Freshwater: Board members, and the black bag

Thursday and Friday, June 3 and 4, were trials to attend. In a hot stuffy room with R. Kelly Hamilton doing his plodding and scatter-shot questioning of Ian Watson, former Board President, in direct examination and later Freshwater in redirect, it was hard for the gallery to even stay awake, say nothing of pay attention. The referee again reiterated his hope that we would finish on Tuesday, June 8, but a last minute glitch at 4:30 p.m. on Friday may have put sand in that gear.

I’ll cover both days in this post, which sees us through Ian Watson’s testimony and back to Freshwater’s testimony, which has been in sporadic progress for six months. The latter has some stuff about another former Board member, Steve Hughes.

tl;dr warning: 4,200 words.

Ian Watson direct (continued)

As I noted a few days ago, Watson’s testimony was fenced around with restrictions and often interrupted by objections, since both statutory protection of parts of the operation of boards of education and attorney-client privilege limited the questions he could answer. So it is a slog.

Continuing his direct examination of Ian Watson, Hamilton asked if Watson knew that Lori Miller, a middle school math teacher (the one who was exuberant about sharing her faith with students in the school) had a Bible on her desk. Watson said he’d heard that at some time in early summer 2008 from Superintendent Short, who also told him that Andrew Thompson, another middle school teacher, also had one. Asked if Miller had a right to have a Bible on her desk, Watson said that in his personal opinion it is bad policy. Asked why, he replied that a teacher is an agent of the state. Watson didn’t recall whether he knew then that Principal White told Miller her Bible was permitted.

Hamilton asked if Watson knew Freshwater’s religious beliefs. He said he didn’t. Hamilton asked if Watson had talked about Freshwater’s religious beliefs with the Dennis’s or with Dr. Weston, former Director of Teaching and Learning. He had not. Hamilton asked what Watson knew about Freshwater’s 2003 science curriculum proposal [to incorporate Intelligent Design Network’s “objective origins” policy]. Very little, he replied, just what he’d read in the newspaper at the time. (Recall that one of Hamilton’s themes is that Freshwater was targeted for termination because he had offered that proposal.)

Hamilton asked what a religious “display” is. Watson said that he deferred to the attorneys on that, but that he would say that it is “a grouping of religious articles such that when you see it, one particular religion is being emphasized.” We watched some back-and-forth about how many such items it took to make it a “display.” Hamilton listed the items (Bible, devotional booklets, a rock with a Bible verse) on Lori Miller’s desk one by one, asking at each addition if that made it a religious “display.” Watson testified that it is a continuum, becoming more problematic as more religious items are added. (Parenthetically, in this line of questioning Hamilton was using a variation of the Sorites paradox.)

Hamilton’s questioning has also focused exclusively on whether it is the intentions of the person creating the aggregation of religious items or the administration’s opinion that counts in defining something as a religious “display.” Throughout his questioning, Hamilton has implicitly emphasized only the “purpose” prong of the Lemon test for violations of the Establishment Clause to the exclusion of the “effect” prong. That’s at the base of his attempts to establish secular purposes for each individual item.

Hamilton asked if Watson was aware of complaints about Freshwater prior to the 2007-2008 school year. Watson said that former Superintendent Maley has said something about an issue about handouts Freshwater used.

Hamilton moved to a question about the partially overheard conversation at a coffeehouse called Sips that was first raised in February 2009 (under “Opening Maneuvering”). Recall that Hamilton attempted then to introduce an affidavit from an unavailable witness to an alleged conversation between Watson and an unidentified other person on December 29, 2007, about the Freshwater affair. The father of the witness was prepared to testify, though he had not himself overheard anything. Watson testified that he did not recall meeting someone at Sips on that date, and that citizens had often come up to him to talk regarding school board business.

Hamilton asked why Freshwater was suspended without pay. Watson replied that based on the information available to it, the Board decided that there were sufficient grounds to terminate Freshwater and that there were grounds to suspend without pay but with health benefits. Hamilton asked if the suspension without pay was punishment, and Watson said the word “punishment” was never mentioned in the Board’s deliberations.

Hamilton asked if Watson believed that the investigators’ report was a “complete report.” Watson replied that it was satisfactory to the Board. Asked if it was fair, Watson said that the report identified some allegations that were not issues (See here for testimony on that). Asked if it was accurate, Watson replied that it was “to my knowledge.”

Hamilton asked a series of questions about the specific investigative procedures employed by HR OnCall in its investigation. He didn’t know much about them.

Hamilton turned to material that had been subpoenaed from Watson, in particular his work calendar from December 2007 through March 2008 and Watson’s and his wife’s joint personal calendar for that period. Asked why the work calendar was blank, Watson noted that he retired in September 2007. Hamilton trudged through the entries in the personal calendars, asking for each entry who, say, “Jean W” was. He was apparently trying to establish some contact between Watson and principals in the Freshwater affair to support his conspiracy theory. We learned that the Watsons went to dinner with friends and visited their children, and that Ian attended meetings of boards he’s on (e.g., the Owl Creek Conservancy), but that no entries even hinted at the connection Hamilton wanted to find.

Hamilton asked if Watson spoke to Sam Barone about the Freshwater affair. Watson replied that he listened to Barone, who was concerned about the treatment of his son Joe in Freshwater’s class some time ago. (Joe had earlier testifed in the hearing in January 2009.)

That ended Hamilton’s direct examination, and David Millstone, the Board’s attorney, had no cross.

Steve Hughes, a member of the Board of Education when Freshwater was suspended, was scheduled to testify next, but due to a family medical emergency he wasn’t there. So we returned to the unending saga of Freshwater’s testimony, now in redirect examination after having been begun six months ago.

Resumption of Freshwater redirect examination

Recall that Freshwater was called as a witness by Hamilton in December 2009, seven months ago. Since then there have been sporadic episodes of direct examination, cross examination, and then redirect examination. Today we pick up redirect in progress.

Hamilton returned to the anonymous phone call that informed him of a black bag of ‘evidence’ hidden near a trash barrel in a parking lot near the school. Freshwater described how he received three phone calls while he was at his parents’ home roughly 90 minutes from his home. In the first the caller said nothing but there was some background noise, then a second in which there was only muffled sound, and then a third that Freshwater let go to voicemail. Listening to the voicemail a bit later he hear “a cartoonish voice” that told of the black bag’s location. He first called a friend who didn’t answer and then called his pastor, Don Matolyak. Matolyak, with an armed escort, went on a late night expedition to retrieve the black bag and then called Freshwater, describing its contents. The next morning Freshwater drove back to Mt. Vernon and met Matolyak and Kelly Hamilton at Matolyak’s church.

Freshwater testified that he recognized the black bag as one he had used to hold the materials for his 2003 proposal to alter the science curriculum to include “critical analysis of evolution.” Sometime later the police were called. They wrote a report (see here) and took custody of the bag and its contents. Later Freshwater obtained a copy of the documents and pictures in the bag from the police under a public records request. The copy ran to 410 pages, which were duly entered into evidence at the hearing.

Freshwater testified that attempts were made to identify the mystery caller via the phone number in his caller ID. He testified that when called, until recently the number yielded a high-pitched tone like a fax machine or modem. Now it appears to be out of service. (If there are any phreaks in the crowd, that number is (740) 397-9104. Feel free to email me at RBH.THIRD [at] GMAIL. Confidentiality assured on request.) Quick searches in several reverse directories claim there’s subscriber info available but it’s behind paywalls.

We walked through a slew (where ‘slew’ is greater than 100 pages) one page at a time, Pam Schehl of the Mt. Vernon News has a good summary of the contents:

In addition to about $40 in cash, the bag contained 410 pages of various documents, including student work, miscellaneous photographs, Fellowship of Christian Athletes materials, what Freshwater called “hate mail,” other e-mails, newspaper articles, Web site references, random letters from former students, students’ parents and others in the community.

Some of the material was “research” Freshwater said he did in preparation for his 2003 “critical analysis of evolution” proposal, including the misleading letter to the Ohio SBOE from Representatives John Boehner and Steve Chabot concerning the Santorum amendment, a letter in which they falsely claimed that the “amendment” had the force of law. It was a provision written by Phillip Johnson that then-Senator Rick Santorum tried to insert in the No Child Left Behind Act. As we know, that amendment was removed from the bill in conference committee and does not have the force of law.

He testified that he did not want to teach intelligent design or creationism, but rather he wanted to “teach more evolution” and help students pass their 10th grade proficiency test. Bear in mind that (a) Freshwater was an 8th grade teacher and (b) AFAIK the 10th grade proficiency test was not yet written when Freshwater made his proposal–the State BOE had just barely adopted the standards when Freshwater was preparing his proposal.

One document supporting Freshwater that he kept was from Frank Vosler, a young earth creationist from New Albany, Ohio, and a founder of the Creation Research, Science Education Foundation, which seems to have become moribund: its newsletter hasn’t been published since 2008. The flavor of Vosler’s views can be gleaned from this letter to the editor in 2000. It’s archived on a site that solicits such letters solely from YECs. Vosler’s name was mentioned several times in the course of slogging through the documents. To be fair, Freshwater also had a reference to the 2003 version of Facing Challenges to Evolution Education from NCSE, though there was no evidence in the black bag (or in 2003, for that matter) that he paid any attention to it.

One news clipping Freshwater kept from the 2003 era contained a comment from a Board Member at the time to the effect that Freshwater should spend his summer taking a course in evolution at the Ohio State University.

Another web site Freshwater consulted in 2003 was, the site for “Science Excellence for All Ohioans,” which was originally established as a project of the American Family Association and subsequently became a branch of Intelligent Design Network. Freshwater testified that it is “a web site where I gathered information.

There was a copy of his proposal with a handwritten note from a 6th grade science teacher, Linda Small, saying “Good job. I’ll be praying for you.”

Freshwater testified that he gathered information from all kinds of sources, both for and against, in his “research,” and that he didn’t limit his “research” to one side. “Research” for Freshwater seemed to mean gathering random information. There has been no evidence offered of his critical or knowledgeable evaluation of that material.

He had an article on coal formation that had a sentence that is identical to a quotation about YEC geologist Steve Austin from a creationist web site:

Dr. Steven Austin wrote his doctoral dissertation at Penn State University on a new model for coal formation based on his study of a coal field in Kentucky.

The bag also contained a stack of Freshwater’s teaching materials from years past. There were pages and pages and pages of assignments, exercises, handouts, extracts from web sites, etc., and we slogged through dozens of them, skipping some and pausing at others. By the time we got past page 300 (of the 410), Hamilton looked and acted as bored as all the rest of us. Why was he doing that? For each page that had some orthodox science lesson or reference material, he asked Freshwater “Is this representative of how you taught science?” and Freshwater would answer “Yes.” Essentially Hamilton was trying to establish that Freshwater taught only straight science. But, of course, we didn’t see, say, the giraffe or woodpecker handouts with the “Was an ID involved” question at the bottom or material concerning the various creationist notions–humans and dinosaurs together, hydrosphere theory, and so on–that Kerri Mahan testified that he taught in science class.

Hamilton asked “Was your [2003] proposal to teach ID in any form or fashion?” Freshwater replied “No.” But the “teach the controversy” approach, from which the “critical analysis of evolution grew, is all there is to ID; ID has no content aside from criticism of evolution. “Teach the controversy” was introduced to Ohio by Stephen Meyer and Jonathan Wells, both Fellows of the Center for the Renewal of Science and Culture, in a presentation to the Ohio State Board of Education in 2002. Freshwater distributed two articles aimed at laymen written by Wells as the main support for his proposal–see here under the heading Freshwater’s 2003 proposal on “critical analysis of evolution” for more.

Hamilton asked Freshwater if he knew who provided the black bag. He replied, “No.”

We trudged through a batch of Fellowship of Christian Athletes material–song folder, students’ invitations to speakers, a Cross Club poster, and so on. The main questioning was aimed at establishing that the relevant content was created by students, not Freshwater.

We saw a “curriculum map” for 8th grade that included a section on evolution, with variation, adaptation, natural selection, evidence, and mutations as subheads. Freshwater said that’s what he taught.

Hamilton asked if the information in the black bag would have contributed to his defense early on if he had it, and he answered his defense was hampered because he did not have it earlier.

We then turned to 16 (or 17; two were marked as #16) boxes of material from Freshwater’s classroom that the school had stored in the central administration offices. It amounted to approximately 50,000 pages of documents, of which Freshwater and Hamilton requested 11,484 to be copied. It’s all on a CD now, in a massive PDF, and we slogged through many pages of it–projected on a screen in a dimly lighted warm room–in the subsequent questioning.

In the main the questioning in this section was aimed at attempting to establish that the stored materials had been tampered with, and that Freshwater had been set up. In fact, the Mt. Vernon News story on this testimony has the headline “Freshwater: Somebody’s trying to set me up.

Freshwater testified that he and Hamilton went through those materials partly in search of the giraffe and woodpecker handouts (see also here andhere) previous testimony had mentioned. Apparently they were in Kerri Mahan’s room, and she had the impression someone had gone through her room.

I will condense the hell out of this section by quoting from Pam Schehl’s excellent story in the Mt. Vernon News linked above:

Freshwater was referring to what he characterized as discrepancies in some materials that allegedly came from his science classroom. The contents of 17 boxes full of various items were examined by Freshwater and his attorney in March and entered into evidence at Friday’s hearing, most in the form of a PowerPoint slide show of the material.

The boxes contained well over 11,000 pages of material including, but not limited to, photographs of students conducting experiments, worksheets, textbooks, newspaper articles, magazines, overhead transparencies, supplemental teaching material, correspondence, videotapes, seating charts and test results.

Two of the documents discussed Friday were stamped bd ex (board exhibit) 22 and bd ex 91, respectively. Freshwater said that was suspicious because the contents were supposedly removed from his classroom in August 2008, and the hearing didn’t begin until much later.

Aug. 12, 2008, was the date written on three of the boxes, along with a note that the material was from Room 215, Freshwater’s classroom in the Mount Vernon Middle School. UPS packing labels on those boxes were dated 13-Nov-08.

Freshwater said he could find no reasonable explanation for the date discrepancies.

“It’s confusing,” he said. “Materials have been moved around, added to and taken away.”

Freshwater concluded that indicates his classroom materials “were moved around and messed with.” As to the board exhibit marks, Freshwater said that indicates materials were tampered with.

This is a return to an earlier theme that Hamilton and Freshwater played, to the effect that since he made his proposal in 2003 Freshwater has been targeted by… erm…well, by someone.

Also in the boxes were the results of the 8th grade science achievement test given late in the 2007-2008 school year. Freshwater said he’d never seen them, and that they were received by the school after he had been suspended, so it was strange that they were in boxes supposedly containing materials from his classroom. Hamilton showed several of the score sheets on the screen with tables listing identifiable students and grades, a violation of student privacy law. Millstone finally objected (as I did to the Superintendent during a short break in the midst of it), and they tried to arrange a screen block to cover the students’ names.

We spent a good deal of time on the “Tall Towers” material. That, you may not recall, was the focus of the handwriting analysis exercise I posted some time ago. The original mention of it is here under the heading Building a tall building, while the handwriting analysis exercise is here. That was the handout introduced into evidence that had handwritten notes referring to the Tower of Babel and “After the Flood.” Freshwater and Hamilton did not find anything like that in the material on the tall buildings in the 50,000 pages. They found the same article in multiple copies to be used as handouts, but not one with similar handwritten notes.

Hamilton called attention to several oddities in the packing boxes containing the material. At least two were dated by hand as being from 8-12-08, while the delivery company address labels still stuck to the boxes were dated November 13, 2008. Freshwater testified that the inconsistencies ni the marked boxes indicate that Freshwater’s materials “were tampered with.”

Hamilton asked if Freshwater sas saying that someone was trying to set him up, and Freshwater replied “Yes. Things were taken out and things were put into my materials. … It’s confusing. Materials were moved around, added, and taken away.”

We slogged through still more material, a slide at a time. I quit taking notes: it was the same story, attempting to show that Freshwater was a perfectly normal teacher teaching perfectly appropriate material. By this time we were over 120 slides shown. We hit a series of slides Freshwater selected to show what happens in his classroom. There were pictures of happy students beside the tall buildings the kids had built in class as an exercise. We saw half a dozen seating charts.

Then there were a number of slides of documents from the boxes that Freshwater said he had never seen before.

A series of slides – 8 or so – on geology. Asked, Freshwater agreed that it supported an old earth, on the order of 4.6 billion years.

An announcement from the Nazarene University describing David Daubenmire’s Religion and the Classroom course that Freshwater took.

We finally finished with the slides. I’m not sure how many in the gallery were still awake.

Then questioning turned to several conversations Freshwater had with Steve Hughes, a local attorney who was a member of the Board of Education when it suspended Freshwater. According to Freshwater, he had a couple of brief conversations with Hughes when the latter stopped at Freshwater’s apple stand to buy apples, and again in a supermarket. Then Hamilton and Freshwater encountered Hughes as they were walking from the parking lot to the County building where the hearing was being held. Hughes’ office is across the street. Freshwater said Hughes hailed them. Freshwater said he went on into the building while Hamilton stayed to talk with Hughes.

Then, Freshwater testified, he visited Hughes in his office a few days thereafter because he suspected that Hughes was the anonymous source of the material in the black bag. He secretly taped their conversation, which lasted a bit over half an hour. When he got home from that visit, Hughes telephoned as he walked in the door. Freshwater taped their telephone conversation, too. A transcript and CD of the recording(s) was entered into evidence. A couple of extracts were read in the hearing, one with Hughes telling Freshwater something to the effect that insurance companies try to “starve the plaintiff out.” Freshwater testified that he interpreted that as applying to him. That doesn’t make sense. The only insurance company involved is associated with the federal suit where it is acting on Freshwater’s behalf, so those who it would be trying to starve out would be the Dennis family.

Freshwater testified that Hughes told him the suspension was based on the investigator’s report. He said that it didn’t have to do with what Freshwater did 20 years ago or 6 years ago, but what happened in 2007-8 school year. That blows up Freshwater’s notion that someone has been out to get him since 2003.

Freshwater said that Hughes told him that what the Board will do would depend on what the referee said and how he said it in his report. Well, duh.

Asked, Freshwater said that Hughes had a Bible on his desk.

Freshwater recross

In recross Millstone first walked Freshwater through the sequence of events associated with the Hughes conversations. When Freshwater got to the phone call from Hughes just after he arrived home from being in Hughes’ office, Millstone asked if Freshwater had asked Hughes to call him. Freshwater said he had not. Millstone asked if Freshwater had called Hughes to ask him to call Freshwater. Freshwater said he couldn’t remember.

Millstone repeated, “You had not called him and asked him to call you?” Freshwater replied “I don’t remember if I did that.”

Millstone then read from the transcript of the call, near the end of it. In that segment Freshwater thanked Hughes for returning the call. Responding to that, Freshwater said that he may have called Hughes a day earlier and left a message asking him to call.

We spent a little time on the sequence of events associated with the anonymous call that led to the retrieval of the black bag. Freshwater said he received three calls on his cell phone in fairly close succession while he was at his parents house that evening. In the first call no one talked but he could hear voices in the background. In the second call the sound was muffled and Freshwater hung up. Freshwater let the third call go to voicemail and he retrieved it a few minutes later. Asked what subsequently happened to the voicemail, Freshwater said it was lost when he attempted to forward it. Man. Hamilton floods his computer and throws it away, Hamilton has two flat tires on the way to federal court, and Freshwater loses the voicemail. These guys have no luck with technology.

We got to where the bag was turned over to the cops, which pretty much ended that line of questioning.

Then Millstone introduced Board Exhibit 99, which Pam Schehl of the Mt. Vernon News identified as an affidavit–I didn’t catch that. Then the gag order stuff I described here occurred, and we adjourned, to resume (one hopes!) Monday morning.

Once again, the phone number from which the anonymous caller called was (740) 397-9104, and I invite any phreaks in the crowd to give it a shot. Email me at RBH.THIRD [at] I assure you of confidentiality, but use a throw-away email account and a remailer if you’re edgy.