Freshwater hearing: A witness contradicted by a photo

Posted 7 May 2009 by Richard B. Hoppe

This will be a short -- I have a slew of commitments and won't get a full account done until sometime over the weekend. But one thing established today deserves immediate comment. R. Kelly Hamilton, John Freshwater's attorney, called Zachary Dennis to testify today. Zach had already testified during the Board of Education's presentation and Hamilton passed on cross examination then, knowing he would call Zachary in his case and would have greater freedom of questioning than in cross examination. Zachary testified for all but half an hour of today's hearing. One section of that testimony stands out and I'll describe it below the fold. Recall that Ben Nielson testified that the arm with a cross burned on it shown in a newspaper story was not Zachary's arm. I quote from my earlier report:

Ben Nielson, a classmate of Zachary Dennis, testified that the arm he saw in a newspaper picture which was identified as Zachary's arm showing the injury, was not Zachary's arm. Nielson testified that he saw a mark on Zachary's arm shortly after the incident in December 2007, and the mark was significantly smaller than that in the picture and was on the inside of the arm rather than on the outside as the picture apparently shows. Ben testified that when he saw the photograph in the newspaper, he exclaimed "That's not Zach's arm." His father corroborated the account. Neither Ben nor his father Mark, who also testified briefly, could remember when they saw the newspaper picture or which newspaper it was in.

In the subsequent post I juxtaposed Nielson's testimony with that of Julia Herlevi, one of the investigators who took notes on Ben's discussion with the investigators. As that juxtaposition shows, Ben's story changed considerably between the time he was initially interviewed and his testimony at the hearing. Today Ben's testimony was further impeached. In direct examination by Freshwater's attorney, R. Kelly Hamilton, Zachary was shown the pictures his mother took a few hours after hockey practice the day Zachary was burned and blowups of cell phone pictures his father took immediately after practice. Zachary identified the pictures as being of his arm. On those photos there is a mole visible on the arm depicted. Pulling up his sleeve today, Zachary showed the same mole on his right forearm in the same position relative to the burn mark in the photos on the outside of his forearm, not the inside of the forearm as Ben had earlier testified. So the pictures are established as being of Zachary's forearm, and Ben Nielson's testimony about the position and size of the burn mark is badly in error. I'll repeat what I wrote in my earlier juxtaposition post:

Summation by me It is clear that there are major discrepancies between the story the notes say Ben told the investigators and what he swore to in his affidavit and testimony. There are three hypotheses that could account for those discrepancies: 1. Ben did not tell the truth to the investigators, despite testifying under oath in cross examination that he had told them the truth. 2. Ben did not tell the truth in his affidavit and testimony yesterday, despite being under oath to tell the truth. 3. The investigator's notes completely misrepresent what Ben told them and they simply fabricated their notes and the account of Ben's interview in their final report.

Since the photos show a large cross, on the order of 6 inches tall with a cross-bar 2-3 inches long, and since they have definitely been established as showing Zachary's arm, hypothesis 2 has gained independent corroboration from physical evidence. It now seems very clear that Ben did not tell the whole truth in his affidavit and sworn testimony. I'll also repeat something else I wrote earlier about Ben:

He is encapsulated in a familial, social, and religious context where the account he gave to the investigators is in serious conflict with that context's mythology about how a good Christian man, John Freshwater, is being unjustly persecuted by a cabal of - well, of someone. That was the main message of his father's rant about Peter and John in Acts. That's a very tough position for an adolescent, and I think under the pressure of that conflict Ben has changed his story, contradicting the true account he gave the investigators last spring before the pressure was on, in order to make it consistent with the mythology surrounding him in his home and church. Moreover, knowing something about the malleability of human memory, it would not amaze me if Ben now actually believes that his most recent story is the true one. That is, he may not be consciously lying.

And in what may be the high irony peak of this interminable hearing, it was R. Kelly Hamilton, Freshwater's attorney, who first called attention to the mole in one of the photos, stimulating Zachary to roll up his shirt sleeve on the witness stand to show it on his forearm and thus effectively impeach one of Hamilton's own witnesses.

51 Comments

Flint · 7 May 2009

I get the impression Hamilton believed Ben's testimony, and called attention to the mole confidently expecting Ben's testimony to be corroborated. Lawyers are highly allergic to being taken by unpleasant surprises - they generally have a solid idea how the testimony will go.

Hopefully, this episode will open some eyes to both the level and the pervasiveness of religious pressures in the community. Now: Will this cause Ben to be called back? How might it influence the hearings? Was Ben's previous testimony considered to be evidence that Freshwater did NOT burn crosses on arms?

ravilyn.sanders · 7 May 2009

If the gloves dont fit, you must acquit. If the mole does fit, you must convict ;-)

JGB · 7 May 2009

Is that the Astrology is a science moment of this hearing?

RBH · 7 May 2009

Flint said:Now: Will this cause Ben to be called back? How might it influence the hearings? Was Ben's previous testimony considered to be evidence that Freshwater did NOT burn crosses on arms?

Ben's previous testimony was taken to mean that the photos were fake. Hamilton has been hinting at that for some time, going so far as to identify Zachary's grandfather as a photography expert and asking if he had anything to do with the photos. Somewhere there is a news release from someone (real definite, huh?) in which Ben's testimony was hailed as showing the claims of the burns is fraudulent. I'll be damned if I can find it now, though. Anyone else? It came out in late March or early April, right after Ben's testimony. I don't know whether this will cause Ben to be recalled.

jfx · 7 May 2009

Ouch.

Pwned by a mole.

fnxtr · 7 May 2009

ravilyn.sanders said: If the gloves dont fit, you must acquit. If the mole does fit, you must convict ;-)

I never understood that defense. The perpetrator could have just picked up any gloves on the spur of the moment.

SteveC · 7 May 2009

"There are three hypotheses that could account for those discrepancies:"

I can think of another. Ben is misremembering what he saw. Memory has a bad way of not knowing when it's wrong, and of being wrong a lot more often than people think.

Whether that's what happened here, I don't know, but it is a possibility.

Gary Hurd · 7 May 2009

... it was R. Kelly Hamilton, Freshwater’s attorney, who first called attention to the mole in one of the photos, stimulating Zachary to roll up his shirt sleeve on the witness stand to show it on his forearm and thus effectively impeach one of Hamilton’s own witnesses.

It must have been hard not to laugh out loud. Really loud. Thnaks for the continued up-dates.

Doc Bill · 7 May 2009

Did Hamilton say "D'oh!" out loud?

Really, did he?

But, seriously, putting Ben through this wringer is simply wrong. Hamilton should be reprimanded or at least be forced to sit in a comfy chair for his actions.

Joshua Zelinsky · 7 May 2009

This seems closer to the breakdowns in Buckingham's and Bonsell's testimony than the astrology is a science moment. This is an example of people lying outright. It isn't as extreme as in that case since here we a) have a teenager, not grown men and b) this may be somewhat sincere.

RBH · 7 May 2009

SteveC said: "There are three hypotheses that could account for those discrepancies:" I can think of another. Ben is misremembering what he saw. Memory has a bad way of not knowing when it's wrong, and of being wrong a lot more often than people think. Whether that's what happened here, I don't know, but it is a possibility.

The key discrepancy when I wrote those hypotheses was between the investigators' notes of the interview with Ben and Ben's later sworn testimony. It's the change between them that requires explanation. Now there's physical evidence to show that the account of his interview with the investigators was truthful and his later sworn testimony was not. Your hypothesis doesn't account for the change. Recall that I wrote

Moreover, knowing something about the malleability of human memory, it would not amaze me if Ben now actually believes that his most recent story is the true one. That is, he may not be consciously lying.

Human memory is real malleable.

RBH · 7 May 2009

Gary Hurd said: It must have been hard not to laugh out loud. Really loud. Thnaks for the continued up-dates.

Gary, my tongue bled. And I had a fleeting thought that Hamilton might actually be a Poe. :)

RBH · 7 May 2009

Doc Bill said: Did Hamilton say "D'oh!" out loud? Really, did he? But, seriously, putting Ben through this wringer is simply wrong. Hamilton should be reprimanded or at least be forced to sit in a comfy chair for his actions.

Yeah, it is wrong. I feel sorry for Ben -- he's in a wringer and has been ever since he gave an accurate account to the investigators and then changed his story under pressure. Recall that it was his father who ranted at the referee about Peter and John in Acts and tried to evangelize me and tried to persuade me to stop writing these accounts. It's father I'd look at first to account for Ben's switch in stories.

mountvernon1805 · 7 May 2009

Ben Nielson may have come to the conclusion that the arm in the photo was not that of Zach Dennis because he never saw Dennis’ arm with a burn on it—instead of coming to the conclusion that it wasn’t Dennis’ arm based on other features of the arm.

If I understand Hoppe’s article correctly, the photo showing the mole was on the new photographs—not ones that Nielson ever saw.

In the testimony of Nielson, he remembered the faint mark that he said he saw on Dennis to be on the under part of the arm—another reason why Nielson would not think the photos that showed a burn to the top of an arm to be that of Dennis.

Nielson said that he saw Dennis’ arm the next day. In Dennis’ testimony today, did Dennis claim that the mark on his arm was as obvious the next day as the photos allegedly show?

Moses · 7 May 2009

So, Christian was lying... Wow, been on the wrong side of that... And a lot worse than a "little white lie" or "misremembering."

RBH · 7 May 2009

mountvernon1805 wrote

Ben Nielson may have come to the conclusion that the arm in the photo was not that of Zach Dennis because he never saw Dennis’ arm with a burn on it—instead of coming to the conclusion that it wasn’t Dennis’ arm based on other features of the arm.

I'm afraid I don't follow that reasoning. Try again, please? Note that your attempted explanation doesn't account for the discrepancy between the investigator's notes on Ben's interview and his affidavit and testimony. The two accounts are quite different, and that has to be accounted for in any explanation. And nowhere did Ben claim to not have seen a mark on Zachary's arm -- he was consistent in that. What changed over some months was his description of the shape of the mark, the size of the mark, and the position of the mark. mountvernon1805 wrote

If I understand Hoppe’s article correctly, the photo showing the mole was on the new photographs—not ones that Nielson ever saw.

That wasn't clear -- there were four photos floating around during this part of the testimony, and I'm not sure which Hamilton referred to when he mentioned the mole -- I was writing notes and didn't see which he was holding at the moment. In any case, the cell phone photos showed much the same as the published photos taken by Zachary's mother. Ben had never mentioned a mole in his interview with the investigators or his affidavit and testimony, so it's irrelevant to why Ben claimed he failed to recognize the newspaper photo. mountvernon1805 wrote

In the testimony of Nielson, he remembered the faint mark that he said he saw on Dennis to be on the under part of the arm—another reason why Nielson would not think the photos that showed a burn to the top of an arm to be that of Dennis.

Again, that doesn't account for the discrepancy mentioned above, between the interview and the testimony. And recall that Ben testified under oath that the mark on Zachary's arm was small, on the inside of the forearm, and formed short vertical line parallel to the main axis of the forearm (he drew it in the hearing) rather than the cross that was shown in the photos and that was earlier described by Ben according to the investigator's notes. mountvernon1805 wrote

Nielson said that he saw Dennis’ arm the next day. In Dennis’ testimony today, did Dennis claim that the mark on his arm was as obvious the next day as the photos allegedly show?

Both Zachary and his father testified today that the mark lasted one and one-half to two weeks. There was no mention of any change in appearance between the night after the burn and the next day when Ben claimed that he saw it, and knowing a dab about RF burns I wouldn't expect a noticeable diminution of the injury that quickly. Recall that according to the investigator's notes, Ben told them that the mark on Zachary's arm was about the same on his own arm in shape, which he described as a fairly large cross. In his sworn testimony Ben changed that description to a short vertical line. In his sworn testimony he claimed that the mark was on the inner forearm, while the photographs, now validated by the mole, show it on the outer arm. Ben also changed his story in several other respects -- see here. Once again, any explanation has to account for all the discrepancies, not one or two taken separately. It's the set of discrepancies that requires explanation, not just one.

whatever · 7 May 2009

The photo in the HR on call report, which is the same one in the newspaper which is where Ben said he saw it, has a mole on the arm.

RBH · 7 May 2009

whatever said: The photo in the HR on call report, which is the same one in the newspaper which is where Ben said he saw it, has a mole on the arm.

Thanks! That's a photo Zachary's mother took.

Stacy · 7 May 2009

Doc Bill said: Did Hamilton say "D'oh!" out loud? Really, did he? But, seriously, putting Ben through this wringer is simply wrong. Hamilton should be reprimanded or at least be forced to sit in a comfy chair for his actions.

NOOOO! Not the Comfy Chair!!

Don · 7 May 2009

Well it is obviously one of those wandering moles. You know the kind, they are often at the command of the devil. Evil wandering mole!

KP · 7 May 2009

RBH said: Recall that it was his father who ranted at the referee about Peter and John in Acts and tried to evangelize me and tried to persuade me to stop writing these accounts. It's father I'd look at first to account for Ben's switch in stories.

Was that when you threw the 16,000 Midianite virgins back in his face? hahaha! Some folks around here have used the term "Lying for Jesus" which I've secretly thought to myself was overgeneralized. I was wrong.

robert van bakel · 8 May 2009

I agree Ben was manipulated, but how would their side treat a minor who had commited theft, lying, or murder?
Answer: appallingly. They would say; 'well brought up children know right from wrong','the environment is no excuse for not knowing right from wrong','xian children know right from wrong so should this punk';I think this would be the response and then gleefully expanded upon by FOX News, and the rest of the, "we know right from wrong" liars.

Woof · 8 May 2009

Chewbacca defense in 3... 2... 1...

ravilyn sanders · 8 May 2009

fnxtr said:
I never understood that defense. The perpetrator could have just picked up any gloves on the spur of the moment.

Come on. It was a California trial involving a celebrity. It is not contaminated with stuff like understanding the evidence, chain of logic etc. Your expectation that the defense must be understandable, ipse facto, disqualifies you. Seriously, one of my cousins was a juror in a civil trial in the middle of Pennsylvania. He was impressed by the sincerity and diligence shown by regular middle of the America fellow jurors. So despite all the jokes about the lawyers and jurors, the system generally works. One thing that has always bugged me is that, most law and legislation, still use blocks and blocks of text with nary a diagram, nor a graphic. When I look at historical old science papers from 19th century they also were mainly blocks of text. But in the last 125 years science papers have become full of plots, histograms, diagrams, cladograms etc etc. But the legal professions seems to wedded to the idea of long sentences with multiple commas and semi colons are the way to describe something unambiguously.

Paul Burnett · 8 May 2009

KP said:
Some folks around here have used the term "Lying for Jesus" which I've secretly thought to myself was overgeneralized. I was wrong.
Yes, you were wrong. (grin) Read the Dover transcripts (look for Buckingham or Bonsell) - or read the deposition by the "Pandas" publisher, who denied (under oath) three times that his company was a religious publisher - even after he was shown his company's IRS religious exemption letter which he had signed! As Judge Jones famously said in the Dover decision: "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy." These religious fanatics have lied to us before, and they will continue to lie to us. Remember that.

Torbjörn Larsson, OM · 8 May 2009

Don said: they are often at the command of the devil. Evil wandering mole!

Whacko'mole?

Peter · 8 May 2009

Thank you so much for these excellent reports, Richard! After reading one I can hardly wait for the next. I'm hooked, I guess.

Pete Dunkelberg · 8 May 2009

So where is the mole exactly? Is it the faint spot at one end of the cross-arm here? (clearer in the pdf)?

charleyhorse · 8 May 2009

First, thank you RBH for spending your time on such an
interesting story and your excellent blow by blow accounting. I have followed it since the beginning.

What are the chances of Freshwater testifying? Will he risk perjuring himself? Would this hearing officer have any authority
to find and punish him if he were to be found guilty of perjury?

Another thought--Will the effort and costs involved in removing this obviously unqualified teacher cause other school admins. in the area to not pursue firing another teacher as opposed to causing other teachers to stop their Proselytism?

eric · 8 May 2009

charleyhorse said: Another thought--Will the effort and costs involved in removing this obviously unqualified teacher cause other school admins. in the area to not pursue firing another teacher as opposed to causing other teachers to stop their Proselytism?

I would like to hope that cases like this might convince administrators to improve their internal business practices to me more like the corporate world - i.e. document personnel issues early and often, so the 'tacit approval defense' never rears its ugly head. That might not have helped here because I get the impression some of the administration was tacitly approving of the proselytization, but it would help in other cases.

The Tim Channel · 8 May 2009

Misremembering for Jesus?, or just "I want my dad to keep feeding me and pay for my tuition at Bob Jones University?

Enjoy.

Mike from Ottawa · 8 May 2009

It was a California trial involving a celebrity. It is not contaminated with stuff like understanding the evidence, chain of logic etc. Your expectation that the defense must be understandable, ipse facto, disqualifies you.

Actually, the problem was that the prosecution was incompetent. Having Furman as the lead investigator on what was clearly going to be a highly publicized trial of a defendant able to attract and pay for excellent counsel and having him be the chief police witness when Furman had been trying to qualify for disability on the basis he was burned out and who had a habit of using racist epithets was insane when you're prosecuting a black defendant. That Furman was dumb enough to lie about his having used the ephithet in question killed his credibility. Folk don't realize how much of a criminal case depends critically on the jury having faith in the truthfulness of the police are telling. Once that faith is gone, the defence is more than halfway home. Competent prosecution also wouldn't have let the defence have the chance to show that the glove the prosecution claimed was used by the (lone) perpetrator didn't fit the defendant. Problems like the bloody glove fitting or not need to be brought by the prosecution and dealt with in advance. In this case, they might have found someone who could testify as an expert witness on what happens to leather that is soaked and then dried, to show why the glove not fitting would not mean it couldn't have been Simpson as the lone murderer as the prosecution's case had it. The prosecution could hardly have done a better job for the defence if they'd been trying to get Simpson acquitted. On may not appreciate Johnny Cochrane's flamboyance, but he was a much better trial lawyer than Marcia Clark was. The guys who represent creationists in trials and hearings wouldn't have done a worse job.

MememicBottleneck · 8 May 2009

Mike from Ottawa said: The prosecution could hardly have done a better job for the defence if they'd been trying to get Simpson acquitted.

Sort of the exact inverse of this case. The defense attorney almost seems to be trying to lose this for his client.

fnxtr · 8 May 2009

Actually the mole in this case is Hamilton himself, clearly a double agent secretly working for the Worldwide Atheist Conspiracy (tm).

stevaroni · 8 May 2009

Actually the mole in this case is Hamilton himself, clearly a double agent secretly working for the Worldwide Atheist Conspiracy ™.

The Mole - a WAC?!!!

raven · 8 May 2009

Oh Cthulhu. The first rule of courtroom procedure for lawyers. Never ask a question you don't know the answer to!!!

Good catch for someone.

Good thing this isn't under oath in a courtroom. Lying under oath is perjury, a criminal offense. It could also be obstruction of justice, another criminal offense.

Another basic rule of courtroom procedure. It isn't the crime that gets these people, it is the coverup.
Martha Stewart was never convicted of insider trading. She was convicted of perjury and obstruction of justice.
Bill Clinton was not impeached for having a plump girl friend. He was impeached for lying about it.

RBH · 8 May 2009

raven said: Oh Cthulhu. The first rule of courtroom procedure for lawyers. Never ask a question you don't know the answer to!!! Good catch for someone.

Hamilton (the lawyer) sometimes wings it in questioning, or at least so it looks to me.

Good thing this isn't under oath in a courtroom. Lying under oath is perjury, a criminal offense. It could also be obstruction of justice, another criminal offense.

Oh, but testimony in this proceeding -- an administrative hearing under state law -- is under oath. My impression is that the hearing referee (himself a lawyer) can refer possible perjury to the state attorney general.

raven · 8 May 2009

Oh, but testimony in this proceeding – an administrative hearing under state law – is under oath. My impression is that the hearing referee (himself a lawyer) can refer possible perjury to the state attorney general.

Oh. Oooppppssss!!! They aren't flight risks are they? They could end up on Homeland Security's No Fly List and have their passports seized. In a worst case scenario.

RBH · 8 May 2009

raven said:Oh. Oooppppssss!!! They aren't flight risks are they? They could end up on Homeland Security's No Fly List and have their passports seized. In a worst case scenario.

Um, I think that's a stretch.

KP · 9 May 2009

Paul Burnett said: Yes, you were wrong. (grin) Read the Dover transcripts (look for Buckingham or Bonsell) - or read the deposition by the "Pandas" publisher, who denied (under oath) three times that his company was a religious publisher - even after he was shown his company's IRS religious exemption letter which he had signed! As Judge Jones famously said in the Dover decision: "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy." These religious fanatics have lied to us before, and they will continue to lie to us. Remember that.

I just said "overgeneralized" I didn't say "completely wrong" :) And, yes, Judge Jones' description of Buckingham and Bonsell's behavior can hardly be worded any better. That has probably been my favorite part of the whole document to quote.

beebs · 9 May 2009

OJ was wearing a pair of latex gloves when the famous glove was check-fit in court.

If you can impeach a witness, you can destroy the credibility of anything else the defense or prosecution as the case may be says.

freelunch · 9 May 2009

fnxtr said:
ravilyn.sanders said: If the gloves dont fit, you must acquit. If the mole does fit, you must convict ;-)
I never understood that defense. The perpetrator could have just picked up any gloves on the spur of the moment.

The prosecution completely blew it. The defense's couplet was bogus but brilliantly executed. Any competent prosecutor would never have had the glove tried on, nor would the prosecutor have let the little rhyme settle into the jury's minds.

Chris · 11 May 2009

In a criminal or civil trial, it is my understanding that Ben may be prosecuted for perjury and his father, or whoever influenced him, for suborning perjury. But this isn't a trial, is it? So, are there any punitive consequences for perjury and suborning perjury in a hearing such as this? I realize it would be tactically unwise to pursue such a thing as it would feed into the persecution complex but I am curious if it would be something they should be considering when choosing to lie under oath?

RBH · 11 May 2009

Chris said: In a criminal or civil trial, it is my understanding that Ben may be prosecuted for perjury and his father, or whoever influenced him, for suborning perjury. But this isn't a trial, is it? So, are there any punitive consequences for perjury and suborning perjury in a hearing such as this? I realize it would be tactically unwise to pursue such a thing as it would feed into the persecution complex but I am curious if it would be something they should be considering when choosing to lie under oath?

IANAL, but it's my understanding from a brief conversation with a lawyer that the hearing referee could refer potential perjury to an appropriate prosecutor (in this case, the state attorney general) for possible prosecution. I'd be amazed if that happened in this case, but the option is available to the referee.

Marion Delgado · 12 May 2009

When I saw this post I yelled to my mom

THAT'S NOT RICHARD HOPPE'S KEYBOARD!

RBH · 12 May 2009

Marion Delgado said: When I saw this post I yelled to my mom
THAT'S NOT RICHARD HOPPE'S KEYBOARD!

Ha! Sure it is -- you can tell by the mole ...erm ... the typo in the very first sentence!

Desertphile · 13 May 2009

That is more of a "What about this personal check you wrote to pay for 'Of Pandas and People?'" moment. A defense lawyer should know nearly everything that will be said at a trial, long before it goes to trial, and Hamilton knew damn well that at some point in the trial the shirt would have to be rolled up and the mole revealed: he chose to "get there" before the opposition did. That was to show his honesty, even if it impeached his own witness.

Marion Delgado · 14 May 2009

Presumably Hamilton is not a blinded zealot like Bryan was, or like the lawyers from Thomas Moore were.

bk · 14 May 2009

Desertphile wrote: Hamilton knew damn well that at some point in the trial the shirt would have to be rolled up and the mole revealed: he chose to “get there” before the opposition did. That was to show his honesty, even if it impeached his own witness.

Uh - no. The Nielson's are defense witnesses, right? Why even go down that road? You really believe that the defense lawyer hopes to score honest points when he shows his own witnesses are not credible?

tech · 21 May 2009

Any updates coming on this? I have been avidly reading this series.

RBH · 21 May 2009

tech said: Any updates coming on this? I have been avidly reading this series.

I've been up to my eyebrows in alligators for the last few weeks. I've got 50 pages of notes on the most recent two days of the hearing but haven't had the 10 or 12 hours to spare to write them up. Soon, I think.