Freshwater Day 14: "He taught both sides" and questioning the text.

Previous posts on the Freshwater hearing are linked at the end of this post.

The administrative hearing on the Mt. Vernon, Ohio, Board of Education’s resolution to terminate the employment of John Freshwater as an 8th grade science teacher resumed this morning for just half a day. Due to attorney conflicts and witness unavailability issues, the session was adjourned at 12:15 after hearing just three witnesses, all former students of Freshwater. The hearing will resume on March 20.

Opening Maneuvering

Today saw the resumption of Freshwater’s defense case. The first witness called by R. Kelly Hamilton, Freshwater’s attorney, was Mr. James Beroth. He is the father of a woman named Melanie Dobson from the state of Oregon who apparently overheard a conversation in a restaurant between Ian Watson, the President of the Board of Education, and an unidentified second person on December 29, 2007 (I’m pretty sure it was 2007 – see subpoena note below). Hamilton entered an affidavit from Ms. Dobson as an exhibit and began to examine Mr. Beroth on it because if would be a hardship for Ms. Dobson to come to Ohio from Oregon to testify. The examination got just far enough to establish that Beroth himself had overheard nothing, and that Melanie’s affidavit referred to Watson talking in the restaurant about “decisions” or “strategies” or “goals” regarding Freshwater when David Millstone, attorney for the Board, objected on the ground that the affidavit must speak for itself, and that Mr. Beroth could only reflect hearsay since he himself had not heard Watson. After some discussion the hearing referee upheld the objection and Mr. Beroth was excused from testifying. Immediately Hamilton handed a subpoena to Millstone requiring Ian Watson’s personal and work calendars from December 2007 to the present.

That is relevant because December 29, 2007, was after the Dennis family complained to the school administration about Freshwater burning a cross on Zachary’s arm (early December 2007) but before the independent investigation occurred in late spring 2008. Hamilton’s move here is consistent with other hints he’s made to the effect that the investigation was not actually independent but rather was a sham designed to provide justification/cover for firing Freshwater.

Hamilton then called Karl Heck. Heck is the uncle and guardian of Corbin Heck, a current 9th grader and former student of Freshwater in 8th grade science. Heck was sworn and Hamilton began questioning Heck regarding an affidavit that Corbin had signed just yesterday in front of Hamilton that reflected a conversation Corbin had with Hamilton several weeks ago. Millstone objected on the ground that Karl Heck could not testify to the content of the affidavit but only to hearsay, and that unlike Melanie Dobson, Corbin Heck is available a mile or so away at the high school.

Hamilton told the hearing referee that he intended to call parents of a number of former students to testify about affidavits their children had signed, and Millstone indicated that he would enter the same objection to their testimony. Hamilton got dramatic about preserving the childrens’ anonymity and protecting them from having to testify in public. (Recall that it was Hamilton who earlier successfully urged the hearing referee to breech the Dennis family’s anonymity and have Zachary Dennis testify in public.) Hamilton’s histrionics had little effect and the referee ultimately ruled that since there was no availability issue with the students, they and not their parents would have to testify if their affidavits were to be entered in evidence. So Karl Heck was excused and we had a lengthy recess while the first student, Corbin Heck, was fetched from the school.

Corbin Heck Direct Examination

Corbin testified that he met twice with Hamilton previous to today, and that Hamilton had prepared an affidavit from notes made from their conversations. Corbin made a few minor corrections and swore to it and signed it.

Corbin testified that he was in class when the Tesla coil was used on Zach Dennis. Corbin testified that he had the Tesla coil touched to his arm, and felt a “tickle” but no pain. There was no mark immediately, but after a few minutes there was a faint red mark, which Corbin described as a “pinkish X.” It was gone later that evening. Corbin had included a hand drawing of the mark in his affidavit. It was an “X” about the size of a half dollar.

Corbin testified that Freshwater first applied the Tesla coil to tubes of gases, causing them to glow, then to himself, and then to students who wanted to try it. Corbin said the majority of the class (12-13 students out of 21) had it done. Zach Dennis was among them.

Shown the pictures alleged to be of Zach’s arm later that night, Corbin testified that he hadn’t seen anything like that. He said “This is much more dramatic than any other I’d seen.” Corbin testified he didn’t see a mark on Zach’s arm. The width of the mark on Corbin’s arm was about the size of the ball in a ballpoint pen.

Corbin testified that he and Zach had been and still are friends – they have classes together, frequently eat lunch together, and Zach has been to his house as recently as late fall 2008.

Corbin testified that Freshwater used the coil in the same manner for all the students, and didn’t put his hands on any students. Corbin denied that Freshwater held any student’s arm. He said no one seemed to be in distress. He said that when Zach was zapped he laughed, and that Freshwater didn’t hold Zach’s arm.

Corbin testified that he attended FCA general membership meetings 5 or 6 times, and never saw Freshwater pray at one.

Under direct questions, Corbin denied that Freshwater taught from the Bible or promoted his religious beliefs in class. Corbin described Freshwater as “…literally, the best science teacher I’ve had.”

Asked if he would have recognized if Freshwater taught religious concepts, Corbin agreed that he would.

At one of their meetings Hamilton showed Corbin the Watchmaker video that previous testimony has indicated was shown in class. Corbin denied ever having seen it before.

Under direct questions from Hamilton, Corbin denied that Zach showed any signs of emotional instability or distress. (Those are Hamilton’s terms.)

Corbin Heck Cross Examination

In cross examination Millstone established that according to school records, Corbin missed 23 days of school last year.

Then Millstone asked about the use of the word “here!” (or “hear!) by students in Freshwater’s class. Corbin explained that “… if something wasn’t a fact that was listed in the text as a fact we’d say ‘here’.” For example, Corbin testified, “… if something in the book said something like earth was 6 billion years old we said ‘here’. If the test said a rock was about 4 billion years old we’d say ‘here’.”

Corbin affirmed that a class was spent on a debate about creationism and evolution.

That ended the cross examination; there was no redirect.

Nathan Thomas Direct Examination

Nathan Thomas was another student of Freshwater in 8th grade science in the 2007-2008 school year. He met twice with Hamilton at Freshwater’s church, and Hamilton again created an affidavit that Nathan made a few correction on and then swore to and signed.

Nathan testified that he notified his pastor, who notified Hamilton, because he read in the newspaper something he knew to be false. Specifically, he read that Bill Oxenford, another middle school science teacher, testified that he had ceased using the Tesla coil in class some 10 years ago, when he (Nathan) saw it used in his 7th grade class with Oxenford three years ago. At that time students were allowed to bring a finger near the tip to draw an arc. Nathan named other students who were in Oxenford’s class that year.

Nathan testified that in his 8th grade class Freshwater used the Tesla coil in a manner similar to Oxenford, holding the Tesla coil motionless while students put their forefinger near it to draw an arc. Nathan testified that he knew of no occurrence of an injury other than the one at issue in this hearing (my words, not Nathan’s). Nathan testified that Freshwater didn’t put a cross on anyone in his class.

Nathan denied that Freshwater ever preached in class, and that he would know the difference if it had happened.

In brief questioning about FCA, Nathan testified that two students did “most of” the calling of outside speakers.

Nathan Thomas Cross Examination

In cross examination Millstone established that in his affidavit Nathan had sworn that Freshwater “presented both sides”: “He’d present evolution, and then say some people believe that God created the universe.” Asked whether there was a debate in class about creationism, Nathan responded there was not.

Asked if Freshwater ever questioned facts in the textbook, Nathan responded “Yes, because relative dates are not accurate.” Pressed a little further, Nathan identified “Fossils and trees and stuff.”

Asked about the use of “here!” in class, Nathan testified that it was used by students “when there was a date in the book we’d say ‘here.’ When the book said a fossil was 49 million years old we’d say ‘here’.”

Nathan Thomas Re-direct

Redirect established that Freshwater was Nathan’s Sunday School teacher in 4th and 5th grades. Asked about the difference between Sunday School and science class, Nathan said in Sunday School Freshwater taught his beliefs.

There was no recross.

Riley Swanson Direct Examination

Riley Swanson is another former student in one of Freshwater’s 8th grade science classes. He testified that the Tesla coil was not used in his class.

Asked about FCA, Riley testified that he attended both the regular meetings and the leadership meetings, and that two other students, including Jordan Freshwater, did the bulk of the leading, with Jordan doing the most.

Riley remembered the healing prayer incident, saying that all prayed for the pastor who had the health problem. He couldn’t remember specifically who was there praying. Riley testified that Freshwater didn’t pray with students and never forced (Hamilton’s word) students to pray.

Regarding the incidents surrounding Joe Barone described here, Riley testified that his older brother was a friend of Luke Freshwater (one of the students alleged to have taunted Joe Barone), and that his brother was “shocked” by it.

Riley testified that by pre-arrangement, he and his parents met a number of other students from FCA to attend “Expelled: No Intelligence Allowed.”

Riley testified that Freshwater was his “… favorite teacher and I can’t believe he’d hurt anyone on purpose.”

Riley testified that he was interviewed by HR On Call during its investigation, but he recalled nothing at all about it beyond the fact that two people, a male and female, interviewed him.

Finally, Riley testified that Zach Dennis is “my friend,” and that Zach had never expressed anything negative about Freshwater to him. Asked by Hamilton if Zach appeared to be emotionally unstable or distressed, Riley denied it.

Riley Swanson Cross Examination

In cross Riley again testified that he remembered nothing at all about the HR On Call interview, and nothing at all about a Tesla coil. He couldn’t remember how FCA speakers were contacted.

There was no redirect.

Brief Summary

Hamilton today focused on two themes. First, he once again tried to establish that if Freshwater wasn’t preaching directly from the Bible it ain’t a violation of the First Amendment’s Establishment Clause. In his questions of former students he repeatedly returned to “Did he [Freshwater] preach from the Bible in class?” “Did he teach Noah’s Flood?” And so on. I don’t know if Hamilton or the hearing examiner is familiar with the jurisprudence on the creationism issue in the schools, but I know David Millstone is.

Today’s second theme, reflected in questions asked of two of the former students, was aimed at Zach Dennis’ emotional state. And again, this is a return to Hamilton’s attack on the Dennis family in general.

Cross examination of the students appears to have hurt Freshwater more than their direct testimony helped him. Two of the students, Corbin Heck and Nathan Thomas, testified to the use of the response “Here!” to indicate the unreliability of the text book, particularly with respect to dating. Recall that Freshwater is a young earth creationist. Further, Nathan testified that Freshwater presented evolution and then remarked that “some people believe that God created the universe.” Corbin affirmed earlier testimony that there was a debate about creationism and evolution in class.

The hearing is now adjourned until March 20, with three more days scheduled for March 25-27. The hearing referee gave notice that he will be scheduling days in April soon. Recall that this hearing started in October 2008; we may be here until the next World Series!

The Freshwater hearings archive:

Days 1 & 2: The Superintendent

Day 3: Zach Dennis, his mother, and John Freshwater

Day 4: The Principal, and Science Can’t Be Trusted

Day 5: Only From Freshwater’s Students

Day 6: Another Student, Another Cross

Day 7: The Investigator

Day 8: Investigator cross examination, and another former student

Day 9: An Expert and Two Teachers

Day 10: The History of Creationism

Day 11: Board’s Case Ends; Freshwater’s Begins

Day 12: The Monitor

Day 13: A Parade of Teachers and Staff