# Freshwater: Tightening the vise

The pressure on John Freshwater and his attorney R. Kelly Hamilton was ratcheted up last Friday, July 2, when the attorney for the Dennis family in Doe v. Mount Vernon Board of Education et al. filed a memorandum in opposition (pdf) to Freshwater and Hamilton’s motion for reconsideration of the federal court’s ruling that the two are liable for sanctions–attorney fees–due to non-compliance with discovery requests. That memorandum, written by Douglas Mansfield, the Dennises’ attorney, is full of bad news for Freshwater and Hamilton.

Details below the fold

First, recall that Freshwater has repeatedly claimed under oath that in May 2008 he and Hamilton met frequently–“almost daily”–to prepare 15 affidavits that were purportedly to be part of Freshwater’s comprehensive response to the allegations being investigated by the Board’s independent investigator, HR OnCall. There have been questions for months about the provenance of those affidavits, and in aid of determining just when they were prepared, Hamilton’s billing records for that period were sought in discovery. That’s when the Flood story emerged. Hamilton claimed that a broken water pipe flooded his laptop computer, and concluding that the data were irrecoverable he discarded it. He told the federal court that he had no billing records for the period in question.

However, it turns out that two months after the purported flood, Hamilton provided those very billing records, in electronic form, to the Board of Education’s attorney Sara Moore. From the memorandum in opposition:

In the affidavit attached as an exhibit to his Motion, Mr. Hamilton maintains that the “only evidence of billing records or anything relevant to the drafting or preparation” of Mr. Freshwater’s 15 affidavits “is limited because the gray colored Toshiba laptop computer used by affiant to . . . work on John Freshwater’s affidavits was completely destroyed by a water pipe burst that occurred at affiant’s office sometime between January 13, 2009 and January 16, 2009.” (Hamilton June 15, 2010 Aff. Para 3, 8) The proof that he billed Mr. Freshwater for assisting in the preparation of these affidavits, Mr. Hamilton claims, is Mr. Freshwater’s payment of $10,000 on November 12 and 13, 2008. (Id. Para 2, 8) But when Mr. Hamilton swore to these facts in his affidavit, he neglected to mention that he produced all of his billing records from April 17, 2008 through February 22, 2009 to counsel for the Mount Vernon City School Board of Education on March 17, 2009–two months after the alleged flood in his office occurred. (See Billing Records of R. Kelly Hamilton (filed under seal as “Exhibit A”) (cover email dated March 17, 2009).) The bills he produced to the School Board two months after the flood were for all periods before the flood, for the period after the flood but before he bought his new computer on February 3, 2009 (see Hamilton June 15, 2010 Aff. ¶ 7),1 and for the period after he claims to have the new computer in place. What is more, he produced these records to the School Board electronically, complete with what appear to be computer generated redactions, supplying further evidence that these records survived the flood. (Page 5; all italics original) That seems to seal the case that Hamilton has been lying to the federal court about the billing records being sought in discovery. But there’s more. Freshwater testified under oath that he and Hamilton met numerous times to prepare the 15 affidavits–“almost daily” in Freshwater’s words. However, while the billing records are under seal due to the gag order, the memorandum in opposition described the relevant portions: The billing records, moreover, confirm the Dennises’ longstanding suspicions that Mr. Freshwater’s 15 affidavits were not executed between May 23 to May 25, 2008, as Mr. Hamilton maintains. In fact, no entries involving affidavits or anything approximating affidavit-related activities appear in Mr. Hamilton’s billing records during the entire month of May 2008. (See Billing Records of R. Kelly Hamilton.) Given Mr. Hamilton’s refusal to turn over his billing records and his untruthful representations about the existence of those records, the Court should not reconsider its decision to impose sanctions. Rather, the Court should impose further sanctions as set forth below. (Page 6) So Hamilton was clearly lying about the loss of the billing records and Freshwater was apparently lying about the preparation of the affidavits. The only alternative to the latter conclusion is the hypothesis that Hamilton didn’t bill Freshwater for the affidavit preparation. But Hamilton has told the federal court that a payment of$10,000 to him from Freshwater in November, 2008, was in payment for the preparation of the affidavits. That’s a rock and hard place problem for them both.

There’s more in the memorandum in opposition about on-going failure to comply with discovery orders on the part of Hamilton and Freshwater, and you can read the memorandum (pdf) for that.

The sanctions the family are now requesting (in addition to those imposed earlier by the court) are first, that the court grant a summary judgment against Freshwater in favor of the Dennises, which would end the suit. Failing that, the family requests, via their attorney, that adverse evidentiary inferences be made against Freshwater concerning all the material not produced in compliance with the discovery orders. Specifically, they request the court rule

1. that Mr. Freshwater’s 15 affidavits were not prepared on May 2008 as Mr. Freshwater contends; and
2. that materials Mr. Freshwater acknowledges were in his classroom during the 2007-2008 school year but has not produced were religious items that served no secular purpose. These items, which may have been removed by Mr. Freshwater with the five armloads of materials in August 2008 or at other times with the President Bush poster or the copies of materials made at his church, include posters featuring Biblical quotes displayed on his classroom cupboards and books such as Refuting Evolution, Evolution of a Creationist, The Real Meaning of the Zodiac, and Icons of Evolution, and the “Lies in the Textbooks” videotape with the text “Part A 487” and “10 Lies of Evolution” displayed in his classroom. (See Pls.’ Mot. for Sanctions (Doc. No. 96) at 11-12.) (p. 15)

That last would eviscerate Freshwater’s defense since the case as originally filed against the Board of Education (which settled) and him is mainly an Establishment Clause case, and deeming all that material to be religious in nature with no secular purpose would strip him of the defense he’s been floating in the administrative hearing to the effect that he was using the creationist stuff to teach “bias” according to the Academic Content Standards and that the rest (e.g., the 10 Commandments) had a secular purpose.

This is becoming very sad to watch. Freshwater is not an intrinsically bad or evil person, but like not a few of his colleagues he is terribly misguided in his views of what is appropriate for a public school teacher. Further, he has been operating on the basis of very bad advice–from Daubenmire to start with and then Hamilton for the last two years–exacerbated by a socio-religious context full of people playing ‘Let’s you and them fight.’ While he is not an unwilling victim (after all, he has chosen to act on the bad advice), he is clearly being set up as a hero/martyr by his co-religionists who are more than happy to see someone else taking the point (and the arrows). That’s an awfully hard social role to decline when his family, friends, congregation, and principal advisers like his pastor Don Matolyak are all enthusiastically casting him in it and supporting him. Were he to try to decline or abandon that role he would be isolated and shunned, and that’s a high social price to pay. Freshwater has literally bet his farm that it’s worth it.