R. Kelly Hamilton, meet George Orwell

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As I noted last week, a federal judge ruled on several motions in the civil suit brought by the Dennis family against Freshwater. Recall that the suit originally named the school district and several administrators as defendants in addition to Freshwater, but the district’s insurance company settled for all the district defendants, leaving only Freshwater. For the most part the judge’s recent rulings went against Freshwater, as did a motion to compel Freshwater to surrender more documents and be deposed again. Watching the spin the Freshwater camp is putting on those rulings has been a lesson in how to violate the 9th commandment.

Much more below the fold.

The federal judge ruled (pdf) on motions for partial summary judgments made by both the Dennis family and Freshwater. The Dennis family requested summary judgment on their battery claim and on both of Freshwater’s counterclaims, defamation and intentional infliction of emotional distress. They also moved for partial summary judgment on the First Amendment Establishment Clause claim in their original complaint. Freshwater entered a motion for summary judgment to dismiss the battery charge.

The family’s motions for partial summary judgments

As noted, the family moved to dismiss Freshwater’s defamation claim and his claim of intentional infliction of emotional distress, both made in his counterclaim (and supporting material) to the family’s original suit.

In his defamation charge Freshwater cited 42 instances in which he claimed to have been defamed. The judge disallowed every one of the 42 on one or another ground:

Plaintiffs argue that they are entitled to summary judgment on each of these allegedly defamatory statements because (1) many of the statements were not made by Plaintiffs, (2) some of the statements are entitled to an absolute privilege, (3) some of the statements are entitled to a qualified privilege, and (4) Freshwater has introduced no evidence that the remaining statements were made with actual malice, which is required because he is a limited purpose public figure. This Court agrees.

In other words, the judge threw out all of Freshwater’s allegations of defamation. I’m particularly entranced by Freshwater (or actually Hamilton) accusing the family of defamation, citing in support statements made by someone else, including statements contained in the Board of Education’s resolution of intent to terminate Freshwater!

The judge also tossed Freshwater’s ‘intentional infliction of emotional distress’ claim, saying

… no reasonable jury could return a verdict in Freshwater’s favor on this claim.

The family also requested summary judgment on the narrow issue of an Establishment Clause violation related to the posting of four copies of the Ten Commandments and the (FCA) Bibles in Freshwater’s classroom. In this instance the judge denied the motion, saying

Freshwater contends that there are genuine issues of material fact as to whether he violated the Establishment Clause, and therefore, Plaintiffs’ request for partial summary judgment on these claims should be denied. This Court agrees.

After consideration of the evidence properly before it, the Court determines that there are genuine issues of material fact as to whether the box of Bibles in the corner of Freshwater’s classroom, the Bible on his desk, the inclusion of the Ten Commandments in the classroom window, and the inclusion of the Ten Commandments on a classroom bulletin board fail any prong of the Lemon test.

In opposing the motion for summary judgment, Freshwater claimed a secular purpose for all those instances, and the judge concluded that

The Court finds that, when viewing the evidence in the light most favorable to Freshwater, drawing all reasonable inferences in his favor, and making no credibility determinations, the Court cannot say that no reasonable jury could return a verdict in his favor. The Court, therefore, will allow a jury to determine whether Freshwater’s stated secular purposes are a sham or are sincere.

Based on the foregoing analysis, the Court concludes that there are material issues of fact as to whether the Bibles and Ten Commandment postings reflect a secular purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive government entanglement with religion. Accordingly, the Court DENIES Plaintiffs’ Motion for Summary Judgment on Plaintiffs’ violation of the Establishment Clause claims for relief. (bolding original)

Freshwater’s motion

In his motion Freshwater requested summary judgment dismissing the battery charge. The judge declined to grant Freshwater’s motion, saying

d. Conclusion of Freshwater’s request for summary judgment on plaintiffs’ battery claim Viewing the evidence in the light most favorable to Plaintiffs, and making all reasonable inferences in their favor, the Court concludes that there are genuine issues of material fact as to whether ZD [Zachary Dennis] possessed the capacity to consent, whether he did consent, whether Freshwater exceeded the scope of any given consent, and whether the consent (if given) was negated by duress; therefore, the Court DENIES Freshwater’s Motion for Partial Summary Judgment in this regard. The Court, however, GRANTS Freshwater’s motion as it relates to Plaintiffs’ defense of negation of ZD’s consent because of mistake or misrepresentation.

Finally, the court let stand part of the issue concerning Zachary’s consent to the Tesla coil procedure, and granted summary judgment throwing out part:

Consequently, the Court concludes that Plaintiff’s have raised a genuine issue of material fact as to whether ZD’s consent, if indeed there was such consent, was negated by duress. However, Plaintiffs have failed to raise a genuine issue of material fact as to whether the alleged consent was negated by mistake or misrepresentation.

So the question of whether Zachary at age 13 could legally consent to the procedure and whether Freshwater used duress to elicit that consent, thereby negating it, is still open and will be determined at trial.

To summarize: Freshwater’s counterclaim was eviscerated–the family’s request for summary dismissal of the two charges Freshwater made in his counterclaim was granted; both were summarily tossed out. In addition, the judge declined to grant Freshwater’s request for summary judgment on the battery charge, saying it should be left to the jury. Similarly, the judge declined to grant the family’s request for summary judgment on the battery charge. Finally, the judge declined to render summary judgment on the Establishment Clause issue, leaving that for the jury. On any reasonable scoring standard, Freshwater lost big in this encounter.

Dennis family’s motion to compel

In addition to the motions for summary judgment, the Dennis family filed a motion to compel Freshwater to turn over to their attorney various documents that Freshwater used and/or referred to in his testimony in the administrative hearing that should have been turned over in discovery for the federal suit. Further, they requested that Freshwater be subject to deposition on those documents. Freshwater opposed that request, saying that the subject documents were part of trial preparation materials and hence are not subject to discovery. Further, he argued that any further deposition should be limited to any materials produced and should last no longer than two hours. The family requested up to three hours.

The judge ruled against Freshwater, ordering him to turn over the materials within seven days of April 12, 2010. Further, the judge declined to place any time limit on the deposition, saying only that

The Court has no reason to believe that plaintiffs’ counsel will abuse the rules governing discovery or subject defendant Freshwater to an unnecessarily extended continued deposition. The Court will therefore not impose at this juncture an arbitrary time limit for the continued deposition.

Dismissal of a defendant

One of the peculiarities of Freshwater’s federal suit against the district is that he named the Board of Education’s attorney, David Millstone, as a defendant. As described in the link, Millstone moved to be dropped as a defendant, and the court has recently agreed, removing Millstone as a defendant.

Summary

To summarize, Freshwater lost on essentially every substantive point in the pretrial motions, and further lost in his opposition to producing further documents in discovery and will be deposed again. The main allegations in the Dennis family’s suit remain to be decided in the trial, and none of Freshwater’s counterclaims remain. Finally, a defendant was removed from Freshwater’s federal suit by the Court.

Watching the Spin

R. Kelly Hamilton, Freshwater’s attorney, was fast off the mark in generating spin. Hamilton gave an interview (really, a 13-minute monologue) on local conservative talk radio last Thursday, April 8, two days after the opinion concerning the various motions for summary judgment was issued by the court.

In the very first sentences of the interview Hamilton claimed that Freshwater was a happy camper:

First of all let me tell you, Dave, that John is ecstatic about the federal court ruling. The federal court here in Columbus issued a decision that essentially validates John’s positions and actions inside the school as both legitimate and meritorious.

That, folks, is knee-deep unadulterated horse manure. I read the whole of the judgment (pdf) and I saw neither “legitimate” nor “meritorious” used with reference to Freshwater’s behavior. I saw nothing that could be interpreted as suggesting, implying or even hinting that Freshwater’s behavior was “both legitimate and meritorious.” The opinion said that giving Freshwater every benefit of the doubt and making no assumptions as to credibility, the judge couldn’t say with certainty that a jury would not find in Freshwater’s favor. Therefore the issues go to trial. Hamilton is pushing a plain garden variety falsehood here. Where’s the 9th Commandment when we need it?

Hamilton went on

Essentially, the court’s decision sent the issues of the Bible on the desk, the Ten Commandments, and the Bibles in the brown box in the back of John’s classroom, essentially the judge sent those all to the jury. And I think a lot of people out there should take note that whereas before many people thought that this was a case where John was definitely going to lose, the court in this instance is saying as a matter of law, this contains factual issues that needs (sic) a jury to take a review, and as a matter of law, John didn’t necessarily do anything wrong.

Um, Kelly? That’s what trials are for: to decide whether the facts warrant relief for the plaintiffs and whether Freshwater did anything wrong. And the judge said the several factual issues should go to trial to make that determination.

Freshwater’s counterclaim was eviscerated. He’s going to trial as a defendant in a civil suit where the burden of proof for the plaintiffs is the preponderance of the evidence, not proof beyond a reasonable doubt. Recall that O.J. Simpson was acquitted in a criminal trial (beyond a reasonable doubt standard) but lost a wrongful death and battery civil suit (preponderance of evidence standard).

Hamilton also made a public appeal for the anonymous source of the black bag to reveal him/herself. He said the source “made another delivery,” apparently by mail. Hamilton said,

Someone’s taking stuff from places they shouldn’t be.

I can tell you this, that there has … we’ve obviously employed an investigator, and our investigative source tracked down the phone call that was made to my client, John Freshwater, on that particular night. Keep in mind that John was .. John was several hours away at his parents’ house, taking care of his elderly parents. We actually were able to track down that phone call to within a few blocks of the Mt. Vernon town square.

Nothing more of substance on that matter, though, except that the anonymous source apparently has an attorney.

We heard again that Freshwater’s students scored highest of the 8th grade classes on the Ohio Achievement Test. In everything I’ve heard about that (and the Freshwater spokesmen refer to it regularly), I’ve never heard of any analysis that suggests that’s anything but random sampling error. Take 90 8th grade students and randomly divide them into three classes of 30 each. One of those classes will score higher than the others through pure random sampling error. To decide whether the differences among the classes are due to a treatment effect–the teacher–requires a whole lot more information that has not been made available. So once again, references to those test scores are merely smoke being blown.

And attorney Hamilton screwed up the definition of a limited purpose public figure. He said

John is what’s considered a public figure. Defamation for a public figure is much different for that of a private person. (sic) John is a public school teacher–is a public figure–talking about public issues and quite frankly he has to meet a higher standard in order to prove that defamatory comments were made. We absolutely respect the judge’s decision and understood the challenge there.

Once again we’re up to our knees in horse manure. Freshwater is not a limited purpose public figure in this case because he’s a public school teacher. He’s a limited purpose public figure because he actively sought public attention. The court’s opinion contained a litany of Freshwater’s attention-seeking behavior::

Freshwater was interviewed on several news shows regarding the dispute between he and the school relating to the religious items in his classroom. On April 16, 2008, Freshwater addressed a rally of supporters at Mount Vernon’s Public Square, stating, among other things, that he “respectfully reject[ed] the request to remove the Bible.” Id. at 51-53. On April 28, 2008, Freshwater was interviewed on Bob Burney Live, an AM radio talk show, and on July 5, 2008, Freshwater and one of his attorneys appeared on the Fox News television program, Showdown. Also, Freshwater was interviewed on the radio talk show, Point of View on August 1, 2008.

That’s why Freshwater is a limited purpose public figure: He actively sought publicity on the matter, intentionally and persistently putting himself in the public eye.

Hamilton offered a teaser for the resumption of the administrative hearing late this month, saying he was going to call more witnesses and introduce new documents:

There’s one document in particular that was provided by the anonymous source that we’re very excited to make use of it (sic) because it’s pretty clear that five years before this instance came to fruition John was doing things that he clearly was given direction to do.

I can’t go on. My puppy deserves more attention than Hamilton. Hamilton twists, turns, misrepresents, and spins; the puppy merely chews shoes. Hamilton apparently thinks he’s a cross between Perry Mason and CSI.

Anyone who wants an mp3 of the interview–really, the 13-minute monologue–is free to email me or drop a comment with a suitably distorted (using [AT] and [DOT]) email address to prevent (harvesting by spam spiders. Make sure your email host will accept a 12.5 meg mp3 attachment (gmail will, hotmail won’t).

77 Comments

It looks like Hamilton and Freshwater are laying the groundwork for an appeal (after they lose the case) based on inadequate counsel. After all, they can’t win using the facts of the case.

it’s pretty clear that five years before this instance came to fruition John was doing things that he clearly was given direction to do.

I may be wrong, but five years before this issue started the school’s administration was different people. Now, we all like it when management is consistent from year to year, but new administrators DO have the right to change policy.

So, IMO, the important question is not whether Freshwater’s actions were consistent with directives given by some previous administration years before the event, but whether they were consistent with the most recent warning given him about his behavior.

Okay - something’s very wrong here - Hamilton has been practicing law for almost 20 years - he KNOWS better than to file the discovery motions he’s filing - I’m only a paralegal, and “I” know that what he filed regarding not turning over docs because they were being used for “trial prep” and requesting a two hour time limit for depositions wouldn’t ever, under any circumstances, be “bought” by any Judge.

Am not sure if he’s simply placating Freshwater, and hoping to write a book sometime in the future to “earn” the fees he’s racking up, or if he’s been incompetent for the last nineteen years.……

In any event, the Ohio Bar Association should be taking a close look at his recent activities in the Freshwater matter.….……because they simply don’t add up

Is it possible that Hamilton is simply greedy? That having found a cause and a willing sucker, he is just doing everything he can to prolong the case?

Consequently, the Court concludes that Plaintiff’s have raised a genuine issue of material fact as to whether ZD’s consent, if indeed there was such consent, was negated by duress. However, Plaintiffs have failed to raise a genuine issue of material fact as to whether the alleged consent was negated by mistake or misrepresentation.

This isn’t going to fly very well no matter what the kid said before his experience with the Tesla coil.

He is 13. How many kids know what a Tesla coil could do to their skin? Even the vast majority of adults wouldn’t have the slightest idea.

In similar cases, children aren’t considered capable of giving consent. Ask the Catholic church to explain how that works.

Eric:

So, IMO, the important question is not whether Freshwater’s actions were consistent with directives given by some previous administration years before the event, but whether they were consistent with the most recent warning given him about his behavior.

So Freshwater was only following orders?*

That defense was tried by German war criminals at Nuremberg in 1946. They hung them anyway.

*And besides he didn’t know.

The right to “adequate counsel” exists only in criminal cases, not civil cases. The dismissal of Freshwater’s counterclaims would be expected by anyone who has ever practiced law. With all other defendants having been dismissed, it appears that the only remaining claim against Freshwater is for battery. All other claims vanished when Plaintiffs settled with the other defendants.

Rilke’s granddaughter said:

Is it possible that Hamilton is simply greedy? That having found a cause and a willing sucker, he is just doing everything he can to prolong the case?

I guess that makes more sense than him being incompetent (since he’s apparently trying to do something that someone who’s been practicing law as long as he has should know better than to try).

Hey RBH stellar as usual. You could post the .mp3 up on rapidshare and post the link here. you’d also be able to find it searching through rapidfind.org

anxiously awaiting more…

Erasmus, FCD said:

Hey RBH stellar as usual. You could post the .mp3 up on rapidshare and post the link here. you’d also be able to find it searching through rapidfind.org

anxiously awaiting more…

Thing is I’m not sure of the copyright issue. The excerpts I transcribed fall within fair use; a copy of the whole thing posted for the whole world is iffy, I think.

Rilke’s granddaughter said:

Is it possible that Hamilton is simply greedy? That having found a cause and a willing sucker, he is just doing everything he can to prolong the case?

Hamilton sees himself as on a holy mission. See my post on his radio interview seven months ago. An excerpt:

Everybody in this world is given an opportunity to be obedient at any given time, and it just so happens that I’ve known for several years prior to this event taking place that God made it very clear that one day I would be arguing about the First Amendment as it relates to His Bible.

Of course, according to his testimony in a deposition, Freshwater has signed over his farm to Hamilton as security for fees, so there are temporal rewards on the line as well.

In fact, Hamilton’s belief that he’s on a holy mission may explain the interminable delays, sidetracks, and the painfully extended questioning of witnesses Hamilton engages in. He may be simply dragging things out to give God a chance to get His act together and intervene to get Freshwater off the hook. I suspect a federal judge will not be as accommodating to the delaying tactics as the hearing referee has been.

You’ve heard him speak. Does he strike you as the kind of man who is actually expecting a miracle?

RBH said:

In fact, Hamilton’s belief that he’s on a holy mission may explain the interminable delays, sidetracks, and the painfully extended questioning of witnesses Hamilton engages in. He may be simply dragging things out to give God a chance to get His act together and intervene to get Freshwater off the hook. I suspect a federal judge will not be as accommodating to the delaying tactics as the hearing referee has been.

If you’re around enough God-talk, your mind can easily become unteathered to reality and take you to some pretty far-off places … God-like places that regular folk just don’t understand. And when you speak about such places, the unreasonable illogic of your soliloquy alerts the rest of us that you are zoned out in one of those goofy altered states usually reserved for those drunk on wine or spaced out on acid.

If the choice is between being a drunken fool or being a sober protagonist arguing with a drunken fool, surely there is little victory in selecting one camp over the other.

Below is the court’s concise summary at the end of ruling.

Contrary to what RBH is alleging in his OP, Freshwater has not lost big. A less impassioned view would show first, that the plaintiff effectively lost their motion for summary judgement in the case of battery and Establishment clause. A jury trial would favor Freshwater, not hurt him. It extends the ordeal, but inevitably, since this court was not able to grant the Plaintiff their motions, it works in Freshwater’s favor.

Secondly, rejection of Freshwater’s counterclaims, cannot be construed as a victory for the plaintiff. Rather it was an apparent standard strategic maneuver by the defense to knock the Plaintiff off stride, thus taking the edge off the Plaintiffs motions. And it does appear to have worked.

Granted Freshwater is not out of the woods, but losing big, I think not.

1. The Court GRANTS Plaintiffs’ motion as it relates to Freshwater’s counterclaims for defamation and intentional infliction of emotional distress.

2. The Court DENIES Plaintiffs’ motion as it relates to their claim for battery and for violations of the Establishment Clause.

3. The Court DENIES as MOOT Plaintiffs’ motion as it relates to their request to strike the exhibits attached to Freshwater’s memorandum in opposition to Plaintiffs’ motion.

IT IS SO ORDERED.

Freshwater lost his summary judgment againsy battery, so it is an even playing field. Who has a better case to present in court? If you read the ruling on the establishment clause the court document states, “The court, therefore, will allow a jury to determine whether Freshwater’s stated secular purposes are a sham or are sincere.” The judge pretty much had to rule that way if Freshwater states he had a secular purpose for religion in the classroom. Now it will be up to Freshwater to prove that his claim isn’t a “sham”.

After reading the Court’s written opinion, I am taken by surprise that one science teacher could be found as a matter of fact to have violated “[b]oth the Establishment Clause and the Free Exercise Clause of the First Amendment [which] operate against the states and their political subdivisions by virtue of the Fourteenth Amendment.” My knee-jerk response would be that a single science teacher does not constitute either “the state” or a “political subdivision of the state.” I had understood the allegations in the Complaint levied against the school district tolerating such behavior to be “the nexus which constituted state action.” With the district defendants no longer present, I find it amazing that Plaintiff’s constitutional claims based on the Establishment Clause and the Free Exercise Clause of the First Amendment remain against a solitary school employee – the “state action” requirement seems to be missing since all other defendants have been dismissed … but that cleary is my ignorance of the law in this area; I’m sure the Court would have gladly tossed the constitutional claims aside upon dismissal of the other defendants – if the law so dictated. But he didn’t. I’d welcome anyone’s reference to precedent on this issue.

Steve P. said: A less impassioned view would show first, that the plaintiff effectively lost their motion for summary judgement in the case of battery and Establishment clause…

Secondly, rejection of Freshwater’s counterclaims, cannot be construed as a victory for the plaintiff. Rather it was an apparent standard strategic maneuver by the defense to knock the Plaintiff off stride, thus taking the edge off the Plaintiffs motions. And it does appear to have worked.

Ah, I get it. When the Dennis’ request for summary judgement is denied, its a victory for Freshwater. When Freshwater’s request for summary judgement is denied, its a victory for Freshwater because he’d planned that all along.

Yes, its clear to me now just how “less impassioned” your opinion really is.

Sojourner said:

After reading the Court’s written opinion, I am taken by surprise that one science teacher could be found as a matter of fact to have violated “[b]oth the Establishment Clause and the Free Exercise Clause of the First Amendment [which] operate against the states and their political subdivisions by virtue of the Fourteenth Amendment.” My knee-jerk response would be that a single science teacher does not constitute either “the state” or a “political subdivision of the state.” I had understood the allegations in the Complaint levied against the school district tolerating such behavior to be “the nexus which constituted state action.” With the district defendants no longer present, I find it amazing that Plaintiff’s constitutional claims based on the Establishment Clause and the Free Exercise Clause of the First Amendment remain against a solitary school employee – the “state action” requirement seems to be missing since all other defendants have been dismissed … but that cleary is my ignorance of the law in this area; I’m sure the Court would have gladly tossed the constitutional claims aside upon dismissal of the other defendants – if the law so dictated. But he didn’t. I’d welcome anyone’s reference to precedent on this issue.

This site might provide you with some insight on the matter.…in essence, though, as far as your question? Teachers are agents of the government, and can be sued as said agents when violating the establishment clause.

Excellent Reporting. Thanks again.

Sojourner,

Consider if the person in question was a police officer instead of a teacher. We would still want to hold the police officer accountable for violating someone’s constitutional rights, even if the police department itself wasn’t a defendant. (Unfortunately, that’s hard to do, but sometimes plaintiffs are successful against a constitution-hatin’ police officer.)

James Hanley said: Sojourner,

Consider if the person in question was a police officer instead of a teacher. We would still want to hold the police officer accountable for violating someone’s constitutional rights, even if the police department itself wasn’t a defendant.

Moreover, the Dennis’ had four specific complaints. There’s no legal reason why a court couldn’t decide that some of those were Freshwater’s individual responsibility, while some were the school’s (where Freshwater was acting as an agent of the state).

For instance, Freshwater isn’t legally responsible for his own ‘negligent supervision and retention,’ which may be one reason why that specific complaint was dismissed.

Aww man, I was hoping for some juicy details about Freshwater or his lawyer coveting his neighbor’s wife!

As always, the quality of the reporting on this case - not to mention your patience in sitting through it - has been incredibly helpful to those of us who aren’t (and never plan to be) lawyers. Many thanks.

Heh. The post title makes me think of The Jetsons theme.

“Meet George Orwell…”

”… and his boy R. Kelly …”

Eric,

Actually yes. Why so? The Dennis’ claims were way stronger thus their inability to have their motions granted weighed the heaviest against them.

IaNS, if Freshwater had won all of his motions but the Dennis’ also granted theirs, only then would he have lost big.

eric said:

Steve P. said: A less impassioned view would show first, that the plaintiff effectively lost their motion for summary judgement in the case of battery and Establishment clause…

Secondly, rejection of Freshwater’s counterclaims, cannot be construed as a victory for the plaintiff. Rather it was an apparent standard strategic maneuver by the defense to knock the Plaintiff off stride, thus taking the edge off the Plaintiffs motions. And it does appear to have worked.

Ah, I get it. When the Dennis’ request for summary judgement is denied, its a victory for Freshwater. When Freshwater’s request for summary judgement is denied, its a victory for Freshwater because he’d planned that all along.

Yes, its clear to me now just how “less impassioned” your opinion really is.

Steve P. said:

Eric,

Actually yes. Why so? The Dennis’ claims were way stronger thus their inability to have their motions granted weighed the heaviest against them.

IaNS, if Freshwater had won all of his motions but the Dennis’ also granted theirs, only then would he have lost big.

eric said:

Steve P. said: A less impassioned view would show first, that the plaintiff effectively lost their motion for summary judgement in the case of battery and Establishment clause…

Secondly, rejection of Freshwater’s counterclaims, cannot be construed as a victory for the plaintiff. Rather it was an apparent standard strategic maneuver by the defense to knock the Plaintiff off stride, thus taking the edge off the Plaintiffs motions. And it does appear to have worked.

Ah, I get it. When the Dennis’ request for summary judgement is denied, its a victory for Freshwater. When Freshwater’s request for summary judgement is denied, its a victory for Freshwater because he’d planned that all along.

Yes, its clear to me now just how “less impassioned” your opinion really is.

Steve P, Your logic is lacking. Your passion for Freshwater is there but that will not translate into anything like a legal upside for him unless you are a the federal judge.

Actually yes. Why so? The Dennis’ claims were way stronger thus their inability to have their motions granted weighed the heaviest against them.

Wait, the Dennis’ claims are way stronger, therefore having them go to trial works in Freshwater’s favour? Not being dealt a crushing defeat is not the same thing as achieving a victory of your own, you know.

Miriam, he tried to go after opposing counsel legally, based on a conspiracy theory. It hardly gets much worse than that. I guess I should be glad he’s not brandishing a firearm during the testimony. And all of this is a procedural hearing? What would this mad-cow Matlock do with a real court case?

He really is looking to get sanctioned. It’s that simple:

http://www.mncourts.gov/lprb/83bbarts/bb1283.html

Even threatening to file over something legitimate, if it’s staged as an attempt to make opposing counsel withdraw, is unethical (at least in MN, at least according to that lawyer ;) ). This is trying to make the board’s lawyer part of the case and there’s nothing being cited (only conjecture) as to why.

If Hamilton escapes getting his wrist slapped, it might be because he’ll say most of that is Pastor Matolyak misrepresenting what Hamilton said he was doing.

Miriam St. Jean said:

Okay - something’s very wrong here - Hamilton has been practicing law for almost 20 years - he KNOWS better than to file the discovery motions he’s filing - I’m only a paralegal, and “I” know that what he filed regarding not turning over docs because they were being used for “trial prep” and requesting a two hour time limit for depositions wouldn’t ever, under any circumstances, be “bought” by any Judge.

Am not sure if he’s simply placating Freshwater, and hoping to write a book sometime in the future to “earn” the fees he’s racking up, or if he’s been incompetent for the last nineteen years.……

In any event, the Ohio Bar Association should be taking a close look at his recent activities in the Freshwater matter.….……because they simply don’t add up

Steve P. said:

It’s about the level of discourse for the majority of posts on this subject so far.

If you want to complain about the “level of discourse,” I recommend stop talking like an arrogant idiot of a pompous blowhard.

Step away from the invective just for second, a second. Did I provoke anything in my posts? No.

Actually, yes you did make a provocation, in that you made assessments that were wrong, and then you complained that you’re really right, despite contradicting the evidence shown to you.

Its because you all assumed I am some kind of bible thumper or something and I am unquestionably rooting big time for Freshwater and just can’t wait to wail on the poster’s here, right?.

Then why are we to blame if we are making these assumptions based directly on your previous posts where you have denied evolution, as well as suggested that bible-thumpers like the staff of the Discovery Institute know more about science than actual scientists? If you don’t want us to assume that you are a science-hating bible thumper, I strongly suggest you stop talking like one, and stop supporting other science-hating bible thumpers.

Well, you know what they say about ass/u/me ing.

And yet, earlier, you were hypocritically complaining about the level of discourse.

Look, I could care less what happens either way. In fact, if he was hurt bad in the proceedings I would say so. I was just calling it as I see it.

And here you are, whining about how your impression is, in fact, incorrect

Freshwater did not lose big. In fact, he came out slightly ahead, when you take a less emotional view. Granted he’s gonna spin it in the brightest light possible. What else would you expect from him?

“Slightly ahead”? How is having the lawsuit against his witness, which was specifically intended to intimidate his witness, being thrown out “slightly ahead”?

But now you guys are spinning it in the exact opposite direction with the same intensity. So how is the attitude and commentary here any different from Freshwater’s tactics?

In other words, you’re having sour and bitter grapes because we not only disagree with your impression of the situation, but we’ve pointed out where you are wrong.

I thought PT was supposed to be that blog dedicated to objective reality. That’s what’s supposed to separate the scientist from the creationist, no?

Objectivity has undoubtedly suffered here.

Given your previous and numerous incorrect statements on science and evolutionary biology, you are a hypocritical idiot to think you are some sort of authority on objective reality.

Marion Delgado said:

Miriam, he tried to go after opposing counsel legally, based on a conspiracy theory.

Um… Isn’t the that kinda the definition of what an opposing council does? Conspire against you?

After all, if the other guy could do it himself, he wouldn’t need council.

stevaroni:

I mean a real bonafide conspiracy theory. The pastor floated it, it boiled down to the school board plotting against John Freshwater for many years, and the board’s attorney being part of it and violating his attorney’s ethics in so doing. Some of Hamilton’s statements and motions seem to be supporting that tack. It may be that Hamilton himself has been smart enough so far to avoid being specific enough to get censured.

You simply can’t make opposing counsel, who are basically hired guns, the target of your case. Even threatening to sue opposing counsel or make them part of a civil case is unethical, unless you have no choice and the reasons are obvious. Even then, I believe you usually wait until after the current case is settled, then file your suit, then also appeal the verdict.

Imagine a world where you simply intimidate the opposing counsel? There would be no more legal representation for anyone except the very wealthiest after a very short time. We’d all appear on our own behalf.

No, it isn’t something opposing counsel *does* - Opposing counsel doesn’t “attack” counsel for the other side.….unless they are

1. Desperate

2. Lack ethics

and

3. Live in a reality where they believe they’re above man-made rules because their god tells them so

R. Kelly seems to belong to all three categories listed above

I know of no other respected attorney who has ever “attacked” opposing counsel’s character.….….none. nada. zero.

If this type of “defense” continues, I see sanctions and contempt rulings in R. Kelly’s future

Steve P. said: Freshwater did not lose big. In fact, he came out slightly ahead, when you take a less emotional view.

See, that last sentence is where you go off the rails. He would’ve come out way way way ahead if he’d won his motions, because the Dennis’ suits would then be over. They aren’t. How can you (still) possibly see (Freshwater’s) having to go to court and argue his case before a jury as “ahead” of not having to do so, because he’s already won?

So how is the attitude and commentary here any different from Freshwater’s tactics?

Because ours is based on the fairly reasonable assumption that when person A loses a legal motion, that is not their ideal outcome. You opinion seems to be that when Freshwater asks the judge to dismiss the suit against him and the judge says “no,” this is good for Freshwater. Which makes no sense whatsoever.

Imagine, if you will, a physician – under-the-influence of self-prescribed amphetamines to meet the demands of his 24-hour emergency room shift – being sued for negligently cutting an artery during surgery in the E.R. that night which causes the patient’s untimely, needless death. He requests that the Court throw the case out. The Court reviews the matter, and rules: “No, you must stand trial and accept the judgment of a jury of your peers.” Trust me, the doctor is not happy with this court ruling; he knows that facing a jury of his peers on this matter is not in his best interest. Freshwater may try to put lipstick on that pig, but he really doesn’t like even being in the same room with the pig. After all, it IS a pig – lipstick notwithstanding.

Steve P. said:

…Did I provoke anything in my posts? No.

Steve P. said:

…Freshwater did not lose big. In fact, he came out slightly ahead, when you take a less emotional view.

Steve P. said:

gkijve ritgugjv erutiocjaoirtjior cgjufdjgkfpoigc aicjgrjg taeir jgoijer agoir jgojc guhfdcig cnjco aimhtgq jhrtu8 cyr hgjcfgoic fh gngjhcpa ertjg cq irh tgiu dfng;klscjgfh cois ecrjtgo iserh gcoic rhgp!

If your position is that being told you’ll have to stand in front of a jury and argue that a thirteen year-old can consent to being burned by a teacher is coming out ahead (even slightly), you are being provocative. If you continue to argue that position with typographical nonsense you can’t expect respect, at least not here. That is why people are calling you an idiot.

Juicheart,

That is not my position. There has been a whole lot of projecting in other poster’s comments based on their assumptions about my motives for calling out a particular comment in RBH’s OP.

I asserted that Freshwater (and his lawyer) knows he has to go to court and therefore the judge’s denying of the Dennis’ motions did not hurt Freshwater to the extent that RBH was spinning it.

Rather, the Dennis’s failure to have their motions granted, in actuality, could help Freshwater in his trial. I stress again, that I believe Freshwater and Hamilton were under no illusion that his motions would be granted. It was simply legal maneuvering.

The issue of Freshwater burning a 13 year old is exactly what a jury trial will decide, whether Freshwater had in fact malicious intent derived from religious conviction or machoism or whatever, or was he operating on the presumption that according to the historical record of telsa coil demonstrations in his science class over the past several years, few if any students had had any adverse effects from the demonstration.

If the defense can show that there is no precedent of adverse effects from the coil demonstration, as in no previous serious complaints, no lawsuits, etc, then Freshwater should not be convicted on this count.

Second, the jury will have to decide if ‘bibles in the corner’ presented an overt and flagrant violation of the separation clause. The fact that the Dennis child did not notice the bibles until close to the end of the year works in Freshwater’s favor.

I would know as a student in a heartbeat if there were bibles metaphorically waved in my face. Yes, Freshwater may have had religious motives for putting them there, but was shrewd enough to stay within the latter of the law.

Who knows? Just maybe he was doing exactly what he said he was doing- putting the books in the corner since they would be used in the same class room at another time for one of those bible sharing activities. You have to look at the context, what type of community it is, was there space constraints due budget concerns that resulted in the dual use of the classroom? Was there any supervisory record from the school administrators acknowledging and consenting to the dual use without any reminders to clean up the classroom after each bible activity? A whole host of questions need to be asked and answered to ferret out the truth, if that can be done.

I believe the judge presiding at the hearing knows all this and that is why he could not rule in favor of the Dennis’. The evidence was not strong enough to show intent in either case.

My prediction from a legal standpoint is that Freshwater should win the case. I know you all would like Freshwater, as a PT appointed poster boy for creationism, to be convicted, and this may yet happen.

I simply disagree, not as a believer in Christs’ Divine Mercy, but from a legal standpoint.

Can I do that here, disagree from a legal standpoint? Can we leave the religion out of the analysis? Can we look at the ‘evidence’ and weight that, regardless of our personal like or dislike of the defendent and/or his perceived motives?

Juicheart said:

Steve P. said:

…Did I provoke anything in my posts? No.

Steve P. said:

…Freshwater did not lose big. In fact, he came out slightly ahead, when you take a less emotional view.

Steve P. said:

gkijve ritgugjv erutiocjaoirtjior cgjufdjgkfpoigc aicjgrjg taeir jgoijer agoir jgojc guhfdcig cnjco aimhtgq jhrtu8 cyr hgjcfgoic fh gngjhcpa ertjg cq irh tgiu dfng;klscjgfh cois ecrjtgo iserh gcoic rhgp!

If your position is that being told you’ll have to stand in front of a jury and argue that a thirteen year-old can consent to being burned by a teacher is coming out ahead (even slightly), you are being provocative. If you continue to argue that position with typographical nonsense you can’t expect respect, at least not here. That is why people are calling you an idiot.

Steve P. said:

Juicheart,

That is not my position. There has been a whole lot of projecting in other poster’s comments based on their assumptions about my motives for calling out a particular comment in RBH’s OP.

There has been no projecting, Steve P. We have only pointed out that your assessment of the situation is wrong, pointed out where you are wrong, and we’ve also mentioned times where your grasp of reality has been wrong, too.

You are simply whining about how it’s wrong that we do not agree with your incorrect assessment.

My prediction from a legal standpoint is that Freshwater should win the case. I know you all would like Freshwater, as a PT appointed poster boy for creationism, to be convicted, and this may yet happen.

Even though the judge ruled against his attempts to sue both the witness’ family, and his school’s attorneys?

Can I do that here, disagree from a legal standpoint? Can we leave the religion out of the analysis? Can we look at the ‘evidence’ and weight that, regardless of our personal like or dislike of the defendent and/or his perceived motives?

The problem is not because we are mean, and we have alleged (anti)religious prejudices clouding our mean heads: the problem is that you’re wrong, and we’ve been pointing out where you’ve been wrong, and you’re whining on and on about how mean we are for pointing out where and when you’ve been wrong.

Steve P. said: [SNIP] The issue of Freshwater burning a 13 year old is exactly what a jury trial will decide, whether Freshwater had in fact malicious intent derived from religious conviction or machoism or whatever, or was he operating on the presumption that according to the historical record of telsa coil demonstrations in his science class over the past several years, few if any students had had any adverse effects from the demonstration.

[SNIP] Second, the jury will have to decide if ‘bibles in the corner’ presented an overt and flagrant violation of the separation clause. The fact that the Dennis child did not notice the bibles until close to the end of the year works in Freshwater’s favor.

You neglected to mention the four copies of the Ten Commandments posted around Freshwater’s room. And violations of the Establishment Clause don’t have to be “flagrant” to be unconstitutional.

My comments about “big loss” were based on Hamilton’s hyperbolic characterization of Freshwater as being “ecstatic” about the rulings, in the light of

(a) the summary judgment throwing out Freshwater’s counterclaims, and
(b) the fact that the core of the Dennis case was left intact to go to trial.

Looking at the substantive charges, the only motion for summary judgment that the family made that was not granted was a request for summary judgment on the ‘battery’ allegation. That was denied. But Freshwater also moved for summary dismissal of that particular charge and was denied.

In addition, Freshwater lost in his attempt to keep David Millstone as a defendant in his own federal suit.

So in my view Freshwater lost big and Hamilton’s spin is ludicrous, whistling past the graveyard.

By the way, does Steve P actually think that the fact that the judge didn’t grant summary judgment on some issue is actually a point against the party that made the motion? AFAIK, that’s not even appropriate to mention to the jury at the trial and the judge would slap down any attempt to say to the jury, “Well lookie here, this judge didn’t rule against my client in preliminary motions so therefore he’s innocent.”

Oh. and I should add Freshwater’s loss on the family’s motion to compel him to give up documents and the loss on his request for a two-hour time limit on his re-deposition.

And I note that Steve P doesn’t mention Hamilton’s false claim that the judge’s opinion “… essentially validates John’s positions and actions inside the school as both legitimate and meritorious.” That’s pure unadulterated horseshit.

Thanks for the spam links, asshole.

I doesn’t help to respond to spambots. I clean them up when I get around to my email.

Sorry, Richard, I skipped my meds yesterday :0 Actually, I didn’t realize it was a ‘bot, thought is was a slimy sub-person.

RBH said:

I doesn’t help to respond to spambots. I clean them up when I get around to my email.

I thought PT was supposed to be that blog dedicated to objective reality.

…says the man with a soul of light that he’s sure science will discover soon!

If science did discover a “soul of light”, how would Steve P. know? He’s not yet up to speed on the double helix or photosynthesis.

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This page contains a single entry by Richard B. Hoppe published on April 14, 2010 3:20 PM.

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