Freshwater: A Teaser

| 35 Comments

I won’t be able to write up the Thursday and Friday hearings for a while, but I have to report this weird occurrence today.

A strange thing happened at the end of the Freshwater hearing today. The Board’s attorney, David Millstone, was in recross of Freshwater. He introduced a document, Employer’s Exhibit 99, a single sheet of paper with text on both sides and a letterhead I couldn’t read from where I was. Freshwater’s attorney, R. Kelly Hamilton, immediately interjected that in light of the gag order recently issued by the federal court hearing the civil suit against Freshwater, he would advise Freshwater to answer no questions at all about the Exhibit. After some discussion, the referee, who had not read the gag order yet, decided that before he would rule on whether Freshwater would be allowed (or required) to testify concerning the Exhibit he would have to read the gag order and that Freshwater would have to consult his new attorneys. Recall that the first two attorneys retained by the insurance company successfully petitioned to withdraw a month ago and two new ones were retained a couple of weeks ago. So it was left at that until Freshwater could consult his new attorneys. Since it was 4:30 pm no more testimony was taken today.

After the palaver was done and the hearing was adjourned for the day, I approached the referee and asked if was legal for me to read Employer’s Exhibit 99. He looked at me and said, “I don’t know if it’s legal or illegal, but if you read it you may be into deeper waters than you can get out of.” I decided for the moment not to read it.

But I REALLY wonder what it is!

35 Comments

This just keeps getting weirder and weirder and weirder!

Maybe some judge will put Hamilton and Freshwater in jail for contempt, without bond.

Is there an online version of the “gag order”? It would be interesting to see exactly what it states.

Divalent said:

Is there an online version of the “gag order”? It would be interesting to see exactly what it states.

All the legal docs on the Doe (Dennis’s) vs. Freshwater case are on NCSE’s site here.

More delay.

Freshwater has to realize that this chapter is coming to a close and it’s not going to be good for him. Strip away all the fluff and distractions and two facts remain:

1. Freshwater put a mark on a kid’s arm. Freshwater admitted this; it’s not in doubt. 2. Freshwater wrote that he was not removing his bible from his classroom and if that was insubordinate, so be it.

It seems to me that Freshwater’s main “problem” is his inability to admit he was wrong. If he had apologized to the Dennis family and been more cooperative with his administration I’m certain he would still be teaching creationism under the radar, but he’d still have a job.

Somewhat off topic, when I was in high school there was an eccentric biology teacher who “required” students to either pick up a live scorpion or handle a tarantula. He was a very popular teacher. I don’t know how many students during his 30-year tenure were stung, although I never heard of a single case even through folklore, but I’m sure he would have fallen all over himself to make it right if that happened. If anything, students praised him for helping them overcome their natural fear of creepy crawlies.

When FreshH20 is fired I’ll bet he becomes a regular on the Glenn Beck show.

A gag order is better excuse that two flat tires. Can’t wait until Monday to hear what was in that form though.

The gag order: “Accordingly, the parties are hereby ORDERED to not disclose or to permit others to disclose any of the confidential settlement negotiations that have been or will be exchanged in this action.”

Based on the above, presumably the answer to the question asked of him would have disclosed something about the confidential settlement negotiations that have (or will be) exchanged between the parties in the Federal suit (as that is the only topic covered by the gag order).

What the what?!

Well, thanks for the link to the National Center for Science Education; I’ve never been.

That second paragraph (please read, it’s brilliant) explains why we fight, it is plain and simple, this man is a menace to education. I say ‘we’, I mean you, RBH; don’t blush. These pricks must be nailed, by rationality, by the facts, by the law, and by science. Fuck them!

Don’t want to distract from PEN1 Freshwater (Public Enemy Number 1) but I think ‘Uncommon Descent’ should rename themselves ‘bornagain77-Descent’. His screeds are tireless. Good Day peoples.

I would have read the thing, given the opportunity.

Yeah, it was hard not to, but you didn’t see the referee’s face and hear the tone of his voice. I don’t want to take on an already pissed off federal judge.

Divalent said:

The gag order: “Accordingly, the parties are hereby ORDERED to not disclose or to permit others to disclose any of the confidential settlement negotiations that have been or will be exchanged in this action.”

Based on the above, presumably the answer to the question asked of him would have disclosed something about the confidential settlement negotiations that have (or will be) exchanged between the parties in the Federal suit (as that is the only topic covered by the gag order).

There’s variation in how the several lawyers are interpreting the scope of the gag order, with most of them falling on the very conservative ‘this covers a whole lot of territory’ end. Judge Frost is already pretty pissed off and none of them are inclined to provoke him further. So they’re advising their clients to button up regarding almost all aspects of the case on the ‘better safe than sorry’ principle.

RBH said:

Yeah, it was hard not to, but you didn’t see the referee’s face and hear the tone of his voice. I don’t want to take on an already pissed off federal judge.

That still would not have stopped me. Had there been something in the docs plus something in the gag order that applied to you personally, your safe option would have been to not tell us. You still could have read it. Federal judges have a large amount of authority, but that authority still has some pretty sharp limits. Don’t base your decisions on what scares most other people because most other people don’t have a clue what their rights - are unless you are talking about a particular right that has been featured on TV.

Furthermore, as you describe it, they weren’t scared until Hamilton connected the document with the gag order.

Jesse said:

Furthermore, as you describe it, they weren’t scared until Hamilton connected the document with the gag order.

It was apparent from the behavior of principals in the case that the broad interpretation was in force immediately after the order was issued. This was just one manifestation of it.

RBH said:

There’s variation in how the several lawyers are interpreting the scope of the gag order, with most of them falling on the very conservative ‘this covers a whole lot of territory’ end. Judge Frost is already pretty pissed off and none of them are inclined to provoke him further. So they’re advising their clients to button up regarding almost all aspects of the case on the ‘better safe than sorry’ principle.

Thanks again Richard. This is very interesting. Of course we know if anyone violates the gag order it will be Hamilton or Freshwater. What is your take on David Millstone? From everything I have read (including here on Panda’s Thumb), he seems to be a decent person and a very competent attorney and outclasses Hamilton on many levels. Is that your take?

CMB said:

What is your take on David Millstone? From everything I have read (including here on Panda’s Thumb), he seems to be a decent person and a very competent attorney and outclasses Hamilton on many levels. Is that your take?

Yup, that’s my take. He’s organized, methodical, and thorough without dragging things out. Hamilton is scattered, disorganized, and in his questioning chases rabbits all over the place.

RBH said:

Jesse said:

Furthermore, as you describe it, they weren’t scared until Hamilton connected the document with the gag order.

It was apparent from the behavior of principals in the case that the broad interpretation was in force immediately after the order was issued. This was just one manifestation of it.

They weren’t too scared to ask questions about it until Hamilton connected it with the gag order. You want to place bets on whether or not Hamilton is going to use that gag order as a club to use for stalling tactics? You’ll notice that everybody was so scared of the judge that nobody would even read it to see if the document was related to what was in the gag order. Sounds like Hamilton has himself a wonderful tool for the hearings.

Just want to say that this is fascinating for me (for whom the law is a murky, roiling Pit of Death). Thanks for the coverage and suspense, RBH.

Doc Bill -

Many species of scorpion and virtually all tarantulas are relatively harmless, except for potential allergic reactions or irritating but not-very-harmful defense mechanisms.

harold said:

Doc Bill -

Many species of scorpion and virtually all tarantulas are relatively harmless, except for potential allergic reactions or irritating but not-very-harmful defense mechanisms.

In particular, don’t antagonize bird-eating spiders: their hairs are barbed, and are documented to provoke severe allergic responses in sensitive humans.

Doc Bill said: Somewhat off topic, when I was in high school there was an eccentric biology teacher who “required” students to either pick up a live scorpion or handle a tarantula. He was a very popular teacher. I don’t know how many students during his 30-year tenure were stung, although I never heard of a single case even through folklore, but I’m sure he would have fallen all over himself to make it right if that happened. If anything, students praised him for helping them overcome their natural fear of creepy crawlies.

Also off-topic, when we went on a “behind the scenes” tour at the AMNH, the guide took out a furry tarantula and asked if anyone wanted to pet it. All the children took one step forward to pet. All the adults took one step back in horror!

Thanks for the update. This is how Alice felt when she dove down the rabbit hole.

Re: tarantulas, they are quite capable of biting, but won’t unless injured. Some children are allergic to the spider’s hair, and develop a contact dermatitis. Some 30 years ago, I was doing a little “nature talk” with a bunch of kids and 3 tarantulas. One of the critters got lost- it crawled up the cuff of my pants to about the knee before I felt it. I had an associate blow cigarette smoke up my leg which knocked the spider out cold.

Jesse said: They weren’t too scared to ask questions about it until Hamilton connected it with the gag order. You want to place bets on whether or not Hamilton is going to use that gag order as a club to use for stalling tactics? You’ll notice that everybody was so scared of the judge that nobody would even read it to see if the document was related to what was in the gag order. Sounds like Hamilton has himself a wonderful tool for the hearings.

You’ve slightly misrepresented the situation. No questions were asked about it. Several potential courses were discussed at the end of the hearing, one of which will be taken Monday. The referee may decide that the gag order should be construed narrowly as applying strictly to settlement issues, and if the exhibit doesn’t have to do with them he can require Freshwater to answer questions in public about it. Freshwater is under instructions to consult his new insurance company lawyers, who are responsible for him in the federal court, and get their advice. They ma advise Freshwater to answer questions or not. Or the referee may decide to have examination on the exhibit held in camera, requiring Freshwater to answer questions about it. We simply don’t know what’s going to happen yet.

My decision to not read it was based partly on the fact that Hamilton was standing 5 feet from me, watching and listening. I took the referee’s comment about ‘deeper waters’ to imply that my reading it might stir up trouble in the federal case and allow Hamilton to raise further serious obstructions to the federal case and/or the administrative hearing because an outsider read it who was not legal counsel in the case and who is a quasi-journalist. I didn’t want to risk that.

RBH said:

Jesse said: They weren’t too scared to ask questions about it until Hamilton connected it with the gag order. You want to place bets on whether or not Hamilton is going to use that gag order as a club to use for stalling tactics? You’ll notice that everybody was so scared of the judge that nobody would even read it to see if the document was related to what was in the gag order. Sounds like Hamilton has himself a wonderful tool for the hearings.

You’ve slightly misrepresented the situation. No questions were asked about it. Several potential courses were discussed at the end of the hearing, one of which will be taken Monday. The referee may decide that the gag order should be construed narrowly as applying strictly to settlement issues, and if the exhibit doesn’t have to do with them he can require Freshwater to answer questions in public about it. Freshwater is under instructions to consult his new insurance company lawyers, who are responsible for him in the federal court, and get their advice. They ma advise Freshwater to answer questions or not. Or the referee may decide to have examination on the exhibit held in camera, requiring Freshwater to answer questions about it. We simply don’t know what’s going to happen yet.

My decision to not read it was based partly on the fact that Hamilton was standing 5 feet from me, watching and listening. I took the referee’s comment about ‘deeper waters’ to imply that my reading it might stir up trouble in the federal case and allow Hamilton to raise further serious obstructions to the federal case and/or the administrative hearing because an outsider read it who was not legal counsel in the case and who is a quasi-journalist. I didn’t want to risk that.

You should have expanded on that before. I was only responding based on what you posted. What you said more than implied that the referee stated that you would personally be in hot water for merely reading the thing. He didn’t just say “deeper waters,” he followed it up with “than you can get out of.” I know that gag orders do not work that way. There are some constitutional bounds to them. Even just reading the thing, you would not hamper the case if you did not report on it and did not tell people about what was in it. I still would have read it, then made the decision on whether or not to report on it later, the lawyers advocating a very broad interpretation of the order be damned. That federal judge is not going to take any of Freshwater’s or Hamilton’s crap over this, including crap based on what you may or may not report. He has already been very clear on that issue.

IANAL. If the exhibit has been entered as evidence, then it is part of the record. Unless someone asks to seal the exhibit, it is part of the public record. As such, anyone should be able to read it with no issues.

If it happens to bear on issues subject to the gag order, then things could get interesting. Especially since Millstone is not, so far as I can tell, subject to the gag order. Millstone should be totally uninterested in any settlement talks in the Federal case, since his job is to represent the Board (no longer a party to the Federal case) and is neither a party nor a legal representative of any party with regard to the Federal case.

Personally, I think Hamilton is blowing smoke over the exhibit and there is something in there will blow large holes in Freshwater’s side of the admin hearing.

–W. H. Heydt

Old Used Programmer

Jesse said: You should have expanded on that before.

Yessir. Very good, sir.

I didn’t mean to imply that what you are reporting is crap, just that Hamilton and Freshwater are experts and geniuses when it comes to generating crap from any source.

Jesse said:

I didn’t mean to imply that what you are reporting is crap, just that Hamilton and Freshwater are experts and geniuses when it comes to generating crap from any source.

You could have fooled me.

RBH, the issues generated by the Freshwater Case are fundamentally important for us here in MTV and well beyond, I might add. I’m extremely glad that you and a few others are devoting your time to convey this information for all of us who are closely associated with the events in this matter.

I’ve learned just what the mysterious Board Exhibit 99 is. It’s an affidavit signed by Freshwater concerning (among other things) the classroom material he obtained from the administration some time in the summer of 2008 and how (or whether) it was disposed of. I’m trying now to get a copy of the affidavit. Re-reading the gag order, the affidavit does not appear to me to fall within its scope, at least as far as I now know the affidavit’s contents, so Jesse appears to be correct: This is yet another delaying tactic by Hamilton.

Another tidbit. In his comments regarding advising Freshwater not to respond to questions concerning Board Exhibit 99, now known to be an affidavit that Freshwater signed, Hamilton remarked in passing that he does not represent Freshwater in the Doe federal suit. Consistent with that, in the court order sanctioning Freshwater and Hamilton for failing to produce documents requested in discovery, I see this:

On May 26, 2010, at 8:00 a.m. attorneys Stephen Charles Findley and Sandra R. McIntosh filed a notice of substitution of counsel indicating that they were substituting themselves as counsel in place of R. Kelly Hamilton. (Italics added)

So he’s totally out of the federal suit picture now. He did specify in his objection that he was advising Freshwater not to answer questions in the hearing in his capacity as Freshwater’s personal lawyer.

Doc Bill wrote: ““required” students to either pick up a live scorpion or handle a tarantula. He was a very popular teacher. I don’t know how many students during his 30-year tenure were stung, although I never heard of a single case even through folklore”

In addition to what others wrote, above, the species of scorpion most often sold in pet stores is one that has a fairly mild sting that it rarely uses, mostly relying on its pincers instead.

RBH said: So he’s totally out of the federal suit picture now. He did specify in his objection that he was advising Freshwater not to answer questions in the hearing in his capacity as Freshwater’s personal lawyer.

Wierd. Is there any indication whether this decision is coming from Hamilton or Freshwater?

Early on I thought Hamilton was a true believer, but between the latest flat tire escapades and now this its looking like Hamilton is jumping ship. After getting Freshwater’s house signed over, too.

eric said:

RBH said: So he’s totally out of the federal suit picture now. He did specify in his objection that he was advising Freshwater not to answer questions in the hearing in his capacity as Freshwater’s personal lawyer.

Wierd. Is there any indication whether this decision is coming from Hamilton or Freshwater?

Early on I thought Hamilton was a true believer, but between the latest flat tire escapades and now this its looking like Hamilton is jumping ship. After getting Freshwater’s house signed over, too.

The advice not to testify is Hamilton’s. The decision rests with Freshwater, and he followed Hamilton’s advice.

There was testimony this morning about that exhibit, and I’ll outline that when I write up today.

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This page contains a single entry by Richard B. Hoppe published on June 4, 2010 6:27 PM.

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