Freshwater Gag Order Issued

Posted 30 May 2010 by Richard B. Hoppe

First R. Kelly Hamilton, John Freshwater's attorney, pissed off the judge in the federal suit against Freshwater, and now Freshwater himself has done so. Freshwater has taken to providing "updates" to the Mt. Vernon Board of Education regarding the administrative hearing on his termination. He uses the public comment period during Board meetings for those "updates." In his most recent, on May 10, 2010, among other things Freshwater revealed the terms of settlement negotiations being held under the Court's aegis, and provided the Board with email from the Dennis family's attorney with a settlement offer, an email that was clearly marked "Confidential." The Dennis family through its lawyer subsequently asked the federal judge to issue a gag order, and following a hearing on the request on May 26, 2010, the judge issued that order binding on all parties to the suit. In his order the federal judge said

Cognizant of the fact that Plaintiffs have not behaved in any way that would warrant this Court's application of a gag order against them, the Court indicated that it would grant Plaintiffs' request for a gag order and that the order would be applicable to all parties and attorneys involved in any way in this action. The Court then explained to Mr. Freshwater that, aside from the privilege issue, his behavior jeopardizes the Court's ability to seat an impartial jury in this matter, which it has a duty to do.

And from the last paragraph of the order:

The Court, reiterating its stern warning given to Mr. Freshwater in court, will not tolerate violations of this Gag Order. Any violation will meet serious consequences, including monetary sanctions and other sanctions up to and including the most severe this Court can impose.

The trial of that suit is due to begin July 26. It's becoming very clear that the federal judge will not permit the kind of shenanigans Hamilton and Freshwater have been engaging in during the administrative hearing.

29 Comments

Wayne Francis · 30 May 2010

would a jail term for contempt of court be a quicker solution to this circus?

RBH · 30 May 2010

Wayne Francis said: would a jail term for contempt of court be a quicker solution to this circus?

That would occur only if he violated the now-official gag order.

Reed A. Cartwright · 30 May 2010

What is Freshwater trying to do by appearing in the public comment sessions?

Doc Bill · 30 May 2010

What is Freshwater trying to do by appearing in the public comment sessions?

Winning the board over. Obviously. Duh! I could see it in their eyes. Bootiful to watch. Got me right *taps heart* here.

RBH · 30 May 2010

Reed A. Cartwright said: What is Freshwater trying to do by appearing in the public comment sessions?

He's trying to encourage public pressure on the Board to withdraw the termination resolution and settle on his terms, basically reinstatement as a middle school science teacher and reimbursement of his attorney fees. Since he's encased in the echo chamber of his core supporters and congregation, he apparently doesn't realize that the level of support for his position in the broader community is very low by all the indications I can see.

W. H. Heydt · 30 May 2010

IANAL... So far as I know, since this is a civil matter, jail for contempt wouldn't be possible, but the court *could* (so far as I know) issue a direct judgment in favor of the plaintiffs if Freshwater ticks him off sufficiently.

--W. H. Heydt
Old Used Programmer

Wheels · 30 May 2010

Part of me hopes he does something stupid and brings down the punitive measures, but it's probably best for everyone else if he behaves so that this thing doesn't drag out any longer or grow more convoluted. At least the federal suit should resolve itself soon and the Dennis family can focus on other things.

Is there any way the referee for the administrative hearings can consider Freshwater's actions in the other cases when sizing up his own little circus?

RBH · 30 May 2010

Wheels said: Is there any way the referee for the administrative hearings can consider Freshwater's actions in the other cases when sizing up his own little circus?

Only, I think, if those actions are introduced into evidence via some route. I don't think the referee is at liberty to look outside the evidence and testimony presented at the hearing when making his recommendation. On the contempt question raised by W. H. Heydt, note that in the final paragraph of his gag order the judge says "Any violation will meet serious consequences, including monetary sanctions and other sanctions up to and including the most severe this Court can impose." So he can at least fine an offender.

CMB · 30 May 2010

RBH said:
Wheels said: Is there any way the referee for the administrative hearings can consider Freshwater's actions in the other cases when sizing up his own little circus?
Only, I think, if those actions are introduced into evidence via some route. I don't think the referee is at liberty to look outside the evidence and testimony presented at the hearing when making his recommendation. On the contempt question raised by W. H. Heydt, note that in the final paragraph of his gag order the judge says "Any violation will meet serious consequences, including monetary sanctions and other sanctions up to and including the most severe this Court can impose." So he can at least fine an offender.

IIRC Freshwater has signed over his home to Hamilton to partially cover his legal fees. If this is correct and assuming that Freshwater has no other real assets, wouldn't a financial sanction be meaningless? Also, wouldn't this affect any settlement that the Dennis family may win? I assume Freshwater has no other assets because I have seen him at his apple stand (not lately) and can't imagine he would be selling apples if he had some funds to fall back on. Of course the whole apple selling thing could have been a PR or sympathy ploy.

eric · 30 May 2010

If the administrative hearing goes against Freshwater, and he sues, is he likely to get the same judge hearing the civil case? If so, maybe this will result in some backbone in the administrative hearing judges.

Were I the district judges (or whatever they're called), I wouldn't be particularry concerned about losing a follow-on suit given these events. Freshwater's attorney is clearly incompetent; he's letting his client not just leak confidential legal information, but actually reveal it in a public, recorded setting. That's not just cheating, that's incompetent cheating.

Wayne Francis · 30 May 2010

Is signing over his home to Hamilton to cover legal fees or is it a tactic to shield assets if someone goes after him personally in court?

RBH · 31 May 2010

Wayne Francis said: Is signing over his home to Hamilton to cover legal fees or is it a tactic to shield assets if someone goes after him personally in court?

He's said under oath in a deposition that it's for fees.

robert van bakel · 31 May 2010

This case is endlessly intriguing. You say RBH, 'his level of support in the broader community is very low by all the indications I can see'; really? This is wonderful news, I truly loath these people, and to have them existing in an, 'echo chamber' of inscrutable isolation would be beyond my best hopes.

CMB says he has seen Freshwater at his apple stand: please! What picture does he paint, sympathetic? dull? pathetic? rediculous? absurd? jovial? I really want to know.

Paul Burnett · 31 May 2010

The Federal Judge said Freshwater's...behavior jeopardizes the Court’s ability to seat an impartial jury in this matter...

Is Freshwater (possibly under his lawyer's incompetent advice) deliberately poisoning the well of impartial jurors? Are these morons going to try for a change of venue to increase expenses even more?

CMB · 31 May 2010

robert van bakel said: This case is endlessly intriguing. You say RBH, 'his level of support in the broader community is very low by all the indications I can see'; really? This is wonderful news, I truly loath these people, and to have them existing in an, 'echo chamber' of inscrutable isolation would be beyond my best hopes. CMB says he has seen Freshwater at his apple stand: please! What picture does he paint, sympathetic? dull? pathetic? rediculous? absurd? jovial? I really want to know.

I saw him twice last fall trying to sell apples out of his car. He was alone both times and had a blank expression on his face. My take was that he had very little activity - his car was parked next to a bank on a very busy street (busy for Mount Vernon at any rate). Perhaps some of his supporters stopped by but I didn't see anyone. I have not seen any signs supporting him for several months. Hopefully he will lose both the hearing and the lawsuit, move to Kentucky to work as a parking lot attendant at the Creationism Museum and become just a footnote to our town's history.

raven · 31 May 2010

A gag order is quite unusual. Someone has to get far out of line before a court will issue one. Time is not on Freshwater's side IMO. Americans are notorious for short attention spans and as this drags on they will lose interest. Regarding his bleeding finances, the xian fundies will throw endless amounts of money at persecution cases. They like to claim persecution but since it virtually doesn't exist, there are few of them. Freshwater is a poor case but that never stops them.

Wayne Francis: Is signing over his home to Hamilton to cover legal fees or is it a tactic to shield assets if someone goes after him personally in court?

Who knows but that is a good guess. It looks like by now Freshwater and his supporters and attorneys are pursuing a Sampson in the temple strategy. Going down taking whatever else they can with them. Too bad they didn't read another passage in their magic book. "As you sow, so shall you reap."

W. H. Heydt · 31 May 2010

Off topic, but closer here than on other active threads... The judge in the Enfield, CT high school graduation case has ruled against the district, barring them from using a Baptist church to hold the ceremonies. Search any major news site on 'Enfield' to see the rather sketchy AP report.

Doc Bill · 31 May 2010

I don't think Freshwater nor Hamilton has the ability to "stratigerize." I doubt they could plan breakfast.

In the video Freshwater appears to be seeking sympathy by producing emails negotiating a settlement. Look, says Freshwater, they're asking for money!

Regarding Freshwater's state of denial, I'm reminded of Bill Buckingham of Dover fame in an interview some years after the ruling claiming that "they" made him look like he was lying.

mario · 31 May 2010

Now freshwater has a tool to claim persecution by the "secular" government...might make him some money from fundies by claiming persecution.

Stuart Weinstein · 1 June 2010

eric said: If the administrative hearing goes against Freshwater, and he sues, is he likely to get the same judge hearing the civil case? If so, maybe this will result in some backbone in the administrative hearing judges. Were I the district judges (or whatever they're called), I wouldn't be particularry concerned about losing a follow-on suit given these events. Freshwater's attorney is clearly incompetent; he's letting his client not just leak confidential legal information, but actually reveal it in a public, recorded setting. That's not just cheating, that's incompetent cheating.

That's assuming Hamilton is letting him do it. It is entirely possible Hamilton has an idiot for a client, and Hamilton is looking for some real estate.

Stuart Weinstein · 1 June 2010

Paul Burnett said:
The Federal Judge said Freshwater's...behavior jeopardizes the Court’s ability to seat an impartial jury in this matter...
Is Freshwater (possibly under his lawyer's incompetent advice) deliberately poisoning the well of impartial jurors? Are these morons going to try for a change of venue to increase expenses even more?

I don't see how a change of venue profits Freshwater. The case could well wind up getting tried where the population has much less tolerance for the crap Freshwater dished out. He's just a stupid, and given recent events, desperate man.

Mike in Ontario, NY · 1 June 2010

It's so awesome when creos wind up in the US Justice system. They have become so accustomed to denying reality that they think they can get away with it in every aspect of life, only to learn that the LAW doesn't care what you believe, what your holy books say, how many other people agree with you, or how strenuously you willfully misinterpret the letter of the law. You can deny evolution, the age of the earth, climate change, and even engage in historical revisionism. Still, that blindfolded lady with the scales pays no heed to your alternative belief system. And when you pretend that you can just act any way that suits your beliefs, the law is there to reflect reality. This is why Hovind is in prison, why Bonsell and Buckingham SHOULD have been charged with perjury, and why Freshie is only digging himself a deeper hole. Denialism is a poor legal strategy.

George Atkinson · 1 June 2010

I found Freshwater's unenthusiastic delivery every bit as sparkling as that of Ben Stein. He's one b-o-r-i-n-g teacher.

Gary Hurd · 2 June 2010

What I wondered today is how will the gag order effect RBH and his reportage?

Mike Elzinga · 2 June 2010

Mike in Ontario, NY said: You can deny evolution, the age of the earth, climate change, and even engage in historical revisionism. Still, that blindfolded lady with the scales pays no heed to your alternative belief system. And when you pretend that you can just act any way that suits your beliefs, the law is there to reflect reality.

The system of presenting evidence under oath and subject to cross examination reflects the fundamental spirit and template of science. It is important to protect the courts as well. Fundamentalists and culture warriors have been striving to dismantle that underlying spirit and objectivity in the legal system as well as in science. They know who their enemy really is; and it is objective reality.

W. H. Heydt · 2 June 2010

Gary Hurd said: What I wondered today is how will the gag order effect RBH and his reportage?

(IANAL) Should have any effect on RBH. He's not a party to the suit and the gag orden shouldn't apply to him. It may make it harder for him to get information from some parties, but that is an indirect effect. --W. H. Heydt Old Used Programmer

W. H. Heydt · 2 June 2010

Correction.... Should *not* have any effect on RBH.

RBH · 2 June 2010

Gary Hurd said: What I wondered today is how will the gag order effect RBH and his reportage?

W. H. Heydt is right. It'll make it tougher, since none of the principals can talk about what's going on with the federal trial preparations. I and the other reporters are already seeing signs of that in trying to elicit comments from principals in the admin hearing who are also involved in the federal suit. Moreover, the gag order is very broad:

Cognizant of the fact that Plaintiffs have not behaved in any way that would warrant this Court’s application of a gag order against them, the Court indicated that it would grant Plaintiffs’ request for a gag order and that the order would be applicable to all parties and attorneys involved in any way in this action. (Italics added)

Basically, the judge told everyone associated with the case to 'siddown and shuddup!' The judge, Gregory L. Frost, is reputed to not take shit lightly, so everyone is tiptoeing around now. More about Frost and his penchant to not take shit in my post on today's (June 2) action in the hearing and the court, if I ever get it written. As far as I can tell, the order does not apply to people like me who are watching and reporting but who are not "involved." Otherwise it'd be prior restraint and we'd be kicking and screaming, advised by some of the best First Amendment attorneys in the country.

John Vanko · 6 June 2010

Mike Elzinga said:
Mike in Ontario, NY said: You can deny evolution, the age of the earth, climate change, and even engage in historical revisionism. Still, that blindfolded lady with the scales pays no heed to your alternative belief system. And when you pretend that you can just act any way that suits your beliefs, the law is there to reflect reality.
It is important to protect the courts as well. Fundamentalists and culture warriors have been striving to dismantle that underlying spirit and objectivity in the legal system as well as in science. They know who their enemy really is; and it is objective reality.

Mike E's words could be applied to Iran. Their theocracy makes a mockery of their 'courts,' where the outcome is predetermined by the Supreme (religious) Leader. America has a latent theocracy. Without vigilance from thinking, honest people our legal system could descend into kangaroo courts. Dover was a joyous triumph of reason. Let's see how this one turns out.