The following is from my article “Media Didn’t Tell Whole Story about ‘Settlement’”:

http://www.accountabilityinthemedia.com/2009/09/media-didnt-tell-whole-story-about.html

The middle school principal, Bill White, testified last October that he was asked by Short to investigate Freshwater’s side of the story. White, however, was not permitted to look at the student’s arm. “At the point when Mr. Short gave me the pictures, he said the parents didn’t want anybody to know who they were,” White testified. “And other than going through a thousand arms at school, I wouldn’t have.”

RBH said: “Between his interview with HR OnCall and his testimony in the hearing Ben changed his story about the shape and size of the burn, but not the existence of one.”

Ben Neilson testified that he did not see a burn on the arm of Zachary Dennis. He was very clear on that. (See my article “Second Student Tells of Seeing Accuser’s Arm without Burn.”)

http://www.accountabilityinthemedia.com/2009/03/second-student-tells-of-seeing-accusers.html

As far as him changing his story on any details of his testimony: This goes back to the issue of the improper way that HROC conducted their investigation. The interviews were not recorded and they did not take written statements from the witness—they didn’t even have the interviewees look at the handwritten notes to see if they were accurate. (See my article “Investigative Report: Did It Investigate Enough?”)

http://www.accountabilityinthemedia.com/2009/04/investigative-report-did-it-investigate.html

That’s false. Ben Neilson testified that he saw a mark (which, having been caused by a high frequency/high voltage generating device is appropriately called a “burn”) on Zachary’s arm. Between his interview with HR OnCall and his testimony in the hearing Ben changed his story about the shape and size of the burn, but not the existence of one.

Further, in hearing testimony and in a deposition for one of the federal suits two other students have sworn that Freshwater put marks in the shape of a cross on their arms. Again, “marks” on skin left by a high frequency/high voltage device like the Tesla coil are in fact at least first degree and possibly second degree burns, as the expert witness testified on October 30, 2008:

“Shown the pictures of the marks on the arm earlier entered into evidence, Levy testified that his original reaction is that they are pictures of a second-degree burn, and that the marks are consistent with a BD10A having been used on the arm in the described manner, 2 passes in each direction, 10-12 hours preceding when the pictures were taken. Levy testified that it was his opinion that it was an electrical burn, and that the appearance would not have been significantly affected (nor would his opinion be affected) by knowing that the boy participated in hockey practice with goalie‚Äôs equipment between the occurrence of the burn and the taking of the pictures.”

See here: http://pandasthumb.org/archives/2008/11/freshwater-hear-2.html.

A lot would depend on why the evidence is missing. If the evidence was in the possession of the school board and they were intentionally withholding subpoenaed evidence, that would be favorable to Mr. Freshwater, that would possibly make it a Brady rights violation. We’ll have to wait and see what happens this Friday at the hearing.

“Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

—Brady v. Maryland, 373 U.S. 83 (1963)