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, 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. 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.

Saturday, July 31, 2010

Judge to Reconsider Previously Issued Sanctions

The dispute over discovery in Doe v. Mount Vernon Board of Education et al. continues.

On Thursday, a hearing was held in the courtroom of federal judge Gregory Frost to reassess the basis of his previously issued sanctions against defendant John Freshwater and attorney R. Kelly Hamilton.

Douglas Mansfield, attorney for the plaintiffs, had argued that Freshwater and Hamilton failed to turn over all items requested for discovery.

Freshwater and Hamilton have maintained that they did turn over all items subject to discovery that they have.

(See documents provided at end of article for the details of this ongoing dispute.)

Collaboration among attorneys

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.

Freshwater testified in the hearing that he believes the dispute over discovery is about the other side trying to keep Hamilton busy so that he cannot focus on the other case and on writing the “massive brief” that is coming due in the administrative hearing.

Freshwater said that the attorneys are “collaborating” against him and Hamilton.

The attorneys on the opposing side of the legal matters regarding Freshwater have done nothing to hide that they are, to some degree, working together. During the administrative hearing the school board’s attorney, David Millstone, routinely allowed the attorney for the “Doe” family to sit at the table with him.

During the federal hearing, Sarah Moore, an attorney for Mount Vernon City Schools’ superintendent Steve Short, sat at the table with the plaintiffs. Ironically, Short was a defendant in the case until a partial settlement was reached in August of 2009.

The partial settlement removed all defendants from the lawsuit except for Freshwater. The only significant monetary consideration that the plaintiffs received in the settlement was $115,500 for the reimbursement of their legal fees. The money was paid by the school board’s insurance.

Short was brought as a witness for the plaintiffs to testify about a one-sheet handwritten inventory he said he made of items that he returned to Freshwater in August of 2008.

(Short’s testimony on this matter covered the same ground as when he testified about it in the administrative hearing. See the section “Inventory of Freshwater’s personal items” in the article “BIBLE ON THE DESK: Freshwater Hearing Comes Full Circle with Last Witness.” )

Moore stated—as an explanation for why the inventory sheet was not turned over in response to public record requests from Freshwater—that it is protected by the work product doctrine and not a public record.

No explanation was provided of how the plaintiffs ended up with a copy of the inventory sheet by May 14, 2010 when they used it as an exhibit in one of their motions regarding the discovery disputes.

Also brought as a witness for the plaintiffs was Millstone, attorney for the school board. The school board, as shown by the name of the case, was the primary defendant until the partial settlement was reached in August of 2009.

Millstone testified that he had a conversation with Hamilton in which Hamilton indicated that he had recorded an interview with retired science teacher Jeff George. Millstone said that he did not request a copy of the recording. (George was not brought as a witness in the administrative hearing.)

In Mansfield’s closing arguments, he said that any recordings should be turned over to him even if the person recorded was not listed in pre-trial as a witness.

Billing records

One of the documents that Mansfield had requested was the billing records for the production of Freshwater’s May 2008 affidavits.

Freshwater testified that he had created the affidavits in preparation for what was to be the second interview with the H.R. On Call investigators.

Hamilton said in his opening statement that he does not have the billing records from May of 2008 regarding the affidavits. He explained that the records were destroyed when a water pipe burst above his computer. Hamilton provided the court with supporting documentation.

Mansfield said that it doesn’t ring true that the records were destroyed in a “flood.”

In a memorandum, Mansfield had provided his summary of Hamilton’s billing records that he was able to obtain from an attorney for the school board. He said that the records included the May 2008 time period but did not mention the production of any affidavits.

Freshwater testified in the hearing that he had four separate fee agreements with Hamilton. In a written statement, Freshwater said:

“The two bills I got from [Hamilton for May 2008] were for two different processes. One bill was for the investigative interview and the other bill was for the legal works other than the interview preparation. I have never hidden the fact that I had separate legal billings.”

Judge Frost

At the close of testimony and arguments, Frost said that he wants this case and the related case to go away more than anyone else does.

Related documents:

2008 response by Freshwater to plaintiffs’ requests for production of documents. 828.8 KB PDF.

January 20, 2010 memorandum by Hamilton responding to plaintiffs’ motion to compel. (Doc#78) 43.93 KB PDF.

May 7, 2010 motion by Mansfield for sanctions. (Doc# 96) 56.57 KB PDF.

May 10, 2010 response by Hamilton to Mansfield’s motion for sanctions. (Doc# 97) 30.76 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—main. (Doc#101) 44.59 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—attachment, inventory. (Doc#101-8) 81.51 KB PDF.

June 1, 2010 opinion and order by Frost on motion for sanctions. (Doc# 106) 51.7 KB PDF.

June 15, 2010 motion by Hamilton for reconsideration of Frost’s opinion and order. (Doc#107.) 23.54 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—main. (Doc# 114) 59.68 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—attachment, inventory and photos. (Doc# 114-3) 7.49 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—main. (Doc# 116) 42.94 KB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment one, Freshwater’s affidavit concerning billing records. (Doc#116-1) 1.65 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment two. (Doc# 116-2) 27.9 KB PDF.

The National Center for Science Education maintains an archive of many of the court documents for the case Doe v. Mount Vernon Board of Education et al. and for the related case Freshwater v. Mount Vernon Board of Education et al.

Monday, July 26, 2010

MV News: Agreement reached in civil suit

According to the Mount Vernon News, an agreement has been reached “between the Doe family and John Freshwater” regarding the civil suit that was scheduled to go to trial today.

The News stated that it was unable to obtain the details of the agreement.

The attorney representing Freshwater in the federal case, Sandra McIntosh, did not respond to a previous request for comment from

On July 16, 2010, sent the following email to McIntosh:

Will the jury trial for Doe v. Mount Vernon Board of Education et al. scheduled to begin July 26, 2010 continue as planned?

(In document number 116, attorney R. Kelly Hamilton states that “On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff’s Memorandum of Opposition [Doc. 114].”)

What was the “resolution in this matter” that occurred on July 2, 2010?
UPDATE 7-27-10:

According to the News, the "Doe" family's attorney Douglas Mansfield said that the trial was delayed due to settlement discussions. The News was unable to obtain details.


For details from the settlement, see the Oct. 27, 2010 News article by Pamela Schehl, “Settlement signed by both parties in civil lawsuit.”