photo by: Kim Callahan/Journal-World Photo

The Kaw sign that's part of “Native Hosts,” by artist Hock E Aye Vi Edgar Heap of Birds, is pictured Saturday, Dec. 10, 2022.

KU students accused of vandalizing the “Native Hosts” artwork at the university’s Spencer Museum of Art in 2021 are pursuing diversion agreements after a scheduled preliminary hearing Thursday in Douglas County District Court.

The men, Josef Robert Keivan, 20, of Burr Ridge, Illinois, and Owen Patrick McAuliffe, 19, of La Grange Park, Illinois, were each charged with one felony count of criminal damage to the “Native Hosts” exhibit by Hock E Aye Vi Edgar Heap of Birds at the Spencer on Sept. 4, 2021, according to charging documents. The damage was done to four out of five panels installed on the front lawn of the museum, as the Journal-World reported.

According to the affidavit in support of Keivan’s and McAuliffe’s arrests, Keivan was questioned by police in October of 2021 after he was identified from a surveillance video. Keivan told police that he and McAuliffe were intoxicated and a “bit out of it” after drinking at The Jayhawk Cafe, 1340 Ohio St., and they thought that it would be “funny to run over signs,” which they said they did not know were related to Native Americans. The two were seen on video surveillance physically running into the signs with their bodies, denting them and knocking them over, according to the affidavit.

Keivan is no longer a student at the university, and his defense attorney, Nicholas David, said during the hearing that Keivan is currently living in California. David asked the court why Keivan was even ordered to be at the hearing on Thursday since Keivan, who did not attend the hearing, was under the impression that he had already entered into a diversion agreement with the state.

A diversion is a process controlled by the district attorney’s office whereby someone accused of a crime is “diverted” from the usual legal procedures and instead completes the terms of an agreement, which may include some sort of rehabilitation program or fine. If the program is successfully completed, the criminal charges could be dismissed.

David said that Keivan began the diversion process immediately after his first appearance in December of 2022, and David had negotiated the diversion agreement with Deputy District Attorney Joshua Seiden. Keivan has already written an apology letter for his actions and paid fees and about $800 in restitution, but the paperwork from the DA’s office was never signed and returned, David said.

David asked if Assistant District Attorney Christen Secrest, who was representing the state Thursday, could just sign the paperwork and finish the process, to which Secrest responded that she was not authorized to do so.

Secrest said that it was possible that the DA’s office thought that the two men would be entering into the agreement at the same time and that since McAuliffe had not filed for diversion yet, the paperwork was just waiting to be signed.

Judge Amy Hanley then scheduled a new preliminary hearing for Keivan on March 1 and said the hearing would not be necessary if the problem with the paperwork gets resolved before that date.

McAuliffe’s defense attorney, Hatem Chahine, said that McAuliffe would stipulate to the fact that he committed the crime of criminal damage but that there should be a hearing to determine the value of the artwork. McAuliffe is still enrolled at KU, according to university records. He first appeared in court on the charge in November 2022.

The men were charged with level-7 felonies on the understanding that the artwork was valued at more than $25,000, according to charging documents.

The state called Sofía Galarza Liu, the head of collections at the Spencer, who testified that the original cost of the artwork was over $25,000 but that the artist worked to replace the damaged pieces for a considerable discount and that the replacement cost of the pieces was more than $1,000 but less than $25,000.

In light of the value of the artwork’s replacement cost, Secrest amended the charge against McAuliffe to a lesser severity felony, and Judge Hanley ordered McAuliffe to stand trial on the charge. Chahine said that McAuliffe would be applying for diversion immediately after Thursday’s hearing. Hanley then scheduled a trial date for McAuliffe for March 29 but said that if he is approved for diversion the trial would not be necessary.

Both McAuliffe and Keivan are free on a $1,500 own-recognizance bond, meaning they were not required to put down any money to be released from jail but may be charged that amount if they fail to appear in court.

Two other men, Samuel C. McKnight and John W. Wichlenski, both 23, were charged with felony theft for stealing a panel of the artwork on or about Sept. 29, 2021, according to charging documents. Court records indicate that Wichlenski was granted diversion in July and McKnight was granted diversion in August of 2022.

McKnight and Wichlenski, who admitted that they stole the artwork to decorate their apartment, both publicly apologized on Dec. 10, 2022, at the museum as part of their diversion agreements and a restorative justice process they took part in.

photo by: Shawn Valverde

Samuel C. McKnight, left, and John W. Wichlenski, pictured with members of the First Nations Student Association — Tweesna Rose Mills at rear left and D’Arlyn Bell, rear right — read apologies in front of those gathered at Spencer Museum of Art, 1301 Mississippi St., on Saturday, Dec. 10, 2022. McKnight and Wichlenski were charged with stealing a panel from the “Native Hosts” artwork at the Spencer Museum of Art in 2021.