Freshwater: Strong Words for Hamilton from Federal Judge

| 37 Comments

As you will recall, two of John Freshwater’s trial attorneys in the federal suit in which he is a defendant, attorneys who were retained by the school’s insurance company, withdrew in late April citing professional ethics concerns. Freshwater then requested that the insurance company appoint new counsel, arguing that with the withdrawal of Stoffer and Deschler he was left with no legal representation. However, Stoffer and Deschler had said in their request to withdraw that

Defendant Freshwater continues to be represented by R. Kelly Hamilton.

The insurance company has agreed to retain another attorney for Freshwater but asked that Freshwater request a continuance from the Court so that new attorney could get up to speed. In an email, the insurance company’s claim analyst wrote

Mr. Hamilton is your attorney for purposes of defending the lawsuit against you, as was the firm of Mazanec Raskin, Ryder & Keller [Stoffer’s and Deschler’s home firm].

So the insurance company regarded Hamilton as co-counsel in the federal suit’s defense.

In their request for a continuance Freshwater and Hamilton claimed that Hamilton had never represented Freshwater in the Dennis’s federal suit but only represented him in the counterclaim that the Court dismissed a few weeks ago. But as the Court’s ruling says, in opposing the motion for a continuance the Plaintiffs argued that Hamilton

… has been intimately involved with the preparation for the trial, including participation in discovery, participation in conferences before this Court, in person and on the telephone, after the dismissal of Freshwater’s counterclaims. (Italics in the original.)

While the judge granted the continuance until July 26, 2010, he had some strong words for Hamilton:

This court agrees with Plaintiffs’ assessment of Attorney Hamilton’s involvement in Freshwater’s defense. Despite Hamilton’s insistence that he was not involved in Freshwater’s defense, his actions spoke otherwise. After this Court’s dismissal of Freshwater’s counterclaim Hamilton on several occasions held himself out as trial counsel for Freshwater and this Court accepted him as such. Indeed, after the final pretrial conference during the approximately five hours of settlement negotiations held with this Court’s assistance, Hamilton participated most aggressively on behalf of Freshwater. The Court is sorely disappointed at the current unbelievable assertions of uninvolvement made by Hamilton.

I titled an earlier post Playing fast and loose with the truth. It appears that Hamilton does that in a federal court as well as Freshwater does in radio interviews.

37 Comments

Even for someone with no ethics at all, wouldn’t lying to a judge seem like a profoundly stupid thing to do?

Are we now in the “string it out as long as we can and hope that something breaks in our favor soon because we are sure getting our asses kicked” category?

“The defense” is always on the slow side of the case. After all, Plaintiff could die, lose interest, move 3000 miles away to get married and start a new life, etc., etc. The defense is never in a hurry for justice.

Counsel cannot withdraw from representation of a party in Federal Court without first obtaining the express approval of the Trial Judge. So I find it astonishing that any cognizant attorney could believe that it would be permissible to represent a defendant “only on the counterclaim” in Federal Court without first obtaining the Court’s express permission to do so (which I do not believe would ever happen).

So, now that Freshwater’s first set of insurance lawyers have made a noisy exit, and his personal lawyer made a blatently ‘unbelievable’ statement in writing to the trial judge, what happens if the insurance company can’t secure anyone to represent Freshwater? Or if the new concile also makes a noisy exit? Can this ‘unbelievable’ statement be used in court to attack the credibility of Freshwater? What about in the on going hearing?

Wow…I’m so confused. Why couldn’t Hamilton just bail, like Freshwater’s other attorneys did when they said they could no longer represent Freshwater (presumably due to some malfeasance they knew about?).

The Court is sorely disappointed at the current unbelievable assertions of uninvolvement made by Hamilton.

A statement sure to feature prominently in R. Kelly Hamilton’s application to join the Thomas More Law Center.

Nick (Matzke) said:

Wow…I’m so confused. Why couldn’t Hamilton just bail, like Freshwater’s other attorneys did when they said they could no longer represent Freshwater (presumably due to some malfeasance they knew about?).

I don’t think he wants to. My impression is it’s the fact that Freshwater AND Hamilton want to run this as a three ring circus that scared the other two lawyers off. And I wouldn’t be suprised if Hamilton was the ringmaster of all this.

Holy Smokes! I don’t know how this all works, but can a lawyer infuriate a federal judge so much that he/she could be held in contempt? Just what could happen here if Hamilton continues on this path? Sanctions? Reprimands? Removal from a case? etc.

Ralph said:

Holy Smokes! I don’t know how this all works, but can a lawyer infuriate a federal judge so much that he/she could be held in contempt? Just what could happen here if Hamilton continues on this path? Sanctions? Reprimands? Removal from a case? etc.

In a memorandum in opposition to Freshwater’s request for a continuance, Doug Mansfield, the Dennis’s attorney, asked the Court to impose sanctions. It’s not yet clear what sanctions are being requested to be imposed on whom for what, and I haven’t (yet) been able to get a copy of that memorandum, but the Court is holding a hearing on that request for sanctions on May 14. More when I know it.

Nick (Matzke) said:

Wow…I’m so confused. Why couldn’t Hamilton just bail, like Freshwater’s other attorneys did when they said they could no longer represent Freshwater (presumably due to some malfeasance they knew about?).

Hamilton (along with Pastor Don Matolyak) is the ringmaster, as Juicyheart noted. Recall that he’s on a holy mission:

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. I’ve known this and I can’t wait to share that with others.

Not only is there no chance he’ll withdraw, there’s no chance he’d let Freshwater waffle or retreat. Freshwater is Hamilton’s vehicle now, nothing more. A willing vehicle, let it be noted, but a vehicle nonetheless.

SPECULATION: 1). Insurer’s attorneys withdraw citing possible ethics violation; 2). Freshwater claims he “fired” the attorneys for not taking required depositions; 3). Hamilton took statements from (“deposed”) minors, sometimes without their parents present. Did the attorneys withdraw rather than share a federal courtroom with Hamilton and illegally obtained “statements”?

Wow…I’m so confused. Why couldn’t Hamilton just bail, like Freshwater’s other attorneys did when they said they could no longer represent Freshwater (presumably due to some malfeasance they knew about?).

why did the Dover defendants lie to the judge so obviously, when they really had no need to (they were bound to lose anyway - their own lawyers told them so -, why risk perjury)?

This is what happens when your brain becomes so convinced it needs to support a house of cards, that you will automatically say or do anything to try and prevent it from tumbling down.

This is your brain on evangelical religious claptrap.

Unfortunately, instead of sounding a clarion for others caught up in similar beliefs, living in denial like they are Freshwater and Dover will instead cause them to merely put up more lies as defenses. It’s kind of a catch 22.

Like the defendants at Dover, like Freshwater himself most likely, and like millions of others, Hamilton likely sees himself as the only champion for “religious truth” participating in this case. He simply cannot withdraw, as his own beliefs would probably be severely traumatized in doing so.

Someday, hopefully this behavioral pattern will start being treated as the psychological malady it really is. I continue to be ashamed of both the AMA and APA for NOT officially recognizing it as such, simply because of fear of backlash.

The head in the sand approach taken by the APA, and the decades of moderate religious ignorance and tolerance of this extreme behavior have allowed it to grow like a cancer, unchecked, and has now caused it to become a major thorn in the paw of the future of the States.

It has infected politics to such an extent, that even those who recognized the problem decades ago were shouted down. I even recall John McCain sounding warnings back in 2000, for which he lost his party’s nomination in that run. I think he very clearly showed just how deep the cancer runs in his last bid, which I often wonder if his choices (changed his religion, picked Palin as running-mate) were deliberately chosen not to get him a victory, per se, but rather just as testimony to how bad it is.

Utilizing the evangelical right as a grassroots power base has probably been the greatest evil the Neocons perpetrated on the entire country.

It’s like throwing bones to an army of schizophrenics.

Daffyd ap Morgen said:

SPECULATION: 1). Insurer’s attorneys withdraw citing possible ethics violation; 2). Freshwater claims he “fired” the attorneys for not taking required depositions; 3). Hamilton took statements from (“deposed”) minors, sometimes without their parents present. Did the attorneys withdraw rather than share a federal courtroom with Hamilton and illegally obtained “statements”?

One of Freshwater’s complaints (in the radio interview) about Stoffer and Deschler was that they didn’t put any of those minors on the witness list for the federal trial, and thus their ‘statements’ and testimony would not have been admitted.

Ichthyic said:

It’s like throwing bones to an army of schizophrenics.

Or like delivering an army of paranoid schizophrenics into the hands of a demagogue like Ken Ham.

I dunno. For once, I agree with Icthyic, except over terms. This is a psychological disfunction - a retreat from reality, mandated by a fixed idea that has become non-negotiable. I’m not sure I would call it a “malady”, though, in deference to those who suffer from identifiable neurological conditions that also produce disjuncts with reality.

I don’t think that even the most subtle analysis of Hamilton’s, or Matolyak’s, or Freshwater’s neurology, brain activity or physical brain structure would yield any evidence of a lesion or malfunction or disease state of any kind. Nevertheless, they are malfunctioning. They have disconnected from reality.

It’s almost enough to make me wonder if there is some sort of spirit, something immaterial, going on in the human consciousness. But in this case, that sure as hell isn’t a good thing.

“Sure as hell”. Heh.

Ichthyic said:

Someday, hopefully this behavioral pattern will start being treated as the psychological malady it really is. I continue to be ashamed of both the AMA and APA for NOT officially recognizing it as such, simply because of fear of backlash.

ICD10 F44.3 comes into mind:

F44.3 Trance and possession disorders

Disorders in which there is a temporary loss of the sense of personal identity and full awareness of the surroundings. Include here only trance states that are involuntary or unwanted, occurring outside religious or culturally accepted situations.

However, it depends on what situations a society considers as being religious or culturally accepted.

Hamilton:

that God made it very clear that one day I would be arguing about the First Amendment as it relates to His Bible. I’ve known this and I can’t wait to share that with others.

I assume this is Hamilton speaking here.

The problem is that this is not a First Amendment and the bible case.

Freshwater is accused of burning a cross on a student’s arm with a Tesla coil. He is also accused of teaching xian fundie creationism to kids in a public school science class.

The latter has been in court many, many times over the last few decades. It is illegal to teach cult religious mythology as facts in the public school science classes. The former speaks for itself.

IMO, Hamilton is going to run into trouble trying to twist this case into a bible and First Amendment case. Because it just isn’t.

About all they are going to do is create a martyr where none existed before. Freshwater. And that is his choice right now. No one except a few fundies are going to believe it or care.

They’ve done this before. There was another teacher in Ohio? who insisted on teaching creationism in his sociology high school class. The school district eventually fired him and he got a job teaching in a private religious school. According to the fundie xians he is a martyr. No one believes it but them, no one else cares, and I can’t even remember his name and don’t have enough interest to even spend 10 seconds looking it up on Google.

Martyrs can be created out of the flimsiest of materials, tissue paper, straw, moonbeams, stuff and nonsense. Some are even made of clay.

Carrying on Juicyhearts earlier observation (and others) that it might be hard to find anyone to defend the guy; Hamilton sees this as a viable constitutional out (i.e. that no one will defend him therefore his rights are constitutionally unfulfilled):Hey Presto! Case Dismissed.

Looks like them other two lawyers got out while the gitt’n was good.

Without agreeing or disagreeing with Ichthyic’s assertion that fundies suffer some sort of mental illness, I think we can agree that it is fun to make up names for said disorder. How about Religio-Narcissistic Complex?

I’m really confused about Freshwater’s request. If he’s happy with Hamilton’s representation, why is he even bothering to ask for additional lawyers? Is it:

1 - to slow down the process

2 - to cost the insurance company more money (and is this the district’s insurance, or the teachers union’s insurance?)

3 - because he needs more people for actual work

4 - the confusion of multiple law teams may help with future appeals

5 - some other reason?

raven said:

Hamilton:

that God made it very clear that one day I would be arguing about the First Amendment as it relates to His Bible. I’ve known this and I can’t wait to share that with others.

I assume this is Hamilton speaking here.

The problem is that this is not a First Amendment and the bible case.

Yes, that’s Hamilton speaking, transcribed from the radio interview.

However, the federal case is a First Amendment case. See the complaint here.

eric said:

I’m really confused about Freshwater’s request. If he’s happy with Hamilton’s representation, why is he even bothering to ask for additional lawyers? Is it:

1 - to slow down the process

2 - to cost the insurance company more money (and is this the district’s insurance, or the teachers union’s insurance?)

3 - because he needs more people for actual work

4 - the confusion of multiple law teams may help with future appeals

5 - some other reason?

I flat don’t know why he wants insurance company lawyers. Their generic bent is for settlement rather than trial–trials are expensive and insurance companies generally look to settle on decent terms rather than drag it out.

The insurance is the district’s–Freshwater isn’t a member of the bargaining unit and when he tried to involve the bargaining unit after all this stuff started it declined to get involved.

eric said:

I’m really confused about Freshwater’s request. If he’s happy with Hamilton’s representation, why is he even bothering to ask for additional lawyers? Is it:

1 - to slow down the process

It seems clear, to me anyways, he is trying to run out the clock. The question is why? We know he isn’t getting a salary. But, by virtue of not being terminated, is he still accumulating service time that would impact the amount of his teacher’s pension? The union contract may allow further vesting while grievance processes are playing out.

RBH:

However, the federal case is a First Amendment case. See the complaint here.

livescience.com:

Webster v. New Lenox School District (1990) In 1987, an Illinois social studies teacher named Ray Webster began teaching creation science to his students after disagreeing with a textbook statement that said the earth was more than four billion years old.

A student complained, and when a school superintendent warned him to stop, Webster sued, claiming that his First and Fourteenth Amendment rights were being violated.

The case was eventually brought before the Seventh Circuit Court of Appeals, which ruled that teaching creation science for any reason was a form of religious advocacy and that schools could prohibit teachers from teaching it.

There are so many court precedents that it isn’t going to fly very far. IIRC, Ray Webster insisted on teaching creationism in his social studies class because evolutionists were letting satan run loose in America or some such nonsense.

His employers told him to stop. He sued. Lost. IIRC, he then resigned and took a job at a private xian school where he is happily lying to kids and getting paid for it.

The fundie xians have him listed as a martyr. Apparently, telling your public school employers that they have no right to tell you what to teach and lying to kids makes you a martyr. No one cares but a few fundie kooks. Despite my confident prediction that I could look the name up on Google in 10 seconds, it took more like 5 minutes.

carlsonjok said:

eric said:

I’m really confused about Freshwater’s request. If he’s happy with Hamilton’s representation, why is he even bothering to ask for additional lawyers? Is it:

1 - to slow down the process

It seems clear, to me anyways, he is trying to run out the clock. The question is why? We know he isn’t getting a salary. But, by virtue of not being terminated, is he still accumulating service time that would impact the amount of his teacher’s pension? The union contract may allow further vesting while grievance processes are playing out.

I don’t know for sure about about service time, but I do know we (the people of MVCS) are paying for his insurance benefits. I would think that if the school board changes their minds or if the Appeals Court found for wrongful termination he’d be given credit for this time.

Mr Freshwater is not a member of the union, but did try to join when this first hit the fan.

At this point, Mr Freshwater has nothing more to lose monetarily other than his benefits. His house and land are signed away, his retirement pension won’t be at the full amount, and if he does get another teaching job through a private school it won’t be at the pay level he left. Dragging this out and hoping for a glitch to appear is his only hope.

However, it depends on what situations a society considers as being religious or culturally accepted.

well, that’s why many of us work so hard to marginalize such behavior via ridicule. Someday the rational among us hope it will indeed NOT be considered culturally accepted.

:)

Religion offers the masses hope, social integration and shared resources among all socio-economic groups. Remove religion from American society, and there would be large swaths of isolation, poverty and social unrest … i.e., unless something takes the place of religion. What else works? What does the rest of the moderen Western world do in place of religion?

sojourner being wrong:

Remove religion from American society, and there would be large swaths of isolation, poverty and social unrest … i.e., unless something takes the place of religion. What else works? What does the rest of the moderen Western world do in place of religion?

What total nonsense. The most peaceful, prosperous egalitarian states in the world today are the LEAST RELIGIOUS. Sweden, Scandinavia, Japan, New Zealand.

The current champion hellholes in the world today are the most religious, Afghanistan, Somalia, Iran, Saudi Arabia and so on.

Not much of one for facts, logic, or thinking are you?

Even in the USA, the bible belt red states rate higher than the general population on any metric of social problems you look at, STDs, abortion, divorce, drug use, teen age pregnancy, low socio-economic status.

There is no doubt that toxic religion is a huge drag on our society. Many of the fundie cults would destroy our civilization if they could as they say often.

sojourner the troll lying:

Religion offers the masses hope, social integration and shared resources among all socio-economic groups.

Current religion in the USA offfers lies, ignorance, hate, violence, and sometimes murder. It is simply an arbitrary way to divide people into us and them. Not that there is a religion in the USA today. There is no such thing as Xianity. It is many separate religions that have nothing in common with each other. They all hate each other.

raven said:

sojourner being wrong:

Remove religion from American society, and there would be large swaths of isolation, poverty and social unrest … i.e., unless something takes the place of religion. What else works? What does the rest of the moderen Western world do in place of religion?

What total nonsense. The most peaceful, prosperous egalitarian states in the world today are the LEAST RELIGIOUS. Sweden, Scandinavia, Japan, New Zealand.

The current champion hellholes in the world today are the most religious, Afghanistan, Somalia, Iran, Saudi Arabia and so on.

Not much of one for facts, logic, or thinking are you?

Even in the USA, the bible belt red states rate higher than the general population on any metric of social problems you look at, STDs, abortion, divorce, drug use, teen age pregnancy, low socio-economic status.

There is no doubt that toxic religion is a huge drag on our society. Many of the fundie cults would destroy our civilization if they could as they say often.

sojourner the troll lying:

Religion offers the masses hope, social integration and shared resources among all socio-economic groups.

Current religion in the USA offfers lies, ignorance, hate, violence, and sometimes murder. It is simply an arbitrary way to divide people into us and them. Not that there is a religion in the USA today. There is no such thing as Xianity. It is many separate religions that have nothing in common with each other. They all hate each other.

What replaces religion in those countries is the social safety net, primarily. The more secure a person is in their material life, the less they feel the need to get all fundie.

there is definately a religious component, but hamilton’s behavior seems pretty normal for a former police officer

I agree with Inkeeper that in the rest of the moderen Western world the social safety net, primarily, has replaced religion to comfort the masses. And for all the reasons pointed out by Raven, the social saftey net is ultimately much more desireable than religion. When American society casts a social safety net around those who would otherwise be at the social abyss, they will no longer feel the need “to get all fundie,” as Inkeeper would say, and instead buy into a more rational world view. We have to provide them the safety necessary for their decision.

Good for you Sojourner. you were presented with an argument against your assertion about, ‘what can replace religion in society’, and you graciously accepted it. Inkeeper is right about the ‘social safety net’, and Raven is an attack dog; in the nicest possible sense: We are all in agreement; yes?

Who knows? Maybe universal health care in your country might lead to a more ‘touchy feely’ Republican party, that can get in touch with its fellow ‘earth passenger’?

I wonder if Hamilton is trying to get the insurance to pick up his tab for Freshwater’s defense. Consider that at this point this case is looking pretty strange, and perhaps Hamilton is the only attorney willing to work on this case, however, he claims he is not the defense attorney. Is it possible that the insurance won’t be able to find any other representation in this case and therefore will be forced to pay Hamilton for his services.

Another thing I would like to note is that in many insurance cases if the plaintiffs and insurance co. can come to a settlement, and the defendant refuses to accept the terms, the insurance company can limit its financial responsibility to the terms of the settlement. This means in many cases that if attorney fee’s and/or judgments above the settlement amount become the responsibility of the defendant. Is it possible that the insurance company offered a settlement to the Dennis family which was accepted but Freshwater decided not to allow the settlement?

Did anyone catch the final Law and Order episode? Rife with “branding of students” references. Crosses and all.

Yes, watched it last night on the internet on this link:

http://ch131.com/

The episode is called The Rubber Room

The part that is references the “branding” is about 18 minutes into the show.

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