Freshwater: Unresponsive responses

R. Kelly Hamilton and John Freshwater have filed responses to the Dennis family’s memorandum of opposition to reconsideration of the sanctions against Hamilton and Freshwater ordered by the judge in Doe v. Mount Vernon BOE, et al.. I recently described the memorandum in Tightening the vise. The responses are masterpieces of misdirection. See Hamilton’s (pdf) and Freshwater’s (large pdf).

Recall that the memorandum of opposition made two principal allegations:

  1. Hamilton and Freshwater claimed that they spent many hours in May 2008 preparing 15 affidavits to give the independent investigators. However, Hamilton’s billing records for the period from mid-April through the end of May 2008, obtained pursuant to a federal court order to the Board of Education’s attorney, show no evidence of affidavit-related activity.

  2. Freshwater has been unresponsive to discovery requests and unresponsive to a court order to compel compliance with those requests.

More commentary below the fold

The billing records

Both Hamilton and Freshwater claim that Hamilton was operating in two distinct roles in April-May 2008, an “investigative” role for the investigation conducted on the Board’s behalf and a “legal” role for other work. In his response Freshwater wrote

That bill Kelly [Hamilton] gave Sarah Moore [BOE attorney] for May 2008 is accurate because Kelly billed me and I paid for the investigative interview preparation separately. Let me say it this way. I have two bills for May 2008. Actually I may have received three bills because I may have gotten one from Roger Weaver [an attorney who was briefly employed by Freshwater in April-May 2008] too. The two bills I got from Kelly were for two different processes. One bill was for the investigative interview and the other bill was for the legal works other than the interview preparation. I have never hidden the fact that I had separate legal billings. I testified on December 8, 2009 in the state hearing that I had separate legal bills. I read the transcript on page 4212 and am including a copy of it with this statement. Page 4212 of the transcript is accurate and it shows I spoke about the separate legal billings long before this recent mess started. So if anybody accuses me of being untruthful I say how would I know back then that this matter would come up now. Look the difference between the fee agreement of May 19, 2008 and the fee agreement of June 26, 2008 are (sic) as big as the difference between $175.00 per hour and $275.00 per hour. The difference between the two agreements are (sic) as different as night and day, as different as right versus wrong and as different as the truth versus these allegations. (pp 1-2)

So Freshwater is claiming that he employed Hamilton in two separate roles in May 2008, investigative interview preparation (the affidavit preparation), and some other unspecified “legal works” during the same period, the two being invoiced separately and at different rates.

Hamilton echoes Freshwater:

Any billing records obtained by Plaintiff’s counsel indicating any billing activity to John Freshwater during May 2008 are based on a separate fee agreement reflecting work completed for John Freshwater but not relating to the preparation of the fifteen (15) affidavits. (Exhibit 1 - Affidavit of John Freshwater at 3 and 4) Again, truth sometimes is a poor competitor as truth can be complicated and always vulnerable to misinterpretation–but truth is truth. The truth is John Freshwater and his family have had four (4) different fee agreements for legal counsel (Exhibit 1 - Affidavit of John Freshwater at 3) The billing record possessed by Plaintiff’s counsel is reflective of a fee agreement signed by John Freshwater on June 26, 2008–the third fee agreement–that permitted the undersigned [Hamilton] to re-bill or receive payment for legal work done since the inception of John Freshwater’s legal need which began on April 17, 2008 (Exhibit 1 - Affidavit of John Freshwater at 3).

So the implicit claim is that Hamilton’s billing records for work associated with the independent investigation is irrelevant to the federal case, and that only the billing for other unspecified “legal works” qualifies as responsive to the present issue. Bear in mind that at that time, April-May 2008, Freshwater was involved in no other legal issues associated with his troubles vis a vis the Board of Education–Doe v. Mount Vernon Board of Education, et al. was not filed until June 13, 2008 and the resolution to terminate him was not passed until June 20, 2008.

Hamilton claims in his response that

John Freshwater and the undersigned assert the legal invoices and billings for the fifteen (15) affidavits are and were completely different from the legal invoices and billings for the legal work related to John Freshwater’s state hearing and subsequent legal cases.

That’s very strange, since at that time–May 2008–Freshwater could not know there would be a state hearing. There was no foreshadowing of a potential need for a hearing prior to the issuance of the investigators’ report (pdf) dated June 19, 2008. He had to have made that decision after the report was released and the Board of Education passed its resolution of intent to consider termination on June 20, 2008. So what is Hamilton talking about when he claims to have been working in May on legal matters related to the state hearing? It simply doesn’t add up. All the other matters–anything other than the investigation–that would have required Freshwater to have legal advice were initiated well after Hamilton claims he was working on those matters.

Look at the Freshwater quotation more closely. The first claim is that “I have two bills for May 2008.” I found that interesting because I have a distinct memory of a statement by Freshwater that he no longer has those invoices. I don’t recall whether it was in a deposition or in testimony in the hearing, but I have a faint memory that I posted on it somewhere. Anyone else’s Google-fu better than mine?

I also found this claim interesting:

I [Freshwater] read the transcript on page 4212 and am including a copy of it with this statement. Page 4212 of the transcript is accurate and it shows I spoke about the separate legal billings long before this recent mess started.

In the transcript (attached to Freshwater’s response) that comes out of the blue–Hamilton is questioning Freshwater about the preparation of the 15 affidavits–how Hamilton asked questions and Freshwater answered them, and how Freshwater could make corrections or amendments in the drafts Hamilton prepared, and how Hamilton had Freshwater swear to the truth of them. Then in the midst of that, there’s this sequence:

Q. Did I – you’ve come to have an understanding now of the importance of of an affidavit?
A. Yes.
Q. What’s your understanding?
A. Wow. That, one, I know that you’re very good at that. You’re very thorough at that. It’s important so you get the words down on paper in that time period.
Q. Now, you have an awareness of my background. Correct?
A. Yes.
Q. And what was part of my background?
A. Your background–we’ve gotten to know each other very well–Columbus police officer. And you are very good.
Q. When we first hired on together, did I tell you there was a legal component and a legal investigative component?
A. Yes.
Q, And we actually had an arrangement that I would say treated you pretty nicely financially that we separated the legal expertise versus the investigative legal expertise, right?
A. Yes.
Q. And we took care of those on separate billing statements. Right?
A. Yes.

Hamilton also quoted a few lines of that testimony in his response. That’s just plunked into the sequence of questions and led nowhere. It seemed to me at the time, and seems to me now, that it was a device to get the claim of Hamilton’s two roles on the record. Another sequence of testimony late in the hearing, in June 2010, struck me the same way when Hamilton asked Freshwater whether he (Hamilton) carried a printer with him:

Hamilton asked if Freshwater had ever seen Hamilton carrying a portable printer, and Freshwater said he had. Asked, he agreed that meant that Hamilton was not restricted to using the church’s printer. (I suspect-but do not know-that these questions are related to the question of the date of preparation of the 15 affidavits Freshwater claims to have put together after his first interview with the investigators, to be used at the second interview.

It may not be a coincidence that this particular testimony, with no connection to anything in prior testimony in the hearing, was elicited the day before a computer forensics analyst was scheduled to testify for the Board. To forestall speculation in the comments, that analyst did not testify about the printer provenance of those affidavits.)

One speculative hypothesis that could account for those two bits of strange questioning is that knowing the Board of Education’s counsel had a set of Hamilton’s billing records for April-May 2008 obtained in March 2009, and knowing by then that there were questions about the provenance of the 15 affidavits that the billing records were relevant to, in both the December 2009 and June 2010 questioning Hamilton may have laying the groundwork for a defense for not providing all his billing records along the lines of the “two roles” laid out in Freshwater’s and his documents filed yesterday. I repeat: that’s speculation. But it’s how it struck me on both occasions as I listened to the testimony: ‘this has something to do with the affidavits.’

In any case, none of this speaks to the central question for Hamilton, which is if his computer had been “totally destroyed” in the Flood as he has claimed, how could he have supplied any billing records at all to the Board’s attorney in March 2009? One set of invoices or two, one role or two, those records were wiped in January 2009 according to Hamilton. He does not address that question at all in his response. That’s what I mean by a “masterpiece of misdirection.” Hamilton and Freshwater generated a slew of words about his two roles and about the fragility of “truth” (that word appears 20 times in Hamilton’s response), but the central question is not addressed nor even hinted at in either response.

Discovery issues

Hamilton’s and Freshwater’s response to the assertion that they have not fully complied with the discovery process amounts to two words: “Did too!”

An impending settlement?

Finally, Hamilton uses this paragraph four times in his response:

On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff’s Memorandum of Opposition (Doc. 114)

McIntosh is one of the two attorneys retained by the school’s insurance company to defend Freshwater in Doe b. Mount Vernon Board of Education, et al. I have been unable to find out if that means there’s a tentative settlement with Freshwater. (Recall that Hamilton is no longer Freshwater’s attorney of record in that action.) It’s unclear what the antecedent of “this matter” is, so we don’t (yet) know whether it refers to the Doe suit or just to something about the sanctions imposed on Hamilton and Freshwater.

It’s perhaps relevant that the federal judge has scheduled an oral hearing on Hamilton’s motion to reconsider the sanctions for July 29, 2010. But the federal trial is scheduled to begin July 26. I don’t know the protocol in these things, but the two additional sanctions requested by the Dennises, a default judgment in their favor, or failing that, an adverse evidentiary inference against Freshwater, are both associated with how (or even whether) Freshwater’s lawyers can defend his case. As I suggested in my ‘Quick settlement’ post, that may have put enough pressure on to settle. (I see now that post would have been better titled “Sudden” settlement, not quick!)


There are some things in both Hamilton’s and Freshwater’s responses that I simply can’t parse. For example, consider this sentence from Hamilton’s response:

On May 15, 2008, the date John Freshwater was interviewed by HR on Call, Inc., John Freshwater made personal perceptions subsequent to personal interaction he had with a previous attorney who originally served as co-counsel.

WTF does that mean?

On a note related to fees, Hamilton wrote

John Freshwater and the undersigned made every reasonable effort to scrabble together that which was possible to comply with the Court’s Order. John Freshwater and the undersigned continue to dispute the reasonableness of the fees asserted by Plaintiff’s counsel. As the undersigned holds unfiled liens and a deed to the Freshwater Family farm both Freshwater and the undersigned complied as best they could with the resources they have available.

Italics added. Freshwater’s effort at compliance was to send a lien on his farm to Doug Mansfield, the Dennises’ attorney, to satisfy the Court’s Order to pay the lawyer fees associated with the extra work required to compel compliance with the various discovery orders. As noted in the memorandum of opposition, however, that lien was not filed with the Clerk of Courts in Knox County and is thus invalid (as, apparently, are Hamilton’s liens). In any case, Freshwater has apparently truly bet his farm on this. And it’s also interesting that Hamilton associates himself with the offer, even though he’s not mentioned in Freshwater’s affidavit of lien. Hamilton has no skin in that game: the “undersigned” offered precisely nothing in fulfillment of the Court’s Order for sanctions except to prepare and forward Freshwater’s Affidavit for Lien. I wouldn’t be surprised to learn that he charged Freshwater for doing so.

Finally, the word “truth” is used liberally in Hamilton’s response. “Truth” and “truthful” together appear 22 times in Hamilton’s response-there’s even a two paragraph section with “Truth” as a title. And the last paragraph of Hamilton’s response emphatically preaches about it:

Truth is everything, truth shall set one free and both John Freshwater and the undersigned will follow truth wherever it may lead. Truth can be complicated and vulnerable to misinterpretation. John Freshwater and the undersigned have been castigated unfairly and unjustly despite simply telling the truth and it is requested by both, that the truth be investigated and determined with as much zeal as has been invested in speculation. Accordingly, reconsideration of this Court’s Opinion and Order are requested.

Somehow I don’t think quoting John 8:32 (“truth shall set one free”) in support of an argument will favorably affect Judge Frost’s judgment on an issue in an Establishment Clause case. Thomas Jefferson (“follow truth wherever it may lead”) might carry a little weight though the full quote doesn’t seem to be consonant with Freshwater’s and Hamilton’s worldview:

This institution [University of Virginia] will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.

Recall that Jefferson forbade the inclusion of a theology department or divinity school in UVA.