One of the low points for the defense in Kitzmiller was the testimony of Alan Bonsell, who was President of the Dover Area District Board of Education at the time of the adoption of the policy that provoked the lawsuit. Specifically, his sworn testimony in a pretrial deposition was found to be seriously contradicted by his equally sworn testimony in the court. Though it ultimately came to nothing, Judge Jones went so far as to refer the matter to prosecutors for potential perjury charges. (See here and here for the pertinent testimony.)
Now a roughly similar situation appears to have arisen in the Freshwater affair. It centers around the process by which Zachary Dennis was burned with a Tesla coil, and Freshwater is contradicting himself about it in two sets of sworn testimony and a motion filed in federal court. I’ll describe them in separate sections, reproducing a good deal of the testimony for the flavor of what goes on.
First recall that there are three legal proceedings under way, the administrative hearing on Freshwater’s termination; a federal suit brought against the district, administrators, and Freshwater; and a federal suit brought by Freshwater against the Dennis family, the district, and sundry others (including a number of unidentified John or Jane Does). The first two are the focus here. This is a long post, with lots of quotations from various of the legal venues, but it should give a feeling for the problems Freshwater is creating for himself in his sworn testimony in the several proceedings.
A schedule note: The administrative hearing was supposed to resume November 17, but did not do so and has been postponed to Dec 10.
Administrative hearing testimony
First, there’s Zachary’s hearing testimony on May 7, 2009, under questioning by Freshwater’s attorney about how Freshwater used the Tesla coil on students’ arms. In his testimony, (Transcript XIX 5-7-09.pdf) Zachary described it this way. I’ve extracted pertinent parts from the transcript; there was a fair amount of shuffling around to set up a demonstration table with an overhead projector. Throughout the quotations in this section “Q” is R. Kelly Hamilton, Freshwater’s attorney, and “A” is Zachary.)
Describing how the Tesla coil felt on his skin, Zachary testified
4 A. My experience the first time it was applied to me was a
5 burning sensation. It left little tiny welt-like things, and
6 then it turned red. And it just felt like static electricity
7 shock but stronger.
8 Q. Referring back to your diagram, Employee Exhibit No. 61,
9 where did the application of the Tesla coil take place upon
11 A. On the overhead.
12 Q. On the overhead. Using what’s going to be a blue
13 marker, I want you to mark on Employee Exhibit No. 61
14 precisely where you had the Tesla coil applied to you in John
15 Freshwater’s classroom.
16 A. (Witness complied.)
17 Q. And you circled the overhead?
18 A. Yes.
After some rearranging of furniture in the hearing room to represent the classroom with an overhead projector near the front:
22 Q. So Mr. Freshwater was standing behind the projector but
23 between his desk and the overhead projector. Correct?
24 A. Yes.
25 Q. Standing slightly off center to the right?
and then from succeeding testimony:
Q. Okay. So when you walked up, Mr. Freshwater is holding
19 the Tesla coil. Which hand is he holding the Tesla coil in?
20 A. Probably his left or right. I don’t know what hand.
21 Q. Well, it has to be left or right. Which do you think it
22 would be?
23 A. Most likely his left.
24 Q. So left hand?
25 A. Yes.
7 Q. So at this point, what happens next? You approach.
8 Just tell me what happens next.
9 A. I put my arm like this.
(Laid his arm on the plate of the overhead projectors)
10 Q. Um-hum.
11 A. Then he put his arm like this.
(Indicating Freshwater’s arm was across Zach’s hand’wrist)
12 And then he took the Tesla coil and went up and down twice and across twice.
23 A. Put your forearm here, and take this hand and go up and
24 down twice and across twice.
25 Q. Okay. Now, I’m holding this like a pen.
1 A. Go like this.
2 Q. Okay. Now, what you’ve just described this as is a fist
3 with a pen inserted into my fist. Correct?
4 A. Yes.
5 Q. Okay. You may touch me and just go ahead and
6 demonstrate. And this is the guy that matters right here.
7 A. Okay.
8 Q. So if you won’t mind standing right there for me,
9 demonstrate what occurred.
10 A. Okay. Down, like, about four inches, and up and down
11 and across and across. Kind of pulls his arm, lifted up his
12 arm. And I walked back to my seat.
13 Q. Walked back to your seat, and that was that?
14 A. That was that.
Hamilton got a volunteer from the gallery to serve as Zach’s body double in the demonstration so Zach could direct.
8 Q. Zach, you get in whatever position you need to see.
9 A. Okay.
10 Q. Would you agree that the individual coming up just put
11 their right arm down? Correct?
12 A. Yes.
13 Q. Now, when they put their right arm down, Mr. Freshwater,
14 you said, used his right arm over your right wrist. Correct?
15 A. Yes.
16 Q. Now, when he put his right arm over your right wrist,
17 was his hand clenched or was it palm on your wrist
18 controlling your wrist?
19 A. I think it was clenched, not palm.
2 Q. Okay. And at that point, did you feel like you could
3 pull away?
4 A. No.
5 Q. If you wanted to pull your arm out, did you feel like
6 you could or could not?
7 A. No.
So in Zach’s testimony we see him with his arm on the plate of the overhead, Freshwater with one forearm holding down Zach’s wrist with the Tesla coil in his other hand, and he makes two vertical swipes and two horizontal swipes with the Tesla coil on Zach’s forearm. The picture above is nearly identical to what Zachary described in his earlier testimony in October 28, 2008 (I’m not going to type out that transcript, too! I have images of the text that can’t be cut and pasted.).
Now consider Freshwater’s testimony in the hearing on October 28, 2008, late the same day that Zachary first testified. Freshwater testified that he did use the Tesla coil on Zachary’s arm:
Q. How did you do this? You heard Zach’s description. Do you disagree with that or agree with it? Zach’s description was, he placed his arm on the overhead projector, you held his hand with one arm and put a mark up and down and crossed with the other. That part is what I’m asking you about, not what you described it as [the daisy chain of students]. I’m going to ask you about that later. But the method by which you did it …
A. You’re – I’m not getting your question.
Q. I’m sorry. I asked you, is that accurate?
A. Is that accurate?
Q. I believe I said, do you agree with Zach’s testimony?
Q. You tell us how you did it.
A. When? With Zach?
Q. Okay. Let’s start with Zach.
A. I do not remember to go into that detail.
Q. Okay. If you don’t remember, are you sure that Zach is inaccurate?
A. Is he inaccurate?
Q. In the way he described that you did it to him.
A. I don’t do it that way, so that would be inaccurate.
Q. How do you do it?
A. Zach mentioned one way, students holding hands I’m holding it –
Q. I’m talking specifically to Zach. Did you put–did you use this device on Zach Dennis’s …
Q. … arm?
Q. And did it leave a mark that you saw?
Q. And how did you do it when you used it on Zach’s arm?
A. The student comes up and gives me their arm. And I just use the Tesla coil on them. And most of the time they pull away.
Q. Okay. And if you would hold their arm down they wouldn’t be able to pull away.
A. I didn’t hold his arm down.
Q. That wasn’t my question. If you hold their arm down, they won’t be able to pull away, would they? That’s my question.
A. If I held their arm down, would they be able to pull away? No.
Then a bit later:
Q. Now, when students come up and volunteer, does it ever leave a mark?
A. Does it leave a mark?
Q. When you’re dealing with individual students. I’m not talking about where you have them holding hands like there. But when you’re dealng with an individual student and you’re marking their arm or you’re using it on their arm, does it ever leave a mark?
A. Slight red, yeah.
And then a little later:
Q. Zach also testified that you indicated this would leave a mark like a tattoo of a cross for a short period of time.
A. I do not remember saying that.
Q. You’re seen the pictures?
Q. And do you find that those are accurate depictions of Zach’s arm?
A. Are they? Yes.
Q. At various times this has been described as an X or a cross. Quote frankly, I don’t care which one it is at the moment. But did you ever describe that you put an X on students?
A. I do not remember saying anything about a cross.
Q. That wasn’t my question. My question is, Did you ever say that you puit an X on him?
Q. Is an X a mark?
Q. And is it your position that you put an X on Zach and not a cross?
So we have Freshwater conceding that he put a mark on Zachary’s arm, and he claims that it’s an X and not a cross. He disputes the accuracy of Zachary’s account of exactly how it got there, but he cannot remember specifically how he did it.
In mid-October 2009 Mr. Freshwater was deposed by the Dennis family’s attorney for their federal suit. Recall that the school district defendants settled their portion of that suit in August 2009 but Freshwater remains a defendant in it.
In the deposition Doug Mansfield, the Dennis’s attorney, questioned Freshwater about the incident.
After reading Freshwater’s testimony from the admin hearing:
Q. So in your previous testimony [in the hearing] you confirmed that this device would leave red marks on kids’ arms.
A. On myself. On me.
Q. Well, the question was asking about students, was it not?
A. Can you read that again, sir?
Q. “Question: But when you’re dealing with an individual student and you’re marking their arm or you’re using it on their arm, does it ever leave a mark?”
“Answer: Slight red, yeah.”
Did I read that correctly?
A. Yes, you read it correctly.
Q. And so your testimony then is – your testimony then was that yes, it would leave a red mark on a kid’s arm when you applied it to them. Is that true?
A. Like I say, I misspoke there. I’m talking about myself.
Q. Okay. You believe it would leave a red mark on your arm, right? That’s what you just said.
Q. But you don’t think it would leave a red mark on a kid’s arm?
A. I’ve never – I haven’t seen red marks on kids’ arms, sir.
Q. Don’t you think if it left a red mark on your arm, it would. likewise, leave a red mark on a kid’s arm?
A. We need to back up. We talked about with me how many times I use it on myself.
Q, You’ve seen pictures of the mark on James Doe’s arm,
Q. And you saw those in previous testimony.
A. Yes, I saw them. I’m just trying to think when I saw the first one. Yes.
Q. Okay. And it’s fair to say, isn’t it, that at least as depicted in those pictures, and I understand that you dispute that you did that, but at least in those pictures the mark that appears on James Doe’s arm is in the shape of a cross, correct?
Q. You don’t agree with that?
A. I don’t agree with that.
Q. What do you think that the mark looks like?
A. I’m going to – we keep talking about this mark –
Q. I’m simply asking –
A. No, let me put – can I say something, sir?
Q. No, you may not. If you have something to say –
MR. HAMILTON [Freshwater’s attorney]: If you’re going to let him answer the question, he was trying to answer your question.
MR. MANSFIELD: Well, he’s not answering my question. My question was a simple one. Would you read back my question, please? [Reporter read it back]
A. Like an X.
Q. Okay. When you applied the Tesla coil to James Doe’s arm, is it your testimony that you made a shape in the form of an X or a shape in the form of a cross?
MR. HAMILTON: I’m going to object at this time.
A. On advice of my counsel I invoke my Fifth Amendment right to be free from self-incrimination as the existing statute of limitation in this matter has not expired.
Q. Let me show you something from your testimony from your termination hearing. On page 403, line 6, Let’s go back to line 1. “Question: The various times this has been described as an X or a cross, I frankly don’t care which one it is at the moment, but did you ever describe that you put an X on students”? “Answer: I do not remember ever saying anything about a cross.” Did I read those two correctly?
Q. The next line: “Question: That wasn’t my question. My question is did you ever say that you put an X on him?” “Answer: Yes.” Did I read those correctly?
Q. The next question: “Is an X a mark?” Answer: “Yes.” Did I read those correctly?
Q. The next question: “Question: Is it your position here today that you put an X on James and not a cross?” “Answer: Yes.” Did I read those correctly?
[Several lines of back and forth in confusion]
Q. That wasn’t my question, sir. My question was your testimony at the time when you testified during your termination proceedings was that you put a mark on James Doe’s arm and not a cross. Is that correct?
A. Then I will have to say I misspoke there. I did not put a mark.
Q. Now today you’re denying putting any kind of mark on James Doe’s arm; is that correct?
A. That would be correct.
So in his hearing testimony he made a mark, and in his deposition he didn’t. When asked specifically about whether he put a mark on Zachary’s arm, he now takes the Fifth Amendment, which is his right.
Filing for Summary Judgment
The deposition didn’t get into the procedure Zachary described that Freshwater disputed. But there is one final document that was recently filed in the federal case that’s pertinent. On November 16, 2009, Freshwater filed for summary judgment for dismissal of the battery claim in the civil suit the Dennis family brought against him. In the section of that filing titled “Statement of Material Facts” there’s this paragraph:
Toward the end of class, Mr. Freshwater asked whether anybody wanted to see what the tesla coil felt like. Id. at 142. James testified that he was the last of five or so students to go up to the front of the class to have the tesla coil applied to him. Id. at 142-143. Prior to going up to have the tesla coil applied to him, James watched the other students get the tesla coil applied to their arm. Id. at 144. James witnessed the electric charge touch the other students’ skin. Id. at 145 The application of the tesla coil on the other students was similar to the application that happened to James. James volunteered by approaching Mr. Freshwater in the front of the class and placed his right arm on an overhead projector. Id. at 146-147. Mr. Freshwater used his left wrist and laid it on top of James’ right wrist and Mr. Freshwater took his right hand to guide the tesla coil on James’ arm making two horizontal lines and two vertical lines. Id. at 147-148. The application of the tesla coil on James skin lasted around five seconds. Id. at 148. The application of the tesla coil on James’ skin was similar to a “static shock” and “kind of burned a little bit and itchy.” Id. at 151-153.
In other words, while in his deposition Freshwater denied the accuracy of Zachary’s hearing testimony, in the motion for summary judgment it is described exactly as Zachary told it. In fact, the motion’s description of the process is drawn from Zachary’s deposition in the case – the _Id_s refer to that deposition. So Freshwater’s attorneys in the federal suit accept Zachary’s version for purposes of asking for dismissal of the battery claim. (Incidentally, Zachary’s version was also at least partly corroborated by another student in that class.)
I will freely grant that eyewitness testimony is far from the best evidence regardless of the deference the U.S. legal system gives it. I will also freely grant that human memory is subject to many vicissitudes. Nevertheless I find the contradictions and inconsistencies fascinating, just as a slow-motion train wreck is fascinating.