PROVO — A 4th District court judge has ruled that a no-contest plea in a previous criminal case can be presented as evidence during the trial of a wrongful termination suit filed by a former Brigham Young University professor against the Provo school.

Richard Thwaits, former chairman of the animal and veterinary sciences department at BYU, pleaded no contest in 2001 to a third-degree felony of practicing medicine without a license. The plea was held in abeyance and dismissed after 18 months.

A no-contest plea means that the individual does not admit guilt to the charges but is not willing to fight them through legal proceedings. For sentencing purposes, a no-contest plea is treated the same as a guilty plea.

Thwaits was placed on paid academic leave in 2000, then fired in 2002, because of accusations of inappropriate relationships with students and providing veterinary medicine to students and other faculty members.

He has since filed a lawsuit against the university, alleging wrongful termination, breach of contract and breach of covenant of good faith, saying that BYU was unjustified in terminating his tenured position.

A four-week trial is scheduled to start after the Thanksgiving holiday; however, Evan Schmutz, Thwaits' attorney, filed a motion asking that evidence related to the no-contest plea be thrown out because there had been no sentencing phase. That's because Thwaits had remained out of trouble for the 18 months required for dismissal of the charge.

"In this case, the court accepted 'no contest' and agreed to hold it on the condition that . . . after a period of time . . . the charges would be dismissed and withdrawn," he said. "This has been completed. There was a plea, it was never admitted . . . never entered and no conviction."

The reason BYU might want the plea to be discussed at trial would be to make it seem like Thwaits had already been found guilty of similar allegations, Schmutz said, which would be unfair and prejudicial.

Attorneys for BYU argued that any information about Thwaits and his actions that was a factor in the decision to terminate his employment should be allowed during the trial.

"As of the date of termination, Dr. Thwaits had adamantly denied that he had ever given prescription medication to students," said Robert Clark, attorney for BYU. "BYU was faced with his denial, evidence to the contrary, and then a plea in abeyance that has the effect of a plea of guilty."

"If the denial is the truth, why is there a no-contest plea, and is BYU entitled to consider that? Of course they are," Clark said.

Judge Fred Howard dismissed Schmutz's motion, and ruled that the no-contest plea can be presented to the jury if the case goes to trial. A pretrial conference is scheduled for next week.


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