Freshwater Hearing: Whose Arm? Some Contradictions.

In my brief post yesterday (just below this post) I described Ben Neilson’s testimony to the effect that the injury shown in newspaper photos was not the mark he saw on Zachary Dennis’ arm when Freshwater used the Tesla coil on both students (in different classes). Today that testimony was contradicted, as an investigator described a very different account given by Ben Neilson to to the investigators in the course of an interview with Ben in the spring of 2008.

In this post I will juxtapose Ben Neilson’s testimony from yesterday, Mar 26, and the cross examination of Julia Herlevi, an employee of HR OnCall, which did the investigation for the Board of Education. Ms. Herlevi was present at the interview of Ben Neilson and took notes during the interview.

Later, sometime over the weekend, I’ll post a description of the rest of the testimony on Thursday and Friday.

Direct Testimony, Mark and Ben Neilson, Thursday, Mar 26

Before calling Ben Neilson, a student in one of Freshwater’s 8th grade science classes in 2007-2008, R. Kelly Hamilton, Freshwater’s attorney, called Mark Neilson, Ben’s father, to testify about Ben’s knowledge, saying that both Mark Neilson and Ben Neilson objected to Ben, a juvenile, testifying in open hearing, and that the Freshwater side was concerned about protecting students’ anonymity in the proceedings. David Millstone objected on the grounds that (1) Freshwater initially opposed a closed hearing and insisted on an open hearing; (2) Freshwater opposed an in camera hearing of the testimony of students, though the Board was willing; and (3) to attempt to introduce testimony by affidavit without the opportunity for cross examination, when the witness is available, is inappropriate. (Note that Zachary Dennis’ anonymity had been breached on the first day of the hearing at the insistence of the Freshwater side, even though a federal court had forbidden disclosure of his identity in federal proceedings. So Hamilton’s objections are merely crocodile tears.)

The hearing referee ruled that testimony about Ben Neilson’s knowledge had to come from Ben Neilson, since there was no issue of witness unavailability. This is the same ruling the referee made with reference to other students who testified earlier, and Hamilton clearly expected it since he had Ben Neilson waiting outside the hearing room ready to testify. Hamilton was merely piously grandstanding for the benefit of the gallery and newspaper reporters present at the hearing, as far as I could tell. The latter haven’t taken the bait.

When the referee made his ruling with Mark Neilson seated in the witness chair but not yet sworn, Neilson ranted for a few minutes about the cost of the hearing and how Freshwater is a good Christian man who is being done a great wrong. Neilson compared Freshwater to Peter and John in Acts 3 and 4, who were arrested by the Sadducees, spent a night in jail, and underwent questioning after healing a cripple and preaching about Jesus. Peter and John were released and went back to their preaching. Neilson ended his rant – and it was a rant in tone of voice and choice of words – by saying “It just has to stop!”

Mark Neilson is an Associate Professor in the department of graduate education at the Mt. Vernon Nazarene University, the source of many teachers in the Mt. Vernon City Schools. It’s an incestuous little town.

The referee calmed Neilson and required Ben Neilson to testify.

The referee did allow Mark Neilson to be sworn to testify to one incident where he had direct knowledge. Neilson testified that one morning at breakfast he was reading a newspaper in which a photo of the injury allegedly on the arm of a student was published. Ben Neilson, his son, saw the photo and exclaimed “That’s not Zach’s arm!” Under cross examination Mark Neilson couldn’t remember what newspaper it was nor when it occurred. In cross examination Neilson said that his son had exclaimed “That’s not Zach’s arm” in the photo, and not that it was “not the mark he had seen on Zach’s arm.” That is, Ben was claiming it wasn’t (a limb of) Zachary in the photo.

Ben Neilson Direct

Then Ben Neilson was sworn. In direct examination Hamilton introduced an affidavit that Ben had sworn before Hamilton. Hamilton first asked if Ben had been interviewed by HR OnCall, the Board’s independent investigators. He was. Hamilton asked if the investigators asked him to take an oath. He said they had not.

(Note - I don’t have a copy of the affidavit, and had just one rapid scan of it. I’ll try to get a copy to confirm exactly what it said. My mentions of what was in it below are based on that fast scan and what was said about its contents in the testimony.)

Moving to the affidavit, Ben testified that he and Zach were in different 8th grade science classes. Ben testified that he had volunteered to be touched with the Tesla coil, and Freshwater moved it from roughly his wrist to near his elbow on the inside of his arm. He had diagrammed the mark it left in the affidavit. The diagram showed a cross shape roughly five inches tall with a slightly slanted cross-piece roughly 3 inches long. He said the mark was pink-ish/red-ish, and did not hurt. Ben said it looked like a cross but due to the slant of the cross-piece could be an X. He said it lasted a day or two.

Ben testified that after his class Zachary and he met in the hall and walked together. They compared marks. Ben testified that Zachary said the only time he felt anything was when he was sweating in his hockey pads.

(Note: The chronology is not clear here. If Ben and Zachary met after Ben’s class the same day Zachary was burned, Zachary would not yet know the hockey pads would exacerbate the mark. If it was later, then they were not burned in different classes the same day. That was not clarified in the hearing that I heard. It may be that they were marked on different days.)

In the affidavit Ben had drawn what he saw on Zachary’s arm. The drawing showed a short vertical line roughly an inch or two tall with no cross-piece. It looks nothing like the photo that was published here and is an exhibit in the hearing.

Ben testified that he thought Zachary’s mark was on his right arm, since they walked side by side with Zachary on his left, and that the mark on Zachary’s arm was on the inner forearm, In his testimony Ben pointed to the “bump” on the side where the ulna meets the wrist shown in the photograph in evidence as meaning that the mark was on the outer arm, in contrast to where he testified he saw Zachary’s mark on the inner forearm. According to other testimony the mark was on Zachary’s right arm, but on the outside of the arm, not the inside.

Ben testified that he didn’t believe the Tesla coil could cause the marks shown in the photographs.

Ben also testified that Freshwater never pushed creationism or intelligent design in class.

With regard to the allegation in the federal complaint by the parents, that Zachary had to be pulled from a field trip after he was moved to Freshwater’s group after Bill White, middle school principal, had leaked Zachary’s identity to Freshwater, (described here, Ben testified that it did not happen, that he and Zachary were originally assigned to a group not led by Freshwater, and there had been no shifting of assignments.

Ben testified that in FCA meetings Freshwater was in the back of the room (regular meetings) or at his desk (leadership meetings), and did not participate. He testified that students made speaker arrangements and led devotions.

With respect to the healing prayer incident, Ben testified that the students gathered around the ill pastor for what they called a “popcorn prayer,” where people gather around someone and each prays as the spirit moves them. Ben said that he himself was the first to pray. He didn’t remember whether Freshwater prayed, and said it was “50/50” if Freshwater ever prayed at FCA.

Ben testified that he goes to the same church as Freshwater (Trinity Assembly of God in Mt. Vernon).

Ben testified that things he learned in Freshwater’s class helped him in 9th grade science rather than having to be retaught.

Finally, under questions Ben testified that he knew the difference between right and wrong, and would say so if Freshwater did something wrong.

Ben Neilson Cross Examination, Thursday March 26

In cross examination David Millstone asked if Ben had told the investigators the truth in his interview with them. He responded, “Yes.”

In cross examination Ben could not remember when he saw the picture in the newspaper and thought it was in either the Mt. Vernon News or the Columbus Dispatch. Asked if it was “quite a while ago,” he said yes. Asked what grade he was in when he saw it, he thought in the 8th grade. (Note that this would put it before Zachary Dennis’ identity was made public, which was not until October 2008.)

There was no re-cross.

Millstone then recalled Mark Neilson, Ben’s father, for cross examination. Millstone asked when the incident about the newspaper photo occurred, and Mark Neilson couldn’t remember. He thought it happened “quite a while after the report.” (The report is dated June 19, 2008. The Board of Education voted to terminate Freshwater on June 20, 2008. The Columbus Dispatch provided a link to the pdf of the report on June 19. Again, Zachary Dennis was not publicly identified until early October 2008, though Principal White had leaked his identity to Freshwater in the spring of 2008 even though Superintendent Short had promised to maintain his anonymity.)

Investigator Julia Herlevi Cross Examination, Friday Mar 27

As I noted above, Julia Herlevi is a co-owner of HR OnCall, which did the investigation. She is also the wife of Tom Herlevi, who was the principal investigator in this case. Herlevi has nearly 30 years of experience in human resources, including over 15 years of management in which she was actively involved in a variety of investigations of allegations of employee wrong-doing.

Herlevi’s raw notes on a number of investigative interviews were introduced into evidence by Kelly Hamilton, Freshwater’s attorney, in his direct examination of Herlevi. David Millstone, introduced into evidence Julia Herlevi’s raw notes from the investigators’ interview of Ben Neilson. The interview was conducted by Tom Herlevi, the principal investigator, in the presence of Ben’s parents. Recall that in his testimony in cross examination described above, Ben said he told the truth to the investigators.

Herlevi testified that her notes said that when asked, Ben said he volunteered to be shocked with the Tesla coil in Freshwater’s class, and that Freshwater made a mark on his arm that lasted a day or two. Asked the shape of the mark, he said “A cross.”

The notes said that Ben told the investigators that the mark on Zachary’s arm looked about the same as the mark on his arm. He told the investigators that Zachary told him his arm hurt. According to the notes, Ben did not tell the investigators that the mark on Zachary’s arm was much smaller than his and was a single line but looked about like his own, which he had described to the investigators (and drew in his affidavit) as a fairly large cross.

Asked what goes on in Freshwater’s class, Herlevi’s notes say that Ben told the investigators that Freshwater “talks about Big Bang theory and the possibility of intelligent design …”, about “hydrosphere theory”, and about “a boat in a flood.” He told the investigators that Freshwater taught the students to say “here” when “something in the book wasn’t scientifically proven” such as “that the earth was formed X number of years ago.”

In his affidavit Ben denied the investigators’ account in those respects.

According to the investigators he told them that he thought Freshwater “sometimes wanted to talk about his beliefs.”

However, in his recent affidavit, Ben denied that Freshwater talked about creationism or intelligent design.

According to the investigator’s notes, in the Fellowship of Christian Athletes meeting where the ‘healing prayer’ occurred, Ben said that Freshwater initiated the prayer, saying “Why don’t we pray for him.” In his affidavit Ben claimed that a student made that suggestion. The former story was confirmed by the investigator’s notes of another interview, in which a school employee named Ruth Frady (I’m not sure of the spelling) told the investigators that Freshwater “facilitated” the prayer by telling the students they could circle the ailing pastor and pray for him. She told the investigators that Freshwater participated in the procedure and said the closing prayer.

Re-direct of Julia Herlevi

In his re-direct Hamilton attempted to show that the investigator’s notes were her subjective impression, not a veridical account of the interview. He pointed to the paucity of quotation marks in the notes as an example. He derided her for taking hand-written notes rather than making an audio recording. He asked “You could have written anything you wanted to, couldn’t you?”

(At one point in direct examination by Hamilton Julia Herlevi had said that both she and her husband took notes in their joint interviews, and their notes corresponded closely.)

Herlevi defended her notes, saying she had nearly 30 years of experience and her notes had never before had their credibility questioned. She asserted they were a close representation of what interviewees actually said.

Under Hamilton’s questioning Herlevi said that interviewees had not had a chance to review her notes and make corrections if necessary.

There was no recross and Herlevi was excused.

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:

1. Ben did not tell the truth to the investigators, despite testifying under oath in cross examination that he had told them the truth.

2. Ben did not tell the truth in his affidavit and testimony yesterday, despite being under oath to tell the truth.

3. 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.

Another potentially relevant bit of information in this connection is that after the session in which Ben testified, Mark Neilson took me aside outside the hearing room and attempted – unsuccessfully! – to evangelize me. He was pretty insistent and basically preached to me for several minutes. He first inquired somewhat aggressively why I “set up a web site” in opposition to Freshwater, apparently referring to the Panda’s Thumb. Then he moved to preaching to me. I left after several minutes, having got in a question (unanswered) about God’s love for the 16,000 Midianite virgins turned over to the Israelite army. But it was very clear that Mark Neilson is a hard-core Freshwater supporter and believes that Freshwater, a “good Christian man,” has been seriously wronged (recall the comparison with Peter and John in Acts in his rant to the hearing referee). This is the first time in 16 days of the hearing that someone has attempted to evangelize me.

Of the three hypotheses, my vote is for #2. It’s clear that Ben’s father holds very strong views on this subject (witness his rant and his evangelizing of me), and that Ben’s interview with the investigators is a significant part of the case made for termination. It corroborated allegations of burning crosses on students’ arms; it corroborated allegations that Freshwater was teaching religion-based creationism; it corroborated allegations that Freshwater was undermining students’ acceptance of the best science; and it corroborated allegations that Freshwater took an active role in FCA religious exercises during meetings.

Hamilton attempted to establish the credibility of hypothesis 3. If the investigators’ version of the interview with Ben could be impeached then Hypotheses 1 and 2 go away, and Hypothesis 3 accounts for the discrepancies. This is part of Hamilton’s general strategy, to argue that the whole matter is aimed at getting rid of Freshwater and that the Board of Education, their law firm, and the investigators are engaged in a massive conspiracy to sacrifice this good Christian man.

I don’t believe it. There is too much corroborating testimony by too many different people, some of them Freshwater’s supporters, to be attributed to a conspiracy. I think Ben did not tell the truth in one or the other instance, and I think it was in his affidavit and testimony yesterday, Hypothesis 2. I think it occurred under enormous pressure, possibly unwitting but possibly not, from his father and other co-religionists.

Ben attends Freshwater’s church. [Added in edit 3/28: This may not be the case; see my comment below.] 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.

I further believe that when this is over the district is going to have to do some serious administrator training, teacher professional development, and even maybe some housecleaning in the middle school. Given Lori Miller’s testimony Wednesday about her evangelizing in the school and the current prevalence of religious displays in the middle school, it sounds more like a parochial school than a public school. It’s not just Freshwater who is a problem there.

In former Director of Teaching and Learning Linda Weston’s testimony on Thursday (not yet described here on PT), she mentioned that the district offered teachers a voluntary professional development session on religion in public schools in the fall of 2003 after Freshwater’s proposal to the Board of Education was rejected. Freshwater did not choose to attend. It’s about time all of the proselytizing and preaching and praying teachers in that district learn the meaning of the First Amendment Establishment Clause.