(Updated) Freshwater: Motion for reconsideration of sanctions denied; settlement still in limbo

Posted 2 August 2010 by

Judge Gregory Frost has denied a motion by John Freshwater and his attorney R. Kelly Hamilton that sought reconsideration of the sanctions imposed on them for noncompliance with discovery orders (report of the hearing). I'll link to the ruling as soon as it goes up on NCSE's site on the suit, but there are a few choice quotations from it below the fold. Judge Frost pretty firmly spanked Hamilton and Freshwater in his ruling. Update: The ruling should go is now up on NCSE's site on the case. later today Meanwhile, here's a teaser, a candidate for the funniest footnote in a federal court ruling this year. It reads in its entirety
In response to a question by the Court, Attorney Hamilton explained that his wife mistakenly believed the Tesla coil was groceries and put it in the freezer at their home.
The Mount Vernon News now has the ruling up on its site here. It's a good story, too. Regarding the 'new evidence' claims:
A motion for reconsideration is "not intended to re-litigate issues previously considered by the Court or to present evidence that could have been raised earlier." (citation omitted). The evidence currently before the Court could have been, and in most cases was, already presented to this Court or was available to be presented to this Court before it issued its Sanctions Order. That is, even if the Court accepts Attorney Hamilton's assertion that he suffered two flat tires on the way to the first hearing, that does not explain why no request for a continuance of the hearing was made. Nor does it explain why no post hearing brief was filed by Attorney Hamilton to submit the evidence that was available to be presented at the last hearing. Even if, however, the Court were to agree that Freshwater and Attorney Hamilton possess "new evidence," that evidence does nothing to persuade the Court that its previous decision was incorrect, as explained below.
On the credibility of testimony
The Court finds that Freshwater's testimony, and the reasonable inferences drawn from his testimony, in several instances was incredible. For example, while on the witness stand Freshwater viewed his previous deposition testimony related to the Tesla coil that is at the heart of this case, which was read out loud to the Court by Attorney Mansfield. Freshwater clearly stated in that deposition testimony that he destroyed the Tesla coil by smashing it and then threw it in the trash. He speculated that the Tesla coil was in a garbage "landfill." Freshwater then went on to testify, however, that he actually did not throw the Tesla coil in the trash, but instead gave it to Attorney Hamilton, whose wife in turn put it in the freezer. Freshwater made no attempt to explain this inconsistent testimony. Freshwater's sworn testimony about the Tesla coil given on two separate occasions simply cannot both be true.
and
With regard to the testimony of Superintendent Short and Attorney Millstone, the Court found both witnesses forthcoming and believable. Short's testimony was completely consistent with his affidavit testimony regarding the same issues. (See Doc. # 114-3.) The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses
and
And, it appears to the Court that the language utilized in Attorney Hamilton's affidavit is carefully crafted to appear to state that he attached the affidavits to Exhibit 161 but does not actually state such. Moreover, although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable. The Court concludes that the evidence before it does nothing to render its Sanctions Order incorrect in any way.
The Court's conclusion
Based on all of the evidence and briefing before it, the Court concludes that granting the Motion for Reconsideration would not prevent a manifest injustice. Indeed, the opposite. Based on Freshwater's and Attorney Hamilton's less than forthcoming behavior, it would be a manifest injustice for Plaintiffs to be required to pay their attorneys for work necessitated only by Freshwater's and Hamilton's misconduct. IV. Conclusion Based on the foregoing, the Court DENIES the Motion for Reconsideration filed by Defendant John Freshwater and Attorney R. Kelly Hamilton. (Doc. #07.)
Settlement imminent? One other note of interest. In a footnote the judge wrote
1In their memorandum in opposition, Plaintiffs request judgement to be entered against Freshwater or for evidentiary inferences to be permitted against Freshwater at trial. That request, however, has been rendered moot by the settlement of this matter.
However, as of ten minutes ago the principals would say only that "There's nothing we can say right now except that the parties have not signed a settlement agreement" (a direct on-the-record quote). It appears that the gag order is still in effect.

147 Comments

CMB · 2 August 2010

Thanks as always Richard. It certainly appears that Judge Frost has seen right through the Freshwater/Hamilton smoke screen. It appears that the Dennis family hold the upper hand here. Hopefully they will either be able to force Freshwater/Hamilton into a VERY favorable settlement (public apologies from Freshwater/Hamilton for all their lies would be a good start) or the Dennis family could refuse to settle and let Judge Frost impose the sanctions and continue the trial. I know a jury trial is always risky but I can not see any rational person could accept the Freshwater/Hamilton account of events.

Wheels · 2 August 2010

Score for the bullshit detector behind the bench!

So the case may reach a private settlement, but Freshwater and Hamilton are still facing possible fines for noncompliance with the discovery orders regardless, have I got that right?

Legal procedures are a dark and muddy river for me.

RBH · 2 August 2010

Wheels said: Score for the bullshit detector behind the bench! So the case may reach a private settlement, but Freshwater and Hamilton are still facing possible fines for noncompliance with the discovery orders regardless, have I got that right?
Legal procedures are a dark and muddy river for me.
The sanctions include an order for Freshwater and Hamilton to pay $28K+ in attorney fees to the Dennises' attorney(s). Freshwater offered an unrecorded lien on a parcel of land to attempt to satisfy that sanction; Hamilton offered nothing. That sanction would not be affected by a pre-trial settlement (or lack thereof) of the case.

Michael J · 2 August 2010

Given the lack of sense shown so far by the two, I wouldn't be surprised that the two might think they could win a court case.

I guess that Freshwater will now come out and say that he was innocent but had bad representation. At least he will be half right.

W. H. Heydt · 2 August 2010

As I read it (IANAL), they are already supposed to the Dennis' costs for their failure to produce discovery. All this decision does is confirm what the judge already decided: Freshwater and Hamilton must pay.

--W. H. Heydt

Old Used Programmer

RBH · 2 August 2010

W. H. Heydt said: As I read it (IANAL), they are already supposed to the Dennis' costs for their failure to produce discovery. All this decision does is confirm what the judge already decided: Freshwater and Hamilton must pay. --W. H. Heydt Old Used Programmer
Yup.

MrG · 2 August 2010

Doesn't this guy show every rare now and then? I'd think he was joking but it's too belabored to be funny by anyone's standards.

Mike Elzinga · 2 August 2010

MrG said: Doesn't this guy show every rare now and then? I'd think he was joking but it's too belabored to be funny by anyone's standards.
Looks like that Dogmeat whatever troll.

DS · 2 August 2010

If a settlement is reached, can Freshwater still be charged with perjury? Can he still be charged with contempt of court? Can he still be charged with obstruction of justice? Can he still claim that he was not represented by competent council? Can he still sign over his house, even if he has already signed it over to Hamilton? Can he still claim that he is a martyr? Can the settlement include anything more than monetary considerations, such as public apologies or jail time? Will he still get the message that what he did was wrong? Will everyone else get the message, or will they conclude that he got off lightly?

RBH · 2 August 2010

MrG said: Doesn't this guy show every rare now and then? I'd think he was joking but it's too belabored to be funny by anyone's standards.
I tossed it. Please don't even comment on his rants. Thanks!

MrG · 2 August 2010

RBH said: I tossed it. Please don't even comment on his rants. Thanks!
OK. That was fast -- PT is noted for its tolerance of trolls. Delete my responses if it's no bother.

Mary · 2 August 2010

Just so you know, the preceding post was not sent by my BIL. This post is too far out even for him.

Parse · 2 August 2010

RBH said: The sanctions include an order for Freshwater and Hamilton to pay $28K+ in attorney fees to the Dennises' attorney(s). Freshwater offered an unrecorded lien on a parcel of land to attempt to satisfy that sanction; Hamilton offered nothing. That sanction would not be affected by a pre-trial settlement (or lack thereof) of the case.
That's the landlocked parcel you mentioned in the post earlier today, right? Are there any further details on that - what made them choose that particular section, is there access to it on public roads, etc? Because otherwise, having a $28k swatch of land doesn't seem worth it if you can't get to it. If, after everything else goes down, the parcel is still surrounded by Freshwater's (or Hamilton's), is there any recourse for that?

Flint · 2 August 2010

W. H. Heydt said: As I read it (IANAL), they are already supposed to the Dennis' costs for their failure to produce discovery. All this decision does is confirm what the judge already decided: Freshwater and Hamilton must pay. --W. H. Heydt Old Used Programmer
Well, let's recall that OJ Simpson was found guilty of wrongful death in civil court and ordered to pay $33.5 million to the Goldman family in 1997. Simpson is clearly not destitute, but if he's paid any of that judgment yet, I haven't heard about it. Hey, it's only been 13 years. I'm sure that as a lawyer, Hamilton is even more acutely aware of the nonpunishment for nonpayment than Simpson is.

RBH · 2 August 2010

Parse said:
RBH said: Freshwater offered an unrecorded lien on a parcel of land to attempt to satisfy that sanction; Hamilton offered nothing. That sanction would not be affected by a pre-trial settlement (or lack thereof) of the case.
That's the landlocked parcel you mentioned in the post earlier today, right? Are there any further details on that - what made them choose that particular section, is there access to it on public roads, etc? Because otherwise, having a $28k swatch of land doesn't seem worth it if you can't get to it.
Right. I haven't hunted up that parcel in the plat book online at the county auditor's site, so I don't (yet) know. I'll do that later this evening.
If, after everything else goes down, the parcel is still surrounded by Freshwater's (or Hamilton's), is there any recourse for that?
I dunno.

W. H. Heydt · 2 August 2010

DS said: If a settlement is reached, can Freshwater still be charged with perjury? Can he still be charged with contempt of court? Can he still be charged with obstruction of justice? Can he still claim that he was not represented by competent council? Can he still sign over his house, even if he has already signed it over to Hamilton? Can he still claim that he is a martyr? Can the settlement include anything more than monetary considerations, such as public apologies or jail time? Will he still get the message that what he did was wrong? Will everyone else get the message, or will they conclude that he got off lightly?
Perjury...up to the judge. Obstruction of justice...probably up to the judge to make a recommendation to the US Attorney. Conflicting liwns...Has anything actually been filed showing a real lien? Martyr...he'll probably claim that. Settlement...public apology...yeah, that could be in one, jail time...no. This is a civil case. Jail time only comes from criminal cases. Fundies will assume he was railroaded by the Forces of Evil (tm). Everyone else will look at the waste of time money and judicial resources and brand him a Damned Fool. --W. H. Heydt Old Used Programmer

MosesZD · 2 August 2010

"Oh what a tangled web we weave when first we practice to deceive."

MosesZD · 2 August 2010

Flint said:
W. H. Heydt said: As I read it (IANAL), they are already supposed to the Dennis' costs for their failure to produce discovery. All this decision does is confirm what the judge already decided: Freshwater and Hamilton must pay. --W. H. Heydt Old Used Programmer
Well, let's recall that OJ Simpson was found guilty of wrongful death in civil court and ordered to pay $33.5 million to the Goldman family in 1997. Simpson is clearly not destitute, but if he's paid any of that judgment yet, I haven't heard about it. Hey, it's only been 13 years. I'm sure that as a lawyer, Hamilton is even more acutely aware of the nonpunishment for nonpayment than Simpson is.
Simpson's estate was auctioned off an netted about $500K. It went to the Goldman family as trustee's for the Simpson children. However, that's been pretty much it.

RBH · 2 August 2010

And Hamilton has to practice law in central Ohio and will doubtless have to argue cases before this judge again in future.

Doc Bill · 2 August 2010

Who in their right mind would want to deal with Freshwater especially with land? Freshie can sell his land all by his ownself. Cash only and move on.

MosesZD · 2 August 2010

MosesZD said:
Flint said:
W. H. Heydt said: As I read it (IANAL), they are already supposed to the Dennis' costs for their failure to produce discovery. All this decision does is confirm what the judge already decided: Freshwater and Hamilton must pay. --W. H. Heydt Old Used Programmer
Well, let's recall that OJ Simpson was found guilty of wrongful death in civil court and ordered to pay $33.5 million to the Goldman family in 1997. Simpson is clearly not destitute, but if he's paid any of that judgment yet, I haven't heard about it. Hey, it's only been 13 years. I'm sure that as a lawyer, Hamilton is even more acutely aware of the nonpunishment for nonpayment than Simpson is.
Simpson's estate was auctioned off an netted about $500K. It went to the Goldman family as trustee's for the Simpson children. However, that's been pretty much it.
Ooops. Sorry, brain just engaged. The money went to the Goldman estate. Not the Simpson kids, who are (were) in custody of the Browns, not the Goldmans. It's been so long I got confused and didn't keep the sordid details straight.

Divalent · 2 August 2010

I suspect the big issue for Freshwater and Hamilton regarding the sanctions is that these are outside the scope of the insurance company's liability. Unless the insurance company agrees to roll them into the settlement (which would be in the Dennis's best interest, since it would mean they wouldn't have to go asset-hunting to collect that portion of their legal bills).

This may be the last remaining issue before the final settlement is inked: figuring out how much (if any) Freshwater and Hamilton personally have to pony up for the settlement (and ensuring that they actually put up something of value).

Chris Lawson · 2 August 2010

I think Freshwater has burnt his future prospects. After a brief tour of fundy talk shows, he will return to teaching in a fundamentalist college, that'll be it for him. Hamilton, on the other hand, will probably find himself a cozy spot at the DI or Thomas More within the next few years.

Mike Elzinga · 2 August 2010

Divalent said: This may be the last remaining issue before the final settlement is inked: figuring out how much (if any) Freshwater and Hamilton personally have to pony up for the settlement (and ensuring that they actually put up something of value).
Since the early 1970s I’ve been wondering when people will start recognizing that the public always pays for the messes these ID/creationists make. The school is already stuck with a big bill because of all the mud-wrestling that has gone on over this. I hope we are beginning to see the time when these jerks start paying for the wreckage they cause with their sectarian wars on the rest of us. There are some serious loopholes in the constitutionally guaranteed freedom of worship without fear of government interference. This has provided a safe haven for all sorts of charlatanism in fundamentalist religion that seems to be unique to the United States and threatens to spread worldwide. People like Ken Ham are clearly aware of the lucrative market in the US for his kind of chicanery and profiteering off religious fear. If any kind of accommodation of religion with the advance of science is to take place, these cranks need to be taken down and made aware that the rest of us are not going to pay their way.

RBH · 2 August 2010

Chris Lawson said: I think Freshwater has burnt his future prospects. After a brief tour of fundy talk shows, he will return to teaching in a fundamentalist college, that'll be it for him. Hamilton, on the other hand, will probably find himself a cozy spot at the DI or Thomas More within the next few years.
A private Christian middle or high school for Freshwater, maybe; he has only a bachelor's degree. And Hamilton isn't nearly smooth enough for the DI and his comments on David Barton's radio show are beyond the pale for them. Thomas Moore is possible. At least his legal skills seem consistent with theirs.

John Vanko · 2 August 2010

Chris Lawson said: I think Freshwater has burnt his future prospects. After a brief tour of fundy talk shows, he will return to teaching in a fundamentalist college, that'll be it for him. Hamilton, on the other hand, will probably find himself a cozy spot at the DI or Thomas More within the next few years.
You may have hit the nail on the head. Freshwater may indeed get a position at a fundamentalist college as a martyr. They'll probably buy him a new Tesla coil! (Then he can brand college students.) He'll be a celebrity on AIG and CMI. He'll teach the 'victory' they won in the court for Creationism. Hamilton will be doing the same at DI but he'll call it a 'victory' for ID.

Hieronymus Fortesque Lickspittle · 2 August 2010

Trying to add a bit of levity, this decision reminds me of this video,

http://www.youtube.com/watch?v=16R4aeYBXww

I'll have the lyrics to that song stuck in my head now, "Roll up the Bill of Rights and Whack Whack Whack 'em on the head..."

Mike in Ontario, NY · 2 August 2010

No death, no martyrdom, dammit!

That's my new motto for these would-be martyrs.

Jon H · 2 August 2010

Freshwater will be able to move down to the Cincinnati area and become the Creation Museum's martyr-in-residence.

He'll probably do tesla coil cross demos for volunteers on their way out of the gift shop.

robert van bakel · 2 August 2010

Ever since the judges' flippant, 'as strange as a tessla coil wrapped and dumped in a freezer' comment, I have had absolutely no qualms about his ability to see the reality despite the lies.

In a settlement if a public apology could be wrangled that would be, to die for. It would be something, (like, 'breathtaking innanity') that you bring up and beat creationists around the head with time, and time again. You know; 'Have you heard about the trials and tribulations of John Freshwater? No? He's one of your lot. Yeah! Brain dead from the neck up, and prone to listen to self important yobbos with the intellectual credability of a boiled prune.'

tsig · 2 August 2010

Michael J said: Given the lack of sense shown so far by the two, I wouldn't be surprised that the two might think they could win a court case. I guess that Freshwater will now come out and say that he was innocent but had bad representation. At least he will be half right.
Maybe they'll start throwing each other under the bus.

RBH · 3 August 2010

In the judge's opinion there's a foreshadowing of how the trial might go if there's no settlement. In the first quotation about Freshwater's testimony under "On the credibility of testimony" in the OP above, the judge notes that Freshwater told two different stories about the fate of the Tesla coil. The judge remarked that "Freshwater’s sworn testimony about the Tesla coil given on two separate occasions simply cannot both be true." Elsewhere in the opinion he suggested that Freshwater's parsing of "pitched" is problematic:
The Court finds that Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony.
There are multiple instances where Freshwater's testimony is contradictory. For example, he has told two different stories under oath about the marks on Zachary Dennis's arm. First, in the administrative hearing on October 28, 2008, Freshwater testified as follows. ("Q" is David Millstone, attorney for the Board; "A" is Freshwater)
Q. Zach also testified that you indicated this would leave a mark like a tattoo of a cross for a short period of time. A. I do not remember saying that. Q. You’re seen the pictures? A. Yes. Q. And do you find that those are accurate depictions of Zach’s arm? A. Are they? Yes. Q. At various times this has been described as an X or a cross. Quote frankly, I don’t care which one it is at the moment. But did you ever describe that you put an X on students? A. I do not remember saying anything about a cross. Q. That wasn’t my question. My question is, Did you ever say that you puit an X on him? A. Yes. Q. Is an X a mark? A. Yes Q. And is it your position that you put an X on Zach and not a cross? A. Yes.
However, in a deposition a year later, Freshwater claimed differently. ("Q" is Douglas Mansfield, attorney for the Dennis family, "A" is Freshwater.)
Q. Let me show you something from your testimony from your termination hearing. On page 403, line 6, Let’s go back to line 1. “Question: The various times this has been described as an X or a cross, I frankly don’t care which one it is at the moment, but did you ever describe that you put an X on students”? “Answer: I do not remember ever saying anything about a cross.” Did I read those two correctly? A. Yes. Q. The next line: “Question: That wasn’t my question. My question is did you ever say that you put an X on him?” “Answer: Yes.” Did I read those correctly? A. Yes. Q. The next question: “Is an X a mark?” Answer: “Yes.” Did I read those correctly? A. Yes. Q. The next question: “Question: Is it your position here today that you put an X on James and not a cross?” “Answer: Yes.” Did I read those correctly? A. Yes. [Several lines of back and forth in confusion] Q. That wasn’t my question, sir. My question was your testimony at the time when you testified during your termination proceedings was that you put a mark on James Doe’s arm and not a cross. Is that correct? A. Then I will have to say I misspoke there. I did not put a mark. Q. Now today you’re denying putting any kind of mark on James Doe’s arm; is that correct? A. That would be correct.
Two different stories, both under oath, about the mark. If this case gets to trial I'm certain Freshwater will be questioned at length about the contradictions among statements he has made under oath at different stages of the administrative hearing, and differences between his hearing testimony and his sworn statements in depositions. As the judge's remark about "tainted" credibility suggests, Freshwater's credibility is going to be eroded away, contradiction by contradiction, in that trial.

W. H. Heydt · 3 August 2010

And the 5th Amendment protections don't apply in civil trials...Freshwater can be compelled to testify.

--W. H. Heydt

Old Used Programmer

RBH · 3 August 2010

W. H. Heydt said: And the 5th Amendment protections don't apply in civil trials...Freshwater can be compelled to testify. --W. H. Heydt Old Used Programmer
IANAL, but I'm not sure of that. Freshwater invoked the 5th several times in his deposition for the civil suit. One such is in the transcript of the deposition excerpted here (scroll down to the deposition part).

W. H. Heydt · 3 August 2010

IANALeither, but I've been reading Groklaw for several years. While Freshwater did claim 5th Amendment privilege to not answer deposition questions, depositions are, apparently, a rather odd beast. Any claim to 5th Amendment protection would be against *criminal* charges arising out of the civil proceedings. He can--so far as I know--be compelled to testify. We need more commentary from actual lawyers reading this thread....

--W. H. Heydt

Old Used Programmer

Juicyheart · 3 August 2010

RBH said:
W. H. Heydt said: And the 5th Amendment protections don't apply in civil trials...Freshwater can be compelled to testify. --W. H. Heydt Old Used Programmer
IANAL, but I'm not sure of that. Freshwater invoked the 5th several times in his deposition for the civil suit. One such is in the transcript of the deposition excerpted here (scroll down to the deposition part). 
I also ANAL, but I believe that while you can take the 5th in a civil case, the fact that you took it can be used to imply guilt. Unlike a criminal case where taking the 5th is not supposed to imply guilt. 

Juicyheart · 3 August 2010

Just out of curiousity did judge Frost make any mention in his ruling about the multiple times Freshwater failed to turn over evidence in discovery, only to then present it at his school board hearing?

Juicyheart · 3 August 2010

I can't help but feel that the whole evidence-in-the-dumpster debacle was an attempt to break that pattern. Have the cake and eat it too. Are we really supposed do believe that Short wouldn't have returned Freashwater's briefcase to him?

RBH · 3 August 2010

Juicyheart said: Just out of curiousity did judge Frost make any mention in his ruling about the multiple times Freshwater failed to turn over evidence in discovery, only to then present it at his school board hearing?
Nope, that wasn't mentioned in this ruling. Bear in mind this was a ruling on a motion to reconsider sanctions, not a re-hearing on the noncompliance with discovery. That was held May 26, when Hamilton had the flat tires, and that ruling is here (pdf). Freshwater did turn over the handwritten notes that were introduced in the administrative hearing, but not other handwritten notes mentioned in his testimony in the administrative hearing. Offhand I don't know about other stuff, though.

Juicyheart · 3 August 2010

CMB said: Hopefully they will either be able to force Freshwater/Hamilton into a VERY favorable settlement (public apologies from Freshwater/Hamilton for all their lies would be a good start)...
Oh I so hope for a public apology along the lines of VenomFangX's, or John Cleese's character's from "A Fish Called Wanda". 

Robin · 3 August 2010

RBH said: Two different stories, both under oath, about the mark. If this case gets to trial I'm certain Freshwater will be questioned at length about the contradictions among statements he has made under oath at different stages of the administrative hearing, and differences between his hearing testimony and his sworn statements in depositions. As the judge's remark about "tainted" credibility suggests, Freshwater's credibility is going to be eroded away, contradiction by contradiction, in that trial.
I'm certain this is why Hamilton kept making the long speeches on "truth" and that even contradictions can be the "truth". Clearly he knows how this looks (well...how it actually *IS*), and he's trying to weasel a way of getting people to think maybe...just maybe...this really is the truth. Uh huh...

DS · 3 August 2010

You would think that these jackasses would be desperate to avoid a real trial at this point. Certainly they must know that their trail of lies and deceit will catch up with them big time. I would be pushing for a very favorable out of court settlement if I were the opposition. They seem to have these jokers in a no win situation. EIther admit that you are illegal and immoral, or go to trial and prove it to everyone. Excellent!

MrG · 3 August 2010

DS said: You would think that these jackasses would be desperate to avoid a real trial at this point.
But having been unable to STOP DIGGING so far, what confidence might we have that they can figure it out NOW?
Certainly they must know that their trail of lies and deceit will catch up with them big time.
"Certainly"? I've done my fair share of stupid things, including some REALLY stupid things, but even at that it is hard for me to fathom the reality that there are people who simply CANNOT get a clue -- like Kent Hovind's determined efforts to earn a prison sentence. Makes me feel better about myself. Takes the pressure off a bit.

raven · 3 August 2010

Freshwater offered an unrecorded lien on a parcel of land to attempt to satisfy that sanction;
Not seeing how this will work here. Why an unrecorded lien, when it is a simple matter to file a recorded lien down at the courthouse? And why a lien? Last I heard, the USA had its own currency, called the dollar. Since when do people get to pick and choose what they pay debts with? Is an unrecorded lien better or worse than clam shells? And why don't Freshwater's coreligionists pay it if he is broke? They have millions and billions of dollars to spend on their causes, creationism, hatred of minority groups, violating the US constitution and so on. It is starting to look like the fundies just threw Freshwater under a bus. Instant martyr. Never mind that he was martyred by fundie xians. They will claim that the bus driver was an evolutionary biologist.

raven · 3 August 2010

Taking the Fifth amendment in a civil trial has different rules and implications than a criminal trial. Not entirely sure what the difference is, but something about implied guilt sounds right. People do this when what they say in a civil trial could be used for later criminal prosecution.

In Freshwater/Hamilton's case, this may hold true. They are getting far into perjury and obstruction of justice territory, both felonies.

The judge is warning them that they don't have much chance of winning. Unreliable and contradictory testimony and refusal to produce documents and evidence during discovery means they will probably lose the case.

Only question now is whether they will cut their losses and run or go down with the ship. If Freshwater is determined to be a martyr, they may see it through to the bitter end even with a high probability of losing.

Flint · 3 August 2010

I would expect that if they can get a jury of creationists, they couldn't lose a jury trial. The jury would not see any pattern of deceit, the jury would see consistent attempts to remain true to Christian principles despite anti-Christian interfering rules and regulations a good-faith effort was made for years to work around. A creationist jury would see their duty as helping to beat back the forces of secular humanism and restore God to His rightful place.

eric · 3 August 2010

DS said: You would think that these jackasses would be desperate to avoid a real trial at this point.
I guess we'll see shortly, whether they settle or not. But I don't think a trial would be the lock you think it is; twelve idiots can trump a smart judge, and there appears to be a lot of prayer-in-school types who might end up in the jury pool. And, of course, we have that oddity of the U.S. jury system which eliminates anyone who actually knows about the case. Local folks like RBH would be immediately eliminated from consideration.

DS · 3 August 2010

Well I was assuming that competent council would prevent stacking the jury. On the other hand, I suppose they are only allowed so many dismissals. Perhaps a change of venue would be in order. That process alone should add another year to the trial proceedings. Just how much is this guys land worth anyway?

On the other hand, you might be able to find twelve honest christians who would want to punish someone who broke the law, injured students, committed perjury and obstruction of justice and cost the school system millions of dollars. Come on, it's possible.

Stanton · 3 August 2010

DS said: ... On the other hand, you might be able to find twelve honest christians who would want to punish someone who broke the law, injured students, committed perjury and obstruction of justice and cost the school system millions of dollars. Come on, it's possible.
It is, but do remember that this is in a country where a tremendous population of Christians are taught that President Obama is the AntiChrist because he isn't a Republican.

WayneF · 3 August 2010

DS said: You would think that these jackasses would be desperate to avoid a real trial at this point. Certainly they must know that their trail of lies and deceit will catch up with them big time. I would be pushing for a very favorable out of court settlement if I were the opposition. They seem to have these jokers in a no win situation. Either admit that you are illegal and immoral, or go to trial and prove it to everyone. Excellent!
I see two potential outcomes. First, a settlement could be reach which would allow Freshwater to claim that he's been exonerated. The second would be a court trial ending in a guilty verdict which would result in Freshwater claiming that he was railroaded by a left wing, atheist, anti-God, Satan worshipping, Clinton appointed judge. I'm sure they'll find a way to turn it into a win. Heck, Limbaugh might even give it some airtime.

RBH · 3 August 2010

Flint said: I would expect that if they can get a jury of creationists, they couldn't lose a jury trial. The jury would not see any pattern of deceit, the jury would see consistent attempts to remain true to Christian principles despite anti-Christian interfering rules and regulations a good-faith effort was made for years to work around. A creationist jury would see their duty as helping to beat back the forces of secular humanism and restore God to His rightful place.
I haven't been able to figure out why the Dennises' first attorney advised them to seek a jury trial. That seems badly mistaken to me in what is basically an Establishment Clause case. One really wants a judge who knows Constitutional law hearing those, not a jury of lay people.

RBH · 3 August 2010

The other federal case

In another thread I described the three legal actions currently under way. One is a suit Freshwater and his wife brought against the Board of Education, two individual Board members, and some school administrators. On June 26 those defendants filed a motion to compel the Freshwaters to comply with discovery requests. This is similar to the motion to compel that was granted in Doe v. Mount Vernon BOE, et al., the action that led ultimately to the sanctions imposed on Freshwater and Hamilton.

The Freshwaters were given until August 3, today, to respond. As of July 29 they had not responded, and the United States Magistrate Judge on the case has recently taken note of their lack of response and issued an order reiterating the August 3, 2010, deadline.

DS · 3 August 2010

Wayne wrote:

"First, a settlement could be reach which would allow Freshwater to claim that he's been exonerated."

Right. That's why any settlement should include a public apology, including an admission of guilt, which should be tape recorded, written down, witnessed and notarized. That can be shown every time he claims he was "exonerated" by being left off the hook for a jury trial.

Any settlement should also include some kind of guarantee that Freshwater will not attempt any further legal action against those he has wronged, in order to preclude any more shenanigans such as those currently underway.

It would also be nice if they could get him barred from ever teaching in any school again, at least a public school.

CMB · 3 August 2010

RBH said:
Flint said: I would expect that if they can get a jury of creationists, they couldn't lose a jury trial. The jury would not see any pattern of deceit, the jury would see consistent attempts to remain true to Christian principles despite anti-Christian interfering rules and regulations a good-faith effort was made for years to work around. A creationist jury would see their duty as helping to beat back the forces of secular humanism and restore God to His rightful place.
I haven't been able to figure out why the Dennises' first attorney advised them to seek a jury trial. That seems badly mistaken to me in what is basically an Establishment Clause case. One really wants a judge who knows Constitutional law hearing those, not a jury of lay people.
Can the Dennis' change their minds and waive the jury trial at this point?

CMB · 3 August 2010

RBH said: The other federal case In another thread I described the three legal actions currently under way. One is a suit Freshwater and his wife brought against the Board of Education, two individual Board members, and some school administrators. On June 26 those defendants filed a motion to compel the Freshwaters to comply with discovery requests. This is similar to the motion to compel that was granted in Doe v. Mount Vernon BOE, et al., the action that led ultimately to the sanctions imposed on Freshwater and Hamilton. The Freshwaters were given until August 3, today, to respond. As of July 29 they had not responded, and the United States Magistrate Judge on the case has recently taken note of their lack of response and issued an order reiterating the August 3, 2010, deadline.
Thanks for the info Richard. No surprise there, is it? And IIRC, Hamilton is NOT representing Freshwater in that case,correct?

RBH · 3 August 2010

CMB said: Can the Dennis' change their minds and waive the jury trial at this point?
IANAL, but I think that's an irrevocable decision.

H.H. · 3 August 2010

I haven't been able to figure out why the Dennises' first attorney advised them to seek a jury trial. That seems badly mistaken to me in what is basically an Establishment Clause case. One really wants a judge who knows Constitutional law hearing those, not a jury of lay people.
Freshwater burned their child. That's not something any parent on a jury is going to overlook.

RBH · 3 August 2010

CMB said: Thanks for the info Richard. No surprise there, is it? And IIRC, Hamilton is NOT representing Freshwater in that case,correct?
Hamilton is the attorney of record for the Freshwaters in Freshwater v. Mount Vernon BOE, et al. See here. Hamilton is not representing Freshwater in Doe v. Mount Vernon BOE, et al., but it would not amaze me at all to learn that he's "advising" Freshwater on settlement talks behind the scenes. Freshwater is officially represented in Doe by two lawyers retained by the school's insurance company.

RBH · 3 August 2010

H.H. said: Freshwater burned their child. That's not something any parent on a jury is going to overlook.
That suit is only partly about the burning. It is also is an Establishment Clause suit. Read the complaint, especially paragraphs 17-28 and 40-51. Paragraphs 29-39 deal with the burning and paragraphs 40-51 again with Establishment Clause issues.

JGB · 3 August 2010

Would this decision about sanctions be admissible by the other Federal Court in regards to another failed discovery attempt? If so that couldn't possibly be good for Freshwater.

RBH · 3 August 2010

JGB said: Would this decision about sanctions be admissible by the other Federal Court in regards to another failed discovery attempt? If so that couldn't possibly be good for Freshwater.
I don't know if it's admissible evidence in the other suit, but both suits are in the same court and both are presided over by Judge Frost. He's the one who will decide on the motion to compel in Freshwater v. Mount Vernon BOE, and, if it becomes necessary, on motions for sanctions in that case. That can't be good news for Freshwater and Hamilton.

dogmeat · 3 August 2010

Mike Elzinga said:
MrG said: Doesn't this guy show every rare now and then? I'd think he was joking but it's too belabored to be funny by anyone's standards.
Looks like that Dogmeat whatever troll.
Ummm Mike, what the heck are you talking about "dogmeat whatever troll?" I've never done any trolling in my life let alone trolling a science sight that I enjoy.

Mike Elzinga · 3 August 2010

dogmeat said:
Mike Elzinga said:
MrG said: Doesn't this guy show every rare now and then? I'd think he was joking but it's too belabored to be funny by anyone's standards.
Looks like that Dogmeat whatever troll.
Ummm Mike, what the heck are you talking about "dogmeat whatever troll?" I've never done any trolling in my life let alone trolling a science sight that I enjoy.
Maybe it was the dogbarf troll or something like that. That deleted troll blast reminded me of an earlier troll with “dog” in its name. I’ll try to keep better track of names.

RBH · 3 August 2010

Mike Elzinga said: I’ll try to keep better track of names.
It gets harder as one gets older. :)

dogmeat · 3 August 2010

Mike Elzinga said:
dogmeat said:
Mike Elzinga said:
MrG said: Doesn't this guy show every rare now and then? I'd think he was joking but it's too belabored to be funny by anyone's standards.
Looks like that Dogmeat whatever troll.
Ummm Mike, what the heck are you talking about "dogmeat whatever troll?" I've never done any trolling in my life let alone trolling a science sight that I enjoy.
Maybe it was the dogbarf troll or something like that. That deleted troll blast reminded me of an earlier troll with “dog” in its name. I’ll try to keep better track of names.
S'ok, I just didn't want to be suddenly shifted to the creationist squad. Having nothing in common with them would have left me really bored after doing all I could to throw the game. ;o)

dogmeat · 3 August 2010

IANAL but, based on my overall experience, I would say that there are two major reasons why Freshwater would potentially continue and not make a settlement.

First, there is likely a part of the guy who honestly believes he is Right™, and a "victim," and that the Truth™ will be revealed in a trial. Given what we've seen from the truly impressive work done by Richard to this point, this is obviously a delusional position. The guy can't maintain an honest, coherent position on the simple facts of the case, but, based on my interpretation of the evidence of his character and beliefs, I don't think he can allow himself to be wrong. He appears to truly believe that he is an honest Christian doing God's work and therefore has done nothing wrong. You could also argue that he sees this as a challenge of faith that will be rewarded, etc.

Second, I believe to some degree it has gone on so far he almost can't afford to give up now. Though the sanctions might lead to his realization that if he does lose it is likely to be a massive financial penalty, I think he is likely looking at how much he and his family have spent so far, how much it has cost him with his career, etc., and in concert with point one (believing he is Right™), I think he has dug himself in too deep to let it go.

----------

Above and beyond that, with a jury trial there is always a shot at Freshwater winning. While a judge can be unethical, biased, etc., you can generally expect them to be honest and base their ruling on the constitution. A jury, on the other hand, can be utterly ignorant of the constitution. We see it all the time with those arguing that a violation of their first amendment rights is to point out how stupid their position is (Carrie Prejean, Sarah Palin, etc.). Add to that a disturbingly large number of Americans believe that teaching evolution is wrong, teaching creationism is right, and burning a kid now and then is probably good for their character. Personally I would give this case an 80-85% chance that the Dennis' will win.

Jon H · 3 August 2010

"Freshwater burned their child. That’s not something any parent on a jury is going to overlook."

That depends on whether they see it as "burned", or as something less severe. Which is entirely possible. A parent on the jury might convince themselves that it was the burn equivalent of a minor paper cut, or a minor scrape received sliding into base in gym class, and that it wasn't intended to hurt, and that Freshwater's intentions were good, after all, he's a Christian don't you know.

Hell, religious schools are were you still find them using parent-sanctioned corporal punishment.

Flint · 3 August 2010

These Tesla coil exercises, as I understand them, were implicitly if not explicitly understood by Freshwater and many years of students, as being a sort of initiation into the Brotherhood of Jesus. Very powerful symbolic ceremony.

Physically, they didn't hurt much, they didn't last long, they left nothing permanent EXCEPT the knowledge that one had become an Initiate, had been Chosen and Privileged and such. And that NEVER wears off.

I simply don't see how any honest person could describe this practice as irresponsible in its intent. Quite the contrary, these initiates were being charged with a Deep Responsibility to do Christ's work in every aspect of their lives. I think the description of what Freshwater DID ("burned a child") completely misses the point. One might as well describe baptism as irresponsible simulated drowning.

C.E. Petit · 3 August 2010

Answering a few general legal-type questions without providing legal advice for any particular situation...

(1) The Fifth Amendment: The Fifth Amendment can be invoked in any proceeding, so long as the underlying conduct is still potentially the subject of criminal proceedings. In fact, this is a frequent problem with getting testimony before Congress from alleged corporate malefactors.

The distinction between civil and criminal proceedings is that in a civil proceeding, all parties can be forced to testify and take the Fifth Amendment in front of the trier of fact... whereas one cannot force a defendant to testify in a criminal matter. The rules on what asserting the Fifth Amendment in front of the trier of fact can be used for are marvelously complex, and basically boil down to this: A judge will, properly, disregard it if the trier of fact is the judge (a bench trial), whereas a jury, even though instructed to disregard it by the judge, will engage in Olympic-caliber conclusion jumping for not just that issue, but the general credibility of that particular witness.

(2) Jury trial: If either party requests a jury trial, in a timely fashion, it must be granted (for matters involving more than $10 that would have been heard "at law" in 1792 — and a personal injury suit would qualify). If both parties withdraw their jury trial requests in a timely fashion, or never request a jury, the matter gets converted to a bench trial (the judge acts as the finder of fact, just as Judge Jones did in Kitzmiller... although there was no jury trial right in Kitzmiller in the first place).

That said, Freshwater would be a fool* to waive a jury trial at this stage. The other potential trier of fact (Judge Frost) has already commented on Freshwater's credibility — or abject absence thereof — in a way that will not allow any motion to force Judge Frost to recuse himself to succeed. With a jury, he has at least a theoretical chance of conning convincing people who haven't seen his schtick before.

(3) Forced apologies: Not gonna happen, at least not in any settlement that an insurer would sign off on. Leaving aside the potential constitutional problems, insurance companies just won't agree to it. The whole point of a settlement in a personal injury action is to put things behind the parties... and the dominant meme is that an apology or actual admission of fault "does not constructively enable the parties to obtain closure; it instead acts as a constant, forever-open-to-the-public reminder of their past sins and injuries."

(4) Judge Frost should have said (and no doubt meant) "tentatively settled." It's not settled until it's signed and approved by the court.

* Yes, I know. Please allow me the rhetorical flourish and pretend it's not already obvious.

W. H. Heydt · 3 August 2010

Flint said: These Tesla coil exercises, as I understand them, were implicitly if not explicitly understood by Freshwater and many years of students, as being a sort of initiation into the Brotherhood of Jesus. Very powerful symbolic ceremony. Physically, they didn't hurt much, they didn't last long, they left nothing permanent EXCEPT the knowledge that one had become an Initiate, had been Chosen and Privileged and such. And that NEVER wears off. I simply don't see how any honest person could describe this practice as irresponsible in its intent. Quite the contrary, these initiates were being charged with a Deep Responsibility to do Christ's work in every aspect of their lives. I think the description of what Freshwater DID ("burned a child") completely misses the point. One might as well describe baptism as irresponsible simulated drowning.
So...you're arguing that it's not a bad thing for a teacher, entrusted with the care and education of other peoples children, to practice magic (it's a matter of symbolism and intent) on them? An honest person can point out that, if your conjecture is correct (and it's the first time I recall seeing this claim raised), that for the teacher to induct his students into *his* religion is a significant violation of the Free Exercise clause...and that is certainly an irresponsible act. (As regards baptism...depends on how it's done. It's still a magic rite being performed.) --W. H. Heydt Old Used Programmer

W. H. Heydt · 3 August 2010

Re: C. E. Petit. Thank you very much for the insights into the legal niceties. Also...thanks for the insight into what can and can not be expected in a settlement.

I would surmise that the insurance company wants out of this mess as cheaply as it can achieve that end. One wonders how much the insurance company can be on the hook for...if the plaintiffs insist on more than the insurance limit, will Freshwater agree to the settlement knowing it's going to cost him personally, over and above what the insurance will pay?

Were I involved in a case like this, knowing what you've said about public apologies, I think I would be inclined to state that the public apology is what I want and then see what the insurance company offers in lieu of that.

One wonders if the insurance company can pressure Freshwater to relinquish his teachers license as a condition of the settlement...

--W. H. Heydt

Old Used Programmer

Dave Luckett · 3 August 2010

Flint, if the practice of using the Tesla coil had the intent and symbolic significance you describe (and I think you're on to something there), then it is strictly reasonable to call it a religious ceremony. That is, a religious ceremony conducted in a public school classroom, using public resources, by a teacher on a salary paid by the State, on paid time. A clearer breach of the Constitutional prohibition on State establishment of religion would be difficult to define.

I suppose it would be impossible to prove that, though. Freshwater, lying through his teeth if necessary, would assert that he was merely demonstrating an interesting scientific phenomenon.

DS · 3 August 2010

Flint said: These Tesla coil exercises, as I understand them, were implicitly if not explicitly understood by Freshwater and many years of students, as being a sort of initiation into the Brotherhood of Jesus. Very powerful symbolic ceremony. Physically, they didn't hurt much, they didn't last long, they left nothing permanent EXCEPT the knowledge that one had become an Initiate, had been Chosen and Privileged and such. And that NEVER wears off. I simply don't see how any honest person could describe this practice as irresponsible in its intent. Quite the contrary, these initiates were being charged with a Deep Responsibility to do Christ's work in every aspect of their lives. I think the description of what Freshwater DID ("burned a child") completely misses the point. One might as well describe baptism as irresponsible simulated drowning.
Indeed. If Freshwater had tried to baptize his students, that would be actionable as well. Instead, he tried to do the basically same thing, trying to convert students to his own personal religious views, misrepresenting science in a public funded science classroom, trying to initiate them into the group by ritual. What he did was blatantly illegal and unconstitutional. He got caught. Since he was in the wrong he had to lie. He got caught at that as well. Now he will have to pay. If you think that this is too harsh, just ask yourself this, if someone had tried to use their position of authority as a teacher to initiate students into the brotherhood of atheists, would you think that there was something wrong with that? Would you want them to get away with it? Well that is exactly why it is so important that Freshwater be brought to justice and made an example of.

cronk · 3 August 2010

Would Flint be as understanding if a star and crescent had been burned into the student's flesh? A pentagram?

RBH · 4 August 2010

Careful. Flint is the best I know at getting into and representing the creationist/fundamentalist mindset. But be wary of the second person singular pronoun when you respond to him. :)

snaxalotl · 4 August 2010

i'm fascinated by multiple appearances in recent years of claims of "misspeaking" in public and legal appearances. apparently the concept means "i was being honest but my mouth was lying without my control or awareness"

does anybody know how this originated?

Jon H · 4 August 2010

Flint said: One might as well describe baptism as irresponsible simulated drowning.
Oddly enough, a six week old baby recently drowned during its baptism.

DS · 4 August 2010

RBH said: Careful. Flint is the best I know at getting into and representing the creationist/fundamentalist mindset. But be wary of the second person singular pronoun when you respond to him. :)
Well then, one might ask, why is he trying to defend the illegal and unconstitutional actions of someone who was abusing their position of authority in order to proselytize? If one were to ask such a question, one might well want someone to accurately represent the creationist view here? One might indeed ask why any creationist would distinguish between the actions of one who was promoting a certain christian religion and one who was promoting atheism or any other religion. One might also question the sincerity of any position that essentially argued that , because the perpetrator was being true his religious beliefs, that that in some way justified his illegal and unconstitutional actions. Obviously one should recognize such thinking as wrong minded and counter productive. That is, if one were inclined to think rationally about the matter and not try to represent the views of others.

DS · 4 August 2010

For example, what if one were to go into a public school classroom and brand his students with the number "666" on their foreheads? Now what do you suppose would be the consequences of one's actions in that case? Now, how can one distinguish between that scenario and the actions of Freshwater?

DS · 4 August 2010

snaxalotl said: i'm fascinated by multiple appearances in recent years of claims of "misspeaking" in public and legal appearances. apparently the concept means "i was being honest but my mouth was lying without my control or awareness" does anybody know how this originated?
It might have something to do with video cameras and phone cameras. Now, with video of everything so readily available, it is much more difficult to simply claim, "I never said that." Now you have to go with the ever popular, "yea I said it, but I really didn't mean it as anyone can plainly see". Lying about lying is just lying squared.

MrG · 4 August 2010

DS said: Lying about lying is just lying squared.
Daniel Webster: "Falsehoods not only disagree with truths, but usually quarrel among themselves."

DS · 4 August 2010

MrG said:
DS said: Lying about lying is just lying squared.
Daniel Webster: "Falsehoods not only disagree with truths, but usually quarrel among themselves."
James T. Kirk: "In space, no one can hear you scream."

MrG · 4 August 2010

DS said: James T. Kirk: "In space, no one can hear you scream."
Douglas Adams: "42."

fnxtr · 4 August 2010

DS said: James T. Kirk: "In space, no one can hear you scream."
(nerd) That was actually the sell line for the first "Alien" movie. (/nerd)

ed · 4 August 2010

DS said: ... What he did was blatantly illegal and unconstitutional. He got caught. Since he was in the wrong he had to lie. He got caught at that as well. Now he will have to pay.
Well, he didn't have to lie. If he had preformed a good mea culpa, and made a pretense of cleaning up his act, he might well have that classroom right now - sans 10 commandment posters, etc. Instead, he went the "lie and hide the crime and it'll go away" route. As has been mentioned before, that how you exchange a slap on the wrists for handcuffs. (a la Martha Stewart and Scooter Libby) I would guess that his first lawyer -- and the insurance lawyers -- probably advised him to face reality and go into damage control. But his "Called to Argue A 1st Amendment Case" lawyer and his coach buddy convinced him to apply for martyrdom.

John Kwok · 4 August 2010

Yup. That's where I remember it from too:
fnxtr said:
DS said: James T. Kirk: "In space, no one can hear you scream."
(nerd) That was actually the sell line for the first "Alien" movie. (/nerd)

DS · 4 August 2010

ed said:
DS said: ... What he did was blatantly illegal and unconstitutional. He got caught. Since he was in the wrong he had to lie. He got caught at that as well. Now he will have to pay.
Well, he didn't have to lie. If he had preformed a good mea culpa, and made a pretense of cleaning up his act, he might well have that classroom right now - sans 10 commandment posters, etc. Instead, he went the "lie and hide the crime and it'll go away" route. As has been mentioned before, that how you exchange a slap on the wrists for handcuffs. (a la Martha Stewart and Scooter Libby) I would guess that his first lawyer -- and the insurance lawyers -- probably advised him to face reality and go into damage control. But his "Called to Argue A 1st Amendment Case" lawyer and his coach buddy convinced him to apply for martyrdom.
Right. Except he knew all along that what he was doing was wrong. All he wanted to do was to keep doing it for as long as he could get away with it. If he had stopped doing it, in his mind he would have lost. Now, no matter what happens, no one can completely undo the damage that has been done. The only thing left now is to make an example of him so that others will think twice before doing the same thing.

Mike from Ottawa · 4 August 2010

"I’m sure that as a lawyer, Hamilton is even more acutely aware of the nonpunishment for nonpayment than Simpson is."

As a lawyer, Hamilton is at risk, if he does not honour court orders, of disciplinary action by the state bar in Ohio. In Ontario, not obeying court orders arising out of your conduct of your practice is the kind of thing that will get you disbarred. Lawyers here are considered officers of the court and have a higher standard to meet in dealing with things like court orders than do others.

Flint · 4 August 2010

DS said: Well then, one might ask, why is he trying to defend the illegal and unconstitutional actions of someone who was abusing their position of authority in order to proselytize?
Don't be silly. I'm not defending this practice at all. I'm trying to shine a bit more light on the actual, psychological subtext of the practice. Yes, I regard it as a powerful and influential symbolic ceremony. I also regard it, as Dave Luckett said, as a ceremony superficially dressed up as a science experiment, to provide Plausible Deniability. Freshwater was serving two masters; his employer and his God. He had to honor the latter without unduly alarming the former. A tightrope, and the Dennises broke his unwritten rules by complaining.
One might also question the sincerity of any position that essentially argued that , because the perpetrator was being true his religious beliefs, that that in some way justified his illegal and unconstitutional actions. Obviously one should recognize such thinking as wrong minded and counter productive. That is, if one were inclined to think rationally about the matter and not try to represent the views of others.
Not sure I follow this. My reading is that creationists place their creationism ahead of their nominal jobs (look at the Leonard case) or really anything else. In the view of the creationists I've been reading, if an action that brings people to Jesus is illegal or unconstitutional, then this is prima facie proof that the law and the constitution are WRONG, and that it is IMMORAL to follow either one. If you were in Iran and Iranian law required that you stone someone to death, would you regard this legal requirement as so wrong that you would deliberately violate the law in deference to your own conscience? Acting according to one's deeply held moral principles might be admirable if you share those principles, but such principles clearly tend to be culture-dependent. So I'm not saying Freshwater acted correctly, but I consider it a bit closed-minded to refuse to understand why he did it. And why he was tolerated as a science teacher for so long.

Mike Elzinga · 4 August 2010

DS said: The only thing left now is to make an example of him so that others will think twice before doing the same thing.
The similar fundamentalist teacher I know seemed to have some notion in his head that he was not answerable to the rule of human law. He is forgiven by a higher authority and answerable, in his own mind apparently, to only what he believed that authority is telling him. Unfortunately he doesn’t recognize that that “higher authority” he thinks he is answering to are the hierarchy in his sectarian religion. And being “forgiven” means he has no responsibility to any secular truths or to other human beings not of his religion. This is one of the biggest problems with authoritarian religions; they leave their adherents with no general moral compass and responsibility for their actions. They are “forgiven”; they don’t have to answer to other humans and their mutual agreements. Instead of “rendering unto Caesar that which is Caesar’s”, they give Caesar the finger.

Stanton · 4 August 2010

Mike Elzinga said: This is one of the biggest problems with authoritarian religions; they leave their adherents with no general moral compass and responsibility for their actions. They are “forgiven”; they don’t have to answer to other humans and their mutual agreements. Instead of “rendering unto Caesar that which is Caesar’s”, they give Caesar the finger.
And yet, these same fundamentalists whine and cry when Caesar sends centurions to haul them away to be tossed to the lions as punishment. Hell, there are still morons who think it is grossly unfair to lock Kent Hovind away for tax evasion, apparently on the grounds that it should be illegal to the government to prosecute a Christian who breaks the law because he's a Christian.

MrG · 4 August 2010

Pah! Hovind all but DARED the law to bust him. The IRS repeatedly gave him opportunities to make amends, and every time they did he gave them a poke in the eye.

Mike Elzinga · 4 August 2010

MrG said: Pah! Hovind all but DARED the law to bust him. The IRS repeatedly gave him opportunities to make amends, and every time they did he gave them a poke in the eye.
Hovind and this teacher I know both have another characteristic in common; they’re both narcissistic and seemed to think they are “pretty boys” favored by their church. They cared excessively about their appearance, and they have an unusual “canned” patter. And this teacher I know was perceived by the female students as an ogling creep. This is the same teacher who interrupted a visiting speaker with an off-topic question, and in front of the entire faculty, which was supposed to indicate greater sexuality, growing bald from the front of the hairline or from the back. He was starting to go bald. I think most people, even if they can’t quite put their finger on it, recognize that these characters have some bizarre thought processes constantly going on inside their heads.

DS · 4 August 2010

Flint wrote:

"If you were in Iran and Iranian law required that you stone someone to death, would you regard this legal requirement as so wrong that you would deliberately violate the law in deference to your own conscience? Acting according to one’s deeply held moral principles might be admirable if you share those principles, but such principles clearly tend to be culture-dependent."

I would not live in a country that required me to violate my own ethical rules. Likewise Freshwater should not have been employed as a science teacher in a public school if he had no intention of following the rules. He was perfectly free to preach in a church or teach in a church school or teach his own kids at home. He choose to do none of those things. He apparently thought that his own moral principles overrode those of the country that he freely choose to inhabit and the government that paid his salary. The fact that he did it with religious symbols and initiation rituals only makes it worse

I understand perfectly well the motivation behind his actions. However, I categorically reject his reasoning and his morals. He thought he was above the law. He is about to find out that he is not. If he was at all honest, he would confess to what he did and accept his punishment. Why isn't he able to demonstrate the christian values that he supposedly sacrificed himself for? Doesn't he think he will get his reward in heaven?

As for why this was tolerated for so long, I assume that there are others sympathetic to his cause that were not courageous enough to abuse their authority directly. Perhaps if he had not been preaching to the choir more people would have complained sooner.

RBH · 4 August 2010

DS commented
As for why this was tolerated for so long, I assume that there are others sympathetic to his cause that were not courageous enough to abuse their authority directly. Perhaps if he had not been preaching to the choir more people would have complained sooner.
Others did abuse their authority directly. Lori Miller, a middle school math teacher, testified in the administrative hearing that she prayed over students in the hallways of the school and shared her salvation with them. Another teacher, Dino D'Etorre, estimated that 60 kids had 'come to Christ' as a result of his efforts in the Fellowship of Christian Athletes in the middle school. A former administrator in the middle school was Freshwater's co-religionist and the source of Freshwater's "Distinguished Teacher" awards. That administrator also inscribed a poster he gave to an evangelical who was a middle school counselor "Thank you for your ministry." A half dozen or so were running what amounts to a private evangelical Christian school in the middle school, protected by a friendly administrator and by the reluctance of others to make waves in a small community. Regarding complaining, in a small rural conservative community like this, complaining about the activties of evangelical Christians is not cost-free, to the point that the Dennis family moved to another county on account of the harassment their children were getting in the schools here from other students and from at least one coach.

W. H. Heydt · 4 August 2010

Flint said:Don't be silly. I'm not defending this practice at all. I'm trying to shine a bit more light on the actual, psychological subtext of the practice. Yes, I regard it as a powerful and influential symbolic ceremony. I also regard it, as Dave Luckett said, as a ceremony superficially dressed up as a science experiment, to provide Plausible Deniability. Freshwater was serving two masters; his employer and his God. He had to honor the latter without unduly alarming the former. A tightrope, and the Dennises broke his unwritten rules by complaining.
I am willing to defer to your analysis of Freshwater's internal reasoning. I merely note that you are, so far as I know, the first person to raise such reasoning behind Freshwater's actions. Specifically, I don't recall any mention of such in RBHs excellent reporting on the cases to date. It would interesting to have Freshwater compelled to testify (either in court or in a deposition) to a line of questioning exploring such a conjecture. --W. H. Heydt Old Used Programmer

RBH · 4 August 2010

A different take on it Here's a different take on the ruling by a local conservative Christian who has followed the Freshwater affair. I'm particularly interested in the misapprehension embodied in this paragraph:
The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items. Frost, nonetheless, granted the Dennis’ standing.
The misapprehension there seems to be that in order for one to have standing to complain about an unconstitutional endorsement of religion one must be unreligious. What a strange notion! Sam seems not to realize that the question is whether the Constitution is violated that counts, not who brings attention to that violation.

Gary Hurd · 4 August 2010

Reading the Court's ruling, I got a kick out of this gem from page 6:

"In the Motion for Reconsideration and at the July 29, 2010 hearing, Freshwater and
Attorney Hamilton argued that the Court should grant their motion and withdraw the sanctions
ordered against them because there is new evidence available and to prevent a manifest injustice.

This Court disagrees."

MrG · 4 August 2010

RBH said: The misapprehension there seems to be that in order for one to have standing to complain about an unconstitutional endorsement of religion one must be unreligious. What a strange notion! Sam seems not to realize that the question is whether the Constitution is violated that counts, not who brings attention to that violation.
That's kind of an interesting illogic. What fundies -- and I think a few nonbelievers as well -- don't seem to understand that the separation of church and state can be read as bad for RELIGION. In such cases as it happens, for example Imperial Japanese state Shinto -- one of the first things the Allied occupation authorities dismantled -- it not only meant discrimination against all other sects and religions, but exploitation of the religious system for the purposes of the state.

MrG · 4 August 2010

Sorry, got my negatives wrong -- NON-separation of church and state can be read as bad for RELIGION.

Gary Hurd · 4 August 2010

"Freshwater claims that he “pitched the stuff out of [his] way and got it out of [his] truck” but that the items that he “pitched into his garbage” were not actually taken out with his garbage, and instead, “[t]he stuff stayed in the garbage can until I gave it to [Attorney Hamilton].” Id. at 2, ¶ 5. The Court finds that Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony."

I have a mild qualm here, "pitch" or "toss" or "throw" are synonyms with regional variation in use. I don't recall how the "five arm fulls" of materials were delivered to Freshwater. My real question is, "Can the Judge in the Federal case consider perjury in the administrative hearing?" And that raised a second question, "What are the penalties for perjury in the administrative hearing?"

Gary Hurd · 4 August 2010

Oops. The administrative hearing transcript was introduced in the Federal case, so obviously the Judge can consider it.

Gary Hurd · 4 August 2010

My new favorite line: "Based on all of the evidence and briefing before it, the Court concludes that granting the Motion for Reconsideration would not prevent a manifest injustice. Indeed, the opposite."

Gary Hurd · 4 August 2010

RBH, Is there some way to read "Doc. # 161-1 at 2, ¶ 5 and Exhibit attached thereto at 5863," the admin hearing transcript where Freshwater was asked about the "five arm fulls" of personal items? I recall you posted part of the inventory earlier.

Not a big deal, just curious.

RBH · 4 August 2010

Gary Hurd said: RBH, Is there some way to read "Doc. # 161-1 at 2, ¶ 5 and Exhibit attached thereto at 5863," the admin hearing transcript where Freshwater was asked about the "five arm fulls" of personal items? I recall you posted part of the inventory earlier. Not a big deal, just curious.
If that's from the administrative hearing transcript, which it appears to be without hunting around, no, not without buying the transcript. I have some fragments of the hearing transcripts but nowhere near all of it. The inventory of the "five armloads" that Short made is here (7.5 MB pdf).

CMB · 4 August 2010

RBH said: A different take on it Here's a different take on the ruling by a local conservative Christian who has followed the Freshwater affair. I'm particularly interested in the misapprehension embodied in this paragraph:
The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items. Frost, nonetheless, granted the Dennis’ standing.
The misapprehension there seems to be that in order for one to have standing to complain about an unconstitutional endorsement of religion one must be unreligious. What a strange notion! Sam seems not to realize that the question is whether the Constitution is violated that counts, not who brings attention to that violation.
There is certainly irony here. "Accountability In The Media" indeed. The comments from RBH & Lamplighter are worth the cost of time and aggravation spent in reading the article.

wonderin · 4 August 2010

I can't believe he questioned the credibility of a Federal Judge! The little movie clip he tries to relate to Freshwater is also very telling.

Flint · 4 August 2010

DS said: I would not live in a country that required me to violate my own ethical rules.
But Freshwater's faith is quite different from yours in this respect. His faith requires that he do all he can to correct the misguided rules of his country. This is inherent in being a certain sort of evangelical.
Likewise Freshwater should not have been employed as a science teacher in a public school if he had no intention of following the rules. He was perfectly free to preach in a church or teach in a church school or teach his own kids at home. He choose to do none of those things.
Of course! Freshwater was, in his mind, not violating the "real" rules, but rather fighting on the very front lines, in public school, to make science serve the purposes of his religion. He wasn't hiding off in some home or parochial school, letting the majority of fish escape his net. He was teaching science in public school deliberately and expressly to change uncongenial rules. In his mind he was the very opposite of irresponsible, he was placing his career on the line to do his duty by Christ and win hearts and minds.
He apparently thought that his own moral principles overrode those of the country that he freely choose to inhabit and the government that paid his salary. The fact that he did it with religious symbols and initiation rituals only makes it worse
I wouldn't say he "apparently thought" this, I'd say he knew it with absolutely certainty, as surely as he knew the historical reality of Noah's Flood. He was working to correct his country's religious failings - doing his government that paid his salary the highest, most loyal duty he could conceive. You may consider Freshwater's religious principles demented, but you can't say he's not a man of principle. This is the essence of Lenny's Law. They HAVE to act on their principles. It's the only way their minds are geared to think at all.
I understand perfectly well the motivation behind his actions. However, I categorically reject his reasoning and his morals. He thought he was above the law. He is about to find out that he is not.
I don't think you do understand. He didn't consider himself above the law, he considered himself to be serving a law far higher than himself or his government (or his profession). And US history is full of people who opposed the law successfully, fighting institutional resistance and long odds. Freshwater might regard himself as the Rosa Parks of creationism. (And as a resident of Alabama, I can tell you that the name Rosa Parks does NOT trigger respect and admiration around these parts).
If he was at all honest, he would confess to what he did and accept his punishment. Why isn't he able to demonstrate the christian values that he supposedly sacrificed himself for? Doesn't he think he will get his reward in heaven?
If you were convinced you had done nothing wrong, would you "confess"? As far as I can tell, creationists use a single yardstick in deciding on any course of action -- Does this action help bring people to Jesus? And I can understand a creationist who broke the law bringing kids to Christ, not being willing to admit he did wrong, and not being willing to be punished for doing the highest good he knows. HIS soul is long since saved - he is now serving Christ by saving the souls of others. Anything that interferes with this goal, Freshwater can't help but regard as wrong. Creationists ALWAYS demonstrate that their ends are so important that ANY means of achieving them are not just valid but required.
As for why this was tolerated for so long, I assume that there are others sympathetic to his cause that were not courageous enough to abuse their authority directly. Perhaps if he had not been preaching to the choir more people would have complained sooner.
Well, as RBH points out, Freshwater was unusual within that community only in going just that last little bit too far. It sounds like creationism permeates that whole community like a stink. It's everywhere, in everything, unavoidable.

RBH · 4 August 2010

wonderin said: I can't believe he questioned the credibility of a Federal Judge! The little movie clip he tries to relate to Freshwater is also very telling.
Um, surely you're aware this is a conspiracy against a good Christian man, and if the judge rules against Freshwater the judge is clearly part of the conspiracy. Another interesting thing about Sam's post is that in addition to a bizarre notion of what constitutes "standing," he seems to be obliviously unaware of the actual purpose of the recent hearing and the criteria according to which the judge must make a decision in that sort of hearing. But again, it makes no difference: It's all a conspiracy anyway.

Ralph · 4 August 2010

RBH said:
wonderin said: I can't believe he questioned the credibility of a Federal Judge! The little movie clip he tries to relate to Freshwater is also very telling.
Um, surely you're aware this is a conspiracy against a good Christian man, and if the judge rules against Freshwater the judge is clearly part of the conspiracy. Another interesting thing about Sam's post is that in addition to a bizarre notion of what constitutes "standing," he seems to be obliviously unaware of the actual purpose of the recent hearing and the criteria according to which the judge must make a decision in that sort of hearing. But again, it makes no difference: It's all a conspiracy anyway.
The theological discussions of these recent postings have really helped me to understand the state of mind of fundamental Christians. As incredulous as it makes me too, I can get a glimmer of why fundamental Christians would question even a federal judge. For someone like me who has little legal expertise, I've also appreciated the legal insights that have been provided. Thank you. It's consumed me for a couple years now and I'm ready for it to be over though.

Wayne Francis · 4 August 2010

Flint said: These Tesla coil exercises, as I understand them, were implicitly if not explicitly understood by Freshwater and many years of students, as being a sort of initiation into the Brotherhood of Jesus. Very powerful symbolic ceremony. Physically, they didn't hurt much, they didn't last long, they left nothing permanent EXCEPT the knowledge that one had become an Initiate, had been Chosen and Privileged and such. And that NEVER wears off. I simply don't see how any honest person could describe this practice as irresponsible in its intent. Quite the contrary, these initiates were being charged with a Deep Responsibility to do Christ's work in every aspect of their lives. I think the description of what Freshwater DID ("burned a child") completely misses the point. One might as well describe baptism as irresponsible simulated drowning.
Well baptism if done right doesn't leave any detrimental effects at all. If done wrong it ends up a baby dead not just 2 weeks ago. http://www.thesun.co.uk/sol/homepage/news/3069604/Baby-drowned-during-baptism.html Its the arrogance of the one at fault that makes both these things wrong. Instead of understanding they could be harming the person they are in charge of caring for they believe their religious power trumps common sense.

RBH · 4 August 2010

Wayne Francis said: Well baptism if done right doesn't leave any detrimental effects at all. If done wrong it ends up a baby dead not just 2 weeks ago. http://www.thesun.co.uk/sol/homepage/news/3069604/Baby-drowned-during-baptism.html Its the arrogance of the one at fault that makes both these things wrong. Instead of understanding they could be harming the person they are in charge of caring for they believe their religious power trumps common sense.
Um, that's The Sun, whose front page story in the same issue is about a giant UFO spotted over Manchester in 1995. It's on the same journalistic level as WorldNutDaily.

RBH · 4 August 2010

Gary Hurd said:

"Freshwater claims that he “pitched the stuff out of [his] way and got it out of [his] truck” but that the items that he “pitched into his garbage” were not actually taken out with his garbage, and instead, “[t]he stuff stayed in the garbage can until I gave it to [Attorney Hamilton].” Id. at 2, ¶ 5. The Court finds that Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony."

I have a mild qualm here, "pitch" or "toss" or "throw" are synonyms with regional variation in use. I don't recall how the "five arm fulls" of materials were delivered to Freshwater.
Steve Short, the superintendent, handed them to Freshwater in a box at the school district admin building where the stuff from Freshwater's room was stored.
My real question is, "Can the Judge in the Federal case consider perjury in the administrative hearing?" And that raised a second question, "What are the penalties for perjury in the administrative hearing?"
Beats me. I don't know how a perjury charge gets made in such a context. To the Court of Common Pleas? The county prosecutor? I dunno. To the best of my knowledge neither of them want to touch this mess with a 12-foot hungarian (that's two feet longer than a 10-foot pole), since they're both elective offices in Ohio.

C.E. Petit · 4 August 2010

RBH said: [snip] Beats me. I don't know how a perjury charge gets made in such a context. To the Court of Common Pleas? The county prosecutor? I dunno. To the best of my knowledge neither of them want to touch this mess with a 12-foot hungarian (that's two feet longer than a 10-foot pole), since they're both elective offices in Ohio.
Both the state and the federal courts would have jurisdiction here, since entry of the (allegedly, we have to say at this point) perjured statement in the federal matter as evidence is also perjury. Perjury is a criminal matter and is seldom prosecuted for testimony offered in a civil case. What I consider far more likely is a motion under 28 U.S.C. section 1927 for "multipl[ying] the proceedings in [the federal] case unreasonably and vexatiously" against Hamilton. Over the past three or four years, there has been a significant upswing in use of section 1927 — an underused sanction against defense counsel that doesn't quite rise to the level of being "frivolous" (regulated by Fed. R. Civ. P. 11) or restrict itself solely to discovery (regulated, as in this case, by Fed. R. Civ. P. 37). Section 1927 can also be asserted against patterns of conduct that fall outside the strict confines of Rule 11 (only written, signed pleadings) and Rule 37 (only discovery).

RBH · 4 August 2010

How does something like that get brought? By the federal judge?

Juicyheart · 4 August 2010

DS said: For example, what if one were to go into a public school classroom and brand his students with the number "666" on their foreheads?  Now what do you suppose would be the consequences of one's actions in that case?  Now, how can one distinguish between that scenario and the actions of Freshwater?
Freshwater marked the boys where they could hide it easily. If you're wearing a long sleeve shirt or sweater in the winter, no ones going to question it much. If he'd marked the faces, more people would have complained, and earlier. And part of his defense is that he would make what ever mark the kid liked, but his default was a cross shaped "X". I'm not sure if that ever challenged about that, or what limits he placed on his mark making. 

holycow · 4 August 2010

Very interesting, I don't think I heard of anyone having a different mark. I think everyone testified to a cross or an X.

raven · 4 August 2010

Hovind and this teacher I know both have another characteristic in common; they’re both narcissistic and seemed to think they are “pretty boys” favored by their church.
A lot of religion is a cover for mental illness. A lot more religion is a cover for the human drives for money, sex, and power. Don't ever turn your back on these people. And society has long ago found ways to deal with religious people who feel entitled to break the law. It involves police, courts, and prisons. Hovind might have thought god was going to protect him from the IRS. Look where he is now.

Marion Delgado · 4 August 2010

In a surprise revelation, Freshwater's attorney, Beldar Hamilton, said his wife, Primat, had mistaken the Tesla coil for a food source.

"Where we come from ... France ... that's a very common mistake to make" the lawyer added. "I guess I'm lucky i didn't consume mass quantities of RF coil."

RBH · 4 August 2010

IIR
holycow said: Very interesting, I don't think I heard of anyone having a different mark. I think everyone testified to a cross or an X.
Though I don't recall if it was in sworn testimony, there has been mention of a simple vertical line and of a 'dot' as marks.

C.E. Petit · 4 August 2010

RBH said: How does something like that get brought? By the federal judge?
The judge can issue a "show cause" order sua sponte (that's really, really bad schoolboy Latin for "on his own motion"), directing a party to show cause why it should not be sanctioned. BTW, that holds true for any possible sanction. For a section 1927 motion, it is far more common for the opposing party to file the motion... although it's still so rare that "far more common" probably doesn't have any statistical significance.

Juicyheart · 5 August 2010

RBH said: A different take on it Here's a different take on the ruling by a local conservative Christian who has followed the Freshwater affair.  I'm particularly interested in the misapprehension embodied in this paragraph:
The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items. Frost, nonetheless, granted the Dennis’ standing.
The misapprehension there seems to be that in order for one to have standing to complain about an unconstitutional endorsement of religion one must be unreligious.  What a strange notion!  Sam seems not to realize that the question is whether the Constitution is violated that counts, not who brings attention to that violation.
No, I think it's more their view that, they own the trade mark and royalties to christian symbols in the community. So any display of them is profitable. And since you're a christian, in a christian nation, how can you complain about the cross? If it's a symbol of your religion, how can you be offended by it's display?  They don't recognize other parents' desire for the right to control their kids introduction to those symbols.  Much less, sanctify that right; they own the real thing. How you not want the real thing? BTW, I believe they indulge in the fundamental mindset, in part, by a desire to be good and valued, with their great inoperative is to save people from the eternity of torment justified by human nature, and only redeemed by human sacrifice. And in part a need to be empowered by command.  And while there are other parts, these two lead to a worldview that isn't the sturdiest, brightest or clearest to begin with. Then, you bring in people who mask, from themselves, their own assholery, so they can see themselves as good. Admittedly, because of their desire to be good, they're good most of the time. It's probably a trait we all hold to a greater or lesser degrees, and doesn't require religion  Unfortunately, it can be taken to the degree, where they only perceive the fraction of their experience that will support their desire for own goodness in the now.  When confronted with two conflicting self-statements, they can honestly believe both are false. Because, the good person they are, now it's a different story. Before you can keep them from lying to you, you got stop them from lying to themselves.  And the greater their assholery and need for goodness, the harder that is. This trait doesn't mix well with the fundamental mind set, but the two are often found together.  I think these guys honestly believe their own goodness, through the lord, and reality is a conspiracy against them. 

RBH · 5 August 2010

Juicyheart remarked
They don’t recognize other parents’ desire for the right to control their kids introduction to those symbols.
Darcy Miller, a mother, testified during the hearing that when parental permission slips were required for Fellowship of Christian Athletes, attendance dropped drastically. She called that "heart breaking." As I said when I wrote about that testimony:
I myself found it interesting that when parents were given some control over the religious influences their children were exposed to in the context of the school, they opted out of the apparently mainly fundamentalist views espoused at FCA. And it was also interesting that Miller apparently didn’t think that was a good thing.

Jon H · 5 August 2010

RBH said:
Um, that's The Sun, whose front page story in the same issue is about a giant UFO spotted over Manchester in 1995. It's on the same journalistic level as WorldNutDaily.
It wasn't just in the Sun. It was also covered elsewhere. And, a dead baby is pretty solid evidence, compared to a UFO sighting.

nmgirl · 5 August 2010

Richard, did you ever hear why Freshwater's previous attorneys withdrew?

RBH · 5 August 2010

nmgirl said: Richard, did you ever hear why Freshwater's previous attorneys withdrew?
In their request to withdraw from representation they said only that "On April 23, 2010 circumstances arose which prevent Robert H. Stoffers, Jason R. Deschler and Mazanec, Raskin, Ryder & Keller, Co., L.P.A. from continuing to represent Defendant Freshwater in the within case in accordance with Ohio Rules of Professional Conduct." In a radio interview Freshwater said that he threatened them with a malpractice suit and "fired" them. Since they were retained by the insurance company to defend Freshwater, not by Freshwater himself, that seems a little exaggerated. There are rumors around, of course, but that's all the information that's out in public about it.

Miriam St. Jean · 6 August 2010

RBH

I'd like to take the the opportunity, along with the many before me, to thank you for taking so much of your time to accurately reflect the facts in all three of the on-going Freshwater sagas.

As an added bonus, when I first started following your site, I must admit that many of your other articles were quite "over my head," but that, in time, I'm actually starting to comprehend information previously not studied in the past. I guess I want to thank you, too, for increasing my learning curve in the area of science over the last few years.

Kudos to you, sir.

RBH · 6 August 2010

Miriam St. Jean said: As an added bonus, when I first started following your site, I must admit that many of your other articles were quite "over my head," but that, in time, I'm actually starting to comprehend information previously not studied in the past. I guess I want to thank you, too, for increasing my learning curve in the area of science over the last few years.
Thanks, but let me call attention to the fact that those other articles are for the most part by other contributors to the Thumb. We have a fair-sized group of contributors which some day will be listed on the site (Burt? Are you there?)

CMB · 6 August 2010

The local news is reporting that Freshwater and Hamilton are getting overwhelmed with all the work on the 3 different legal matters going on now. The article is headed "Freshwater asks for time" which
I for one would like to see him get (but not in the sense he and Hamilton are asking for in the artilce).
Here's the link. http://www.mountvernonnews.com/local/10/08/06/freshwater-asks-for-time

Mike Elzinga · 6 August 2010

CMB said: The local news is reporting that Freshwater and Hamilton are getting overwhelmed with all the work on the 3 different legal matters going on now. The article is headed "Freshwater asks for time" which I for one would like to see him get (but not in the sense he and Hamilton are asking for in the artilce). Here's the link. http://www.mountvernonnews.com/local/10/08/06/freshwater-asks-for-time
From that article:

Because of the lack of time to properly prepare documents, Hamilton has asked the Judge Gregory Frost to deny the board’s request to compel Hamilton to respond to discovery requests and to impose sanctions for noncompliance as well as extend his response time.

These jokers piled a ton of crap on the table that they now have to answer for, and now they don’t want to answer for it. The irony of this is delicious. It is exactly what would happen to any teacher if ID/creationists were allowed to fill the classroom with crap that any teacher would then have to deal with. If I were the judge, I wouldn’t give Freshwater and Hamilton any more extensions or allow any more of their delaying tactics.

RBH · 6 August 2010

CMB said: The local news is reporting that Freshwater and Hamilton are getting overwhelmed with all the work on the 3 different legal matters going on now. The article is headed "Freshwater asks for time" which I for one would like to see him get (but not in the sense he and Hamilton are asking for in the artilce). Here's the link. http://www.mountvernonnews.com/local/10/08/06/freshwater-asks-for-time
Yup. That came in Hamilton's response to the defendants' request for a motion to compel the Freshwaters to comply with discovery demands in the suit they brought against ths Board of Education and some administrators. The situation is similar to that which recently brought sanctions on Freshwater and Hamilton in Doe v. Mount Vernon BOE, where the judge sanctioned them for noncompliance with discovery demands and failure to comply with a granted motion to compel. The same script is being played out in Freshwater v. Mount Vernon BOE, et al. In his response Hamilton wrote
But the undersigned attests I simply cannot keep up with the demands of both cases as I have already turned away other paying clients and cannot budget another minute in the day. The undersigned [Hamilton] does not have an issue with balancing time but rather simply not enough time in each day nor stamina to proceed any faster.
He asked that the request for a motion to compel be denied and that he be given additional time to respond.

eric · 6 August 2010

RBH said: The situation is similar to that which recently brought sanctions on Freshwater and Hamilton in Doe v. Mount Vernon BOE, where the judge sanctioned them for noncompliance with discovery demands and failure to comply with a granted motion to compel. The same script is being played out in Freshwater v. Mount Vernon BOE, et al.
Hmmm...I would think that the standard practice of a responsible lawyer in such a situation would be to hire more help or, barring that possibility, recommend his client seek other counsel. But its par for the course. Hamilton's Ohio seems to be severely lacking in not only buses, cabs, and competent computer repairmen, but now lawyers too.
RBH quoting a local conservative christian: In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.
I don't see any paradox in a christian feeling invaded or injured by some unwanted christian display. As a chemist, I can say without hesitation that if my neighbor put a neon-lit 50' x 50' billboard of the periodic table on his roof, I'd be upset. Its not just content but context of a display that matters - don't these folks get that?

Sheikh Mahandi · 6 August 2010

So basically Freshwater, and Hamilton are requesting a time-out in order to generate further evasions reegarding non-compliance with legitimate discovery motions while not being penalised? Surely Freshwater at least must be aware that "the dog ate my homework" is not going to fly? Also annoying the same judge who already thinks you are a lying little toad doesn't seem to me like a sound legal tactic, at this rate they just might get longer then Hovind.

DS · 6 August 2010

CMB said: The local news is reporting that Freshwater and Hamilton are getting overwhelmed with all the work on the 3 different legal matters going on now. The article is headed "Freshwater asks for time" which I for one would like to see him get (but not in the sense he and Hamilton are asking for in the artilce). Here's the link. http://www.mountvernonnews.com/local/10/08/06/freshwater-asks-for-time
Well either they actually need more time to fabricate documents, or they have been sitting on their butts for the last two years. I wouldn't give them one minute more to make up any more lies. They were already caught lying several times. Can't they just make up more lies as they go a long? Why do they need more time to do that? Why give them more time to do that? All they have to do is accept the dismissal, admit what they did was wrong and all of the court business will go away. Why should that be so hard for people who already know they are going to lose anyway?

CMB · 6 August 2010

DS said:
CMB said: The local news is reporting that Freshwater and Hamilton are getting overwhelmed with all the work on the 3 different legal matters going on now. The article is headed "Freshwater asks for time" which I for one would like to see him get (but not in the sense he and Hamilton are asking for in the artilce). Here's the link. http://www.mountvernonnews.com/local/10/08/06/freshwater-asks-for-time
Well either they actually need more time to fabricate documents, or they have been sitting on their butts for the last two years. I wouldn't give them one minute more to make up any more lies. They were already caught lying several times. Can't they just make up more lies as they go a long? Why do they need more time to do that? Why give them more time to do that? All they have to do is accept the dismissal, admit what they did was wrong and all of the court business will go away. Why should that be so hard for people who already know they are going to lose anyway?
And lets not forget that 2 of the 3 actions were initiated by Freshwater & Hamilton.

DS · 6 August 2010

CMB wrote: And lets not forget that 2 of the 3 actions were initiated by Freshwater & Hamilton.
Exactly. How can they not be ready to go ahead with a case they themselves initiated? What exactly are they supposed to need more time for? What exactly do they need to go over that they did not go over at least twice already? It seems as though the only thing they can hope to accomplish now is to not get caught in their web of lies and deceit until after the school year starts. Perhaps then Freshwater will claim that he is entitled to another full year of salary and full retirement benefits. News flash for you John, if you are sent to jail for perjury, that won't matter any more. I hear they have an excellent retirement plan.

Gary Hurd · 6 August 2010

I really think that this is going to hurt Hamilton as much as Freshwater.

I have been wondering about the billing records for apparently disappearing affidavits. I occurred to me that if Hamilton had billed Freshwater for everything he owned, he could claim that Freshwater had no assets avialable to pay other fees, or fines, or settlements. They might think that with God on their side, that this would merely be "insurance." But, if there was no work done, the billing is fraud. And if our dynamic duo are dumped into the garbage (along with Freshwater's five armfuls of crap), and they lose their cases- Hamilton is in worse trouble than Freshwater.

These guys could be in very bad trouble.

I wonder if they could share a cell with Kent Hovind?

EJH · 6 August 2010

Here are the posted comments on the discussion page that comes along with the article reporting Hamilton's request for more time:

**************

#1 Tough s@#%.

#2 ditto

#3 well said

can you believe he’s pulling the same stunts in this federal case he pulled in the last; the same stunts which cost him and his attorney $28,000.00?

is ANYONE still taking this guy seriously?

#4 If he doesn’t have the necissay (sic) time to represent Freshwater adequately, he should turn some of the responsibilities over to another attorney who does. This is not the courts problem, this is Freshwaters (sic) and Hamiltons (sic) problem. If they’re not willing to do that, then they should drop their lawsuit.

**************

It's a small sample, I know, but it supports what I've thought would happen eventually. Local public sentiment is turning ugly and (IMO) decidedly anti-Freshwater.

As a local I have run into Freshwater in Mount Vernon several times in the past two years, and he looks more and more haggard each time. I do feel sorry for the man and for the financial burden he is laying on his family...then I think about my kids and what they will have to do without because the school district is being forced to pay for defending their position in this fiasco.

Divalent · 6 August 2010

Minor clarification, but in his motion Hamilton does not refer to burden of 3 cases, but only 2 (the administrative hearing and his suit against the board), despite what the newspaper article states.

BTW, wasn't it Freshwater (and Hamilton) who dragged out the administrative hearing by, among other things, exercising his prerogative not have sessions when school was out, for no good reason other than, apparently, he could? I mean, but for those delays, the administrative hearing would have been over long ago, leaving them both free to work full time on the remaining action. And then there is the time spent dealing with the motion to compel, and motion for sanctions, and motion for reconsideration of sanctions in the Doe v Freshwater, which they brought upon themselves by engaging in tactics that earned them sanctions (and arguably sapped Freshwater of whatever remaining the ability he had to pay for more legal help in this case).

It would appear that Hamilton probably realizes he is now working for Freshwater for free, as otherwise there really is no good reason to not hire more help to avoid another set of punitive sanctions. Did the board make counter claims for damages in their case that would prevent Freshwater/hamilton from unilaterally cutting their losses and just dismissing the action?

Mary · 7 August 2010

Somewhere in this Freshwater thread was a short discussion of Freshwater's choice of fellow fundie Hamilton as his legal representative. Hamilton is a fundamentalist Christian therefore he must be a good man of sterling character may have been Freshwater's fundie logic.

I was discussing this with a friend a couple of weeks ago. Today she alerted me that Freshwater supporter Coach Dave had recently interviewed one Neal Horsley on his radio show. She suggested that I google this Horsley character and prepare to be shocked. I had never heard of Horsley so I researched him.

Wow. Wow. Horsley is the most extreme fundie nutcase ever. He makes Kent Hovind and Peter LaBarbera appear moderate.

In an interview with Alan Colmes, Horsley bragged about the debauched lifestyle he led before his prison cell conversion. Drugs, excessive drinking and bestiality were among the vices he indulged in. Yep, that's right...bestiality. According to Horsley, "if you grow up on a farm in Georgia, your first girlfriend is a mule." "If it's warm and it's damp and it vibrates you might in fact have sex with it", Horsley told Alan Colmes.

After Horsley came to Jesus, he became a fierce anti-abortionist. His website "Nuremburg Files" listed the names and addresses of all doctors performing abortions in the United States. The site was used by James Charles Kopp to track down and kill Buffalo doctor Barnett Slepian in 1998.

Horsley ran for governor of Georgia last year. His platform at a secessionist brought him few votes. What really got him some attention were his comments in an interview where ""he indicated he’d kill his own son to dissolve the United States (in an effort to overturn Roe v. Wade). Asked if he was ready to sacrifice his own son in a national insurrection, Horsley recounts a fight with his son where he almost killed him. “I was one foot from killing my own son, or hurting him really, really bad,” Horsley told Krider. “If he would have attacked me again, I would have stuck him. Or cut him or sliced him or done something to stop him. That’s the point, your hypothetical has literally already been worked out with me, and that’s what makes me different from the other candidates for Governor.""

Different? That's an understatement if I've ever heard one.

I have no idea whether or not Coach Dave had any knowledge of Horsley's background before he interviewed him on the subject of abortion. Maybe he just assumed that Horsley, being a fundamentalist Christian, is a good solid God-fearing man. Then again, given some of the crackpots that Coach Dave has interviewed, I'd say that his bar is set a low as it can go when it comes to the character and sanity of his guests.

Mary · 7 August 2010

Oh, I forgot to mention that Horsley's son is a an Army Sergeant.

RBH · 7 August 2010

Mary said: Somewhere in this Freshwater thread was a short discussion of Freshwater's choice of fellow fundie Hamilton as his legal representative. Hamilton is a fundamentalist Christian therefore he must be a good man of sterling character may have been Freshwater's fundie logic.
Something like that occurred in Hamilton's questioning of Freshwater in the administrative hearing, though the assurance went the other way. According to the questioning they talked for nearly an hour before Hamilton took the case. Hamilton wanted to satisfy himself that Freshwater's theology wasn't strange. However, I think they already knew each other at least casually. Somewhere on the web there's a picture of Hamilton and Freshwater picketing an abortion clinic together that I think predates their professional association. I'll look around for it later. And it wouldn't amaze me at all to learn that Daubenmire knows exactly what kind of a loon Horsley is. Daubenmire is not very tightly wrapped himself.

W. H. Heydt · 11 August 2010

Any new word on settlement? New trial date? Freshwater turning blue from holding his breath? Hamilton dead of apoplexy from the rulings?

--W. H. Heydt

Old Used Programmer

RBH · 12 August 2010

W. H. Heydt said: Any new word on settlement? New trial date? Freshwater turning blue from holding his breath? Hamilton dead of apoplexy from the rulings? --W. H. Heydt Old Used Programmer
Not a thing going on judging ftom what people are willing to say on the record, though I'm sure settlement talks are still in progress. No new trial date has yet been set. The next significant events are (a) the due date for summary briefs in the administrative hearing is August 13, after two extensions at Hamilton's request, and (b) the federal judge's ruling on Hamilton's request for more time to respond to a motion to compel compliance with discovery in Freshwater v. Mount Vernon BOE et al.. He filed that request August 3, and Judge Frost has been prompt in his rulings so I expect that this week. At a party last night an attorney friend of mine who is familiar with the case and who has argued cases in Judge Frost's Court suggested to me that it's very unlikely that Frost will grant an extension. If that happens, if the judge doesn't give Hamilton an extension and grants the motion to compel, we'd be following the same script in Freshwater v. Mount Vernon BOE et al. that led to sanctions being imposed on Hamilton and Freshwater in Doe v. Mount Vernon BOE et al. Maybe history does repeat itself!

Juicyheart · 12 August 2010

Just out of curiousity, is there any itemized comparison between, the list of items returned to Freshwater by Short, the items the Dennises asked for in discovery but were not produced by Freshwater, and the items Freshwater and Hamilton turned over to the police from the dumpster? I'd wager they'd over lap quite a bit, and I'd like to know if I'd lose that wager or not.

RBH · 12 August 2010

Juicyheart said: Just out of curiousity, is there any itemized comparison between, the list of items returned to Freshwater by Short, the items the Dennises asked for in discovery but were not produced by Freshwater, and the items Freshwater and Hamilton turned over to the police from the dumpster? I'd wager they'd over lap quite a bit, and I'd like to know if I'd lose that wager or not.
I don't know if anyone has made those comparisons. I haven't, for sure.

techreseller · 16 August 2010

From the SANS Newsletter on how to recover a water soaked laptop. This case covers salt water in particular but can be extended to Mr. Hamilton's case:

FEEDBACK ON DATA RECOVERY FROM SALT WATER IMMERSED DEVICES In NewsBites
Volume 12, Number 63 we asked for feedback on the data recovery
process for devices that have been immersed in salt water. Here is
some of the information that you shared with us:

Tom McGrane suggests:
For electronics in general, once they're in water for any length
of time you need to leave them in water until they can be properly
cleaned and dried, especially if it was salt water. As soon as air
hits the wet metal parts corrosion really takes off. Much slower
while under water. Do remove any batteries.

Leaving it in saltwater is better than out in the air, but if you
can move it to fresh water that's better--the more water the better
to dilute the salt. Letting fresh water flow through the container
would be good.

There are companies that do electronics cleaning where they'll submerge
the appropriate parts in special cleaning fluid. Often used with
smoke damaged stuff, but would probably work with water damage, too.

For quick dunks, like dropping a cell phone into a pond or toilet,
it makes sense to quickly remove it, pull the battery to reduce
possible damage, open it up in any easy way and shake out as much
water as possible, then if you can, put it in a bag of rice and leave
in a warm place to dry. Or just open and set up however seems logical
to allow moisture to drain out. Leave it to dry as long as practical
before applying power again. Use a fan to blow air through it.

I've lived on the Alaskan coast and it's often surprising what can
be rescued when live-aboard boats have taken on water if you keep
stuff away from air.

Rob Blader did some research and found moisture removing bags:
http://www.rei.com/product/793223 And then did further research and
found a similar thread on the High Tech Crime Consortium Listserv:

"I used the NoWrite Hard Drive Evidence case, filled it with silica
bags, closed the case and left it in a warm place. One day, the phone
was dry inside and out."

" I've had good luck so far just removing the battery and putting the
items in a bag of rice for a couple of days. Worked on a cell phone
left on the ground overnight in the rain, and a cell phone dropped
in the dog's water bowl."

We do not think we have enough definitive information for a SCORE
checklist yet. If you have experience with recovering data from devices
that have been exposed to salt water, please drop stephen@sans.edu
a note. Thanks!

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The Editorial Board of SANS NewsBites