Oral arguments on a motion to reconsider the sanctions levied against R. Kelly Hamilton and John Freshwater were heard in federal district court yesterday, July 29, 2010.
[Edit on August 1: See the Addendum in this comment. Hamilton has an interesting conception of what can be true.]
Background
Recall that on June 1, 2010, federal district Judge Gregory Frost
issued an order granting the plaintiffs' (Dennis family) motion to impose sanctions on Freshwater and Hamilton for failure to comply with the requirements of the discovery process in
Doe v. Mount Vernon Board of Education, et al.. The sanction was basically to pay the Dennises $29K in attorney fees and costs associated with Freshwater's and Hamilton's failure to comply with discovery requests. The order also instructed Freshwater and Hamilton to comply with those requests. The sanctions were imposed following a hearing that Hamilton failed to attend due to two flat tires.
Freshwater and Hamilton subsequently filed a
motion to reconsider sanctions, arguing that they had done their best, and the Dennises, via their attorney, Douglas Mansfield, filed a
memorandum in opposition. The purpose of the hearing on July 29 was to hear oral arguments and testimony on the dispute. Bear in mind that the focus of the hearing is the discovery issue, and not a general hearing on the larger case.
The principals present in the court were John Freshwater and his attorney R. Kelly Hamilton at the defense table and the Dennis family (Steve, Jenifer and Zachary) and their two attorneys from
Jones Day at the plaintiff table, with
Douglas Mansfield being the lead attorney and Matt Johnson assisting him. The presiding judge is
Gregory L. Frost, appointed to the federal bench by President Clinton in 1999.
More below the fold.
Opening arguments
Judge Frost introduced the proceedings by briefly reviewing the history leading to the current state of affairs and listing the materials he had ordered to be produced by Freshwater and Hamilton (listed in his order
here. The materials included
(1) Hamilton's billing records "for anything relevant to the drafting or preparation of the 15 affidavits" that Freshwater and Hamilton claim were prepared between May 15 and May 25, 2008 as preparation for a second interview with HR OnCall in its investigation of the matter for the Board of Education;
(2) the Ten Commandments book cover displayed in the window of Freshwater's classroom;
(3) any other materials "previously ordered to be produced, including any handwritten notes, religious materials, and textbooks"; and
(4) "copies of all the materials they [Freshwater and Hamilton] copied at Freshwater's church and affidavits, if necessary, to explain why these documents cannot be produced by June 16, 2010."
In addition, the judge's order put Freshwater and Hamilton on notice that failure to comply could trigger more severe sanctions, including an adverse evidentiary inference that all materials not produced would be interpreted in the trial as supporting the plaintiffs' case.
Opening statements
Hamilton and Mansfield both made opening arguments outlining their positions, Hamilton going first. Hamilton remarked as he started that it was good to be here, and the judge responded that he was glad Hamilton could make it.
Hamilton began by saying he hoped to dispel any animus the judge felt toward him. Judge Frost responded that he felt no more animus toward Hamilton than he does toward any lawyer.
Hamilton then spoke to the court about "truth," basically rehashing a section of his
reply to Mansfield's memorandum. Hamilton went on to disparage Freshwater's verbal skills, saying that "an attorney can't demand that a client be artful in his presentation" and that Freshwater isn't particularly articulate: "John Freshwater is not an artful speaker by any stretch of the imagination." (See also Hamilton's characterization of Freshwater
here.)
Hamilton said that the day after a telephone conference about the discovery issue with the judge and Mansfield on April 21, 2010, he went to Freshwater's home and searched his house and barn for any materials that might be responsive to the discovery requests, and found none.
With respect to his billing records, Hamilton said "We simply do not have any billing information for May 2008." (Recall the Flood.)
There was a short reprise of Hamilton's 'truthfulness' theme, and then Hamilton claimed that two affidavits about the discovery matter from him and Freshwater really had been attached to a document he gave Mansfield at the state administrative hearing. Mansfield and two other attorneys from his firm who were involved then have previously averred to the federal court that no such affidavits were attached to that document (I can't find that asseveration in a document at the moment).
Finally, Hamilton made an odd statement that I transcribed in my notes as "My understanding is that John Freshwater is no longer in this matter." (The quote may not be exact.) That echoes Hamilton's repeated use of an interesting paragraph in his
Counsel's reply:
On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff's Memorandum of Opposition (Doc. 114).
No further comments on that occurred in this hearing.
In Mansfield's opening statement he first said that Hamilton was trying to relitigate something that had already been litigated, the failure to comply with discovery orders.
With respect to the billing records issue, he said that there were so many inconsistencies it was "hard to parse it all." He said that "The flood doesn't ring true" -- some (but not all) billing records for the relevant period were produced to the Board of Education's attorney two months after the flood. Mansfield said that "it is disingenuous" to claim so late that there were two different billing arrangements. Hamilton didn't tell the Board of Education's attorneys about that during settlement talks with them when he produced the partial records.
He reiterated the assertion that the two affidavits from Hamilton and Freshwater were not attached to any document given him at the administrative hearing as Hamilton claimed they were, and ended by repeating that Hamilton was "simply trying to relitigate something that's already been litigated."
Hamilton and Mansfield then proceeded to question three witnesses, John Freshwater called by Hamilton, and Steve Short (Superintendent of Mt. Vernon City Schools) and David Millstone (the Board's attorney for the administrative hearing), both called by Mansfield.
Freshwater testimony; direct examination
Hamilton first asked Freshwater about the May 26 hearing that Hamilton missed due to two flat tires. Freshwater testified that he received the call from Hamilton about the tires and passed that information on to Sandy McIntosh, one of the attorneys retained by the insurance company to defend Freshwater in
Doe v. Mount Vernon Board of Education, et al. Freshwater testified that he thought the hearing went well for him and he was surprised later at the imposition of sanctions. Asked why he was surprised, he said it was because Mansfield hadn't called any witnesses in the hearing.
Hamilton asked Freshwater if there was new evidence today bearing on the motion to reconsider sanctions, and he replied that there was (though we didn't hear that new evidence explicitly identified as far as I could tell). Asked why the new evidence was relevant, Freshwater replied that it would "bring clarity" (one of his favorite phrases) to the matter of sanctions and correct an injustice.
Hamilton then questioned Freshwater about the multiple fee agreements he signed in 2008. There were four such agreements, the first in April 2008 with Roger Weaver and Hamilton, the second in May 2008 with Hamilton alone after Weaver was let go, and a third and fourth later in 2008.
Hamilton asked why there were multiple fee agreements. Freshwater replied that the first was with two attorneys, Weaver and Hamilton, signed on April 17, 2008 (the day after
Freshwater's public statement (pdf) (
photo of delivery) on the square in Mt. Vernon). When it became apparent that he couldn't work with Weaver and there was conflict between Weaver and Hamilton, he let Weaver go and signed a second agreement with Hamilton alone on May 19, 2008, for work associated with the HR OnCall investigation and the 15 disputed affidavits. Because of some sort of fee payment dispute between Weaver and Hamilton, Freshwater signed a third agreement with Hamilton on June 26, 2008, allowing Hamilton to re-bill Freshwater at a higher rate ($275/hour vs. $175/hour) for work performed (as I understood it) during the term of the first agreement to "do the legal" (Freshwater's phrase). This third agreement included an amendment regarding liens against Freshwater's property as security for Hamilton's fees. The fourth agreement was signed on Dec 29, 2008, for Hamilton to represent Freshwater's daughter Jordan (
she testified in the administrative hearing in January 2009.)
Freshwater testified that the possibility of him filing a "comprehensive response" to allegations, a right specified in the master contract with the Board of Education, was raised by the union representative in his May 15, 2008, interview with HR OnCall. Hence he retained Hamilton (agreement 2) to help with the preparation of that comprehensive response in anticipation of a second interview with HR OnCall scheduled for May 28, 2008, an interview that was subsequently canceled. Freshwater testified that he never thought the case would go as far as it has.
Hamilton asked Freshwater if it was all right if the judge reviewed the four fee agreements
in camera. They are protected by attorney-client privilege and Hamilton was asking Freshwater for a limited waiver of that privilege. The judge asked Mansfield if he had any objection, and Mansfield replied that he didn't so long as he also could review them in confidence. The ground here is that those agreements may have evidentiary implications, and not allowing one side to see them while the judge does see them would be unfair to the plaintiffs. The judge asked Freshwater if he objected to Mansfield seeing them, and Freshwater replied that he did object.
Hamilton interjected that he was "in a strange position" being both Freshwater's attorney in the proceeding but also being there "in my own interest." The judge replied "That's by your own doing, Mr. Hamilton."
Hamilton then said that "I cannot in my own interest advise John Freshwater to waive attorney-client privilege" in this respect. The judge said to give him the four agreements in a sealed envelope and that "the Court will consider the matter."
Hamilton asked Freshwater if he ever envisioned Hamilton being his defense counsel in
Doe v. Mount Vernon Board of Education, et al., and he replied he had not, but only for the counterclaim Freshwater made. Hamilton asked if he had separate representation for the counterclaim and the defense, and Freshwater replied that he did, that Hamilton represented him for the counterclaim and attorneys retained by the insurance company for the defense. Hamilton asked if Freshwater had conferences with the insurance company attorneys without Hamilton being present, and he replied that he did.
To explain Hamilton's active participation in the pre-trial mediation, Freshwater testified that during that conference he became upset with the insurance company attorneys, and during a break he asked Hamilton to "speak up."
This line of questions was aimed at the issue of whether Hamilton was acting for Freshwater in the
Doe suit for a while, particularly during the mediation conference Judge Frost held. Hamilton claims that he never held himself out as Freshwater's counsel in that matter, and the judge told Hamilton he certainly had that impression and he had never been told differently.
Mansfield objected to this line of questioning on the ground that it was irrelevant to the matter under consideration in the hearing. The judge said to Hamilton "I thought you did [represent Freshwater] during that mediation. No one told me you were representing Freshwater only in reference to the counterclaim. I don't see any relevance to the motion for reconsideration." He sustained the objection.
Hamilton asked about the conflict with Jason Deschler (the previous insurance company attorney). Freshwater said that Deschler wanted to settle, and wouldn't call witnesses Freshwater wanted to be called. (Back story: Among other things Freshwater wanted Deschler to call the
parade of students Hamilton called in the administrative hearing. Deschler apparently felt--rightly, IMO--that they were irrelevant to the questions at issue in the federal suit.)
Returning to the fee agreements, Hamilton asked how many hours Freshwater was billed for under the second agreement that covered the affidavit preparation period. Freshwater replied 57. Asked how he paid, he said $9,975, paid in two installments of $5,000 on November 12 and 13, 2008 (we saw the bank statement). He said Hamilton was to apply the extra $25 to his continuing legal bill.
Hamilton asked if those payments were for work in connection with preparation of the affidavits, and Freshwater agreed they were. Hamilton asked if those payments "were different and separate" from the billing information provided in March 2009 to Sarah Moore, the Board of Education's attorney, and he replied that they were. He said the $10,000 was for the affidavits while the billing information given to Moore "was for legal." It was never made clear what that distinction was supposed to mean. My conjecture is that the information was provided to Moore during settlement talks for the federal suit, and that the work on the affidavits was not considered to be part of the legal costs Freshwater incurred for the federal suit and hence are considered (by Hamilton, anyway) to be irrelevant to those talks and thus were not provided. However, none of this explains how some of Hamilton's billing information survived the Flood.
Hamilton asked if Freshwater still had an outstanding legal fee balance, and he replied that he did.
Hamilton asked Freshwater when the 15 affidavits were prepared. He said between May 19, 2008, and May 25, 2008. Hamilton asked if Freshwater was surprised that the investigation ended before interviewing him a second time. He replied that he was. Asked, he characterized the lack of a second interview as a failure of the investigators and the school administration.
Referring to handwritten notes Freshwater made on his meetings concerning this matter during February-May 2008 that were the subject of a discovery request from the plaintiffs, Freshwater testified that he left them in his classroom at the end of that school year and he never returned to pick them up. (AFAIK they were not found in the 16 boxes of material removed from Freshwater's room by custodians under the supervision of Superintendent Short in August 2008. IIRC several of them were introduced as evidence in the administrative hearing--I can't find that in my notes just now.)
Asked, Freshwater testified that he planned to show his handwritten notes to HR OnCall in the second interview but never had the chance because it was canceled.
In several places it seemed apparent (to me at least) that Hamilton was using Freshwater's testimony to attempt to shield himself from culpability in the discovery noncompliance issue (See above, Hamilton's "strange position" remark). For example, in this sequence of questions he asked Freshwater if he (Hamilton) reviewed all of the handwritten notes Freshwater made. Freshwater replied "Not necessarily." That's wholly irrelevant except to get on the record that (a) Hamilton didn't have ready access to, or full knowledge of the notes and (b) Freshwater did. Those notes were one of the specific items mentioned in Judge Frost's order to Hamilton and Freshwater to produce in discovery, and Hamilton was implying that he himself couldn't have produced them. I don't think Freshwater was aware of this aspect of Hamilton's questions at any point.
Describing the affidavit preparation process, Freshwater testified that he and Hamilton met at his Assemblies of God church and at his home. Hamilton would give Freshwater a list of questions and Freshwater would write out his answers. Later Hamilton would print typed versions of the answers, Freshwater would check them, and then swear and sign them. He said he would sometimes take Hamilton's questions home or to school to work on them during breaks.
Hamilton asked if Freshwater was aware that there was a telephone conference between the attorneys and Judge Frost on April 21, 2010. He was. Did Hamilton subsequently emphasize to Freshwater the necessity to make no mistakes in responding to the Court's order? Yes. Freshwater testified that on April 22, 2010, Hamilton came to his house and gave him questions to answer regarding his prospective response to the Court's order. Freshwater testified that Hamilton went through Freshwater's house and barn searching for relevant material, including going through drawers in Freshwater's dresser though not his wife's dresser drawers. (Yes, that was specified in the testimony.)
With respect to the "five armloads" of personal possessions Freshwater received from Superintendent Short selected by Short from the boxes of material removed from his classroom, Freshwater testifed that he believes the inventory that Short prepared as he selected that material is inaccurate. He said there were misspellings in the inventory that he didn't believe Short would make. A scan of the inventory is
page 5 here (8 MB pdf). I see no striking misspellings.
We parsed "pitched" again. Freshwater had previously testified in the administrative hearing that he "pitched" the material Short had given him. Later he testified in that hearing that "pitched" was a term of art from his smoke jumping days and meant 'tossed to another place' or something to that effect, and didn't mean "discarded." He said he had put the material in a garbage can lined with a plastic bag in his barn and discarded only some letters from Chinese correspondents that were water-damaged. (See
here under "Freshwater redirect.")
The basic argument through this sequence of testimony was that Freshwater/Hamilton didn't have any of the material--it was left in Freshwater's classroom at the end of the 2007-2008 school year, Freshwater didn't return to his room to retrieve it, and it wasn't in the 16 boxes of material from his classroom that Hamilton and Freshwater exhaustively examined in early 2010 at the district office. That included some creationist books (
Icons of Evolution,
Lies in the Textbooks,
Refuting Evolution, etc.) and Kent Hovind's video "Ten Lies of Evolution." He said they were left in the classroom but weren't in the materials at the district office. He said that was a video his daughter might have brought in, and when asked where it is now he replied "Ask the administration."
Hamilton asked if Freshwater had made an effort to pay the fees the Court's sanctions required. He replied that he had, that he had offered a lien on his property. Asked about his current financial situation, Freshwater said "I'm on the verge of bankruptcy."
Hamilton displayed a nail taken from a plastic bag and asked if Freshwater recognized it. Freshwater replied that it was a nail brought by a mechanic to Freshwater and Hamilton at a WalMart service center where Hamilton's tires were being repaired. After the May 26, 2010, hearing that Hamilton missed, he called Freshwater who was on his way back to Mt. Vernon. Freshwater turned around and drove to the Grove City WalMart where Hamilton was waiting for his tire repairs to be finished, and there saw the infamous nail. Again, this has nothing to do with the topic of the hearing that I can see, but seems to be aimed at getting Hamilton off the hook for missing the previous hearing.
Hamilton asked Freshwater why discovery issues were taking so much time and effort. In response Freshwater said it was partly because Hamilton was occupied with the administrative hearing, and that "this is just a way of keeping you [Hamilton] busy." He said the law firms on the other side are collaborating with one another while on his side it's just Freshwater and Hamilton [no, he didn't explicitly mention David and Goliath, though I expected it here]. "They throw stuff at us to keep us busy and now is the state [administrative] hearing and the massive brief for it."
Freshwater cross examination
In cross examination Mansfield initially focused on some specific documents sought in discovery. First he asked Freshwater about "Finding Common Ground," the text used in a "Religion in the Classroom" course taught by David Daubenmire (!!!) at the Mt. Vernon Nazarene University taken by Freshwater in 2004. Mansfield established that in a deposition on October 14, 2009, Freshwater said he didn't know where his text was. However, that text was introduced into evidence in the administrative hearing and was subject to discovery in the federal suit. Freshwater did not turn it over to Mansfield until May, 2010, a month after the Court granted a
motion to compel in April, 2010. Freshwater said he didn't recall what he said in the 2009 deposition. Mansfield asked "You weren't forthcoming with that text, right?" Freshwater's answer was vague, saying something to the effect that he wasn't sure if it was at home or at school. (The discovery order specified materials removed from the school.)
Returning to the question of "pitched," Mansfield asked if the "pitched" material wasn't provided until May 2010. Freshwater agreed, saying he gave it to Jason Deschler, his previous defense attorney for the federal suit, and Deschler gave it to the new attorney from the insurance company. Hamilton objected at this point, saying at some length what Freshwater did or did not know. Judge Frost interrupted him, telling him to sit down. The judge told Hamilton that he can't stand up and in his objection tell Freshwater what to say.
Another discovery request was for any audio tapes made of conversations during that period. Mansfield asked if Freshwater had taped his conversations with Steve Hughes, and Freshwater agreed that he had. Any others? Yes, the interview with HR OnCall. Others? Not by Freshwater.
Mansfield asked if Freshwater was aware of Hamilton taping conversations with witnesses. He was not.
Then we returned to the morass of the fee agreements. Hamilton asked if the billing for preparation of the affidavits was the subject of the second fee agreement. Freshwater replied that it was. Mansfield asked if Freshwater received a bill for those services. Freshwater replied that those billing records were destroyed. Judge Frost interjected, telling Freshwater that wasn't the question. Freshwater said that his wife does most of that. "I'm having difficulty recalling if I actually saw a bill." He said he couldn't remember if Hamilton told him verbally what was owed or if it was written. He said "I don't have that bill any longer."
Mansfield asked how many hours a day was devoted to preparing the affidavits. Freshwater couldn't recall. A considerable number? Yes. Mansfield asked if that was also the period during which Freshwater had testified to listening to the tape of his interview with HR OnCall at least 10 times at 2.5 hours per time. It was. Mansfield asked if school was also in session during that week. It was, 7:15 am to 3:00 pm. Freshwater said that was a very busy time for him.
Mansfield asked if the affidavits were prepared as Freshwater's "comprehensive response" for the investigation, and he agreed they were. Mansfield asked when that second interview with the investigators was scheduled for. May 28, 2008. Mansfield asked if Freshwater gave the affidavits to anyone prior to May 28. He did not. Mansfield asked whether after the second interview was canceled Freshwater gave the affidavits to anyone. He did not. Mansfield noted that the first provision of the affidavits to anyone was in late 2009 in the administrative hearing and that no one had seen them or heard of them prior to that.
Regarding the hand written notes Freshwater kept of meetings from Feb-May 2008, Mansfield asked if they were copied at the church. Freshwater agreed that they were. Recall that materials copied at the church were subject to the discovery order. Those copies were not produced in discovery.
Freshwater did not recall seeing Hamilton give Mansfield the document to which the two affidavits were allegedly attached at the administrative hearing.
Asked, Freshwater testified that the Ten Commandments book cover, the "motivational posters with Bible verses, and the creationist tapes and books were not in the 16 boxes of material removed from his classroom in August 2008.
Freshwater agreed that the Tesla coil was in his room. Asked if he was told by the administration to remove it and not use it again, Freshwater said "I don't know of 'remove' is the right word." Recall that previously Freshwater has claimed that he was told to destroy the Tesla coil and he said he did so, battering it with a rock in his classroom and throwing it in a trash can. He later retrieved it from the trash can, took it home, and finally gave it to Hamilton. It was finally produced, in pieces, at the administrative hearing. Again, the discovery order specified materials removed from Freshwater's room, and the Tesla coil was not produced in response to that order.
Mansfield asked if copies from pages of textbooks made at the church were from Freshwater's teacher's edition. He agreed they were.
We then spent a good deal of time on the sequence of events on May 26, 2010, when Hamilton missed the hearing on the original motion for sanctions. Freshwater testified that he got a call from Hamilton informing him of the misfortune, and that he passed that information on to Sandy McIntosh, his insurance company lawyer. Hamilton did not appear at the hearing, and when it adjourned Freshwater left for Mt. Vernon around 10:40 am. Hamilton called him again asking him to come to the WalMart service center in Grove City, south of Columbus. Freshwater testified that he turned around and went there. He agreed that he would have arrived there sometime around 11:30 am.
Mansfield turned to the sanctions and asked if Freshwater had attempted to pay the $28,000+ costs ordered by the Court. He replied that he had. Asked if he had submitted the lien proffered as satisfying the Court's requirement to a court for judgment of entry, Freshwater replied "Kelly decided on that." Mansfield asked if Freshwater was aware that the parcel offered in the lien is 'landlocked'--wholly surrounded by other parcels owned by Freshwater. He said he wasn't sure of that.
Freshwater redirect
Hamilton asked if Freshwater recalled the original discovery request from Jessica Philemond, the Dennises previous attorney, for material removed from Freshwaters classroom within a specific time period. Freshwater couldn't recall.
Hamilton asked if he ever permanently removed anything from his classroom to conceal it, and he testified he did not.
Hamilton asked what Freshwater knew about including the liens on his property in preparing his 2008 taxes. He replied, "Very little." He testified that his taxes were prepared by a man from New Philadelphia (where his parents live), by a man whose first name he couldn't recall. He did take a deduction for legal fees, and has disclosed his tax return to the plaintiffs in response to a discovery demand.
Hamilton asked if Freshwater gave the affidavits to anyone, and he said he did not. Asked, he agreed that no one asked for them. (Of course one must bear in mind that no one knew about them!)
Finally, Freshwater testified that Middle School Principal White had instructed him to "destroy" the Tesla coil.
Freshwater recross
In answer to questions Freshwater confirmed that he didnt produce either "Finding Common Ground" or the Tesla coil in response to discovery demands for material removed from his classroom.
Freshwater re-redirect
Hamilton summarized the discovery demand, and was corrected by the judge for misstating it. There was some back and forth that I didn't follow well.
Hamilton asked if Freshwater could recall how the pieces of the Tesla coil, broken by Freshwater and taken home and then given to Hamilton, were finally found later. Freshwater said "Oh! In your refrigerator." Hamilton hinted "Somewhere colder." Freshwater replied "That's right, it was in your freezer!" The story is that Hamilton's wife mistook the package containing the broken Tesla coil for frozen food--she had just returned from grocery shopping--and put the package containing the pieces in the freezer and they weren't found again until someone (Hamilton's wife? Hamilton?) retrieved the package from the freezer, possibly intending to make soup of its contents. I can make no editorial comment that would do justice to that story. I was flabbergasted by it. (OK, OK, I made up the "soup" mention, but that's all.)
Freshwater re-recross
Mansfield noted that the discovery request covered the period when the affidavits were allegedly prepared, but did not elicit the affidavits. He also noted that in his deposition on Oct 14, 2009, Freshwater claimed that he threw the broken Tesla coil away, that "it is in a landfill somewhere."
====================
Hamilton ended his phase of the hearing there and Mansfield called two witnesses, Steve Short, Superintendenf of Mount Vernon City Schools, and David Millstone, attorney for the Mount Vernon Board of Education in the administrative hearing.
Steve Short direct
Attorney Sarah Moore joined the plaintiffs' table for Short's testimony. She represents the Board of Education, retained by the Board's insurance company, and represents Short in his capacity as Superintendent.
Short testified that Freshwater's classroom was cleared out in mid-August 2008 because the teacher replacing him while he was suspended needed the space. Materials in the room were packed up by several custodians in a day, supervised intermittently by Short. He estimated he was in the room for more than 2 hours of the roughly four hours it took to pack the room and move the material to the district office building. He said that nothing was thrown away.
Freshwater called Short and asked for his personal possessions from the room. Short went through the material and extracted what he thought was Freshwater's personal stuff. Freshwater came to the central office where the material was stored and Short gave him the "five armloads" of material packed in a box. Short told Freshwater that Freshwater should call if he knew of anything else that was his. Short testified that he made the inventory as he was extracting the material, and that it was an accurate representation of what he gave Freshwater.
Mansfield asked if Short gave Freshwater the 'Bush-Powell' poster, and he replied he did not. He testified that he gave 9 copies of "Anabolic Outlaw," an anti-drug pamphlet with Christian material in it, to Freshwater. Mansfield walked through
photographs of items that
Freshwater claimed were included in the "five arm-loads" of material Short gave him. Short identified most as not having been included in what he gave Freshwater. What Mansfield was attempting to establish here is that Freshwater had considerable material from his classroom that was not given to him by Short but that Freshwater did not provide to the plaintiffs in response to discovery demands.
Short cross examination
In response to questions, Short testified that he was in Freshwater's classroom approximately 50% to 70% of the time when the custodians were packing Freshwater's materials. He testified that his inventory of the items he later gave Freshwater was in his own handwriting. In response to a question Short said he just didn't put a date on his inventory.
Hamilton asked Short if he was familiar with a subpoena requesting access for Freshwater to the material from his classroom. Short replied that he was. Hamilton read from the subpoena and asked a question that Short began to answer. Sarah Moore interrupted with an objection on the ground that Short's answer would violate attorney-client privilege. Mansfield also objected on relevance grounds. Judge Frost instructed Hamilton to establish the relevance of his question and he couldn't, so the judge sustained the objection(s).
Hamilton asked if Short was familiar with a Public Records Request Freshwater had made. He was. Hamilton asked why Short didn't comply with a particular part asking for inventories. Short replied, "Advice of counsel."
Hamilton returned to the inventory, asking why Short gave Freshwater "phone books." Short replied that there were a number of phone books in Freshwater's room. Somehow we got onto the demonstration of ripping phone books that Freshwater did in class and that nearly occurred when the attorneys, Freshwater, and Short were going through the 16 boxes of material at the central office. On that occasion Freshwater was beginning to demonstrate it when he was stopped by one of the attorneys. Hamilton remarked to the judge that "I can imagine what this sounds like, 'ripping phone books'." Frost replied "It's no stranger than Tesla coils in freezers."
Short redirect
Mansfield noted that the inventory wasn't dated, and asked if Short made the inventory as he was extracting items to give Freshwater, and he agreed that he did.
That ended Short's testimony.
David Millstone direct
As noted, Millstone is the Board of Education's attorney for the state administrative hearing. Under questioning by Mansfield he testified that during a break in the administrative hearing he and Hamilton discussed testimony about how Jeff George, a retired science teacher, used the Tesla coil, among other things permitting it to arc to his tongue. Millstone testified that Hamilton told him that Hamilton has him on tape. (Recall that such tapes were the subject of a discovery demand by the plaintiffs.)
Millstone cross
Hamilton asked Millstone if he had spoken to Jeff George. He had, sometime prior to the conversation about Hamilton having George on tape. Hamilton asked why Millstone had not called George as a witness in the administrative hearing. Millstone replied that he had nothing of relevance to testify about. Hamilton asked if Millstone had heard a tape of George. Millstone replied, "You stated to me that you had him on tape."
Closing arguments
Both attorneys were given the opportunity to make closing statements. Hamilton went first. Basically he gave a reprise of his "truth" gig. In what would if transcribed be around three or four paragraphs, by my count Hamilton used the word "truth" 16 times (I kept track). In essence he said "We've told the truth." He finished by saying "With the settlement talks now [inaudible], let this come to an end."
Mansfield's summation basically argued that there was no reason to reconsider the previously ordered sanctions, that Hamilton and Freshwater had not met any of the three requirements for reconsideration (new evidence, prevent egregious miscarriage of justice, a change of law).
Conclusions and commentary
Judge Frost remarked that no one wanted this to come to an end worse than he did, but that the process must take its course. He said that he would not render a decision today, but that he would do so as soon as possible. There was no clear indication of how long it will be until the judge reaches a decision on the motion to reconsider sanctions, but this judge doesn't dilly-dally.
Frost's decision on the first motion for sanctions came just 6 days after the court hearing for oral arguments on it, the hearing that Hamilton missed due to the two flat tires.
Referring to Hamilton's missing the May 26 hearing
Gary Hurd remarked that
What I don't understand is why Hamilton could not find a rental car, a bus, or a taxi. Is Ohio peculiarly lacking in public transportation? If I had to get my ass to a courtroom, I would find a way.
At some point in these proceedings (I didn't make a note of it as it occurred so I don't know when) Mansfield said almost exactly the same thing without using the word "ass". Hamilton didn't look at him.
I have no idea how Judge Frost will rule. I simply don't know how strong a case must be in order for a federal judge to impose the sanctions requested by the plaintiffs or grant a motion for reconsideration. The plaintiffs clearly established that there is considerable fuzz surrounding the billing records, that there is material that was not produced in discovery (even in response to a granted motion to compel), and that there are multiple versions of what happened to some of the material. In his summation Hamilton said that part of what the Court will have to decide is credibility. Judge Frost responded "That's the way it always is in court."
Finally, Judge Frost made a remark to Hamilton to the effect that Hamilton's quotation of Thomas Jefferson (see
here) may not mean what he thinks it means, and Frost gave Hamilton a slip of paper that apparently gave the quotation in context. This was almost inaudible and occurred as the hearing was ending, but I checked with another person who was present who heard it the same way I did. I don't know if Frost also caught the Biblical reference Hamilton used.
Administrative hearing note
The deadlines for the briefs in the administrative hearing have already slipped. The briefs are now due Aug 9, with replies due Aug 16.
For latecomers
Annotated index of Freshwater posts
95 Comments
cronk · 31 July 2010
Thanks RBH for the update, I doubt I'm the only one who follows this theater of the macabre with jaw dropped. When I read your updates I'm amazed at how bizarre these proceedings are...if a manuscript was submitted to Hollywood it would be rejected as too unbelievable.
sirhcton · 31 July 2010
Two thoughts come to mind.
I believe you (RBH)have previously mentioned that you thought Freshwater had generally been a good teacher. This seems at odds with his testimony in various places. Even Hamilton characterizes it with "John Freshwater is not an artful speaker . . ." Testifying, especially under the tutelage of Hamilton, combined with his situation, may have caused his skills to diminish.
Also, this statement seems to be part of a pattern on Hamilton's part to place his client on a path with a public conveyance. Especially if sanctioned by Judge Frost, I would think the state bar association would want to take serious notice. I would certainly consider representing myself before hiring Hamilton, despite the old aphorism.
Blah · 31 July 2010
Cronk is right. I've been following this case for years and my jaw has dropped.
robert van bakel · 31 July 2010
With the Judges' comment, 'no stranger than tesla coils in freezers' I'm willing to bet handsomely the judge will uphold the sanctions.
I rememeber Judge Jones replying to some comment from the defense council at Dover referring to Noah, the Flood, and the ending of the forty day case with the words, 'Aah yes but it was not intelligently designed.':)
Gary Hurd · 31 July 2010
Thanks Dick.
I'll reread these in the Am, but methinks somebody is in deep shit.
386sx · 31 July 2010
A judge with a baloney detector, and not afraid to use it, and laugh at baloney sandwiches. Not a good sign for people with baloney.
ralph · 31 July 2010
A landlocked parcel offered as payment!!! Unbelievable. I'm glad to see that the judge has a sense of humor but is commanding as well.
Paul Burnett · 31 July 2010
The Curmudgeon · 31 July 2010
Excellent work, as always, Richard. Thanks.
DaveL · 31 July 2010
Shorter summary:
Judge Frost = Leonato
R. Kelly Hamilton = Dogberry
John Freshwater = Verges
DS · 31 July 2010
Well this may be a rude wake up call for these jokers, that lying for Jesus isn't going to fool anyone. All of their delaying and evasion has cost others dearly and it's time for them to face the consequences of their actions. Even if, by some miracle, the judge doesn't force them to pay the sanctions, I'm sure that everyone will now be able to see the hypocricy and duplicity that has led them to this apocalypse.
Mike Elzinga · 31 July 2010
DS · 31 July 2010
RBH · 31 July 2010
Doc Bill · 31 July 2010
So, Hamilton's wife, or Someone, put an unlabeled package in the freezer.
Srsly. We're supposed to believe that?
Oh, yeah, Freshwater wrapped it in butcher paper, stuck on a Kroger's label and called it macaroni!
eric · 31 July 2010
wgw · 31 July 2010
Did very much of what they spoke about have anything to do with what the hearing was supposed to be about. It really doesn't seem like it!
He says it's just him (Freshwater) and Hamilton. What about the old and the new insurance appointed lawyers? Does he not consider them on his side?
C.E. Petit · 31 July 2010
Here's one possible reason for the particular strategy Hamilton adopted... which was to shift blame toward the client. I emphasize that I am inferring this based on general knowledge, not any conversations or other evidence of any kind.
The standard is substantially higher to impose sanctions on the client than on counsel, in discovery or otherwise. This is sort of like trying to convince an opponent to shift fire from exposed infantry to a moderately well-armored vehicle. Sometimes it works to reduce casualties, particularly to the infantry. In this instance, though, it's not just that the armor is rusty; it's that Hamilton (the infantry) and Freshwater (the APC) have, with their own actions, handed their opponents current-generation antitank missiles with unlimited artillery support. Thus, in a way Hamilton's actions make sense, if you can treat them sterilely and out of context.
The standard on a motion for reconsideration, however, is too high for any of the above to make a difference. Hamilton must demonstrate that either (a) Judge Frost misread the law or that relevant legal authority has undermined authority that Judge Frost relied upon in imposing sanctions (short answer: no); (b) new factual material that could not reasonably have been presented at the initial hearing has become available that makes the initial ruling untenable (short answer: nice try, but RBH's summary above doesn't even come close for an initial hearing, let alone reconsideration); or (c) some combination of the above indicating that the nature — not the fact — of the sanctions was unjust (short answer: some chance of reducing or shifting the sanctions, but I don't see them disappearing entirely).
And as an aside to a comment above: It doesn't matter what the American Bar Association thinks of this. The ABA has exactly zero authority; lawyers are licensed and regulated state by state. As stupid as that is, that's the way it is. For example, when I have appeared in matters in the Southern District of Ohio in the past, I have had to file a motion to appear for that particular matter (pro hac vice, often abbreviated in slang as "pro-hac"). So, instead, any complaint about Mr Hamilton will go to the Ohio bar authorities, which in turn (in Ohio) are a "committee" of the Supreme Court of Ohio.
Michael · 31 July 2010
I recall hearing some sort of investment advice about not throwing good money after bad; this pair could have used that nugget. "Your Honor, I would like to argue that your previous decision was wrong, by repeating my previous argument in greater detail." If Hamilton is at all competent, he's trying to set up for an appeal; otherwise, this makes no sense.
MrG · 31 July 2010
First rule of holes: "When you find yourself in one, stop digging."
DS · 31 July 2010
MrG · 31 July 2010
Some people dig a bit more energetically than others, and have more difficulty figuring out when to stop.
Mike Elzinga · 31 July 2010
MrG · 31 July 2010
RBH · 31 July 2010
eric · 31 July 2010
Mike Elzinga · 31 July 2010
It makes me wonder what Hamilton really knew about Freshwater when he agreed to represent him.
Freshwater seems very similar to a character I know personally who caused the school he taught at all kinds of trouble (and got tenure anyway; go figure).
The more this character got pinned down about his behavior, the more bizarre his responses got. Why the administration caved in to his political threats is also something that doesn’t add up. Administrators are such cowards sometimes.
MrG · 31 July 2010
RBH · 31 July 2010
eric · 31 July 2010
Hieronymus Fortesque Lickspittle · 31 July 2010
As always, I would first like to thank Richard for doing all this hard work. Secondly, after Freshwater loses all cases, how long does everyone think it will be before he appears on Glenn Beck? I'm thinking he will be a guest on Fox news and possibly that show in less than an hour after the last verdict. After that he'll go on every right wing Christian media outlet and become a martyr. I seriously expect he might make a few bucks off the whole misadventure if he tones down the crazy rhetoric and wild hand gestures.
DS · 31 July 2010
Hieronymus Fortesque Lickspittle · 31 July 2010
RBH · 31 July 2010
MememicBottleneck · 1 August 2010
H.H. · 1 August 2010
DaveL · 1 August 2010
Hieronymus Fortesque Lickspittle · 1 August 2010
Flint · 1 August 2010
Mike Elzinga · 1 August 2010
MrG · 1 August 2010
You get the same sort of mindset with conspiracy theorists -- grasping at evidence ranging from "possibly significant" to "ambiguous" to "weak straws" to "delusiona", while dismissing the much larger body of evidence inconvenient to them by declaring it "faked by the conspiracy". (Well OK, how do you there isn'a ANOTHER conspiracy faking the evidence for YOUR case?)
There is a major difference between creationists and CTs: I have NEVER seen a CT cite scripture to support the conspiracy case.
MrG · 1 August 2010
raven · 1 August 2010
raven · 1 August 2010
DS · 1 August 2010
MrG · 1 August 2010
Flint · 1 August 2010
RBH · 1 August 2010
Addendum
I've been reminded by another spectator that I didn't mention two other salient events that occurred during the hearing.
First, at one point during Hamilton's peroration on truth he said "Just because things don't match doesn't mean they aren't true." Among other things, that was a striking admission that the several stories being told are mutually inconsistent. Nevertheless (at least according to Hamilton) they can be true. Post-modernist fundamentalism, anyone?
Second, in open court Mansfield displayed Hamilton's billing records for May 2008 that were turned over to the Board of Education's attorney in March 2009, two months after the Flood that supposedly destroyed Hamilton's laptop. The display was via a fancy opaque projector with the images shown on computer monitors in front of the attorneys and the judge and also shown on a larger screen that was visible to the gallery. I was sitting on the same side of the room fairly close to that screen.
The displayed record showed that Hamilton billed Freshwater for 3 hours on May 15 and then none thereafter until May 27. There were several notations of unbilled "client communication" between those two dates but no billed time. So according to those records Hamilton did no legal work for Freshwater for the week during which he supposedly spend 57 hours helping Freshwater prepare the 15 affidavits for his second interview.
Further, and I can't emphasize this strongly enough, the fact that those records for May 15-May 25 2008 existed in electronic form two months after the Flood while billing records for time spent during the same week preparing the affidavits are claimed to have been destroyed casts substantial doubt on Hamilton's and Freshwater's claim that the billing records pertaining to the affidavits were in fact destroyed. No wonder Hamilton wants inconsistent stories to be true.
MrG · 1 August 2010
eric · 1 August 2010
Mike Elzinga · 1 August 2010
Stuart Weinstein · 1 August 2010
Stuart Weinstein · 1 August 2010
Hieronymus Fortesque Lickspittle · 1 August 2010
Mary M · 1 August 2010
I believe that in the wee hours of the morning when John Freshwater is tossing and turning in his bed, he wonders how in the world he got sucked into this vortex. With a push from his "friends", some bad choices of his own (e.g. Hamilton as his attorney) and the belief that he had to stand up for his god, he has found himself jobless, about to lose his farm, probably deep in debt and too old to recover financially. How many times has he seen his wife crying over this awful mess?
This might have been avoided if he had at the very beginning removed the religious material from his classroom, ended the stealth proselytizing, and apologized to the Dennis family. And a few prayers asking for forgiveness would have squared him with his god, right? Although he would never admit it, he probably realizes this and it tortures him no end.
As for Freshwater hitting the religious martyr circuit, nah, I don't think he's going to do that. He just doesn't seem to be the type: an egotistical, attention-seeking blowhard. Freshwater isn't articulate and he makes for a poor interview. One look at his friend Coach Dave would tell him that it isn't is easy to be a successful Christian leader as some may believe. After ten years of trying really hard to be a recognized Christian leader, Daubenmire is only speaking to small Tea Party crowds in small towns like Wooster while his wife sits at a cardtable on the sidelines giving away his self-published inspirational books and tapes because he hasn't been able to sell them (donations are gratefully accepted of course).
You'd think the last two years would be enough to shake Freshwater's faith. I'd like to ask him why his god hasn't lifted a finger to help him but he'd probably only give me the usual party line that god works in mysterious ways and all this is part of god's master plan.
Freshwater. At least for today I feel sorry for the poor sap.
Paul Burnett · 1 August 2010
MrG · 1 August 2010
Divalent · 1 August 2010
I'd like to remind everyone that the school district does bear some responsibility for the Freshwater mess, and in my opinion, ultimate responsibility. Although clearly they never intended to condone the worst of his behaviors, they did in fact condone a lot.
It apparently was no secret that he and several other teachers had bibles on their desks, he had religions posters all over his classroom, and he even had the 10 commandments on his classroom door! It took a complaint by the parent of a child branded on the arm with a cross to make them pause and consider that maybe they should change their policies. The one little bit of sympathy I have for Freshwater (and it’s not much) is that I can easily understand him believing that if what they clearly tolerated was okay, then some of the other stuff might be fine, too.
As it says in some book somewhere, you reap what you sow.
robert van bakel · 1 August 2010
Mr Elzinga said: 'They want to be seen as the "intellectual giants" within their cults; the person everyone turns to for advice and wisdom.'
This is an observation I think which is strongly supported by the evidence of far more vain exponents of this nonsense. I am of course talking about Dembski and crew. He loves the unearned adulation of his core followers. Being described as the 'Newton of ID' by that brilliantly talented, much undervalued science writer Anne Coulter, must have him privately in all sorts of wet dream, onanistic fantasies.
The fact is, these people have recognition within a converted clique, they begin to believe the small band of followers, when said followers say, 'sir, you are an intellectual giant.' When their arguments are left in tatters by a largely unaware, unapreciative scientific community they are insensed, go back to the base and preach 'intellectual arrogance', 'the closed mind of a shallow elite.' Aaah yes, the 'shallow elite' this smeer is a classic, and the root cause of all this nonsense? One word:
ENVY! I do believe this is a sin, no?
raven · 1 August 2010
raven · 1 August 2010
It's starting to look like the Freshwater case is past hopeless territory and heading into perjury and obstruction of justice land, both felonies.
IANAL, but right now, their best hope seems to be to settle and hope the judge isn't too ticked off at them.
Martha Stewart put herself in jail, not for insider trading, a civil offense, but obstruction of justice. Kent Hovind did the same thing.
MrG · 1 August 2010
Flint · 1 August 2010
But this is not a case at law, is it? I thought it was an administrative hearing, necessary in order to exhaust all administrative avenues of redress before an actual case (about dismissal) could be brought to court. And the rules are different here. And if there's one thing Freshwater seems good at, it's pushing the rules to the limits.
Mary · 1 August 2010
"The facts can be sitting right in front of their eyes and they won’t see them."
They'll never see scientific facts because their religion demands that they accept theology as The Truth in order to be good little fundies. God is more real to them than all the scientific facts in the world put together. To them, their god is more real and more powerful than reality itself.
MrG · 1 August 2010
RBH · 1 August 2010
RBH · 1 August 2010
To clarify a little, there are currently three proceedings in progress:
1. The administrative hearing on the Board of Education's resolution of intention to terminate Freshwater's teaching contract. That has completed testimony and presentation of evidence, and the lawyers are writing summary briefs that are due to the referee on August 9 with replies due August 16.
2. Doe v. Mount Vernon Board of Education, et al., the suit brought by the Dennis family against the Board, several administrators, and Freshwater. All have settled except Freshwater. That suit was due to go to trial July 26, but was delayed. The hearing on July 29 described in the OP was on sanctions imposed on Freshwater and Hamilton for failing to comply with discovery requirements. They wanted the sanctions to be reconsidered. Meanwhile, settlement talks are apparently proceeding between the Dennis family and Freshwater's insurance company lawyers, though (contrary to some news reports) there is no settlement agreement yet.
3. Freshwater v. Mount Vernon Board of Education, et al., the suit filed by John and Nancy Freshwater alleging various things including defamation against the Board, two individual members of the Board, some administrators, and some unidentified John and Jane Does. That case is scheduled to go to trial on June 20, 2011.
Mary · 1 August 2010
I have a brother-in-law who is a sucker for almost every conspiracy theory that comes down the pike. He'll call me up and tell me all about it and then I'll do some research and find evidence that debunks the conspiracy theory. My BIL has always been an emotion- driven person. He seems to lack what I call the "Illogic Alarm" in his brain. What makes me think "something about this just doesn't make sense" is lacking in his thinking. Conspiracy theories tap into his fears or feelings of powerlessness or belief that there are sinister forces at work. The funny thing is that he never gets mad at me for debunking his conspiracy theory. I think he may actually be relieved. At least until the next CT comes along.
MrG · 1 August 2010
MrG · 1 August 2010
PS: I recall from some short-lived associations with the New Age crowd in the early 1980s that there are actually people who are what I call "anti-skeptical": Instead of being suspicious of something that sounds weird, they are actually ATTRACTED to it because it sounds weird.
The MadPanda, FCD · 1 August 2010
CMB · 1 August 2010
Dave Luckett · 1 August 2010
RBH · 1 August 2010
DS · 1 August 2010
CMB wrote:
"There are supposedly several local teachers who support Freshwater and also have Bibles on their desks (which is their right if it is for “personal use” and not proselytizing if I’m correct)."
Right. They need to have it in plain view on their desk in their classroom in order to use it. They couldn't maybe use it if they had to take it out of a drawer or something now could they? I suppose if they had the ten commandments tattooed to their foreheads they would claim that it was so they could read it when they looked in the mirror, even if it were not tattooed on backwards!
Maybe someone needs to threaten the entire school district with the loss of accreditation and public funding.
raven · 1 August 2010
Hieronymus Fortesque Lickspittle · 1 August 2010
Stuart Weinstein · 1 August 2010
snaxalotl · 2 August 2010
MrG · 2 August 2010
JRE · 2 August 2010
Robin · 2 August 2010
Sheikh Mahandi · 2 August 2010
eric · 2 August 2010
Mike in Ontario, NY · 2 August 2010
As anyone else here as sick and tired as I am with the creationists crying "martyr" when there's been no martyrdom? Isn't one supposed to pay for their faith/cause/ideology with their lives to technically qualify as a martyr?
jackstraw · 2 August 2010
Mike Elzinga · 2 August 2010
Paul Burnett · 2 August 2010
C.E. Petit · 2 August 2010
RBH · 2 August 2010
RBH · 2 August 2010
Nebbermind. I just received a copy of the judge's ruling issued today. He denied the motion for reconsideration. I'll have more in a new post in a little while.
Wheels · 2 August 2010
I look forward to it!
Doc Bill · 2 August 2010
Hamilton is way out of his depth here. He's aw-shucked himself into a real mess. Time for a trip to the woodshed.
Stuart Weinstein · 3 August 2010
C.E. Petit · 3 August 2010