Wednesday, August 4, 2010

What’s in the Trash, Stays in the Trash, According to Judge

Federal judge Gregory Frost on Monday rejected the attempt by John Freshwater and attorney R. Kelly Hamilton to have previously issued sanctions lifted.

Frost sidestepped the various issues raised in the dispute and went to what he believed could resolve the matter—the credibility of the parties involved in Doe v. Mount Vernon Board of Education et al.

With $28,737.50 at stake, Frost decided against Freshwater and Hamilton because Freshwater testified to having pulled items back out of the trash.

“The Court finds Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony,” Frost wrote.

Freshwater had merely explained in the federal hearing, like he had in the administrative hearing, that he pitched some items into a garbage can in his barn and then retrieved the items when his attorney requested them.

Frost also focused on a similar, though separate, situation. This time, Frost wrote that it couldn’t be true that Freshwater both put the item, a Tesla coil, in a trashcan and also gave the item to his attorney.

In research done by AccountabilityInTheMedia.com, it was found to be physically possible to place something in a trashcan and then remove the item.

Perhaps for a person such as Howie Mandel, with germaphobia, it would be psychologically impossible to remove an item from a trashcan.



(Mandel talks about his fear of germs.)

Mount Vernon City Schools’ superintendent Steve Short and Mount Vernon Board of Education attorney David Millstone both testified on behalf of the plaintiffs. Neither one mentioned anything about having every removed something from a trashcan.

“The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses,” Frost wrote.

Frost did not include any details about the testimony of Short or Millstone.

Other than the trashcan issue, the only other issue Frost offered as the basis of his decision involved the dispute over whether Hamilton delivered two affidavits on April 30, 2010 to the plaintiffs’ attorney Douglas Mansfield.

It was a matter of Hamilton’s word against Mansfield’s and his two associates. Even at that, Frost wrote that he didn’t even have to include Hamilton’s side of the story in his deliberation on the matter.

Frost wrote that Hamilton didn’t properly word his affidavit about the affidavits. What Hamilton wrote in his brief about the affidavits Frost did find to be properly worded. However, Frost wrote that statements made in a brief cannot be considered “evidence.”

While Hamilton was in the federal hearing, he said a couple of times that if Frost had particular wording he was looking for on any matter to direct him in what would satisfy the court. Hamilton told the judge that he was not trying to be evasive in how he responded to the various issues.



(The Trial by Franz Kafka, starting at 1:07 in video, provides a sense of the legal proceedings regarding Freshwater.)

Frost went ahead and wrote in his decision:

“And, it appears to the Court that the language utilized in Attorney Hamilton’s affidavit is carefully crafted to appear to state that he attached the affidavits to Exhibit 161 but does not actually state such. Moreover, although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable.”

Credibility of judge Frost

During the federal hearing conducted on July 29, Frost did acknowledged twice, after being pressed, that he had been mistaken on something.

One issue had to do with who Freshwater’s attorney was in Doe v. Mount Vernon Board of Education et al. The other was regarding the wording of the 2008 requests by the plaintiffs for the production of documents.

AccountabilityInTheMedia.com previously reported on Frost’s odd decision in April to grant the plaintiffs, the Dennis family, standing in regard to their claims of Establishment Clause violation. (See the article, “Christian Family Objects to Bible in Classroom.” )

The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.

Frost, nonetheless, granted the Dennis’ standing.

Related document:

August 2, 2010 opinion and order by Frost on motion for reconsideration of sanctions. (Doc# 120) 28.32 KB PDF.

12 comments:

RBH said...

The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.

Frost, nonetheless, granted the Dennis’ standing.


That's a very strange legal theory you're propounding there. A goodly proportion of plaintiffs in a number of First Amendment Establishment Clause cases have been themselves religious. It's not at all necessary to be non-religious to support the separation of church and state. Many religious people don't want the government or its agents pushing religious doctrines in public schools.

Lamplighter said...

Sam,

Why don't you post the entire paragraph from which you quoted? Judge Frost wrote:

"The Court finds that Freshwater’s testimony, and the reasonable inferences drawn from his testimony, in several instances was incredible. For example, while on the witness stand Freshwater viewed his previous deposition testimony related to the Tesla coil that is at the heart of this case, which was read out loud to the Court by Attorney Mansfield. Freshwater clearly stated in that deposition testimony that he destroyed the Tesla coil by smashing it and then threw it in the trash. He speculated that the Tesla coil was in a garbage “landfill.” Freshwater then went on to testify, however, that he actually did not throw the Tesla coil in the trash, but instead gave it to Attorney Hamilton, whose wife in turn put it in the freezer. Freshwater made no
attempt to explain this inconsistent testimony. Freshwater’s sworn testimony about the Tesla coil given on two separate occasions simply cannot both be true."

Why did you leave out the part about Freshwater speculating, in a deposition, that the Tesla coil was in a landfill?

Sam Stickle (mountvernon1805) said...

RBH said, "That's a very strange legal theory you're propounding there."

It's the federal law doctrine called "standing."

See the link in the article for more information.

Sam Stickle (mountvernon1805) said...

Lamplighter,

Thanks for commenting.

Lamplighter said, "Why don't you post the entire paragraph from which you quoted?"

I provided the entire document.

Lamplighter said, "Why did you leave out the part about Freshwater speculating, in a deposition, that the Tesla coil was in a landfill?"

This is an issue that has been up before in the legal proceedings.

From the article ” Missing Evidence in John Freshwater Hearing”, in the section “Additional statements by Freshwater”:

At the time of his deposition for a federal case he understood the Tesla coil to have been disposed of in a landfill. He learned from his attorney, after making that statement, that his attorney hadn’t thrown it out but instead had given it to the board’s attorney.

John said...

It's the federal law doctrine called "standing."

Non-responsive. RBH was referring to your idea that somehow the Dennises don't have standing because the religious symbols in Freshwater's classroom were from the same religion that they identify with. That is clearly false.

As RBH stated (and you ignored) most of the Establishment Clause cases over the last many decades have been brought by Christians over the acts of other Christians. Do you honestly believe that somehow you are in possession of a keen legal insight that has escaped some of the most brilliant legal minds over the last century?

Sam Stickle (mountvernon1805) said...

John,

Thanks for commenting.

John said “most of the Establishment Clause cases over the last many decades have been brought by Christians over the acts of other Christians.“

Do you have a specific example? A case that involved something as basic as a Bible or the Ten Commandments?

John said, “Do you honestly believe that somehow you are in possession of a keen legal insight that has escaped some of the most brilliant legal minds over the last century?“

I did not provide my own opinion. Again, see the link in the article for more information.

John said...

Do you have a specific example?

That you would even ask such a question pretty much gives away how little you know about Establishment Clause jurisprudence. It isn't my job to educate you. Google up any number of sites that specialize in such cases and educate yourself.



Typical dodge. The article only restates your confused (and wrong) understanding of standing. So, let me ask a more specific question. Do you believe, yes or no, that the Dennises have standing? If no, then explain why you seem to believe that you alone are in possession of this insight that has apparently escaped the keen legal mind of one R. Kelly Hamilton?

Sam Stickle (mountvernon1805) said...

John,

Thanks for commenting.

John said, “That you would even ask such a question pretty much gives away how little you know about Establishment Clause jurisprudence.”

I’ll take that as a “no”—you don’t have any specific examples.

John said, “Typical dodge. The article only restates your confused (and wrong) understanding of standing.”

The article provides sources and reasons as to why there is a problem with the Dennises being granted standing regarding the matters mentioned in the article.

John said, “If no, then explain why you seem to believe that you alone are in possession of this insight that has apparently escaped the keen legal mind of one R. Kelly Hamilton?”

Although Hamilton is representing Freshwater in related legal matters—another federal case, the administrative hearing and formerly for the dismissed counter claims—he is not Freshwater’s attorney in Doe v. Mount Vernon Board of Education et al.

Sam Stickle (mountvernon1805) said...

John said, “Do you believe, yes or no, that the Dennises have standing?”

As stated in both articles, judge Frost, right or wrong, granted the Dennises standing regarding the matters mentioned.

Unless Frost was to reverse himself or the matter was to be overturned in appeals court, the Dennises would still have the standing that Frost granted them.

John said...

I would note that you still are avoiding answering the question. I would to, if I were you.

RBH said...

I've neglected to keep up here. Sam asked

Do you have a specific example? A case that involved something as basic as a Bible or the Ten Commandments?

For "scientific" creationism, a plain religious doctrine, see McLean v. Arkansas. The lead plaintiff, McLean, was a Presbyterian clergyman.

On the general issue of standing specifically in Establishment Clause cases, see this from the Congressional Research Service. As I read that document, the Dennises fully meet the requirements for standing. Judge Frost clearly agreed.

Sam Stickle (mountvernon1805) said...

RBH,

I’m not sure which portions of the document from Congressional Research Service you believe addresses the issues raised in the article “Christian Family Objects to Bible in Classroom.”

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