Judge Jones fell for "bad courtroom theater"

There is now a big controversy over an incident that occurred during the Kitzmiller v. Dover trial -- the dumping of a stack of literature in front of defense expert witness Michael Behe.

Here is how Behe himself described the incident and the Kitzmiller v. Dover opinion's subsequent ruling:

(quoting Kitzmiller v. Dover opinion) In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not "good enough." (23:19(Behe)).

Several points:

1) Although the opinion's phrasing makes it seem to come from my mouth, the remark about the studies being "not good enough" was the cross-examining attorney's, not mine.

2) I was given no chance to read them, and at the time considered the dumping of a stack of papers and books on the witness stand to be just a stunt, simply bad courtroom theater. Yet the Court treats it seriously.

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4) This is the most blatant example of the Court's simply accepting the Plaintiffs' say-so on the state of the science and disregarding the opinions of the defendants' experts. I strongly suspect that the Court did not itself read the "fifty eight peer reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system" and determine from its own expertise that they demonstrated Darwinian claims. How can the Court declare that a stack of publications shows anything at all if the defense expert disputes it and the Court has not itself read and understood them?
-- -- from "Whether Intelligent Design is Science -- A Response to the Opinion of the Court in Kitzmiller v. Dover Area School District", pages 6-7

BTW, what Behe said in 1996 in his book Darwin's Black Box was not that "science would never find an evolutionary explanation for the immune system," as falsely claimed by Judge Jones, but was, "We can look high or we can look low in books or in journals, but the result is the same. The scientific literature has no answers to the question of the origin of the immune system.”.

The attorney cross-examining Behe told him,

Q. Professor Behe, what I have given you has been marked Plaintiff’s Exhibit 743 . . .

Since no statement from the stack of "learned treatises" was read into the record as evidence, the stack was merely received by the court as an exhibit, even though the Federal Rules of Evidence's Rule 803(18) -- shown below -- expressly states that such literature may not be received as exhibits:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Some Darwinists have been arguing that the above rule barring learned treatises from being received as exhibits does not apply here because allegedly the issue was just the existence and authoritativeness of the publications and not whether the publications refuted Behe's claims. However, the final opinion assumed that the publications refuted Behe's claims, even though no statement from the publications was read into the record. As noted above, the final opinion said,

In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that is was not "good enough."

-- and the opinion later said,

We therefore find that Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community at large.

So the ultimate issue in the opinion was not whether the publications existed and were authoritative but was whether their evidence for the evolution of immune systems was "good enough" to refute Behe's claims -- and Judge Jones assumed that the answer was "yes," even though no statement from the publications was read into the record. And as Behe pointed out, the words "good enough" were not his but were the attorney's.

Actually, I did not need any court rule to tell me that there was something very fishy about admitting a stack of literature as evidence. Evidence is not supposed to be weighed by the pound.

Darwinists think that they are the world's greatest legal experts. Ed "It's My Way or the Highway" Brayton permanently kicked me off his blog, "Dispatches from the Culture Wars," because he did not like my interpretation of Rule 12 of the Federal Rules of Civil Procedure. On Panda's Thumb I cited a Supreme Court ruling that actually supported the position of Lenny Flank and he responded by sneering, "when did you become a lawyer, Larry?"

BarryA, an attorney blogger over at Uncommon Descent who initiated this discussion, said,

There are more than enough good state court judges and lawyers to fill every federal vacancy. There is never a reason to settle for a mediocrity like Jones. – which is probably an insult to mediocrities. Of course, the senator spoils system in which the President often defers to home state senators to make recommendations is partly to blame. The president has to get his nominees through the Senate, and a single senator from the state in which the vacancy is located can derail a nomination (I’ve seen it happen). This is an absurd practice that should be ended.

Allowing senators to block home-state judicial nominees has even been given a name -- the "blue slip" policy. BarryA aptly defined "federal judge" as "a lawyer who knows a senator." The saying "it's not what you know, it's who you know" is trite but true.

Pat Buchanan accurately labeled Judge Jones a "Neanderthal." I would call Judge Jones a "Piltdown Man," i.e., a phony or a fraud.

This controversy is also discussed here, here, and here.