Wesley Richter, center, listens as his attorney Ben Luna, standing, addresses the court.
Vermont Superior Court Judge David Fenster made no decision Friday in a high-profile case that touches on campus safety and free speech rights.
Fenster said he needed time to further study the legal arguments made by the prosecution and defense to decide if there is probable cause to bring a disorderly conduct charge against Wesley Richter. The part-time University of Vermont student was overheard October 1 in a campus library talking on his cellphone, allegedly making threatening and disparaging remarks about African Americans.
Richter was cited to appear in court on the charges October 5, at which time his lawyer Ben Luna argued that there is no probable cause and that the charge should be dismissed.
Friday's hearing was to determine whether the case should go forward.
Richter sat impassively and did not speak during the 40-minute hearing in a Burlington courtroom as Luna argued that there was no threat. Furthermore, anything Richter said was protected speech under the First Amendment and the misdemeanor charge should be dropped, Luna said.
"Your honor, this case not only criminalizes speech, it criminalizes a telephone conversation between my client ... and his mother. My client was having a telephone conversation with his mother," Luna emphasized to the judge.
Richter's conversation in a library computer lab presented no imminent threat to anyone, Luna continued. The state's case is "predicated on hearsay. The hearsay in this case is unreliable," Luna said.
Assistant state's attorney Ryan Richards disagreed, and argued that Richter was making "extremely inflammatory statements" in a public place, which rose to the threshold of a threat under the state's disorderly conduct statute.
Richter's remarks were "so likely to cause panic" that they were akin to shouting "fire" in a crowded movie theater, which case law has held is not protected speech, Richards said.
Luna insisted, meanwhile, that the person who overheard the conversation, UVM student Colby Thompson, did not call 911 or immediately react — proof that it didn't seem like a grave threat. Thompson sent an email to a UVM staffer hours later, a delay that suggests it wasn't an urgent concern, Luna said.
"Colby Thompson basically yawned when he overheard what my client said," Luna said in characterizing the response.
Although Luna quoted from a police affidavit when it supported his argument, he asked the judge at the outset to prohibit the prosecution from doing the same because the document has not been publicly released. But both sides referred to it often. What Richter is alleged to have said was not divulged Friday.
Under Vermont law, a judge must find probable cause before an affidavit is made public, according to Fenster and the attorneys.
UVM students Rachel Goldstein (foreground) and Cat Lawrence outside Vermont Superior Court in Burlington after Friday's hearing.
About six UVM students attended the hearing and said they supported the charge against Richter.
"I would at least like to see other people be less willing to make statements like this around campus. That's something at the bare minimum that I'd want,'' said Cat Lawrence, an 18-year-old first-year student from New York City.
UVM initially told the campus community that an unidentified person had made a threat against African Americans. For Lawrence, as a person of color, the warning was "terrifying," she said.
"Imagine walking around campus knowing someone said this," Lawrence said.
Rachel Goldstein, 22, a senior from New Jersey, also attended the hearing and said she wants charges filed against Richter.
"We want the law to come down on him," she said. "We want to send a strong message that this won't fly on our campus."