Monday and Tuesday, June 7 and 8, saw Freshwater finish presenting his case and the Board begin its rebuttal. I’ll summarize the former here and the other defense witness and the Board’s rebuttal witnesses in another post. One note: While there were hopes the hearing would conclude on Tuesday we didn’t make it, and one more day, June 22, is scheduled to hear the one remaining witness for the rebuttal, Superintendent Steve Short.
Freshwater recross examination (continued)
You will recall that the hearing on Friday, June 4, ended in some confusion as the Board’s attorney, David Millstone, introduced an exhibit which was an affidavit Freshwater signed for the federal trial. R. Kelly Hamilton, Freshwater’s attorney, immediately advised Freshwater to answer no questions about it, citing the gag order issued by the federal court.
More below the fold
The session on Monday morning began with that issue and a new attorney, one of those retained by the insurance company to represent Freshwater in his defense in the federal trial, was at the defense table beside Freshwater.
The session picked up with David Millstone, the Board’s attorney, once again handing Freshwater Board Exhibit 99, the affidavit. The affidavit refers to pictures of the materials from Freshwater’s classroom, and Millstone introduced the pictures into evidence. Hamilton immediately made a short speech in which he once again cautioned Freshwater against violating the federal gag order and noted that Freshwater may not be able to anwer questions fully in light of the gag order. Millstone agreed that he did not plan to pursue substantive questions.
Millstone then asked if there was a dispute over discovery in the federal case. Hamilton entered a pro forma objection, which was overruled, and Freshwater answered there was. Millstone asked if the plaintiffs in the federal court, the Dennis family, had requested sanctions and if the court had granted them (see here). Freshwater replied yes. Millstone then asked if part of the dispute in the federal case involves whether Freshwater or Hamilton has information regarding Hamilton’s bills for attorney fees for the preparation of the series of affidavits Freshwater claims were executed in May 2008 in preparation for a second interview with the HR OnCall investigators. These were bills that Hamilton claimed he lost when his laptop was damaged by a water leak and he threw it away. (We returned to this issue in the testimony of an expert witness, a computer forensic analyst, on Tuesday.) Freshwater declined to answer on the ground that it got into gag order territory. The referee permitted that.
Millstone then introduced the federal court order (pdf) that imposed sanctions on Freshwater and
Millstone Hamilton. Millstone asked if that was what it was. Hamilton objected on gag order grounds, but the referee overruled, saying that the question only asked for identification. Freshwater answered answered that it was.
Millstone asked when Freshwater came to the district office in August, 2008, to pick up personal material from his classroom if he took the cat skeleton. He couldn’t remember. Millstone asked if he remembered Superintendent Short telling him that if there were any other personal material he’d get it for Freshwater. Freshwater couldn’t recall.
Millstone turned to the extra Bible and Jesus of Nazareth book that were in Freshwater’s room in April 2008, asking if Freshwater remembered when he took them out of the library. He couldn’t.
We turned to April 16, 2008, the day Freshwater made his statement to the press on the public square in Mt. Vernon. Millstone asked when that day middle school Principal White told him he had to remove his Bible. Freshwater replied it was a few periods into the day. Millstone asked Freshwater if he had previously testified that was when he felt the need to take the second Bible out of the middle school library. Freshwater replied “That’s not correct.”
Millstone asked why Freshwater checked the Bible out. Freshwater replied that he looked at it in the library, and wanted to look at it a little more and checked it out. Recall that Freshwater has previously sworn (in an affidavit introduced by Hamilton) that he checked the Bible out because he was afraid the administration would remove his own Bible from his room (see also here), and also recall that the investigator’s report said that he put it in his room to “make a statement”. So we’re up to three stories, two of them sworn, on why he checked out that second Bible. They aren’t mutually exclusive, but they’re certainly different.
Turning to a new topic, Millstone asked if Freshwater knows Charlotte Baker. He replied that she is a middle school librarian. Millstone asked if he had ever asked Baker about Christian books in the middle school library. He couldn’t remember. Millstone asked if Freshwater had ever inquired of her when he checked out the Bible and Jesus of Nazareth books. He couldn’t remember. Millstone introduced a one-page document that was apparently an email from Baker about the due date (and by inference the checkout date). Asked if he had seen it before, Freshwater replied that he doesn’t remember.
Millstone introduced another email, this from Linda Rochte, another middle school librarian. He asked Freshwater if it was familiar. He replied it wasn’t. Millstone asked if Rochte sent emails regarding overfue books. Freshwater replied that he expects that she did but can’t say exactly.
Millstone introduced another document, apparently another email, and asked Freshwater if it was typical of overdue book reminders before summer started. Freshwater said he wasn’t sure.
Millstone then turned to the question of numbered boxes of stored material from Freshwater’s classroom. Introducing pictures taken January 15, 2010, when Hamilton, Freshwater, the referee, the Board’s attorney for the federal cases, and a couple of other people inspected them at the district office, pictures that Hamilton had displayed in the hearing, Millstone asked if any numbers were visible on them. Freshwater replied that none were visible. Asked if any of the boxes were numbered on January 15, Freshwater couldn’t recall. Asked if it was possible that the boxes weren’t numbered that day, Freshwater replied “Anything’s possible.” (Recall that the numbers and some anomalies about them were taken by Hamilton/Freshwater to suggest that the materials had been tampered with.)
Turning to the episode when Freshwater made a public statement on the town square, We walked through some of the sequence. Millstone asked if Freshwater read parts of a statement written by David Daubenmire. He replied that he had. Freshwater said that he elected to read the statement Daubenmire wrote rather than letting Daubenmire read it to calm things down. Asked if there was any other statement that he read, Freshwater couldn’t remember. Millstone referred to Board Exhibit 14, the text of the statement Daubenmire wrote. Freshwater was vague about the identification of it. Millstone then asked Freshwater to follow along in the document as he played the video of Freshwater reading the statement (I can’t find it on Youtube–anyone else’s google-fu better than mine? Audio here.) Asked, Freshwater agreed that the first two paragraphs of the document were identical to what he read in the video, but said he watched the video thereafter and didn’t follow along in the document.
Millstone noted that in the video Freshwater appeared to be reading from a document that had more than one page, and asked if Freshwater has that document. He does not. Millstone asked if Freshwater gave a copy of it to the Board of Education. Freshwater couldn’t recall.
Millstone asked if the Bible referred to in the video is the one normally on the defense table, which Millstone noted was not there now. Freshwater said it was the same Bible, but that it was missing at the end of the Friday session. There were some noises about someone possibly taking it in the milling around at the end of Friday’s session. (Later when hints of nefarious taking occurred, Millstone stated unequivocally that no one on the Board side had touched anything on the defense table.)
Millstone asked if Freshwater mentioned in his public statement that “Expelled: No Intelligence Allowed” was coming out soon. He agreed that he did. Asked if the topic was viewpoint discrimination, as he said in the video statement, Freshwater agreed.
Millstone asked if the “directive” Freshwater mentioned in the video was the supervisor’s instruction to move his Bible out of students’ view. Freshwater referred Millstone to his affidavit, saying that Principal White had told Freshwater he’d have to get back to Freshwater on the issue of the Bible, and then a few periods later came back to Freshwater’s room and told him he would have to “remove my Bible out of my classroom.” About the event on the square, Freshwater said, “Walking from the hardware store [where he had met Daubenmire] to the square I realized that Daubenmire had created a mess.” And he agreed that the directive he referred to was the instruction from White.
Millstone turned to the series of affidavits Freshwater claimed to have signed in May, 2008, in preparation for his second interview with the HR OnCall investigators, the interview that was canceled. Freshwater testified that one affidavit had a list of witnesses he wanted to be interviewed by the investigators. Asked if he gave the affidavit to HR OnCall, Freshwater repeated that he was anticipating a second interview. Asked if he had asked anyone else to give the list to the investigators, Freshwater replied he had not other than verbally.
Asked if he had given the other affidavits to the investigators, Freshwater replied “Why should I? I was waiting for the second interview. Millstone asked if Freshwater had made copies of the affidavits. Freshwater replied that Millstone would have to ask Hamilton; that he himself had not made any copies.
Introducing the book as an exhibit, Millstone then asked Freshwater if he was famililar with a book title Anabolilc Outlaw by Dennis Bates of Muscle Missions. Freshwater said that he was, that Bates came to his class to speak about drugs and alcohol.
(Apparently in this sort of hearing the “Re’s” can go on for more than two rounds.) In Re-redirect, Hamilton asked Freshwater if he had called Steve Hughes on January 19, 2009, the day Freshwater went to Hughes’ office, or if it was possible he had called him earlier. Freshwater said that was possible. Asked, Freshwater testified that he didn’t recall calling Hughes. (See here for Freshwater’s testimony on his conversations with Hughes, a former member of the Board of Education. There will be more on those conversations in my next post covering Hughes’ testimony.)
Then we had an amusing semantic exercise. Some time ago Freshwater testified that after picking up five armloads of material from the district office in August, 2008, he “pitched” most of it. (I don’t have that in my posts on it; Millstone read from the transcript so that word was used by Freshwater.) Hamilton read from Board Exhibit 99, the affidavit that cause the hoorah Friday, which said that Freshwater discarded only 20 or 30 letters from Chinese correspondents because the letters were wet and stuck together, but he didn’t throw away anything else. Hamilton asked if that was accurate and Freshwater said it was.
Hamilton then asked what the “pitched some stuff into a garbage can” meant. Freshwater explained that in his barn he has a number of garbage cans, and he “pitched,” meaning “tossed,” the material from his classroom into one of them that was lined with a black trash bag. He testified that garbage can stayed in his barn; the material was not discarded. There was a series of Q&A on why “pitched” doesn’t necessarily mean “thrown away.” Freshwater testified that he finally gave the material to Hamilton, still in its original black bag from the garbage can. There was some banter about the old black trash bag soiling Hamilton’s car. (BTW, Hamilton’s vanity license plate is “PETR 410. Peter 4:10 reads “Each one should use whatever gift he has received to serve others, faithfully administering God’s grace in its various forms.”
Hamilton asked if Freshwater wished he could talk more freely about the federal case, and Freshwater said that he did. Hamilton asked if that was a problem, if it prejudiced the case against him in the administrative hearing, and Freshwater agreed that it was.
(Parenthetical note for the lawyers in the crowd: If Hamilton’s questions seem leading, they are. That was his style throughout the hearing. Millstone objected a number of times, saying once that Freshwater was supposed to be testifying, not Hamilton, but the referee consistently overruled those objections.)
Hamilton asked if Freshwater was aware of the due date for the sanctions imposed by the federal court order (pdf), and Freshwater agreed that he was. Asked, he agreed that it was after the anticipated date of the end of this hearing. (The due date for most of it is June 16, 2010, so that’s no longer true. I don’t know what the implications of that date are for this hearing.)
Hamilton asked if Freshwater is aware that Judge Frost denied a request for summary judgment in the federal case. Freshwater agreed that he is. Hamilton asked if he was aware of it because it deals with matters to be decided by the hearing referee, and Freshwater agreed that he was. (This is line of question was mainly intended to get reference to the federal case into the hearing record, I think. Recall that the purpose of the hearing is to create a record on which the lawyers for the two sides will base summary briefs submitted to the referee, and on which the referee will base his recommendation to the Board of Education.)
Turning to the librarian emails, Hamilton asked if Freshwater called Baker on the phone to inquire when the books were due, and he agreed he had. Hamilton asked if Freshwater had asked Baker what students had checked out the Bible, and he agreed that he had. (I was flabbergasted by this one. It wasn’t clear if the librarian told him who had checked out the books, but if she did she should be fired forthwith.)
Hamilton asked if Baker used a verse from Psalms on email from her school account as a salutation (he called it a “salutation” but in web parlance and in the document it’s a “sig,” a signature that’s a saying at the bottom of emails) on her school email. He replied that she did. Hamilton asked if that was a concern, and Freshwater replied “I’d like to think ‘s a concern for the administration.” Hamilton asked if other teachers used Bible verses in the same way, and Freshwater said that they did. (It’s clear that these people know nothing at all about the Establishment Clause. Bible verses as sigs on school email accounts? Zowie!)
We went to the email from librarian Linda Rochte about the due date for the two books, the Bible and Jesus of Nazareth. They were due May 13, 2008. Hamilton asked if the teacher due dates for books was four weeks from checkout. Freshwater said there was a lot of leniency on teachers checking out books, and they could be renewed just by calling the library. Note that if the due date was Tuesday, May 13, 2008, the books would have been checked out on Tuesday, April 22, 2008, given a four week term. In testimony earlier today Freshwater couldn’t remember when he checked them out, but in his affidavit he said he checked them out because he was afraid the administration would remove his personal Bible. April 22 is six days after he was given the instruction to remove his Bible (either out of student sight or from his classroom altogether). Freshwater’s remark about leniency appears to be an effort to establish the possibility of an earlier date than April 22 for checking them out.
Going to the numbered (or not) boxes of material from Freshwater’s classroom, Hamilton asked if the lack of numbers on January 15, 2010, suggest when the boxes were inventoried. I didn’t catch the anwer. Hamilton asked if Freshwater had requested a copy on an inventory, and he had. Asked, he said he didn’t get it. Hamilton asked what impression Freshwater had of that situation. He said it appeared the administration was “scrambling” to get the material inventoried. Asked, Freshwater agreed that stuff was still missing from his classroom.
Then back to the video of Freshwater’s speech.
Hamilton asked if Daubenmire prepared all of it, and Freshwater said he had.
Was Freshwater’s intent to calm the crowd? Yes.
Did Freshwater know at that time that he could go to the union? No.
Did he believe that Daubenmire was helping him? Yes.
Did he go to the public square event to be a rabble rouser? No.
Did he go to the public square to express what he believed to be a lawful position? Yes.
Hamilton asked if Principal White told Freshwater that his Bible had to be out of the classroom? Yes.
Hamilton asked if Freshwater had heard the audio of the conversation with Superintendent that Lori Miller had taped. He had. Hamilton asked if Freshwater heard Short tell her about the opportunity to file a grievance. Freshwater said no. (If he listened to the tape I have trouble understanding how he failed to hear that.) Hamilton asked if anyone had told him about the grievance procedure. No. Hamilton asked if on April 16, 2008, he knew about the grievance procedure. He said no. (I find this amazing. Freshwater taught in the system for 21 years, signing a contract every year, and was not deaf. Other grievances were filed in those years and were the topic of discussion–gossip–in the schools. That he was ignorant of even the existence of a grievance procedure beggars imagination.)
Hamilton asked why Freshwater’s Bible was missing today. Freshwater replied that he can’t find it. Asked, he said the last he saw it was in on the [defense] table in the hearing room Friday. Hamilton then made a formal (verbal) Public Information Request to the effect If a member of the administration has the Bible, would they produce it. Millstone made a categorical statement that no member of the administration had touched anything on the defense table.
Hamilton noted that Millstone had asked if Freshwater was refusing to comply with a directive to move his Bible off his desk. What was White’s instruction? Answer: To take the Bible out of the classroom. Freshwater walked through a list of conflicting instructions from administrators and conflicting messages about whether the Bible could be in the classroom or on the desk.
Hamilton asked why Freshwater had not given the 15 affidavits to the HR OnCall investigators. Yet again we heard that he was waiting for a second interview that was scheduled and then canceled. (For a man in some trouble Freshwater displayed remarkable passivity during that period aside from his appearance on the public square.)
Hamilton asked if Dennis Bates (of Anabolic Outlaw fame) spoke in FCA or in Freshwater’s class. In class. The focus? The dangers of drugs. Asked, Freshwater testified that Bates did not try to promote anything religious.
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. Those same affidavits were a significant part of the discovery issue in the federal court when Hamilton claimed a flood ate his computer and he therefore did not have billing records for the preparation of them. According to earlier testimony the affidavits were prepared and signed at Freshwater’s church, so this testimony is an attempt to cover Hamilton’s and Freshwater’s asses in case the affidavits can be shown to not have been printed on the printer in the church. They have both asserted in various documents and sworn statements, including in statements in federal court, that the affidavits were prepared in early May 2008, and if it can be shown that’s false then both their butts are in a sling. 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.)
In a series of questions Hamilton elicited testimony that Deb Strouse (the classroom monitor assigned to Freshwater), the investigators, and other people were through his room after April 16, 2008, so it wouldn’t make sense for him to try to hide stuff.
Hamilton asked Freshwater if there are contradictions in his testimony, what would be his response. Freshwater replied that he has a tendency to speak and think at the same time, and has been testifing for 55 hours in various contexts, (Several times over the course of his testimony in the hearing Hamilton has chastised Freshwater for thinking out loud on the witness stand. It appears that there are times when Freshwater doesn’t know what he’s thinking until he hears himself say it.) Hamilton asked if Freshwater ever thought he’d have to write everything down as it happened so someday he could testify with precision about it, and Freshwater replied no.
Millstone asked what year the “activity period” ended. Freshwater wasn’t sure. (For some years in the middle school the “activity period” was a period of the day when non-content and team-wide activities occurred–I’m not sure exactly what happened then or why this question was asked.)
That ended Freshwater’s testimony. There’s one more defense witness to write up, Steve Hughes, and then the Board’s rebuttal witnesses to cover. They will be included in my next post when I write it.