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This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Sunday, August 13, 2006

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.

- - - - - - - - - - - - - - - - -

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:

- - - - - -

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.

Labels:

18 Comments:

Anonymous Anonymous said...

< Pat Buchanan accurately labeled Judge Jones a "Neanderthal." >

Pat would recognize one of his own.

Sunday, August 13, 2006 10:49:00 AM  
Anonymous Voice In The Wilderness said...

So the defense attorney is complaining about the way he was treated in a case he lost. Amazing!

Perhaps he could claim, as the dimwit does, that "they all had it planned out in advance."

Sunday, August 13, 2006 7:29:00 PM  
Blogger Larry Fafarman said...

Voice in The Wilderness said --

>>>>>>So the defense attorney is complaining about the way he was treated in a case he lost. Amazing! <<<<<<<

As usual, VIW is full of crap. My article says absolutely nothing about a defense attorney complaining about the way he was treated.

Sunday, August 13, 2006 8:37:00 PM  
Anonymous voiceinsuburbanness said...

< Pat Buchanan accurately labeled Judge Jones a "Neanderthal." >

Are creationists allowed to refer to "Neanderthals"? Aren't they one of those dreaded transitional forms that don't exist?

Sunday, August 13, 2006 10:30:00 PM  
Anonymous Voice In The Wilderness said...

> As usual, VIW is full of crap. My article says absolutely nothing about a defense attorney complaining about the way he was treated. <

As usual, Larry(?) is full of crap. His article refers and links to an article that talks about a defense attorney complaining about the way he was treated.

Monday, August 14, 2006 12:27:00 AM  
Blogger Larry Fafarman said...

Voice In the Wilderness said --

>>>>>As usual, Larry(?) is full of crap. His article refers and links to an article that talks about a defense attorney complaining about the way he was treated. <<<<<

Wrong. Nothing says anything about a defense attorney.

Monday, August 14, 2006 10:52:00 AM  
Anonymous Voice In The Wilderness said...

> Wrong. Nothing says anything about a defense attorney. <

O.K. "defense expert witness" acting as an attorney. (I know you will protest that he was not acting as an attorney, but his actions are more those of a partisan than an "expert witness".

I would correct myself, however. His actions should not be compared to your legal failures since you could not rightly be considered an expert in anything.

Monday, August 14, 2006 12:13:00 PM  
Blogger Larry Fafarman said...

Voice In The Wilderness said...

>>>>>>> Wrong. Nothing says anything about a defense attorney. <

O.K. "defense expert witness" acting as an attorney. (I know you will protest that he was not acting as an attorney, but his actions are more those of a partisan than an "expert witness". <<<<<<

You stupid fathead, of course he was acting like a "partisan" -- he was an expert witness for the defense (as you obviously knew because you called him a "defense expert witness"). The plaintiffs had their own expert witnesses.

>>>>> I would correct myself, however. His actions should not be compared to your legal failures since you could not rightly be considered an expert in anything. <<<<<<

Compared to you, I am obviously an expert in the law.

Tuesday, August 15, 2006 2:21:00 AM  
Blogger DaveScot said...

voiceinturbanness

Neandertals are not a transition species. They're an evolutionary dead end. Nothing descended from them. Fuck you're stupid. Why don't put a gun to your head and blow your skull apart. I'd be interested to know if that changes anything other than your hat size.

Tuesday, August 15, 2006 5:41:00 AM  
Anonymous Voice In The Wilderness said...

> Compared to you, I am obviously an expert in the law. <

Compared to a rock, you are obviously not an expert in the law. Everything that you think you know seems to be wrong.

No rock that I am aware of has a flawless record of back to back failures in court.

Your belief that you know something about law is clearly illusionary. You should ask your shrink about it.

Tuesday, August 15, 2006 7:04:00 AM  
Anonymous voiceinsuburbanness said...

<< Neandertals are not a transition species. They're an evolutionary dead end. >>

What need does an Intelligent Designer have for creating either transition species or evolutionary dead ends?

And how was it to be known at the time that the Neandertals were destined to disappear?

The Neandertals were unquestionably human BTW. Genus homo. I recall reading somewhere that it is also believed that they interbred with the lineage that led to modern man. Some persons still display Neandertal facial features.

Incidentally, DS, I see that your reputation for incivility is well deserved.

Wednesday, August 16, 2006 12:36:00 AM  
Blogger Larry Fafarman said...

voiceinsuburbanness said --

>>>>> Incidentally, DS, I see that your reputation for incivility is well deserved. <<<<<<

Your breathtakingly inane wisecracks deserve much worse.

Wednesday, August 16, 2006 7:17:00 AM  
Anonymous Voice In The Wilderness said...

"Your breathtakingly inane wisecracks deserve much worse."

You use this phrase "breathtakingly inane" like a little child that has found a new word and can't stop repeating it no matter how inappropriate.

I am wondering if this is a further stage in your obvious mental deterioration?

Wednesday, August 16, 2006 4:47:00 PM  
Anonymous analyysi said...

Judge Jones wrote:

"he [Behe] simply insisted that this was still not sufficient evidence of evolution, and that it was not “good enough.”"

The last words are in quotes, like they were Behe's words.

But what Behe actually said on cross-examination, was that "it's NOT that they aren't good enough. It's simply that they are addressed to a different subject.", and the judge still wrote, that Behe had said, that "it was not "good enough.""

http://id-idea.blogspot.com/2006/08/not-enough.html

Friday, August 18, 2006 9:36:00 AM  
Blogger analyysi said...

Behe wrote:

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.

Phrase "good enough" came not only from the cross-examining attorney's mouth but also from Behe's mouth.

He said:

"it's NOT that they aren't good enough. It's simply that they are addressed to a different subject."

http://www.talkorigins.org/faqs/dover/day12pm.html#day12pm127

So, why Behe is misquoted?

Friday, August 18, 2006 9:53:00 AM  
Blogger Dave Fafarman said...

Analyysi said (from Suomi no less!):
< .. what Behe actually said on cross-examination, was that "It's NOT that they aren't good enough. It's simply that they are addressed to a different subject." >

Well, it does appear here that Behe was misquoted. However, in what respect was it a "different subject"?

It also needs to be noted that Behe's seizing on the immune system is disingenuous. Changes in the immune system leave zero fossil evidence, so asserting that "there's no evidence" just doesn't wash. This is nearly as bad as claiming that the soul is "irreducibly complex" and that there's no direct evidence for its appearance, while refusing to accept any indirect evidence (e.g., the development of art).

Friday, August 18, 2006 10:34:00 AM  
Blogger analyysi said...

Dave:

Well, it does appear here that Behe was misquoted. However, in what respect was it a "different subject"?

Behe argued, that there isn't evidence for the evolution of the immune system through Neo-Darwinian mechanism.

Behe believes in common descent. So he believes, that there (could) have been evolution of the immune system. But still he doesn't believe in Neo-Darwinian (RM+NS) evolution of the immune system. I think, that he maybe believes in "non-Darwinian" evolution of the immune system: I think, that Behe is "ID-evolutionist".

Behe is looking for evidence for "Neo-Darwinian Evolution". The presented papers were perhaps "only" about "evolution" of the the immune system, not about origin/evolution of the immune system by natural selection. Behe then said, that they were "addressed to a different subject.".

Do you think, that Behe didn't tell the truth, when he said: "it's not that they aren't good enough. It's simply that they are addressed to a different subject."?

Friday, August 18, 2006 1:39:00 PM  
Blogger Larry Fafarman said...

analyysi said ( August 18, 2006 1:39:53 PM ) --

>>>>>Fake Dave said --
Well, it does appear here that Behe was misquoted. However, in what respect was it a "different subject"?

Behe argued, that there isn't evidence for the evolution of the immune system through Neo-Darwinian mechanism. <<<<<<

Yes, and Behe was very specific and demanding about the kind of evidence he wanted -- here is Behe's trial testimony:

Q. Is that your position today that these articles aren't good enough, you need to see a step-by-step description?

A. These articles are excellent articles I assume. However, they do not address the question that I am posing. So it's not that they aren't good enough. It's simply that they are addressed to a different subject.

Q. And I'm correct when I asked you, you would need to see a step-by-step description of how the immune system, vertebrate immune system developed?

A. Not only would I need a step-by-step, mutation by mutation analysis, I would also want to see relevant information such as what is the population size of the organism in which these mutations are occurring, what is the selective value for the mutation, are there any detrimental effects of the mutation, and many other such questions.


The Dover opinion also said, "We find that such evidence demonstrates that the ID argument is dependent upon setting a scientifically unreasonable burden of proof for the theory of evolution." I agree that Behe's above testimony sets an unreasonable burden of proof for evolution theory, but in the absence of any citations from the publications, Jones had no business concluding that the publications adequately demonstrated the possibility of evolution of the immune system by means of Neo-Darwinian mechanisms.

Also, the Dover opinion said, "even if irreducible complexity had not been rejected, it still does not support ID as it is merely a test for evolution, not design." But a criticism of a scientific theory should not be expected to present or support an alternative scientific theory. The same people who accuse ID'ers of trying to redefine science are trying to impose this arbitrary restriction on criticisms of scientific theories. Also, in the conclusion section of the opinion, Judge Jones banned all criticism of Darwinism from the classroom -- he said, inter alia, "we will enter an order permanently enjoining Defendants . . . from requiring teachers to denigrate or disparage the scientific theory of evolution." As I said before, there are several non-ID scientific challenges to evolution theory.

Also, I assert that Judge Jones violated Rule 803(18) of the Federal Rules of Evidence by treating this stack of "learned treatises" as just an exhibit and not citing any of the contents. Some people call this error a "technicality," but as Sir Thomas More said in the play "A Man for All Seasons," "The world must construe according to its wits. This court must construe according to the law."

Finally, these complex, contentious, and esoteric scientific issues cannot be properly settled in a courtroom. An amicus brief submitted by 85 scientists in the Dover case said,

. . . . the scientific theory of intelligent design should not be stigmatized by the courts as less scientific than competing theories . . . . .litigation should not usurp the laboratory or scientific journals as the venue where scientific disputes are resolved. Doubts as to whether a theory adequately explains the evidence should be resolved by scientific debate, not by court rulings. . . . . . Whether or not intelligent design is adopted as an explanation for biological origins, science benefits from the competition of alternate hypotheses. Amici see great value to design theory simply because it forces scientists to confront evidence which conflicts with the Neo-Darwinian paradigm . . . . .

In this blog, I have mostly criticized Judge Jones' procedural decisions and judicial philosophy in the Dover case rather than his reasoning on the scientific merits of ID or irreducible complexity. For example, see my article "Traipsing into breathtaking inanity". I have about 10 other articles criticizing Judge Jones, and some of these articles concern things that he said after the decision.

Friday, August 18, 2006 6:39:00 PM  

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