Freshwater: Same song, second verse

Posted 31 August 2010 by Richard B. Hoppe

The legal morass into which John Freshwater and his attorney R. Kelly Hamilton have been sinking became deeper today. United States Magistrate Judge Norah McCann King has granted a Motion to Compel compliance with discovery demands and imposed sanctions on Hamilton, John Freshwater's attorney in Freshwater v. Mount Vernon Board of Education, et al.. This is the second granted Motion to Compel and the second set of sanctions imposed on Hamilton. The first occurred in Doe v. Mount Vernon BOE, et al., when Judge Gregory Frost ordered Hamilton and Freshwater to pay attorney fees and costs to the Dennis family's attorney. This new order requires Hamilton alone to pay attorney fees and costs to the Board of Education's lawyer(s) for his dilatory tactics in guiding the evasive responses of the Freshwaters (John and his wife Nancy) to discovery demands. The amount of the fees to be paid isn't specified in the order; it says only that Hamilton is to pay

... the reasonable attorney's fees and costs incurred by the moving defendants as a result of the grant of the Motion to Compel. The moving defendants are ORDERED to provide to plaintiffs' attorney, within fourteen (14) days of the date of this Opinion and Order, a statement of their fees and expenses associated with the filing and grant of the Motion to Compel.

The bill in the similar ruling in Doe v. Mount Vernon Board of Education, et al., was over $28K. The order also extends the time for the defendants (Board of Education) to identify appropriate expert witnesses, since that depends on the information the Freshwaters were to provide in discovery. Addendum: The full ruling just went up on NCSE's site on the case.

64 Comments

Mike in Ontario, NY · 31 August 2010

If schadenfreude were navel lint, I'd have enough to knit everyone on PT a nice, cozy sweater.

MememicBottleneck · 31 August 2010

I skipped the usual after lunch cookies today. Turns out I got a nice sweet dessert anyway.

Charley Horse · 31 August 2010

His last hope: favorable recommendation from the hearing judge/ referee.

I still think as I have in the past that Freshwater and Hamilton were
expecting a proFreshwater school board to be elected and rehiring Freshwater.

I don't see that happening nor a favorable recommendation forth coming.
Now with the sanctions I expect them to drop the suits. Maybe I'm expecting
a saner action than I should.

Mike: I had to look up the def for schadenfreude. For others:
Schadenfreude is pleasure derived from the misfortunes of others.

RBH · 31 August 2010

Charley Horse said: His last hope: favorable recommendation from the hearing judge/ referee. I still think as I have in the past that Freshwater and Hamilton were expecting a proFreshwater school board to be elected and rehiring Freshwater. I don't see that happening nor a favorable recommendation forth coming. Now with the sanctions I expect them to drop the suits. Maybe I'm expecting a saner action than I should.

That's still possible. Depending on the timing of the referee's recommendation and the Board's action on it, three new members of the BOE could be elected before that action is taken. A great deal depends on how prompt the referee is in getting his recommendation to the Board.

Mindrover · 31 August 2010

It couldn't happen to a nicer guy.

MrG · 31 August 2010

I am often suspicious that court cases are schemes for the enrichment of lawyers. This one, however, deeply contradicts that stereotype.

Flint · 31 August 2010

A great deal depends on how prompt the referee is in getting his recommendation to the Board.

Has the referee been reasonably impartial? Seems there's an awful lot a referee could have done to move those whole process forward a lot more quickly, that was not done. Why not?

RBH · 31 August 2010

Flint said: Has the referee been reasonably impartial? Seems there's an awful lot a referee could have done to move those whole process forward a lot more quickly, that was not done. Why not?

The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By "lost control" I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

Paul Burnett · 31 August 2010

RBH said: The referee...lost control of the hearing very early and never regained it. By "lost control" I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

Is that a possible defense by Hamilton? Could Hamilton claim that he's a competent lawyer who was allowed to go down this path by an incompetent referee?

RBH · 31 August 2010

Paul Burnett said: Is that a possible defense by Hamilton? Could Hamilton claim that he's a competent lawyer who was allowed to go down this path by an incompetent referee?

Nope, because the administrative hearing is independent of the federal suits. The only faintly conceivable context in which that could occur is if the recommendation goes against Freshwater, the Board accepts the recommendation, and Freshwater appeals the decision to the Knox County Court of Common Pleas. But I don't see a "the referee let me be stupid" argument getting anywhere with Judge Eyster on the bench. He'd laugh and giggle as he tossed it out.

D. P. Robin · 31 August 2010

Paul Burnett said:
RBH said: The referee...lost control of the hearing very early and never regained it. By "lost control" I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.
Is that a possible defense by Hamilton? Could Hamilton claim that he's a competent lawyer who was allowed to go down this path by an incompetent referee?

Not a lawyer, but I don't see it as helping Hamilton. The Ref's passivity only helped Hamilton as he wasn't reined in. As far as the civil suits are concerned, I understand them to be completely separate and isolated. Indeed, one would think that had Hammy been on the stick in one lawsuit, that half (if not more) of his work would have been done for the other. dpr

miriam st. jean · 31 August 2010

the referee had no cajones - am wondering if he's as inept as a prosecutor as he was in "refereeing" the administrative hearing...........

CMB · 31 August 2010

RBH said:
Charley Horse said: His last hope: favorable recommendation from the hearing judge/ referee. I still think as I have in the past that Freshwater and Hamilton were expecting a proFreshwater school board to be elected and rehiring Freshwater. I don't see that happening nor a favorable recommendation forth coming. Now with the sanctions I expect them to drop the suits. Maybe I'm expecting a saner action than I should.
That's still possible. Depending on the timing of the referee's recommendation and the Board's action on it, three new members of the BOE could be elected before that action is taken. A great deal depends on how prompt the referee is in getting his recommendation to the Board.

Thanks as always Richard. Aren't the school board elections every other year? As we just had a school board election last fall, won't the next one be in 2011 ?

Steve · 31 August 2010

I just noticed a typo that I'm sure Hamilton will exploit for yet more delay.

Section III A, page 7:
Plaintiffs are ORDERED to make individualized response to each
discovery request propounded to them by the moving defendants within
seven (7) days of the date of this Opinion and Order.

Conclusion, page 9:
Plaintiffs are ORDERED to respond to the discovery requests propounded to them by the moving defendants within fourteen (14) days of the date of this Opinion and Order.

Hmm ...

RBH · 31 August 2010

CMB said: Thanks as always Richard. Aren't the school board elections every other year? As we just had a school board election last fall, won't the next one be in 2011 ?

Was it just last year? I guess it was. I actually don't know the terms of office or how they're staggered across the five members. Two were elected in the fall of 2009, and I thought three were up in the next election, though again I don't know on what schedule.

CMB · 31 August 2010

RBH said:
CMB said: Thanks as always Richard. Aren't the school board elections every other year? As we just had a school board election last fall, won't the next one be in 2011 ?
Was it just last year? I guess it was. I actually don't know the terms of office or how they're staggered across the five members. Two were elected in the fall of 2009, and I thought three were up in the next election, though again I don't know on what schedule.

It seems like it has been longer than last November but that is when the last school board election took place. I'm not positive but I thought the terms were for 4 years and are staggered so that every 2 years some of the seats are open. I haven't heard or seen anything about an upcoming school board election this fall and I'm pretty sure there would have been something somewhere locally by now if there were school board seats open.

RBH · 31 August 2010

I'll check with the Board of Elections tomorrow.

C.E. Petit · 31 August 2010

RBH said: The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By "lost control" I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

As I wasn't at the hearings, I'm hesitant to say much; RBH is in a much better position to judge whether the referee appeared to exert control than I am. That said, a referee in an administrative hearing has less power to control presentations in the first place. The rules of evidence are relaxed; there is no possibility of a "directed verdict" before all of the evidence is in; and, most importantly, the hearing officer does not have the contempt power that a judge does, so even when he makes adverse procedural findings during a proceeding it's tougher to enforce those findings. In short, I suspect that RBH's inference is correct — the hearing officer didn't "control" Hamilton and Freshwater. I suspect, though, that any lack of "control" was due far more to having less authority in the first place than it was to the competent use of authority.

RBH · 31 August 2010

C.E. Petit said: In short, I suspect that RBH's inference is correct — the hearing officer didn't "control" Hamilton and Freshwater. I suspect, though, that any lack of "control" was due far more to having less authority in the first place than it was to the competent use of authority.

Sure, the hearing officer has less formal authority than, say, a federal judge, but he's not totally bereft. For example, he had the power to at least influence the course and form of questioning by sustaining or overruling objections. For example, in the early days of the hearing David Millstone, the Board's attorney, objected frequently to a mode of questioning in which Hamilton would dictate an answer phrased in the form of a question and the witness would passively agree. The referee consistently overruled those objections until it was clear none would be sustained, so Millstone to all appearances gave up objecting. When Hamilton tried that in the federal court hearing the judge immediately sustained an objection to it. He did the same with an irrelevant line of questions: Shut it down in sustaining an objection. Shepherd had that power but never exercised it. Further, the referee had considerable informal/implicit power as the trier of fact who will make a recommendation to the Board of Education. Letting it be known that he was getting irritated by a repetitious and irrelevant line of questioning or by Hamilton misrepresenting the testimony of prior witnesses to later witnesses (a tactic used by Hamilton in the hearing that was also slapped down by the federal judge), would have gone a long way toward exerting some control over the proceedings because of that informal authority.

Ryan Cunningham · 31 August 2010

C.E. Petit said:
RBH said: The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By "lost control" I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.
As I wasn't at the hearings, I'm hesitant to say much; RBH is in a much better position to judge whether the referee appeared to exert control than I am. That said, a referee in an administrative hearing has less power to control presentations in the first place. The rules of evidence are relaxed; there is no possibility of a "directed verdict" before all of the evidence is in; and, most importantly, the hearing officer does not have the contempt power that a judge does, so even when he makes adverse procedural findings during a proceeding it's tougher to enforce those findings. In short, I suspect that RBH's inference is correct — the hearing officer didn't "control" Hamilton and Freshwater. I suspect, though, that any lack of "control" was due far more to having less authority in the first place than it was to the competent use of authority.

Is it usual for administrative hearings to go on for as long as this one has? Why are the hearing officers given so little power? Isn't he ultimately responsible for making the final decision? If he has total control over the results, why doesn't he also have control of the hearings? The system sounds unbelievably screwed up.

mario · 31 August 2010

Is it possible that these sanctions against Hamilton will make it easier for freshwater to claim poor representation? Even if he doesn't stand a chance I wouldn't put it past freshwater to use another delay tactic.
RBH: thank you.

RBH · 31 August 2010

Ryan Cunningham said: Is it usual for administrative hearings to go on for as long as this one has? Why are the hearing officers given so little power? Isn't he ultimately responsible for making the final decision? If he has total control over the results, why doesn't he also have control of the hearings?

No, it isn't. Rumor has it the State Department of Education, which nominates three candidates for referee in this sort of proceeding, received complaints about the length and expense of this hearing and about the lack of control by the referee. I don't know of that has in fact happened, but I wouldn't be surprised.

JJM · 31 August 2010

RBH said:
Flint said: Has the referee been reasonably impartial? Seems there's an awful lot a referee could have done to move those whole process forward a lot more quickly, that was not done. Why not?
The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By "lost control" I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

I think it's a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can't say he wasn't given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.

RBH · 1 September 2010

JJM said: I think it's a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can't say he wasn't given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.

If so it's very damned expensive rope. By the time it's over the cost of just the administrative hearing to the district will come very close to $1M.

Henry J · 1 September 2010

Maybe instead of a referee they should have an umpire! (You'rrrrrre OUT!)

robert van bakel · 1 September 2010

Thank god for the Germans (I'm sure that's a phrase not said too often); schadenfreud is so much nicer than gloating. As I read RBH's accounts I feel a tingle of joy at the thought of these morons sitting together in a cold country kitchen,leaning over a cup of iced tea, barely making eye contact, and shuffling their feet, wondering where the hell god is at the moment when they need him/her/it the most.:)

JJM · 1 September 2010

RBH said:
JJM said: I think it's a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can't say he wasn't given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.
If so it's very damned expensive rope. By the time it's over the cost of just the administrative hearing to the district will come very close to $1M.

yep, expensive. but once lawyers are involved it's always expensive and you don't want to give him room to appeal or it's more expensive in the long run. is there any way that the district can go for costs.

RBH · 1 September 2010

JJM said: yep, expensive. but once lawyers are involved it's always expensive and you don't want to give him room to appeal or it's more expensive in the long run. is there any way that the district can go for costs.

Nope. Bear in mind that this is an administrative hearing, not a civil trial in a court. Statutorily the district bears the costs of its own lawyer, security, referee, and court reporter. Freshwater bears the cost of his own lawyer and any other costs associated with his presentation. That's what gave Hamilton the Freshwater farm, or so we've been told.

Stuart Weinstein · 1 September 2010

Stupidity should be expensive.

ben · 1 September 2010

Stuart Weinstein said: Stupidity should be expensive.

It should also lower your chances of reproducing successfully, though this seems not to be the case.

M · 1 September 2010

When Coach Dave encouraged Freshwater to "stand up for Jesus", it was without full realization of the possible consequences on Dave's part. You see, Dave's father-in-law paid his legal bills for him. After the ACLU case, Dave sued for libel/defamation the parties who had turned him in to the ACLU or spoke against him at the trial. Dave lost the case, sued on appeal and lost again. His FIL, who is generous but not rich, paid the legal bills so that his grandchildren would not be financially deprived.

I wonder if Freshwater knows this. I wonder if Freshwater realized when he was betting the farm, it was at the encouragement of a man who got bailed out by his wife's daddy.

The Founding Mothers · 1 September 2010

M said: After the ACLU case, Dave sued for libel/defamation the parties who had turned him in to the ACLU or spoke against him at the trial. Dave lost the case, sued on appeal and lost again.

Really? I was under the impression that anything stated under oath in a court of law is not liable for prosecution as libel/defamation. If you are believed to have committed perjury, it's usually the DA, rather than a plaintiff/defendant, who'll go after you, no? What am I getting wrong here? Or if I'm not missing anything, exactly how dim is Dave?

Mary · 1 September 2010

The Founding Mothers said:
M said:
Really? I was under the impression that anything stated under oath in a court of law is not liable for prosecution as libel/defamation.

Sorry, that was a mistatemaent on my part. He sued those who had made claims about him that got the ACLU involved. Claims about forcing his team to pray and such. If you want to read the particulars on the libel suits, google Daubenmire vs. Sommers. Like Freshwater, Daubenmire pulled a lot sneaky stuff in order to bring "salvation" to his students.

Mary · 1 September 2010

The Founding Mothers said:
M said:
Really? I was under the impression that anything stated under oath in a court of law is not liable for prosecution as libel/defamation. If you are believed to have committed perjury, it's usually the DA, rather than a plaintiff/defendant, who'll go after you, no? What am I getting wrong here? Or if I'm not missing anything, exactly how dim is Dave?

Sorry, that was poor wording on my part. He sued for libel over claims that were made about him that got the ACLU involved, for instance, that he was forcing his team to pray. If you want to read the particulars on the libel suit, google "Daubenmire vs. Sommers". The Ohio Supreme Court's opinion does a decent job of summing up the ACLU case and the libel cases. It also reveals that Daubenmire, like Freshwater, pulled a lot of sneaky stuff in order to bring his students to Jesus.

Mary · 1 September 2010

Sorry for the duplicate post.

darvolution proponentsist · 1 September 2010

This one goes out to you R. Kelly Hamilton ...

If Trouble Was Money

... if nothing else, guys like you make life interesting.

The Founding Mothers · 1 September 2010

Mary said: Sorry for the duplicate post.

No problem - it's worth saying twice! Thanks for clarifying.

Mike Elzinga · 1 September 2010

It looks like Henry M. Morris, III is acknowledging failure in “slaying the Dragon.” But he is promising to fight on.

With all the exposed antics of people like Freshwater, Buckingham, Bonsell, and many others of their ilk, maybe, just maybe, people are finally catching on and getting fed up with this crap.

Much of the credit goes to the National Center for Science Education for profiling these cases over the years and making the antics public.

And a lot of the credit goes to the idiots at AiG, ICR, and the DI for putting all their crap on line where the smell becomes unmistakable and where they can no longer take it back.

The fact that the original misconceptions and distortions by Henry M. Morris I, Duane Gish, and the original ICR gang are still up in exactly the same form they were in their original writings back in the late 1960s and 70s makes it easy to parse these misconceptions and misrepresentations at one’s leisure.

These ID/creationists can now be publicly branded with their own junk along with the history of their tactics and activities.

It is not schadenfreude to celebrate ID/creationist defeats in courts and in the marketplace of public opinion. These hucksters have poured millions of dollars into defrauding the public while abusing the Constitution; and they have cost school districts and state boards of education millions of dollars defending themselves against unprovoked attacks by the whipped-up, fanatic followers of ID/creationism.

And the exposure should continue until the guilty churches that bought into that junk finally wake up and purge these charlatans from their midst.

truthspeaker · 1 September 2010

I think it’s a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can’t say he wasn’t given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.

An alternate theory would be that the referee is not very assertive and is easily intimidated by people like Hamilton. Maybe he didn't want to be the bad guy by sustaining Millstone's objections or reining in Hamilton. If so, he's in the wrong line of work.

RBH · 1 September 2010

Mike Elzinga said: It looks like Henry M. Morris, III is acknowledging failure in “slaying the Dragon.” But he is promising to fight on.

I love the little slam at BioLogos in that piece.

darvolution proponentsist · 1 September 2010

Also, note to John Freshwater : Trouble Is Money

R. Kelly Hamilton knows this. If it wasn't, he wouldn't be down around your ankles legally fisking your pants pockets whilst you were bent over taking one for the team. And, you wouldn't be draining a crapload of money off of an already hurting education system to play out your pseudo-martyr BS.

Just sayin'

Mike Elzinga · 1 September 2010

RBH said:
Mike Elzinga said: It looks like Henry M. Morris, III is acknowledging failure in “slaying the Dragon.” But he is promising to fight on.
I love the little slam at BioLogos in that piece.

Yeah, I noticed that also. It reminded me of market share jealousy.

Ichthyic · 1 September 2010

How can you help? First and foremost, ICR needs your intercessory prayer for strength to engage the Enemy and for open doors to present the unwavering message of the Creator. We also need your financial support as never before.

one of those things will actually be useful to ICR. Here's me offering my "intercessory" prayer for them. (can you guess which one I think isn't useful?) I'd think someday people would learn just what hucksters folks like ICR are, like when Swaggart was arrested and convicted on fraud charges, and spent years in jail for it. but, no. Of course Swaggarts ministry was bigger than ever less than a year after his release. *sigh*

JJM · 1 September 2010

RBH said:
JJM said: yep, expensive. but once lawyers are involved it's always expensive and you don't want to give him room to appeal or it's more expensive in the long run. is there any way that the district can go for costs.
Nope. Bear in mind that this is an administrative hearing, not a civil trial in a court. Statutorily the district bears the costs of its own lawyer, security, referee, and court reporter. Freshwater bears the cost of his own lawyer and any other costs associated with his presentation. That's what gave Hamilton the Freshwater farm, or so we've been told.

Thanks for the clarification. It's amazing to see how much trouble one guy can cause.

Ryan Cunningham · 1 September 2010

RBH said:
Ryan Cunningham said: Is it usual for administrative hearings to go on for as long as this one has? Why are the hearing officers given so little power? Isn't he ultimately responsible for making the final decision? If he has total control over the results, why doesn't he also have control of the hearings?
No, it isn't. Rumor has it the State Department of Education, which nominates three candidates for referee in this sort of proceeding, received complaints about the length and expense of this hearing and about the lack of control by the referee. I don't know of that has in fact happened, but I wouldn't be surprised.

I really hope that is the case. Just think of all the good a million dollars could've done if spent correctly in this school district. What a shame.

H.H. · 2 September 2010

truthspeaker said:
I think it’s a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can’t say he wasn’t given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.
An alternate theory would be that the referee is not very assertive and is easily intimidated by people like Hamilton. Maybe he didn't want to be the bad guy by sustaining Millstone's objections or reining in Hamilton. If so, he's in the wrong line of work.

A third theory is that he was secretly partial to Freshwater's interests all along. He didn't display any obvious partiality, but maybe he wanted to give a fellow Christian man every chance to clear his name. Maybe he even finds that Freshwater didn't do anything wrong and the school board owes him a lot of money. Think I'm being paranoid? Why else let these two clowns make a mockery of his courtroom? The referee could have clamped down on them but he didn't, and he wasted a hell of a lot of tax payers' money to boot. I don't think it's a foregone conclusion how Freshwater will come out of this in the end. Don't anybody start counting any chickens.

RBH · 2 September 2010

H.H. said: A third theory is that he was secretly partial to Freshwater's interests all along. He didn't display any obvious partiality, but maybe he wanted to give a fellow Christian man every chance to clear his name.

There's one bit of data that seems to lean against that hypothesis. Shepherd is the Shelby, Ohio, city Law Director, and played a part in Shelby's mayor vetoing a resolution that would have required city council meetings to begin with a prayer. See here for a brief summary. According to a newspaper story that is now behind a paywall, Shepherd called the resolution unconstitutional. So he's apparently aware of the issue and advised against a violation.

MosesZD · 2 September 2010

Yay! Lying for Jesus should have penalties.

H.H. · 2 September 2010

RBH, that is encouraging.

harold · 4 September 2010

H.H. said -

A third theory is that he was secretly partial to Freshwater’s interests all along.

I had this thought, too, and it made me very nervous (I see that RBH points out evidence against it). Let me explain why it made me very nervous. Because I perceive this as the ultimate root of all ID/creationist legal strategy. Everyone knows that you are deliberately violating the constitution, but keep pounding away and offering lies and bafflegab. Some day a secretly sympathetic judge who has wormed his way into power will pretend to believe the baffelgab, wink, and find in your favor. It's a purely authoritarian and deeply cynical strategy if I am right. It's a strategy that views the US constitution as a mere impediment, to be defeated with cunning and corruption. It views judges and similar figures as pure authority figures, who can violate the constitution at will, if only they can be persuaded and offered a fig leaf of rationalization.

harold · 4 September 2010

Incidentally, here are some things that caused me to form this opinion about the ultimate roots of ID/creationist legal strategy.

1) Fundamentalist schools tend to focus obsessively on moot court, debating, law, pre-law - they put strong emphasis on attempting to manipulate the legal system.

2) The DI is ostensibly a science-focused institution but prominent fellows have a striking tendency to be lawyers.

3) Much of the output of ID/creationists since the introduction of ID is in the form of legalistic sounding arguments. This is true even when it results in self-contradiction (note that two false statements can still be in contradiction to each other). Example - for fifteen years the standard cant, repeated ad nauseum on the internet, was that ID "isn't religious". Recently, though, Casey Luskin responded to criticism of ID in science textbooks by claiming ID is protected from such criticism as religious speech.

RBH · 4 September 2010

That's an interesting analysis, harold, particularly the first point. Thank you.

H.H. · 4 September 2010

harold said: I had this thought, too, and it made me very nervous (I see that RBH points out evidence against it). Let me explain why it made me very nervous. Because I perceive this as the ultimate root of all ID/creationist legal strategy. Everyone knows that you are deliberately violating the constitution, but keep pounding away and offering lies and bafflegab. Some day a secretly sympathetic judge who has wormed his way into power will pretend to believe the baffelgab, wink, and find in your favor. It's a purely authoritarian and deeply cynical strategy if I am right. It's a strategy that views the US constitution as a mere impediment, to be defeated with cunning and corruption. It views judges and similar figures as pure authority figures, who can violate the constitution at will, if only they can be persuaded and offered a fig leaf of rationalization.

Yep. Remember RBH's description of Hamilton's ridiculous closing remarks where he must of mentioned the word "truth" about 80,000 times? That's an example of the sort of coded "secret handshake" language Christians use to communicate with one another. It lets fellow Christians know that they're all "on the same side." That wink and a nod strategy works on a local level whenever most positions of power are filled with like-minded individuals. Will it work here? That's the question.

RBH · 8 September 2010

Somewhere--I can't find it at the moment--someone asked about the elections this fall and whether it was an opportunity for Freshwater supporters to get on the Board of Education. No Board slots will be on the ballot this fall. The terms are for four years, with two years between cohorts. Two were elected last year, and three will be elected next year, but none are up this year.

So three of the five members who voted for the resolution to consider termination of Freshwater's contract (Fair, Bennett, and Goetzman) will be involved in the Board's decision on the referee's recommendation. Of the two new members, one (Barone) has recused herself from participating in the decision, at least "at this time," and the other (Thompson) has not.

W. H. Heydt · 9 September 2010

Given that "balance of power", and making some assumptions; that Freshwater won't manage to drag this out past the election of 2011 and the BoE members won't change they way they voted; leads to a 3/4 majority voting to be rid of him. Thompson's failure to recuse himself may not matter...

--W. H. Heydt

Old Used Programmer

RBH · 9 September 2010

W. H. Heydt said: Given that "balance of power", and making some assumptions; that Freshwater won't manage to drag this out past the election of 2011 and the BoE members won't change they way they voted; leads to a 3/4 majority voting to be rid of him. Thompson's failure to recuse himself may not matter... --W. H. Heydt Old Used Programmer

I think that depends very heavily on the direction and wording of the referee's recommendation. If he makes a strong recommendation to terminate, with supporting evidence clearly laid out, then I can see a 3-1 vote as likely. If he makes a recommendation to terminate but is tentative or vague about it, then I can see a non-negligible possibility of a 2-2 tie, in which case Barone will have to think about the "at this time" qualifier in her recusal.

EJH · 14 September 2010

I am tired of waiting for this shoe to drop, so I am going fishing for some more discussion. I have been halfheartedly following the coverage of Dale McGowan's run-in with Freshwater-light, and there is a chance I have missed some interesting and stimulating conversation there. No matter...let's stir the pot a bit.

I saw Freshwater sitting on Coshocton Ave. about two weeks ago selling his apples along the roadside. Pick a sad, depressing adjective that you think might describe him as he sat there alone, waiting for some like-minded person to stop (or some sane person who was unaware of the man's legacy in this school district). That last comment is the real reason I am angrier at Freshwater now than I was several weeks ago when I posted my last comment.

The Mount Vernon city schools did not offer a single summer program in 2010 because they did not have the money in their budget. I don't know if any pro-Freshwater folks read these comments, but, if you are, think about that statement. For many years now the kids in the district have had their choice of half a dozen or so programs and mini-camps that they could attend in the summer, but not last year. Maybe Mr. Hoppe could have taught a seminar to the parents about how the Freshwater hearing and numerous trials had killed the district's budget and was negatively impacting the students.

Okay, my spleen has been vented.

RBH · 14 September 2010

EJH said: I am tired of waiting for this shoe to drop, so I am going fishing for some more discussion.

If the referee keeps to the schedule he outlined at the end of the hearing, and taking into account the two extensions he gave Hamilton to get his summary brief in, I expect that the referee's recommendation will be transmitted to the Board of Education by the end of September.

I have been halfheartedly following the coverage of Dale McGowan's run-in with Freshwater-light, and there is a chance I have missed some interesting and stimulating conversation there. No matter...let's stir the pot a bit.

Okey dokey.

I saw Freshwater sitting on Coshocton Ave. about two weeks ago selling his apples along the roadside. Pick a sad, depressing adjective that you think might describe him as he sat there alone, waiting for some like-minded person to stop (or some sane person who was unaware of the man's legacy in this school district).

Yup, I saw him there last week and had the same impression.

That last comment is the real reason I am angrier at Freshwater now than I was several weeks ago when I posted my last comment. The Mount Vernon city schools did not offer a single summer program in 2010 because they did not have the money in their budget. I don't know if any pro-Freshwater folks read these comments, but, if you are, think about that statement. For many years now the kids in the district have had their choice of half a dozen or so programs and mini-camps that they could attend in the summer, but not last year. Maybe Mr. Hoppe could have taught a seminar to the parents about how the Freshwater hearing and numerous trials had killed the district's budget and was negatively impacting the students. Okay, my spleen has been vented.

One thing that gigs me is that Freshwater's supporters are blaming the district and its attorneys for the costs associated with the administrative hearing and federal suits. For example, in a recent letter to the Mount Vernon News Cameron Pike complained that

[David] Millstone’s billing of Mount Vernon taxpayers is nearing a million dollars for this exercise alone, and the other two [lawyers for the district and Dennises] seem intent on pillaging Mount Vernon’s coffers as well.

That fails to take into account a few facts. First, of course, none of the three actions (the administrative hearing and two federal suits) under way were initiated by the district. Freshwater himself initiated two of them and the Dennises the third. So the district did not initiate the extended hearings that are costing it money. Second, R. Kelly Hamilton, Freshwater's lawyer, is mainly to blame for dragging out the administrative hearing. His case presentation was disorganized and his questioning style was rambling and repetitive. The Board's presentation of its case in chief took only 40% of the time Hamilton took for Freshwater's case in chief, just less than 10 days to a dab over 25 days. Third, "the other two" are not billed to the district. One is the Dennis family's lawyer and the other is retained by the district's insurance company, as, incidentally, are Freshwater's two lawyers in Doe v. Mount Vernon Board of Education. The district's insurance company did pay $115K in attorney's costs and $5.5K in damages to settle in Doe v. Mount Vernon Board of Education. Fourth, at last count the total cost to the district was on the order of $750K, including legal fees, security, and the court reporter. The bill for the referee's time is not yet in. The direct cost to the district could run to $1m before it's all over. Pike also claimed the lawyers for the district, the Dennises, and the district's insurance company are ganging up on Hamilton:

The latest news from Friday that the “BOE” has asked for sanctions against Mr. Freshwater’s attorney, Kelly Hamilton, is simply another in a continuing pattern of legal pugilism coordinated by all three of these big-firm lawyers. At the critical time in the administrative hearing when closing briefs were being prepared, Mansfield and Moore dumped legal interrogatories on Hamilton, calculated to overwhelm him and keep him from devoting sufficient time to the brief.

Poor R. Kelly. He is apparently insufficiently competent to realize that one can request continuances. His pleading in the the sanctions hearing was that he didn't have time to comply with discovery requests, but he never bothered to ask for a continuance. And I repeat, two of the actions in which R. Kelly is involved were initiated by Freshwater, and his attorney is responsible for choreographing the responses. He got extensions from the administrative referee, but AFAIK failed to even ask for one from the judge overseeing the two federal cases. In any case, the discovery delinquencies for which Hamilton was sanctioned by the Federal Court pre-date the end of the administrative hearing, so R. Kelly was not under the immediate pressure of getting his summary brief to the referee back then.

CMB · 15 September 2010

Hmmmm. I wonder if there is any connection between Cameron Pike and Lori Pike who wrote a very interesting pro-Freshwater letter to the Mount Vernon News that was published this past Monday. An excerpt:

Long ago, when I first read about the Freshwater hearings in the Mount Vernon News, I could not believe that a religious nut could stay in the school system for so long, or how his big-city lawyer could ask such irrelevant questions. I went to the hearing to find out for myself. I was right: I could not believe what I read in the paper. I found the teacher to be competent, inspiring love of learning in students; his lawyer asked carefully crafted, pointed questions.

Ms. Pike then expresses a number of opinions about the testimony (not facts but her impressions of the testimony). She ends with:

Mr. Freshwater has been nothing but respectful of authority and extremely careful to not teach religion in class or overstep boundaries. I encourage the current school board to return Mr. Freshwater to his classroom

So apparently there is a conspiracy against Freshwater and the Mount Vernon News is at the heart of it!

RBH · 15 September 2010

CMB said: So apparently there is a conspiracy against Freshwater and the Mount Vernon News is at the heart of it!

Conspiracy theories have been part of Freshwater's (=Hamilton's) argument in the hearing. According to his testimony, he's had a target on his back since he made his ID-based science curriculum proposal in 2003. It's not clear who is behind the conspiracy, since the only two senior people who were in office in both 2003 and 2008 were Margie Bennett of the Board of Education, who is an administrator at the Nazarene University here, and Lynda Weston, former Director of Teaching and Learning. They're the only ones I can see who could have carried out such a conspiracy. That the MVNews is actually the culprit was new to me.

CMB · 16 September 2010

RBH said:
CMB said: So apparently there is a conspiracy against Freshwater and the Mount Vernon News is at the heart of it!
Conspiracy theories have been part of Freshwater's (=Hamilton's) argument in the hearing. According to his testimony, he's had a target on his back since he made his ID-based science curriculum proposal in 2003. It's not clear who is behind the conspiracy, since the only two senior people who were in office in both 2003 and 2008 were Margie Bennett of the Board of Education, who is an administrator at the Nazarene University here, and Lynda Weston, former Director of Teaching and Learning. They're the only ones I can see who could have carried out such a conspiracy. That the MVNews is actually the culprit was new to me.

This conspiracy would have to encompass The Mount Vernon News, The Columbus Dispatch, Panda's Thumb, a number of current and former teachers, administrators, school board members and students and their parents.Quite a broad group out to fire this paragon of virtue and reason, John Freshwater.

Shirley Knott · 16 September 2010

I think we really need to keep reminding people that paragons of virtue do not burn symbols or shapes into children's arms. It doesn't take any sort of conspiracy to "gang up" on someone who so clearly abuses youngsters in their care. Just a sense of morality that seems sadly lacking in Freshwater and his supporters.

no hugs for thugs,
Shirley Knott

MememicBottleneck · 16 September 2010

This ruling stated that FW & RKH had 14 days to cough up the requested discovery items. It's been 20. Any indication that they complied?

Reading that last sanction order, I get the impression that the next court date will be sometime after Oct 31st. Is that correct?

I need my fix, I'm starting to get the dt's.

RBH · 16 September 2010

MememicBottleneck said: This ruling stated that FW & RKH had 14 days to cough up the requested discovery items. It's been 20. Any indication that they complied?

I've heard nothing, and no one is talking for publication.

Reading that last sanction order, I get the impression that the next court date will be sometime after Oct 31st. Is that correct?

That suit (Freshwater v. Mount Vernon Board of Education, et al.) is scheduled to go to trial in June 2011. Sometime before that there will be a mandatory mediation session with the judge, but I doubt that will occur before spring 2011. I know of nothing else that's scheduled.

I need my fix, I'm starting to get the dt's.

Well, the referee's recommendation may go to the BOE later this month, at which time it becomes a public document. I'll have that as soon as it's available and will post on it.