Adam Silverman

Burlington Free Press

A judge is considering whether a University of Vermont student's overheard phone call during which a witness reported hearing him make violent threats toward black students was serious enough to be considered a crime.

Weighty constitutional and philosophical issues more commonly associated with law schools and high courts became the focus of a 40-minute hearing Friday afternoon in Vermont Superior Court in Burlington.

At issue is a misdemeanor charge of disorderly conduct against Wesley Richter, 20, a continuing-education student. Prosecutors filed the case at the beginning of October, but the month is likely to end without the matter clearing the initial hurdle to enter the court system: whether there is enough evidence — known as probable cause — to support the allegation.

An extensive back-and-fourth carried out by lawyers in secret court papers and during Friday's hearing arose from a charge that is punishable at most by 60 days in prison and $500 in fines.

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Prosecutors with the Chittenden County State's Attorney's Office allege Richter's overheard comments were so inflammatory and specific enough in their targeting of black students on campus that he committed a crime.

"The statements that he made would qualify as threatening behavior, which is basically what we need to show for a disorderly conduct charge," said Ryan Richards, the deputy state's attorney prosecuting the case.

"There are clear First Amendment issues," he conceded, "so it walks a fine line between whether or not it's protected. It's our office's perspective that the particular threats or threatening behavior, the words that he said, the statements he made, given the circumstances and situations, rose to the level that they're not protected by the First Amendment."

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Richter's defense lawyer, Ben Luna, made a passionate case before Judge David Fenster, raising his voice on occasion and at one point walking into the gallery to demonstrate how far away he said the witness was who reported to campus authorities what he overheard on Richter's phone call.

"It was not a threat," Luna told the judge. "There was no shred of a threat."

Luna argued that the judge should prevent the case from moving forward.

"This case not only criminalizes speech, it criminalizes a telephone conversation between my client, as alleged, and his mother," the lawyer said. "The state's sole case in this matter is predicated upon hearsay, and the hearsay in this case is not reliable. Because the hearsay is not reliable, and because the entire case rests upon hearsay, the court shouldn't find probable cause."

The exact nature of the comments Richter is alleged to have made remains unknown. A sworn police account of what happened, called an affidavit, will stay secret at court unless the judge finds probable cause — a routine determination during the earliest stage of most other criminal cases.

UVM's police chief, Lianne Tuomey, sent an all-campus email Oct. 5, four days after the threat was reported, to disclose the authorities received a report regarding an overheard telephone conversation "in which a then-unidentified person allegedly used explicitly racist and threatening language directed toward African Americans and general diversity initiatives on campus."

Luna disclosed for the first time Friday that Richter was speaking to his mother on the call, which took place in a library multimedia room. Three other people were in the room at the time, one of whom reported the incident to the authorities. One of the other individuals indicated hearing nothing of significance, and the second declined to speak with investigators.

In court Friday, lawyers and the judge discussed general constitutional law concepts, such as yelling "fire" in a crowded theater and the doctrine of fighting words. Fenster peppered the prosecution and defense with questions.

"If the speech is protected, isn't it true that no crime has been committed?" the judge asked Richards. "The court always has to make at least an initial determination that the conduct constituted a crime, wouldn't you agree?"

To Luna, Fenster inquired: "It seems to me that the question here is whether or not there was a threat made, and whether or not the speech was protected. ... If there were a threat made, if just for hypothetically speaking, if someone were in the multimedia room in the library making threats, then that would be conduct that could recklessly create a risk of public inconvenience, right?"

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Richter is not required to enter a plea while the judge is deciding whether there is probable cause. Luna said, though, that his client unequivocally denies the allegations and rejects as untrue the government's account in the affidavit.

Internal UVM records the Burlington Free Press obtained this week through a public-records request show that administrators wrestled with how much information to disclose about the case and faced mounting pressure from faculty, students, parents and others to be more forthcoming.

The university defended its response to the threat allegations as appropriate.

A number of UVM students came to court Friday and said afterward they hope Richter is punished, and that administrators take issues like this more seriously.

"We want to send a strong message that this won't fly on our campus, or anywhere," said Rachel Goldstein, a 22-year-old senior from River Vale, New Jersey, studying social work.

She added that her concern isn't about the First Amendment. "This is a conduct issue. If you're targeting a whole race of people on campus, that's a conduct issue," she said. "It doesn't matter that he was talking to his mother."

The judge did not indicate how soon he planned to rule.

Contact Adam Silverman at 802-660-1854 or asilverman@freepressmedia.com. Follow him on Twitter at @wej12.