that Gillean had given him the keys while Stark was being questioned by UCAPD.
Courtway described the day that he met Gillean face-to-face to discuss the allegations as "the hardest professional day I’ve experienced on this earth."
Courtway said that he had a recording of Scarborough’s interview implicating Gillean in the meeting, which was held in the presence of UCA’s chief HR administrator, Graham Gillis.
Courway said that he asked Gillean about "this third party [Scarborough] that corroborates that your key is not missing." Gillean responded by saying that he didn’t want to hear the recorded interview or read the transcript, before saying "then go ahead and do what you’ve got to do," according to Courtway.
"I said, ‘I will, but I want you to argue with me . . . Is there something going on here that I’m not seeing?"
According to Courtway, Gillean ended this conversation by saying "Then I’ll just resign." Gillis, the only other person present, said that he remembered Gillean saying "just let me resign."
Courtway had Gillean’s resignation by noon of that day, as he requested.
Gillean’s defense attorney Tim Dudley cross-examined Courtway, asking if he was aware that Gillean had denied the allegations in an earlier interview with UCAPD investigator Lt. Preston Grumbles, and that Scarborough had been said by Stark to have "hated" Gillean in his UCAPD interview. Dudley argued that Scarborough’s credibility was never seriously questioned considering his claimed "hatred" of Gillean, and that this was a fatal flaw in the investigation.
Courtway said that he wasn’t aware of Gillean’s denial or Scarbourough’s "hatred" at the time he met with Gillean, and while he agreed with Dudley that those facts would be important in measuring Scarborough’s credibility, he would still have been convinced that Gillean had not merely lost his key.
Prosecutors also called two witnesses on Tuesday morning that they hoped would help corroborate Stark’s version of events.
One of the state’s witnesses was Ryan Scott, who lived with Gillean in a romantic relationship during the period that the keys were allegedly exchanged.
Scott testified when questioned by the prosecution that the set of master keys "was always getting passed between Jack [Gillean] and Cameron [Stark.] But when cross-examined by defense attorney Tim Dudley could provide no meaningful description of the keys.
Dudley fished a key from his own pocket and asked the witness if the master keys were bigger than the one in his hand or smaller. The witness said they didn’t know. He then asked the witness how many keys were on the keychain, which the witness also didn’t know.
"It could have been 20?," Dudley asked.
"Sure," the witness replied.
There were two keys on Gillean’s Master Key keychain, though at some points a third may have been added.
The witness also gave conflicting testimony as to whether he and ever personally given Stark the master keys, saying that he had, hadn’t, might have and couldn’t remember at different points in questioning and cross-examination.
However, he maintained that it was his understanding that Stark regularly asked for the keys and that Gillean regularly gave them to him, as he testified when interviewed by UCA police.
Scott was not charged in the burglaries and so was not testifying as a condition of immunity. However, another witness called on Tuesday admitted to joining Stark on several of what the two called "black ops missions" to raid professors office on the eve of tests and exams.
Jared Santiago started UCA as a freshman in the same dorm as Stark, and the two were friends, Santiago testified, and took several classes together. Sometime in the Spring semester of 2011, Santiago said, Stark told him that Gillean had given him keys to get into offices.
Santiago would solve the test questions in advance and sometimes acted as a "lookout" during the burglaries, he testified, but after Stark’s friendship with Gillean soured Gillean stopped giving him the keys. At one point the two went to Bill and Hillary Clinton National Airport, where Gillean’s truck was parked, hoping to find the master keys inside the truck, he said.
However, Santiago also testified that he never actually saw the keys change hands between Gillean and Stark.
Dudley pointed out inconsistencies between Santiago’s testimony to investigators and his testimony on the witness stand on Tusday, asking the witness if he had been told by someone in the prosecutor’s office to change his dates to align with the prosecution’s theory of the case.
Deputy Prosecutor Troy Braswell seemed to take exception to this, and on re-direct examination asked the witness if he had ever done "anything at all" to influence his testimony. Santiago said that no one had unduly influenced him.
Dudley also asked Santiago about the basic facts of his immunity agreement, and referenced Santiago’s earlier statement that testifying was "difficult."
"It’s not quite as tough as going to prison, though, is it?," Dudley said.
The state also called Det. Brian Williams, who was certified by the court as an expert in mobile data recovery. Williams has special training in data recovery as part of a U.S. Secret Service program, and assists in Federal investigations involving forensic electronic data retrieval.
It was argued during the trial on Monday that Stark told investigators during his post-arrest interview under immunity that there were text message exchanges on his cell phone that showed that Gillean gave him the keys. Dudley produced the 491-page transcript of text messages sent and received between Gillean and Stark and submitted to him that there were no such messages recorded there. This statement was not challenged by the prosecution on Monday, but on Tuesday it was the subject of much of Williams’ testimony.
Williams testified that he recovered many thousands of text messages from Stark’s iPhone, including a number of text messages that had been "deleted" by someone using the phone but were still retrievable. No deleted messages were recoverable from a second HTC phone used by Stark, but some 15,000 messages were accessible on the phone.
Williams said that there could be "gaps" in recoverable deleted messages because these messages are overwritten, or permanently erased, in non-sequential, non-linear order, meaning that it’s impossible to say how many text messages had been erased from either phone or when.
If the motion for directed verdict is not granted on Wednesday morning, Gillean’s defense team will have the option of calling witnesses or merely closing its case and proceeding to closing arguments.