Freshwater hearing: A witness contradicted by a photo
This will be a short – I have a slew of commitments and won’t get a full account done until sometime over the weekend. But one thing established today deserves immediate comment.
R. Kelly Hamilton, John Freshwater’s attorney, called Zachary Dennis to testify today. Zach had already testified during the Board of Education’s presentation and Hamilton passed on cross examination then, knowing he would call Zachary in his case and would have greater freedom of questioning than in cross examination. Zachary testified for all but half an hour of today’s hearing. One section of that testimony stands out and I’ll describe it below the fold.
Recall that Ben Nielson testified that the arm with a cross burned on it shown in a newspaper story was not Zachary’s arm. I quote from my earlier report:
Ben Nielson, a classmate of Zachary Dennis, testified that the arm he saw in a newspaper picture which was identified as Zachary’s arm showing the injury, was not Zachary’s arm. Nielson testified that he saw a mark on Zachary’s arm shortly after the incident in December 2007, and the mark was significantly smaller than that in the picture and was on the inside of the arm rather than on the outside as the picture apparently shows.
Ben testified that when he saw the photograph in the newspaper, he exclaimed “That’s not Zach’s arm.” His father corroborated the account.
Neither Ben nor his father Mark, who also testified briefly, could remember when they saw the newspaper picture or which newspaper it was in.
In the subsequent post I juxtaposed Nielson’s testimony with that of Julia Herlevi, one of the investigators who took notes on Ben’s discussion with the investigators. As that juxtaposition shows, Ben’s story changed considerably between the time he was initially interviewed and his testimony at the hearing.
Today Ben’s testimony was further impeached. In direct examination by Freshwater’s attorney, R. Kelly Hamilton, Zachary was shown the pictures his mother took a few hours after hockey practice the day Zachary was burned and blowups of cell phone pictures his father took immediately after practice. Zachary identified the pictures as being of his arm. On those photos there is a mole visible on the arm depicted. Pulling up his sleeve today, Zachary showed the same mole on his right forearm in the same position relative to the burn mark in the photos on the outside of his forearm, not the inside of the forearm as Ben had earlier testified. So the pictures are established as being of Zachary’s forearm, and Ben Nielson’s testimony about the position and size of the burn mark is badly in error. I’ll repeat what I wrote in my earlier juxtaposition post:
Summation by me
It is clear that there are major discrepancies between the story the notes say Ben told the investigators and what he swore to in his affidavit and testimony. There are three hypotheses that could account for those discrepancies:
Ben did not tell the truth to the investigators, despite testifying under oath in cross examination that he had told them the truth.
Ben did not tell the truth in his affidavit and testimony yesterday, despite being under oath to tell the truth.
The investigator’s notes completely misrepresent what Ben told them and they simply fabricated their notes and the account of Ben’s interview in their final report.
Since the photos show a large cross, on the order of 6 inches tall with a cross-bar 2-3 inches long, and since they have definitely been established as showing Zachary’s arm, hypothesis 2 has gained independent corroboration from physical evidence. It now seems very clear that Ben did not tell the whole truth in his affidavit and sworn testimony.
I’ll also repeat something else I wrote earlier about Ben:
He is encapsulated in a familial, social, and religious context where the account he gave to the investigators is in serious conflict with that context’s mythology about how a good Christian man, John Freshwater, is being unjustly persecuted by a cabal of - well, of someone. That was the main message of his father’s rant about Peter and John in Acts. That’s a very tough position for an adolescent, and I think under the pressure of that conflict Ben has changed his story, contradicting the true account he gave the investigators last spring before the pressure was on, in order to make it consistent with the mythology surrounding him in his home and church. Moreover, knowing something about the malleability of human memory, it would not amaze me if Ben now actually believes that his most recent story is the true one. That is, he may not be consciously lying.
And in what may be the high irony peak of this interminable hearing, it was R. Kelly Hamilton, Freshwater’s attorney, who first called attention to the mole in one of the photos, stimulating Zachary to roll up his shirt sleeve on the witness stand to show it on his forearm and thus effectively impeach one of Hamilton’s own witnesses.