Page 3

1 have all these mini trials throughout this trial over issues

2 that are not probative. The question here as this court has

3 already ruled is whether or not Blair's activities are part

4 of the school or part of the business enterprise. And, you

5 know, whether he had 30 or 45 seconds or five hours to go to

6 the bathroom is irrelevant to those decisions. Justly the

7 confusion Mr. Stilley when he used the word humanitarian in

8 essence admits that he intends a trial on what the Court has

9 drawn a line in the sand about trying to show that this is

10 some inhumane operation. And that's why we have Rule 403.

11 THE COURT: Fine, I'm excluding that. You hit it on

12 the head when you're talking about humanitarian. This is not

13 about that. This is about employee/employer relationship

14 here, whether or not that relationship existed.

15 MR. STILLEY: Your Honor, let me make sure I

16 understand the scope of this ruling then. Is he prohibited

17 from telling the jury about the typical day in his life?

18 THE COURT: I didn't say that. We're talking about

19 the denial of bathroom privileges, okay.

20 MR. STILLEY: Can he just say the facts of what was

21 done to him?

22 THE COURT: You just continue to make it appear to

23 me that you want to continue to try to sneak across the line,

24 that's what you keep telling me. Judge, you give me an

25 opening so I can sneak across the line.

I - 29

1 MR. STILLEY: Your Honor, I don't want to sneak up

2 to the line, I want to go right up to it and stop.

3 THE COURT: You may be acting at your peril, okay.

4 I have ruled on this denial of bath room privileges.

5 MR. STILLEY: Okay. Well, I want to know the scope

6 of it.

7 THE COURT: That is the scope of it.

8 MR. STILLEY: Well, now let me ask you this: If I

9 just ask him --

10 THE COURT: When you ask me this, I'm going to tell

11 you that. Go ahead.

12 MR. STILLEY: If I just ask him to tell the jury

13 what he did during the typical day, and he goes through this

14 and he says how much time that he got to go to the bathroom,

15 is that going to be a violation of your order?

16 THE COURT: Yes.

17 MR. STILLEY: So he has --

18 THE COURT: That isn't what he did. That isn't what

19 he did. That's what he didn't do. That's what you're

20 telling me, that's what he didn't do.

21 MR. STILLEY: No, he did go to the bathroom, but he

22 just didn't get very much time.

23 THE COURT: Fine. Fine, the time is not relevant.

24 MR. STILLEY: Well, Judge, you told me that the

25 totality of the circumstances.

I - 30

1 THE COURT: See, you're still the Cool Hand Luke,

2 where somebody is over this, shake the weeds, boss, we got

3 the string on him when he goes to the bathroom. Please.

4 False imprisonment. You keep going there. You keep going

5 there in terms of the violation. And, you know, as they say,

6 I feel your pain. I understand what you're saying. But this

7 is not part of that case. That is out. You still want to

8 try the part of the case that has disappeared.

9 MR. STILLEY: Well, when I ask him about that, do I

10 just have to explain to him when he talked about --

11 THE COURT: He's sitting there. Please. We will

12 have recesses. I don't need any further discussion of that.

13 You've been told.

14 Escaping from Palm Lane?

15 MR. STILLEY: Your Honor, they said that themselves.

16 That's the way they describe it. They say in their

17 pleadings --

18 THE COURT: Well, folks say a lot of things. How is

19 that coming in in terms of the employment or the battery?

20 MR. STILLEY: Well, that would show when he was

21 terminated. If they don't want to show he was terminated, if

22 they want to continue to the present I don't guess I have a

23 objection to that.

24 THE COURT: He ran away at some point in time, and

25 that's when he stopped working.

I - 31

1 MR. STILLEY: That's right, he escaped, ran away,

2 same thing.

3 THE COURT: Well, temper that. Temper that. He ran

4 away.

5 MR. STILLEY: Okay.

6 THE COURT: Okay. Okay, that's denied. We'll hear

7 about that as far as his termination of the relationship,

8 whether that was employment or scholastic.

9 This adjudication, the delinquency adjudication.

10 That's granted. That's out.

11 MR. STILLEY: I take it that nothing is going to be

12 mentioned by either party, nobody is going to say anything

13 about adjudication, correct?

14 THE COURT: Not to the substance of it, not to the

15 merits of it. I mean, I don't know if your client is going

16 to talk about how he got to Mountain Park in the first place,

17 I don't know that.

18 MR. STILLEY: Well, the issues that we have, I think

19 the whole thing needs to stay out if you can't explain.

20 THE COURT: Fine, I don't have a problem with that.

21 Is that all right with you, Mr. Oliver?

22 MR. BRIGGS: I'm sorry, I don't think I understand.

23 THE COURT: He wants to exclude any mention of

24 juvenile delinquency on the part of Mr. Blair.

25 MR. BRIGGS: We've comfortable with allowing --

I - 32

1 we're comfortable with explaining that the parents enrolled

2 him without making reference to the exact cause.

3 THE COURT: Okay. How about that, Mr. Stilley?

4 MR. OLIVER: I'm sure Mr. Blair will describe his

5 son as troubled. I think we can leave it at that. We take

6 trouble children; we don't take normal children.

7 THE COURT: Fine, I think we have an understanding.

8 MR. STILLEY: Your Honor, that is satisfactory to

9 me. We may have to keep out just a little bit of the

10 deposition testimony on that account, but I'll get with

11 opposing counsel on that.

12 THE COURT: Depravation and denial of sleep. What

13 about that?

14 MR. STILLEY: That goes to his hours. He was forced

15 to work all of his waking hours and only got a limited amount

16 of sleep a night, so I think that would show how many hours

17 he worked. Many times he would work --

18 THE COURT: Fine. You're going to show this is for

19 hours of work, and not for depravation of sleep?

20 MR. STILLEY: Right.

21 THE COURT: Correct.

22 MR. STILLEY: Correct.

23 THE COURT: Denial of, depravation of medicine?

24 MR. STILLEY: Your Honor, I think that that is very

25 appropriate because he's out there working, he's asking for

I - 33

1 medicine. And his letters show that he's asking for

2 medicine. I need some medicine and they won't give it to

3 him.

4 THE COURT: Okay.

5 MR. STILLEY: And they are saying --

6 THE COURT: I understand. How many times do you

7 want me to say I feel your pain. What has that got to do

8 with the two questions in this case, employment and battery?

9 MR. STILLEY: Well, if the defendant --

10 THE COURT: That's what you got to tell me. Don't

11 tell me this happened that bad, that bad. So it's a lot of

12 bad stuff happening in this world. The devil is busy. So

13 what. I can't solve every problem. I'm trying to deal with

14 Fair Labor Standards Act and battery. Those are my two

15 problems.

16 MR. STILLEY: Your Honor, this would go for one

17 thing to the totality of the circumstances. As long as the

18 defendants want to make out that this is something other than

19 an employment relationship, it's something that they are just

20 teaching the kids how to be good adults, I think we need to

21 show that the facts of what's going on, otherwise the jury

22 gets a misapprehension.

23 THE COURT: That's granted. That's out. You

24 haven't told me anything about employment or battery.

25 Depravation of proper educational materials. What

I - 34

1 about that, Mr. Stilley?

2 MR. STILLEY: Goes to his hours because they didn't

3 let him do any work that was age or grade appropriate. And

4 the rule on Fair Labor Standards Act say if you're compelled

5 to go to a meeting just on the basis that you're compelled to

6 go to a meeting by your employer is compensable. What we

7 want to say, he had his high school diploma. He had

8 completed that. And despite that, he was sent to Palm Lane

9 on the same day he got this high school diploma and forced to

10 work there. So his educational background would be

11 appropriate.

12 MR. OLIVER: It's a lay opinion.

13 THE COURT: We're talking about depravation of

14 proper educational materials.

15 MR. OLIVER: That's lay opinion as to what's proper.

16 He's trying to substitute a judgment of -- judgment of

17 Christian educators. We don't have to go into -- the fact is

18 he had the opportunity to have an education. Now, what level

19 is totally irrelevant. And particularly when he offers no

20 expert evidence to indicate that the diagnostic testing that

21 we gave him was improper.

22 Your Honor, if I might, I've just about had enough

23 of Mr. Stilley's statements this morning. This is going to

24 be a problem throughout this trial, and I apologize in

25 advance. Mr. Stilley just told the Court that on November

I - 35

1 the 10th that his client had his diploma, and that's a

2 misstatement of fact. And it's not unlike the misstatement

3 of fact he made to Judge Dawson in this case when Judge

4 Dawson wrote that although plaintiff and plaintiff's counsel

5 deny the warrant of an outstanding arrest, they made that

6 denial in the filing of Western District of Arkansas December

7 17th, 2003 after they made affidavits before this court a

8 year before that they knew about the warrant. Mr. Stilley

9 has a habit at least in front of Judge Dawson, your

10 counterpart in Arkansas, of making statements that are

11 demonstrably not true. This education thing, Your Honor,

12 there was -- the diploma was, in fact, in a file in another

13 school. That principal told us that Jordan was never

14 eligible for that diploma. Later he gave that diploma to

15 Mr. Stilley. We never had the diploma. And it has nothing

16 to do with what Mountain Park is. We're going to have to

17 have a mini trial, bring in the principal and find out

18 whether Mr. Stilley and his group threatened principal Womack

19 with a suit if they didn't give the diploma. You can listen

20 to the tape, Your Honor. Mr. Stilley gave --

21 THE COURT: No, it looks like I'm going to have to

22 listen to more than I want to already.

23 MR. OLIVER: Absolutely. I didn't want to get

24 there, but enough is enough. Enough is enough.

25 THE COURT: Let's bury this and move on.

I - 36

1 MR. STILLEY: At this point in time they are asking

2 for an offset for the value of what they provided to him. I

3 think it is relevant to the value what they provided to him.

4 They did find my client didn't have physical possession of

5 that diploma on the 10th of November, that's correct, because

6 I couldn't go anywhere. He couldn't communicate with the

7 outside world.

8 THE COURT: This sounds like something that may be a

9 rebuttal matter. Is that correct?

10 MR. STILLEY: Well, I wanted to just present

11 testimony in my case in chief about what his educational

12 background -- I mean, what educational achievements have you

13 made and when did you make those achievements.

14 THE COURT: I don't see that as problematic, but I'm

15 talking about the initial thing that I was referring to was

16 Mr. Oliver -- the defendants' motion for you to put on

17 evidence of the denial of proper educational materials, you

18 know, books, paper, pencil, whatever. Educational materials.

19 MR. STILLEY: What I'd like to do --

20 THE COURT: That's out. What? Tell me about that.

21 MR. STILLEY: What I want to just do, put on the

22 facts that he was put in fifth grade level work. Is that

23 fair?

24 MR. OLIVER: That's not fair because it isn't true.

25 THE COURT: How is that relevant?

I - 37

1 MR. STILLEY: Well, on one hand they are saying we

2 want to offset to your wages for what the value --

3 THE COURT: I'll tell you what, you know, we've got

4 a situation as to whether or not it's student or employee,

5 so, you know, there is some kind of balance there in terms of

6 what he was doing of an educational nature or was it an

7 employee situation. But the idea of it being cruel or

8 unusual or punitive in some kind of way is not appropriate.

9 But whatever shows that it's more likely education or more

10 likely employment, those kinds, that's relevant.

11 MR. STILLEY: That's all I want to put on.

12 THE COURT: Anything on that, Mr. Oliver?

13 MR. OLIVER: If you want an education in the school,

14 the philosophy and testing procedures of the School of

15 Tomorrow, I guess not, but you just added about a day of

16 explanation, unnecessary explanation to the trial. The point

17 is --

18 THE COURT: No, it wouldn't be a day. It don't take

19 somebody long to tell what their philosophy, what their

20 educational approach is. That's that. I mean, I understand

21 this is an alternative education, but it won't take that long

22 to explain it.

23 MR. OLIVER: Yes, sir. The only issue is whether he

24 was in school or at work, not what he was doing.

25 THE COURT: You know, part of it he's going to be

I - 38

1 talking about what he's doing is work. Somebody is going to

2 talk about education. So we got to talk about what he is

3 doing.

4 MR. OLIVER: Yes, sir.

5 THE COURT: So I'm talking about something as simple

6 in that regard. It's not something for sympathy that he was

7 being mistreated or something of that nature. So I'm going

8 to grant that motion as far as educational materials is

9 concerned, but allow evidence as to education versus

10 employment activities.

11 Okay. We already got to this diploma situation.

12 What about that? You say, Mr. Stilley, that that's just to

13 show what he got because there is a claim on the part of

14 defendants for payment as to his education. Tell me about

15 that.

16 MR. STILLEY: Yes, that is one thing. And the other

17 thing is that mitigates against being a student if he already

18 got a high school diploma. So the student versus employee

19 dichotomy is the -- I think the key issue that we need to

20 show, he's got a high school diploma.

21 MR. OLIVER: Your Honor, first of all, he doesn't

22 have any evidence that we had it, because we didn't have it.

23 If we had it, maybe that would be relevant. The fact that

24 this boy claimed it and we got it in discovery sort of

25 militates against this having any probative value whatsoever.