I'm from Missouri

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.

Location: Los Angeles, California, United States

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, December 31, 2006

Censoring criticism of evolution in public schools actually hurts evolution education

I have pointed this out before but it bears repeating -- outlawing evolution disclaimers and "critical analysis of evolution" in public schools will backfire by actually hurting evolution education. Ironically, the evolution disclaimers that were outlawed by the Kitzmiller v. Dover and Selman v. Cobb County decisions were actually weak concessions that were made for the purpose of increasing public acceptance of school boards' adoption of the extremely pro-Darwinist biology textbooks authored or co-authored by Ken Miller, the plaintiffs' lead expert witness in the Kitzmiller trial. Furthermore, only evolution was actually being taught in the Dover and Cobb County public schools. Without the option of adding either an evolution disclaimer or critical analysis of evolution to science courses, state boards of education, local school districts, schools and teachers are likely to respond to evolution's critics by just restricting, not expanding, not instituting, or even eliminating evolution education. Furthermore, the censorship of criticism is likely to increase -- not decrease -- skepticism of evolution. The Darwinists' wins in Kitzmiller and Selman were pyrrhic victories.

Here is what actually happened in Dover. The Kitzmiller v. Dover opinion said (pp. 112-113, 120):

. . . . .Despite the fact that the teachers strongly opposed using Pandas as a companion text, they agreed that Pandas could be placed in the classroom as a reference text as a compromise with the Board. (29:111 (Buckingham); 12:136 (J. Miller); 13:88 (Spahr)). Baksa testified that no one could construe the teachers as having supported Pandas in any way, reference text or otherwise, which is evidenced by Jen Miller's statement that if the teachers compromised with the Board, "maybe this will go away again." (35:120 (Baksa); 12:136 (J. Miller)). It is patently evident that by this point, the teachers were both weary from the extended contention concerning the teaching of evolution, and wary of retribution in the event they persisted in opposing Buckingham and his cohorts on the Board . . . . . .(emphasis added)

Baksa provided highly pertinent information concerning the position of the teachers throughout this process. He testified that the teachers did not support Pandas in any way, but that they made compromises to insure the purchase of the biology book entitled "Biology." (35:119-20 (Baksa)).

Whether or not the teachers were "weary from the extended contention" or "wary of retribution," they did agree that the book could be placed in the classroom as a reference text. And in the end, the book was not placed in the classroom but was only placed in the school library and the teachers were required to read to the science classes a statement saying that copies of the book were in the library. Also, the Dover opinion falsely stated that "[t]he Board failed to consider the views of the District's science teachers" (page 131) -- the record shows that the teachers were consulted, though arguably they should have been consulted more and heeded more. IMO the teachers' suggestions for minor changes in the ID statement should have been accepted.



Saturday, December 30, 2006

Big blog war between Ed Brayton and PZ Myers

It is with great pleasure that I report a big blog war between Ed "It's my way or the highway" Brayton and "Sleazy" PZ Myers. These two run what are probably the biggest Darwinist single-blogger blogs on the Internet: Ed's Dispatches from the Culture Wars and PZ's Pharyngula. Here is a comment that Ed posted (the comment was so abusive that Ed deleted it -- but someone saved a copy here) and here is one that PZ posted. LOL

My blog has an article about a previous blog war in which Darwinists attacked each other.

My blog has many articles attacking Ed and PZ. To find them, just enter "Brayton" or "PZ" in the blog-search window that is visible in the top border when you are scrolled to the very top.

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Massachusetts and S. Dakota legislatures violated initiative rules

Update: On the last day, Jan. 2, the Massachusetts legislature finally voted on the initiative.

Both the South Dakota and Massachusetts legislatures have violated their respective states' ballot initiative rules -- the former legislature by voting on a ballot initiative and the latter legislature by failing to vote on a ballot initiative.

As I have previously noted, there are two different kinds of ballot initiatives -- the "direct" initiative and the "indirect" initiative. In the"direct" initiative, a proposition is supposed to be put directly on the ballot without going to the legislature first, and in the "indirect" initiative, a proposition is supposed to go before the legislature before going on the ballot. In an indirect initiative procedure, a proposition may or may not go on the ballot (I don't know how the initiative rules of the different states differ in this regard). Massachusetts' state constitution has an "indirect" initiative procedure that requires the legislature to vote on the initiative and South Dakota has a "direct" initiative procedure. I have already noted that the South Dakota legislature violated the spirit of the state's direct initiative procedure by voting on a resolution against the state's Amendment E ("Jail-4-judges") ballot proposition -- in several decades of following California's propositions, I cannot recall the legislature ever voting on a single one of them. Now the Massachusetts legislature has violated the letter of the state constitution by failing to vote on a ballot proposition.

It is hard enough trying to get an initiative passed into law without having to worry about these illegal and/or unethical sabotage efforts by the state legislature.

A related article on this blog is titled Reform of ballot proposition rules. I would add another proposed reform: where the legislature fails to vote on an indirect initiative, the rules should require that the initiative go directly on the ballot by default.



Friday, December 29, 2006

PDF file problems solved

Previously on this blog, I complained a lot about having big problems with PDF files. I have now solved most of my PDF file problems and I am posting this message for the benefit of others who may be having the same problems.

I have discovered that most of my problems in loading PDF files were due to my own impatience. When a PDF file did not appear after a few seconds, I started hitting the refresh button impatiently, and that caused really big problems, often causing my computer to freeze up completely.

I now find that with a slow dial-up connection it sometimes takes a minute or more to load a PDF file. I also found that trying to do other things while waiting for a PDF file to load also causes problems.

Also, often a recently used PDF file will reappear instantly.

PDF files have their advantages and disadvantages. The advantages are: (1) nice built-in word-search and word-counting features; (2) page numbering, which is often absent in HTML files; and (3) a PDF file often shows details of an original document that are not shown in HTML files and is sometimes virtually a photocopy of the original document. The disadvantages are: (1) the text cannot be copied and pasted by normal means, and (2) very slow loading with a dial-up connection (as discussed above).


Online video of Pennock's UCSD lecture

The video is here. This is a controversial lecture that started a blog war. The issue that started the blog war was the controversy over whether UCSD required the attendance of all freshmen or just the Sixth College freshmen, who are regularly required to attend the Convocation lectures. The lecture, which lasted about one hour, included the usual Darwinist propaganda. Here are some highlights from the lecture, along with some comments from me:

(1) -- Intelligent design is a Christian concept.

ID is not supposed to be a religious concept at all, and it is supported by Christians, Jews, Moslems, atheists, agnostics, etc..

(2) -- the issue was "teaching" intelligent design.

Only evolution was actually taught in the Dover public schools.

(3) -- refusal to read the ID statement was an act of courage by the Dover science teachers.

I don't know how many science teachers were involved, but there is strength in numbers. Also, these teachers knew that they would be hard to replace, since Dover pay rates were low for the area.

(4) -- Pennock called ID "breathtaking inanity," one of Judge Jones' hallmark expressions.

Even Jones did not use that term to describe ID -- he just used it to describe the actions of the Dover school board members.

(5) -- the lecture, like the Dover trial, focused excessively on the book Of Pandas and People.

The trial was supposed to be about ID, not about a particular book about ID (there are many books about ID).

(6) -- the usual quote mine of Pope John Paul II -- his statement that evolution is more than just a hypothesis.

(7) -- ID is not antithetical to religion.

That depends on one's religious beliefs.

(8) -- ID is not testable.

Evolution theory is not testable either.

(9) -- a distortion of Behe's comparison of ID to astrology



Thursday, December 28, 2006

Egotistic Ed Brayton is trying to show off again

Ed "It's my way or the highway" Brayton is again trying to show off by pretending that he is an omniscient know-it-all expert on all subjects. He often just pulls "facts" out of thin air. The latest instance is the Smithsonian Institution's Sternberg affair. In two blog articles, here and here, Ed is trying to give the false impression that he knows more than the people directly involved in the investigation. The amount of unsubstantiated detail about the Sternberg affair in Ed's articles is astonishing.

Of course, Ed's adulating commenters praise his great knowledge and research. I don't bother trying to post on Ed's "Dispatches from the Culture Wars" blog anymore even when I can get around his blocks, because I know that he has almost no patience with those who disagree with him. The usual absence of criticism of his posts gives the illusion that he is almost always right.

I vividly remember another instance where Ed just pulled "facts" out of thin air -- in the controversy over whether the new Dover school board should have tried to moot the Kitzmiller v. Dover case by repealing the ID policy prior to release of the decision. Ed pontificated,

All three of these people are diligently trying to hide the fact that the school board's counsel, the plaintiffs' attorneys, the Thomas More Law Center, every legal scholar cited in the press on the subject and the judge himself all said that changing the policy would not void the ruling and would not save the school district any money.

No, Ed, you are the one who was diligently trying to hide the fact that apparently the only unbiased professional legal advice that the board received was to repeal the ID policy immediately to try to moot the case. You also lied about the advice that the board received -- or didn't receive -- from biased sources. At the November meeting of the outgoing school board and again at the December meeting of the incoming school board, a departing board member, David Napierski, presented an attorney's recommendation -- supported by a written report -- that the board repeal the ID policy immediately. Also, a newspaper article reported the following: (1) the plaintiffs' attorneys declined to comment (for obvious reasons); (2) Judge Jones said that the election results would have no effect on his decision (he should not have been giving legal advice no matter how good it might have been -- that remark seriously undermined whatever bargaining position the school board might have had in seeking an out-of-settlement); and (3) Richard Thompson, a Thomas More Law Center attorney who represented the board in the Kitzmiller trial, was opposed to repeal of the ID policy (because he wanted the case to be appealed). All three of the preceding sources of advice were biased. The minutes of the December board meeting announced that the board's former solicitor (presumably who Ed calls "the school board's counsel") was being re-hired but made no mention of any advice that he gave the board about Napierski's proposal. Since this was the first meeting of the new board, the new board had not yet even had a chance to vote on whether to formally request the solicitor's advice. And Ed never gave a single example of an outside "legal scholar cited in the press." So apparently the only unbiased professional legal advice that the board got was to repeal the ID policy immediately in the hope that the courts would declare the case to be moot.

Of course, if I were ever caught telling such lies, I would never hear the end of it.

Ed's blog is a good source of information from other sources, but any unsubstantiated information that Ed himself posts should be taken with a huge grain of salt.

BTW, I think that all the outrage that the Darwinists are expressing about the publication of Stephen Meyer's pro-ID paper in the Proceedings of the Biological Society of Washington is "protesting too much" -- their vehement protests over the paper's publication suggest that they really think that the paper isn't bad.



Wednesday, December 27, 2006

Darwinist and anti-Darwinist lists of year's highlights


Evolution News & Views (Discovery Institute)

Access Research Network


Stranger Fruit



Discovery Institute authors cleared of charge of "plagiarizing" their own book

In an attempt to deflect attention from charges that the ID-as-science section in Judge Jones' Kitzmiller v. Dover opinion was too one-sided and was excessively copied from the ACLU's opening post-trial brief, the Darwinists charged that Discovery Institute authors tried to hide the fact that an article that they submitted for publication in a law review journal was mostly copied from one of their own books. A post on Ed Brayton's blog has cleared the DI authors of that charge. Ed's post ends by saying,

Update: Mr. Browder wrote back and informs me that Prof. DeWolf did not sign the agreement verifying originality until after the article had been rewritten. I'd say that pretty much resolves everyone of any unethical conduct in this situation and brings this little tempest in a teapot to an anti-climactic conclusion.

Here is a list of this blog's articles concerning Judge Jones' "plagiarism":

More thoughts about Judge Jones' "plagiarism"

The real reason why Judge Jones ignored defense arguments

Important conclusions of law in the Dover opinion were ghostwritten by ACLU

The Living End: Judge Jones' infamous statement about the Founders' "true religion" is a plagiarism

Ninety percent plagiarism figure suggests that Dover ID-as-science opinion is one-sided

Is "plagiarism" by judges a standard practice?

Plagiarism charge hits general media

Articles on "plagiarism" charge against Judge Jones

Brayton's answer to "plagiarism" charge against Judge Jones

Behe says Judge Jones plagiarized Dover plaintiffs' briefs

Here again are my two limericks about Judge Jones:

There once was a jurist named Jones,
who had a head just full of bones.
The opinions he wrote
did nothing but quote,
and therefore were just full of clones.

There once was a jurist named Jones,
who was known as a real lazybones.
He could not disguise
that he did plagiarize,
and his statements were just full of clones.


Monday, December 25, 2006

Cobb County plaintiffs charged that "theory not fact" statement endorses religion

In preparing for a now-canceled new trial in the defunct Selman v. Cobb County case (the judge granted a motion for a new trial), the plaintiffs made the incredible charge that the textbook sticker's statement that "evolution is a theory, not a fact" constitutes a government endorsement of religion. An expert report written for the new trial attempted to back up the charge by giving a history of the use of this "theory not fact" concept by creationists dating back to William Jennings Bryan, the volunteer prosecutor in the 1925 Scopes trial. Such a farfetched, paranoid presumption of guilt by association has possibly been unapproached in American courts since the Salem witch trials. I think that it is time for the men in white coats to come for some of these Darwinists.

This "theory not fact" charge was possibly a factor in stampeding the Cobb County board of education into copping out and caving in. However, there was really little cause for concern. In the appeals court oral hearings, the judges did not seem to have much sympathy for this charge -- for example, Appeals Judge Edward Carnes told an attorney representing the plaintiff/appellees,

"I don't think y'all can contest any of the sentences. It is a theory, not a fact; the book supports that."

Judge Carnes also told the attorney,

"Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment."

Also, a news report of the hearing said,

Judge Ed Carnes, one of the panel members, said the three-sentence disclaimer seemed to him to be "literally accurate." Judge Carnes also chided the lower court for getting "some of the key facts" wrong. Another panelist, Judge Bill Pryor, agreed with Judge Carnes, saying the lower court relied on facts that "are just contradicted by the record." The final panelist, Judge Frank Hull, questioned how the federal district court could have found the sticker's language misleading to biology students when there was no evidence to support that view.

I wish I could get a complete transcript of the oral hearing -- it must have really been something. LOL

BTW, the vote to appeal the case was 5-2. What was the vote to settle the case out of court? I haven't seen that yet.



Unchallenged Alabama state evolution-disclaimer textbook stickers

I was astonished to learn that for many years Alabama has had unchallenged and mostly unnoticed evolution-disclaimer stickers in biology textbooks statewide! How come these stickers have apparently never been challenged in court? Are the ACLU and the Americans United for Separation of Church and State unable to find a single "mascot" (Kitzmiller and Selman are examples of "mascots") in the whole state of Alabama?

In fact, some of the language in Cobb County's stickers was identical to that of Alabama's latest stickers, which end with --

Instructional materials chosen to implement the content standards within this course of study should be approached with an open mind, studied carefully, and critically considered.

For comparison, the Cobb County stickers ended with --

This material should be approached with an open mind, studied carefully and critically considered.

Alabama filed a joint amicus brief with Texas in the appeal of Selman v. Cobb County because the district court decision in that lawsuit threatened Alabama's own textbook stickers. The brief says,


. . . Since 1996, the State of Alabama has affixed stickers concerning the theory of evolution to the fronts of biology textbooks used in public schools. The current sticker, approved by the State Board of Education, reads as follows:

- - - - - - - - - - -

Whether or not controlling, it is clear that any ruling concerning the constitutionality of Cobb County's textbook sticker will have an important bearing on the validity of Alabama's sticker.

There have been major lawsuits against evolution disclaimers in local school districts: Kitzmiller v. Dover (oral disclaimer), Selman v. Cobb County (textbook sticker disclaimer), and Freiler v. Tangipahoa Parish (oral disclaimer). Are the Darwinists afraid to sue a whole state over an evolution disclaimer? The Darwinists were not afraid to sue states over a law banning the teaching of evolution in public schools (Epperson v. Arkansas) and over laws requiring equal treatment of evolution and creation science in the public schools (Edwards v. Aguillard and McLean v. Arkansas Board of Education).

Merry Christmas, everyone.



Sunday, December 24, 2006

E-mail addresses of members of Cobb County Board of Education

Here are the e-mail addresses of the board members, for the benefit of those who may wish to send thoughts about the board's recent decision to settle with the plaintiffs in Selman v. Cobb County:


Phew -- with a Johnson, a Johnston, and a Johnstone, it is hard to keep these members straight.

Here is some useful information --

(1) The newest board member started in 2003 -- all the other members started in 1997 or earlier.

(2) The textbook stickers were adopted in 2002 and the lawsuit was filed in the same year.

(3) In 2005, the board voted 5-2 to appeal the case. Prior to the board's decision, the board's law firm agreed to work for free on the appeal.

Here is a timeline and articles about the history of the textbook stickers.

There was no change in the board membership during the history of the textbook stickers and therefore the board's about-face cannot be attributed either in whole or in part to a membership change.

Another reason why the board should not have dropped the case is that this was considered to be a unique and important test case and it would take years for a similar test case to go through the courts. The progress of these lawsuits is often slower than molasses in a winter cold-snap at the South Pole. More than four years after the Cobb County lawsuit was first filed, it was back at square one in the district court -- it appeared that a whole new trial would have to be held because the missing evidence had not been found and was not likely to be found.

Another problem is that the board's treacherous cop-out came without warning -- at least without warning to those who were not closely following the board's proceedings. Had there been some warning, it might have been possible to talk them out of it.


Saturday, December 23, 2006

Is The Great Cobb County Cop-Out binding in perpetuity?

The answer to that question is: maybe.

The Great Cobb County Cop-Out would cease to be perpetually binding if and when a Congressional bill titled “The Federal Consent Decree Fairness Act”, S 489, becomes law:

The Federal Consent Decree Fairness Act (S. 489) would permit state and local governments that enter into a consent decree in federal court to file a motion seeking to modify or vacate the decree within four years, or upon the expiration of the term of office of the highest elected state or local official who authorized the consent decree, whichever comes sooner (school desegregation consent decrees would be specifically exempted.) . . . .

Because the legislation calls for its retroactive application, S. 489 would apply to existing consent decrees, no matter when they were agreed to.

S 489 picked up 26 co-sponsors (in addition to the sponsor), which is nothing to sneeze at. Details about the bill are here.

Because the plaintiffs in Selman v. Cobb County had already requested a brand-new trial, they would not be in much of a position to complain if they get one if the board of education re-instates the textbook stickers.

S 489 is also discussed here.

S 489 has drawbacks, but there’s got to be some way to prevent nervous Nellie public officials from forever tying the hands of their successors.

The consent agreement says,

(3) This Order is binding on the Cobb County Board of Education and its officers and members in perpetuity, notwithstanding any changes to the Board's membership that may result from future elections, appointments, vacancies, or other changes to the Board or its composition.

(4) This Court reserves jurisdiction to enforce this Order. In the event that Defendants fail to comply with this order, Plaintiffs, the American Civil Liberties Union of Georgia, or Americans United for Separation of Church and State may file a motion with this Court seeking enforcement of the Order. Defendants are deemed to have submitted irrevocably to the jurisdiction and venue of this Court, and to have waived any objection thereto, for any proceeding to enforce this Order.

The last item above, the right to object to any proceeding to enforce the consent agreement, is probably not waivable.



Videos of Kansas U. "Difficult Dialogues" talk series

The Kansas University Hall Center for the Humanities has posted the videos from a fall talk series titled, "Difficult Dialogues at the Commons -- Knowledge: Faith and Reason," which concerns the controversy over evolution theory. The series consisted of lectures by Ken Miller, Judge John E. Jones III, Richard Dawkins, Eugenie Scott, Os Guinness, and Michael Behe, plus a panel discussion.

If you have a slow dial-up connection, the videos may be frequently interrupted for buffering, depending on the video player that is used. Fortunately, the video image is not continuous motion but consists of sequential still pictures, reducing the amount of buffering required. An alternative is just to wait for the video to load and then replay it.

I was of course most interested in the video of Judge Jones' lecture. Despite the fact that it is now Judge Jones' policy to not talk publicly about the specifics of the Kitzmiller case, the second of two speakers who introduced him made long quotations of the specifics in the Kitzmiller opinion, including quotations of Jones' hallmark expressions "traipse" and "breathtaking inanity."

One of Jones' major themes in his talks is that the Constitution, laws, court rules, and court precedents compelled him to rule the way he did. However, he had much more flexibility than he has admitted and some of his rulings were arguably actually contrary to precedents and court rules. For example, for any of the following reasons, he could have avoided ruling on the scientific merits of intelligent design and irreducible complexity:

(1) He already had an airtight case against the Dover school board members because of their blatant religious motivations.

(2) In accordance with the Supreme Court precedent of Edwards v. Aguillard, he could have refused to hear expert witness testimony on the grounds that none of the proposed expert witnesses had participated in the enactment of the school board's ID policy and so their testimony could not have illuminated the board members' motives.

(3) Courts generally have neither the competence nor the authority to rule on scientific questions and here there was no necessity for ruling on scientific questions such as often occurs in, say, product liability and environmental cases. At most, his sole task was to determine whether the Dover evolution-disclaimer statement constituted a government endorsement of religion. There is no constitutional separation of bogus science and state.

(4) Even if the Dover evolution-disclaimer statement constituted a government endorsement of religion, the statement could still be excused on the grounds that it would reduce offense to students and others who for various reasons reject or question evolution theory.

(5) He could have required that the statement be modified instead of scrapped entirely -- for example, he could have required removal of the words "intelligent design" because they imply the existence of a designer.

Also, many of his most controversial statements -- e.g., his "breathtaking inanity" statement and his claim that he is not an "activist judge" -- were certainly not required.



Friday, December 22, 2006

Ungrateful Cobb County school board stabbed its law firm in the back

I have learned that the law firm that represented the wimpy Cobb County board of education in Selman v. Cobb County generously represented the board for free in the appellate phase of the case. An attorney from the law firm succeeded in getting the case remanded to the district court on terms very favorable to the board. Yet the board decided to throw his free work out the window by copping out and caving in to the plaintiffs. Furthermore, the board spurned other offers of free legal help. The least that the board should do now is compensate the law firm for the value of its appellate services that the board wasted by copping out.

Also, the school district could have easily afforded an attorney fees award to the plaintiffs if the board eventually lost the case in court. Cobb County has a population of about 660,000, dwarfing the 22-23,000 (2000 census) population of the Dover Area school district, which paid $1 million in attorney fees to the plaintiffs in Kitzmiller v. Dover.

A news article reported,

Last May, the appellate court sent the case back to the lower court for more fact finding and did away with the lower court ruling. It was back to square one. Failing a settlement, a new trial was a possibility, setting the legal meters running again. The school district's bill for attorneys fees reached $276,402 [total for both plaintiffs' and defendants' attorney fees] and would have gone higher -- by as much as $100,000 -- if the school system's legal firm, Brock Clay, had not taken on the appeal of the case in U.S. District Circuit Court for free.[correction -- "district" is extraneous -- it is just the circuit court of appeals. District court is the lower court].

Over four years, the school system paid the Marietta law firm $109,743 to defend its decision to attach stickers to the biology textbooks. In the settlement agreement U.S. District Judge Clarence Cooper signed Tuesday, the board agreed to pay another $166,659 toward attorneys fees of the five parents who sued the district . . . .

Linwood Gunn, an attorney with Brock Clay who represented the district in the case, said the $166,659 is about one third of the plaintiff's legal fees, which were close to $500,000.

Legal fees were a factor in the board's decision to appeal. "If we hadn't appealed Judge Cooper's decision, the board would have owed some $200,000 in plaintiff's attorneys fees," Gunn said.

But Gunn said the primary reason the school board decided to press its case had more far-reaching implications. "We felt Judge Cooper's order was incorrect. If the order was allowed to stand, it would have restricted the school board's ability to set its own curriculum, and school boards' across the state. We didn't feel like we could live with that order."

Gunn said the board's goal was not to return the stickers to the textbooks. "That was never our objective," he said.

Gunn said his firm handled the appeals case without charge because the firm felt that Cooper's ruling would set a negative precedent for Cobb and other school districts in Georgia.

"We felt it was worthwhile to do an appeal. We felt we had a good chance of success and didn't want the lower court's opinion to stand. We felt it was bad law. The Cobb County School District has been a long-standing client of ours and felt it was an important case to take to the next level." . . . .

The school board rebuffed other offers of help with legal expenses and legal expertise from around the country. The Scottsdale, Ariz.-based Alliance Defense Fund, a powerful Christian legal group, was among those that offered help.

Also, Selman v. Cobb County was considered to be an important test case and a lot of people were counting on Cobb County to hang in there. Probably other jurisdictions wanted to adopt similar stickers but were waiting for the outcome of the Cobb County case. The states of Alabama and Texas and others submitted amicus briefs in support of the school district. The Cobb County board of education should have recognized that it was not just representing itself but was also representing a lot of entities and people outside the school district. Cobb County's cop-out pulled the rug out from under a lot of people.

In vacating the decision and remanding the case, the appeals court said,

In remanding for additional evidentiary inquiry and new findings, we leave it to the district court whether to start with an entirely clean slate and a completely new trial or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted. (page 34)

On what basis could the plaintiffs have won again in the District Court? The missing evidence that was the basis of the original decision and the reason for the remand was not likely to be found. And what about a completely new trial? Intelligent Design and the book Of Pandas and People were the big issues in the Kitzmiller v. Dover decision, but neither ID nor the book were mentioned on the Cobb County textbook stickers.

Lists of articles and court documents about the case are here, here, and here (this is a list of articles as well as a timeline). Other articles are here, here, here, and here. The board's cop-out is discussed on Uncommon Descent, with readers' comments.

BTW, I cannot understand why remanded cases in the federal courts are automatically reassigned to the judges who originally decided them. A judge is of course likely to try to justify his/her original decision. In the California courts, the party that lost the original decision has the option of requesting that the remanded case be assigned to a different judge. Also, another difference between the federal courts and the California courts is that in the latter the parties have the right to a one-time "peremptory challenge" of a judge selected at random.



Thursday, December 21, 2006

Great news -- Austria releases holocaust denier David Irving

Details are in this AOL news article. Maybe the holocaust conference in Iran had something to do with it -- Austria did not want to appear to have less freedom of speech than Iran.



Wednesday, December 20, 2006

Cobb County cops out, caves in to Darwinists

Many readers here are by now aware that the wimpy Cobb County board of education has settled out-of-court with the Darwinists in the Selman v. Cobb County evolution-disclaimer textbook sticker case. This is a terrible disappointment to many because the school board had a lot going for it. The appeals court had vacated the decision and remanded the case back to the district court because of missing evidence which appeared to be unlikely to be found, and in oral hearings the appeals judges appeared to indicate that they would reverse the decision even if the missing evidence were found. I think that it was foolish and irresponsible of the board of education to give up so easily.

A press release of the Cobb County board of education said,

“We are very pleased to reach this agreement and end the lawsuit,” said Cobb County Board of Education Chair Dr. Teresa Plenge. “After the 11th Circuit Court vacated the decision, we faced the distraction and expense of starting all over with more legal actions and another trial. . . "

“Appealing the lower court ruling was the right decision by the school board because that ruling was incorrect,” said Dr. Plenge. “The Board maintains that the stickers were constitutional, but, at the same time, the Board clearly sees the need to put this divisive issue behind us."

These politicians make themselves look very foolish by saying that conclusions of lawsuits over controversial issues put the issues "behind us." Kitzmiller v. Dover is not behind us a full year after the decision -- it is as controversial as ever. Roe v. Wade is certainly not "behind us."

I am especially surprised and disturbed that the board agreed to pay legal fees to the plaintiffs:

In a separate agreement, the District has agreed to pay $166,659, which represents a portion of the plaintiff’s legal fees.

The board was in the driver's seat and should have insisted on no payment of legal fees.

The one consolation here is that this case will have even less precedential value than the Kitzmiller v. Dover case. In fact, the precedential value of Selman v. Cobb County is now zilch -- the district court's decision is now null and void because it was vacated by the appeals court.

The response from the Americans United for Separation of Church and State is here. A timeline of the case and a list of articles is here. The Discovery Institute has a list of articles here.

Here is a list of some of this blog's articles about the case:

What happened to the Cobb County textbook sticker case?

"Traipsing into breathtaking inanity" II: analysis of Selman v. Cobb County

Sticker shock -- appeals court ducks textbook sticker case

Close votes in Freiler case show shakiness of Selman and Kitzmiller decisions

Aptly named "Lemon test" sucks

Disclaimer sticker for Selman v. Cobb County opinion

Attorney's open letter on Selman v. Cobb County textbook sticker case (particularly recommended)

The "Dover Trap" Myth

To find other articles in this blog that discuss or mention the case, just enter "Cobb" or "Selman" in the blog-search window in the top border of the blog screen (you must be scrolled to the very top to see the window).

I may later add some more observations in the comments section of this article.



Monday, December 18, 2006

Judge Jones falsely denies speaking publicly about Dover case specifics

An article in World Magazine says,

Liz O'Donnell, a courtroom deputy for Jones, told WORLD the judge may continue making public appearances but will make no comments on the Discovery Institute report. O'Donnell said Jones has always avoided speaking about the case directly , using his sudden celebrity to argue for judicial independence. But in an interview with Pennsylvania public radio following his Dover decision, Jones said that ID "simply doesn't fit within any accepted definition of science" and that "even if you cast it as science, I didn't particularly think it was good science." Such original analysis might have done wonders for his ruling. (emphasis added)

I presume that Judge Jones approves the above statements of his courtroom deputy. As the World Magazine article shows, O'Donnell's assertion that Jones has "always avoided speaking about the case directly" is simply untrue. In his commencement speech at Dickinson College, he spoke about his interpretation of the establishment clause, which was the federal constitutional basis of his decision, and he specifically mentioned the Dover case in connection with that interpretation. It is not possible to get any more specific about the case than that. It was a blatant attempt to defend his Dover decision. He also spoke about the case in his speech to the Anti-Defamation League, but I won't count that because he did not talk about the specifics of the case itself but only talked about his thoughts and feelings about all the publicity and the importance of the case.

The World Magazine article also says,

For the past year, Judge John E. Jones III has ridden a wave of celebrity. From radio talk shows to speech engagements to the cover of Time, the U.S. District Court jurist has used myriad public outlets to trumpet the reasoning behind his December 2005 ruling that intelligent design does not belong in public-school science classrooms.

Regarding the statement that Jones "has used myriad public outlets to trumpet the reasoning behind his December 2005 ruling": I don't know whether or not that statement is an exaggeration. I have complete copies of only two of his speeches -- his ADL speech and his Dickinson College commencement speech. Other than his Dickinson College speech, I am not aware of any speech where he discussed specifics about the case.

Of course, Ed "It's my way or the highway" Brayton again shows his ignorance or dishonesty here. He wrote about Jones,

He has talked in general terms about the high profile nature of the case, and he has used the media attention to educate people on the nature of his job such as the need to follow higher court precedent, but he has said nothing at all to defend the substance of his decision.



Judge Jones should have been disqualified because of bias

In the following excerpt from a transcript of the Dover trial, Judge Jones showed great hostility towards an absent attorney in regard to an attempt by the Discovery Institute to file an amicus brief with an expert report attached:

[492]THE COURT: But I am distressed by the fact that there is an expert report attached to the amicus brief. You know, if I open the gate and I tell him I want an expert report, that’s one thing. So I guess, you know, before we all start a plethora of filings, I’m telling you that to give it some thought, we can talk about it tomorrow, I could accept some argument on it if everybody wants to argue, and I can haul in counsel for the Discovery Institute.

They have local counsel, in fact I think it’s Mr. Boyle’s firm who’s local counsel, and we can go through that, have Mr. Boyle have another unhappy day in this court and have his head handed to him, or I can just summarily strike it. I’m not going to take an expert report.
(emphasis added)

Jones should have been disqualified because of the bias shown by such abusive language about an attorney: " . . . have Mr. Boyle have another unhappy day in this court and have his head handed to him."

The expert report in question was written by Stephen Meyer, who had withdrawn as an expert witness in the case. In a later ruling, Jones rejected the DI amicus brief on the grounds that it was a "back door" way to insert the ideas of Stephen Meyer -- and the ideas of another expert witness who withdrew, William Dembski -- into the record without cross-examination by the plaintiffs. That was a weak argument, for the following reasons: (1) courtroom testimony is far more important than an amicus brief, hence there was no advantage to using this "back door" method, and (2) the plaintiffs were allowed to file a brief that answered a revised version of the DI amicus brief (and that of course could have answered the original DI amicus brief).

Also, the ruling rejecting the initial DI brief said,

As Plaintiffs submit in their Motion, the rules of this Court do not specifically outline procedures for filing amicus briefs and applicable case law indicates that the district courts have inherent authority to allow amici to participate in proceedings under appropriate circumstances . . . . We recognize, however, as pointed out by Plaintiffs in their submission, that Rule 29 of the Federal Rules of Appellate Procedure and Supreme Court Rule 37 both require either the parties' consent or leave of Court to file an amicus brief. Despite the fact that amici failed to formally request leave of Court before filing the submissions, we will review them absent the request of formal leave as we do not find it necessary to elevate form over substance. (emphasis added, citations omitted)

However, FRAP Rule 29(b) says,

(b) Motion for Leave to File: The motion must be accompanied by the proposed brief . . . . (emphasis added)

Supreme Court Rule 37-2(b) also says that the proposed amicus brief must accompany a motion for leave to file.

Hence, Judge Jones was wrong in saying that the Discovery Institute erred by not requesting leave of the court before submitting the amicus brief.



Saturday, December 16, 2006

More thoughts about Judge Jones' "plagiarism"

I believe that when there is no courtroom trial, the usual briefing procedure is to have a plaintiff’s (or appellant’s or petitioner’s) “opening” brief which is answered by the defendant’s (or appellee’s or respondent’s) “answering” brief which is answered by the plaintiff’s “reply” brief — at least that is the usual kind of procedure in the federal appeals courts and the Supreme Court (the appellants in an appeals court and the petitioners in the Supreme Court can be either the original plaintiffs or the original defendants). The reason why the plaintiff gets the last word is that the plaintiff has the heavier burden of proof. The post-trial briefs in the Dover case consisted of “opening” briefs from both sides followed just by “answering” briefs from both sides (there were no “replies” to the “answers”), and the “opening” briefs were proposed “findings of fact and conclusions of law” briefs which are much different in format from regular opening briefs (for example, a proposed “findings of fact and conclusions of law” brief could be just a list of numbered items) — see the last items here (the plaintiffs also submitted a brief supporting their proposed findings of fact and conclusions of law).

The Discovery Institute has shown that most of the ID-as-science section of the Dover opinion was copied almost verbatim from just the plaintiffs’ opening post-trial brief, “Plaintiffs’ Findings of Fact and Conclusions of Law” — see this. This was extremely one-sided and also showed that Jones did no independent thinking. Some people have this strange idea that judicial opinions are supposed to present only the winning side’s arguments and completely ignore the losing side’s arguments. What if the new Dover Area school board had pulled a switcheroo and decided to appeal (they said they wanted to get Jones' opinion, so why not go all the way and get the appeals courts' opinion -- and maybe even the SC's opinion?)? Then the Dover opinion would have gone to the appeals court without answers to the defendants' arguments regarding the question of whether ID is science.



Friday, December 15, 2006

The real reason why Judge Jones ignored defense arguments

I have finally realized the real reason why the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion largely or completely ignores the defense arguments (over 90 percent of this section was written by the ACLU) : Jones knew that an appeal was unlikely because of the changeover in school board membership in the election. Had there been a good possibility of an appeal, Jones probably would have answered the defense arguments because presumably he would not have wanted his opinion to go to the appeals court without answers to those arguments.

Also, Jones said that the outcome of the election would not affect his decision. What a joke.

The Dover opinion is not worth the legal stationery that it's printed on.



Important conclusions of law in the Dover opinion were ghostwritten by ACLU

People have argued that Jones‘ “plagiarism“ of findings of scientific facts should be excused because he is not a scientist. However, the conclusion section of the opinion has an important “conclusions of law“ statement that was plagiarized from the plaintiffs. Here is what the conclusion section said:

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID.(emphasis added)

For comparison, here is what an ACLU brief said:

351. In order to preserve the separation of church and state mandated by the Establishment Clause, and Art. I, Sec. 3 of the Pennsylvania Constitution, it is necessary and appropriate to enter an order enjoining defendants from implementing their biology curriculum change, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to an alternative theory known as “intelligent design.” (emphasis added)

I am particularly concerned about the following prohibition: “we will enter an order permanently enjoining Defendants …. from requiring teachers to denigrate or disparage the scientific theory of evolution ….“ . Jones did not even bother to include this prohibition in the opinion‘s final order, showing that he just mindlessly copied this prohibition from the plaintiffs‘ final briefs. If there is anyplace where Jones should have showed some independence of thought, it is here. I have been in endless arguments about (1) the interpretation of the words “denigrate“ and “disparage“ in this prohibition, (2) whether this prohibition applies to criticisms of evolution that were not reviewed by Jones ( he reviewed only ID and irreducible complexity ), (3) whether this prohibition is contrary to the Supreme Court‘s statement in Edwards v. Aguillard, “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught” and (4) whether this prohibition statement is enforceable, since it appears only in the opinion‘s conclusion section and not in the opinion‘s final order.



Judge Jones is still on the lecture circuit

Uncommon Descent reports that Judge Jones is scheduled to be a plenary speaker at the 2007 Botany and Plant Biology Joint Congress.

Apparently it is now against Jones' policy to speak publicly about the specifics of the Dover case and now his public speeches are mainly about the issue of "judicial independence." What is the relevance of judicial independence to a meeting of botanists and plant biologists?

Also, the biography in the announcement of his upcoming speech does not mention his banning of Bad Frog Beer when he was chairman of the Pennsylvania Liquor Control Board. That figures.

Considering the embarrassment caused by the recent plagiarism scandals, I think that Judge Jones may soon quit the lecture circuit.



The Living End: Judge Jones' infamous statement about the Founders' "true religion" is a plagiarism

An Evolution News & Views expose` has revealed that Judge Jones' infamous statement about the Founders' "true religion" in his Dickinson College commencement speech is a plagiarism. It is really amazing that this act of plagiarism was discovered -- I can't see how they did it.

Judge Jones is a bigger plagiarist than Al Gore.

Furthermore, Jones' plagiarism was a quote mine in the sense that it was taken out of context, but was not a true quote mine in the sense of being a deliberate misrepresentation of an identified source, since he did not identify the source.

In his commencement speech, Jones tried to give the impression that he learned about the Founders' "true religion" while an undergrad at Dickinson College (which may or may not be true), but the book that he plagiarized was published in 2003, long after he graduated:

One might be tempted to assume that I received all of the tools necessary to understand the complex expert testimony and determine the facts solely through my law school education. If so, they would be incorrect. In fact, it was my liberal arts education, achieved right here at Dickinson College that provided me with the best ability to handle the rather monumental task of deciding the Dover case.

There once was a jurist named Jones,
who was known as a real lazybones,
he could not disguise
that he did plagiarize,
and his statements were just full of clones.



Thursday, December 14, 2006

Ninety percent plagiarism figure suggests that Dover ID-as-science opinion is one-sided

Actually, the Discovery Institute's finding that about 90 percent of the Dover opinion's ID-as-science section was plagiarized from the ACLU suggests that this section is very one-sided. How much of the remaining approx. 10 percent came from the defendants? The ACLU material certainly does not contain any arguments supporting the defendants, not even for the purpose of rebutting those arguments (this material is from the ACLU's "proposed findings of fact and conclusions of law" brief and does not contain any of the defendants' arguments or rebuttals of the defendants' arguments). It seems that Judge Jones should have presented some material from the defendants, if for no other reason than to show why he rejected this material. Some people have this strange idea that the sole purpose of judicial opinions is to present the winning side's arguments and that it is out of order for a judicial opinion to discuss the losing side's arguments.

These final post-trial "proposed findings of fact and conclusions of law" briefs ought to be abolished because they contain nothing but the unrebutted and sometimes unsupported assertions of the parties. Where there is no courtroom trial, I believe that the usual briefing procedure is to have a plaintiff's "opening" brief which is answered by a defendant's "answering" brief which is answered by a plaintiff's "reply" brief (the parties are called appellants and appellees in the appeals courts and petitioners and respondents in the Supreme Court -- the appellants and the petitioners can be either the original plaintiffs or the original defendants). Jones allowed briefs rebutting the "proposed findings of fact and conclusions of law" briefs but the procedure that was used in the Dover case was still quite a bit different from the normal briefing procedure.



Wednesday, December 13, 2006

Is "plagiarism" by judges a standard practice?

Some people are saying that it is standard practice for legal representatives of both sides to submit "proposed findings of fact and conclusions of law" briefs to the court and for the court to then write the opinion by cutting and pasting and mixing and matching different statements from these briefs. However, these briefs are not even mentioned in the national Federal Rules of Civil Procedure but are only mentioned in the local rules of the different federal district courts, and the local rules are of course not uniform. Some federal district courts might not mention these briefs at all. Also, I filed several appeals in the 9th circuit federal court of appeals and two appeals in the US Supreme Court and was neither required nor authorized to propose language for the those courts' opinions (reminder -- any gratuitous comment about the outcome of my lawsuits will be deleted as off-topic). And there are also state and local courts with their own rules. So how can this procedure of cutting and pasting from such briefs be a standard practice?

Here are some federal district court local rules about these briefs:

Middle District of Pennsylvania (where KItzmiller v. Dover was tried):
LR 48.2 Civil Trials, Trial Without a Jury
In a civil action tried without a jury, counsel shall file requests for findings of fact and conclusions of law with the pretrial memorandum. Additional requests may be made during the trial as to matters that could not have been reasonably anticipated before trial.(page 39)

So in the above court, the proposals for findings of fact and conclusions of law are required only before the trial and are optional afterwards.

Central District of California (headquartered in Los Angeles)
L.R. 52-1 Non-Jury Trial - Findings of Fact and Conclusions of Law
In any matter tried to the Court without a jury requiring findings of fact and conclusions of law, counsel for each party shall lodge and serve proposed findings of fact and conclusions of law at least five (5) court days before trial.

Here, the proposals are required only before the trial and no mention is made of allowing them afterward.

Of course, it seems that litigants should have some way of presenting written summaries in addition to oral summaries at the conclusion of the presentation of the testimony and evidence, so maybe these final "proposed findings of fact and conclusions of law" briefs are common even though they are often not required by court rules. However, it seems to me that it is only reasonable to expect that judges who use quotes or ideas from these briefs identify the sources, just as with any other kind of source.



Tuesday, December 12, 2006

Rabbi at holocaust conference is a revisionist

An AOL news article on the holocaust conference in Iran says,

Rabbi Moshe David Weiss, one of six members attending from the group Jews United Against Zionism, told delegates, "We don't want to deny the killing of Jews in World War II, but Zionists have given much higher figures for how many people were killed."

"They have used the Holocaust as a device to justify their oppression," he said. His group rejects the creation of Israel on the grounds that it violates Jewish religious law.



Plagiarism charge hits general media

See --

York Dispatch

-- and --


The York Dispatch is a local paper in the Dover area.



Articles on "plagiarism" charge against Judge Jones

This issue is really heating up fast, so I decided to post this list of articles on the subject for the benefit of readers who want to get a head start:


Panda's Thumb

Uncommon Descent

Dispatches from the Culture Wars

My own articles so far are at --

Behe says Judge Jones plagiarized plaintiffs' briefs

-- and --

Brayton's Answer to plagiarism charge against Judge Jones

The Discovery Institute's study is on --

Comparing Jones and ACLU

I may add to this list as more articles come in. I intend to make some more comments of my own later.

I predict that this is going to be a big one. I think that it is one of the best chances ever to discredit Judge Jones and his Dover opinion.



Rabbis attend holocaust-revisionism conference in Iran

An AOL news article reported that six members of a group called Jews United Against Zionism -- including two rabbis -- are attending the holocaust-revisionism conference in Iran not because they question official holocaust history but because they are opposed to the existence of Israel. The article has a photo showing one of the group's members wearing a badge with the flag of Israel covered by the international circle-and-slash symbol. These people showed great flexibility in setting aside the differences they had with the holocaust deniers and revisionists who are also attending the conference. In contrast, I have been told that some Darwinism doubters are afraid to be associated with me because of my holocaust revisionism.



Darwinism Doubters are not asking for the moon

Albert Alschuler, a law professor emeritus at Northwestern University Law School, wrote of the Kitzmiller v. Dover case,

The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens. The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect. If board members would like to teach Genesis as the literal truth, the board may not direct teachers even to mention the anamolies in the theory of natural selection that the court itself recognizes. The court seems to declare, "Because we find that you would like something you can't have, we hold that you can't have anything."

Well said. And Jones shafted those who doubt Darwinism because of nonreligious reasons as well as those who doubt Darwinism because of religious reasons.

While only Darwinism is actually taught in public-school science classes, the courts have refused to begrudge a single crumb to those who question Darwinism. The courts have rejected evolution disclaimer statements in the Kitzmiller v. Dover, Selman v. Cobb County, and Freiler v. Tangipahoa Parish cases (though the Selman ruling looks like it may be reversed).

Also, attorney Larry Sisson wrote a good analysis of evolution-disclaimer cases.

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Monday, December 11, 2006

Brayton's answer to "plagiarism" charge against Judge Jones

Ed "It's my way or the highway" Brayton has written a response to Michael Behe's charge that Judge Jones "plagiarized" (my term) the Dover plaintiffs' briefs. Ed wrote,

You can find the plaintiffs' Proposed Findings of Fact here, and the defendants' here. Both sides also file responses to the Proposed Findings of Fact, which you can find here (plaintiffs) and here (defense). All it means when the statements in the ruling are close or identical to statements made in the post-trial briefs is that one side won the argument on that issue. The fact that a substantial portion of the ruling phrases those arguments in the same or similar ways has precisely nothing to do with the validity of the ruling. Indeed, there have been cases where judges have have (sic) not filed a ruling at all, but merely adopted the proposed findings of one side or the other because he found them to be accurate and supported. Guess what happened when those cases were appealed? They were upheld by the Supreme Court.

It is noteworthy that the Supreme Court precedent that Ed cites above, United States v. El Paso Gas Co., 376 U.S. 651 (1964), says,

A trial judge's findings will stand if supported by evidence even where they are not his own work product, United States v. Crescent Amusement Co., 323 U.S. 173 , but such findings are less helpful on judicial review than those prepared by the trial judge himself. (emphasis added)

-- and --

[ Footnote 4 ] Judge J. Skelly Wright of the Court of Appeals for the District of Columbia recently said: "Who shall prepare the findings? Rule 52 says the court shall prepare the findings. "The court shall find the facts specially and [376 U.S. 651, 657] state separately its conclusions of law.' We all know what has happened. Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and the trust that has been placed in the judge by these rules. It is a non-compliance with Rule 52 specifically and it betrays the primary purpose of Rule 52 - the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit. "I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case." Seminars for Newly Appointed United States District Judges (1963), p. 166. (emphasis added)

To Jones' credit (and he does not deserve much), he did not actually ask the plaintiffs' attorneys to write the whole opinion. But where a judge's opinion directly quotes a large section of another court document or any other document, the opinion should acknowledge the source. Readers of the opinion -- potentially including appellate judges -- have a right to know which words are the judges' own and which are not. Also, aren't opinions that are entirely written by one of the parties clearly identified as such, either in the opinion itself or in other court proceedings? Then why shouldn't an opinion section that is written by one of the parties also be clearly identified as such?

Also, as a pro se (self-represented) litigant, I filed several actions in the federal courts, including several appeals to an appeals court and two appeals to the Supreme Court, and there was never any opportunity to file these copy-and-paste "proposed findings of fact and conclusions of law" documents. The appeals court, for example, basically allows just an appellant's "opening" brief, an appellee's "answering" brief, an appellant's "reply" brief, and an optional petition for rehearing and/or a petition for en banc (full court) rehearing, and all these briefs have strict size limits. Anything more requires special permission of the court. I served on a jury at a criminal trial and the jurors were not handed transcripts or summaries of the attorneys' arguments (I have no civil trial jury experience). I don't see why these copy-and-paste documents are even allowed (any gratuitous comment about the outcomes of my lawsuits will be deleted as off-topic -- enough is enough).

BTW, Roddy Bullock, an attorney, has also criticized Jones' plagiarism. Bullock wrote,

If only he had stopped there he might have retained some judicial dignity; but he felt it necessary to hold as a legal ruling that intelligent design is not science, and lifted word-for-word portions of the ACLU briefs to prove it.

Something is not necessarily good just because it meets borderline standards of legality or propriety. Anyway, it looks like Jones has been given credit for a lot of stuff that he didn't write.

Ed also wrote,
One of the really amusing things to me over the last year since Judge Jones handed down his ruling in the Dover case has been watching the the (sic) ID crowd claim that the ruling doesn't really matter at all while simultaneously throwing everything but the kitchen sink at the ruling to discredit it.

Only a stupid fathead like Ed Brayton would see an inconsistency here. Obviously, the "ID crowd" -- as he calls us -- is trying to make the Dover ruling matter even less than not mattering at all.

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Sunday, December 10, 2006

Demagogic Ohio governor attacks critical analysis of Darwinism

An article in the Columbus Dispatch said,

Looking back yesterday on his eight years as governor, Bob Taft said one of the lessons he learned was to ensure that potential appointees to the state Board of Education don’t support teaching intelligent design in public-school science classes . . . . . .

Taft said he plans to appoint four new members to the board before he leaves office and that he will not name anyone who doesn’t back the teaching of evolution.

Gov. Taft knows that all of the members of the last board publicly backed the teaching of evolution, even including Deborah Owens-Fink, who was one of the strongest supporters of keeping the "critical analysis of evolution" lesson plan. He also knows that this lesson plan expressly excluded intelligent design from the plan. Taft's statements were just demagogic pandering to Darwinist fanatics. Such demagoguery may backfire because public opinion polls have shown that a majority of the public wants the public schools to teach both the evidence for and against evolution (which is why Darwinism-only school board candidates don't always win).

Actually, though, it appears that Gov. Taft may just be blowing smoke. Richard Hoppe, an active member of the hardcore Darwinist "Ohio Citizens for Science," wrote on Ed Brayton's blog (Hoppe posts under the initials RBH),

Note that three of those whom Taft re-appointed (Wick, Millet, and Sheets) pretty consistently voted in support of the various ID creationist motions over the years -- to adopt the "critical analysis of evolution" standard and benchmark and to adopt the "critical analysis of evolution" model lesson plan -- right up until the last motion to remove the matter from the Achievement Committee. They weren't rabid ID supporters like Cochran and Owens Fink, but they damn sure weren't strong supporters of honest science. They were wishy-washy throughout and in votes tended to vote on the ID creationist side. The fourth appointee, Gunlock, is new to the board and has no history except on the last motion when he voted with the majority.

I'm not persuaded that Taft learned anything that a parrot couldn't have learned quicker and with the same level of cognition that Taft used.

Hoppe's above comment is borne out to a great extent by the OCS website. Of the three re-appointed school board members, Wick and Sheets voted at the Jan. 2006 meeting to keep the "critical analysis of evolution" lesson plan. These two switched sides at two later meetings ( Sheets was absent at the February meeting and both Sheets and Wick were present at the October meeting ), but that was after Gov. Taft came out against intelligent design (to hardcore Darwinists, ID and critical analysis of evolution are one and the same) on February 3. So maybe Wick and Sheets switched sides because they wanted to improve their chances of re-appointment. The re-appointments are good until the end of 2010.



Behe says Judge Jones plagiarized Dover plaintiffs' briefs

An article in the Reasonable Kansans blog says that Michael Behe's recent lecture at Kansas University accused Judge Jones of "cutting and pasting" or "dragging and dropping" whole sections of the Dover plaintiffs' briefs:

Behe went on to show in detail that Jones’ written 139 page decision was filled with cut and paste sections from Rothchild’s [correct spelling is Rothschild, the plaintiffs' lead attorney] documents. Whenever Jones wrote on an academic issue, he provides a lightly edited “drag and drop” from the trial lawyer’s documents. Behe said that some judges do this to a certain extent, but not on as large a scale as Jones did. This made Behe wonder if Jones even understood all of the academic issues that were being presented to him if he had to copy so much from Rothchild's documents.

In one respect at least, federal district court judge TJ "Mad" Hatter was more honest than Jones -- where Hatter did not know or understand something, he wrote no opinion at all.

There once was a jurist named Jones,
who had a head just full of bones,
The opinions he wrote,
did nothing but quote,
and therefore were just full of clones.

The Reasonable Kansans blog article continued,
Jones did state in his lecture at KU a few months ago that he was presented with a “mind numbingly technical presentation” from the witnesses. If his mind had gone “numb”, do we have reason to believe he actually absorbed all the information presented to him? When he spoke at KU he didn’t touch on any of the issues of the debate, he only spoke of how he was deemed an “activist judge”. Perhaps this is because he wouldn’t have been able to reiterate the science that was presented to him, so he took another route.

According to the Thoughts from Kansas blog, Jones agreed to speak at KU only upon condition that he would not discuss the specifics of the Kitzmiller v. Dover case -- maybe the reason why he set that condition was that he never really learned or understood those specifics in the first place. Jones' KU speech also included what he considered to be threats to "judicial independence." More details about Jones' KU speech are here. So far as I know, the only defense that Jones has made of the Dover decision in particular was some asinine commentary about the founding fathers' "true religion" -- see this and this.

BTW, the blogger on Reasonable Kansans, Forthekids, helped prove that PZ Myers deliberately quote-mined the 3rd chapter of Jonathan Wells' recent book, "A Politically Incorrect Guide to Darwinism and Intelligent Design."

Also, a Lawrence Journal-World article about Behe's KU speech said,

A professor of biology at Lehigh University, Behe’s main argument was that evolution has become so ingrained and accepted that it becomes difficult to raise any questions about it in the scientific community.

“When I start to point out problems, often people don’t have time to listen,” he said.

Behe has also made a written response to the Kitzmiller v. Dover opinion.



Saturday, December 09, 2006

Iran invites scholars to holocaust conference

An AOL news article reported,

Iran has invited scholars from 30 countries to attend a conference starting on Monday about the Holocaust . . . . .

"For 60 years talking about the Holocaust was a crime in the West but now there is a serious debate about the Holocaust in the media and also in political and popular meetings," state television quoted [Iranian President Mahmoud] Ahmadinejad as saying.

Unfortunately, questioning official holocaust history is still a crime in several Western countries. David Irving is still in an Austrian prison for his past holocaust revisionism.

I wish that I could go to the conference. I think that I could make a positive contribution because almost no one besides myself has recognized and discussed the major problem of positive identification of Jews and non-Jews in the holocaust. Edwin Black also recognized and discussed this problem but his book on the subject, "IBM and the Holocaust," fell flat on its face -- see here and here.

This is a good time to remind readers about the "Free David Irving" petition. I strongly urge readers to sign -- the right of free expression that you save may be your own.



Two new cosponsors sign onto S 3696 -- total is now 20

Though S 3696, the Senate version of the "Public Expression of Religion Act" (which IMO should have been called the "Establishment Clause Lawsuit Anti-Rip-off Act"), a bill that would prohibit awards of attorney fees in establishment clause cases, is not expected to pass in the current Congress, two new cosponsors have signed onto the bill in November and December, bringing the total to 20 (in addition to the sponsor). All the other cosponsors signed on in July, August, and September.

A study was made of Senate bill cosponsorship in the period 1973-1990. 20 cosponsors is much higher than the averages for all Senate bills (Fig. 3 on page 37) and bills that passed the Senate (Table 1 on page 40) during this period. It is stated on page 23 that the averages in Fig. 3 are only for bills that had a cosponsor. It is not stated whether Table 1 is for all bills or just bills that had a cosponsor, but the context of Table 1, which shows the numbers of all bills that passed and failed to pass the Senate, implies that bills without cosponsors were included in computing the averages in this table. The percentages of bills that had cosponsors are shown in Fig. 2 on page 36.

BTW, I incorrectly stated that S 3696 was passed by the Senate Judiciary Committee -- the current status is that hearings have been held in the committee.

The House version of PERA passed by 244-173.

The enactment of PERA would put an end to the "Dover Trap" crap, which I am really sick of hearing about.

I have discovered than even Judge Jones conceded that the plaintiffs had too many attorneys in the Kitzmiller v. Dover case:

In January of last year, I conducted the first scheduling conference in the case in my courtroom. And it was my first exposure to the lawyers who would be involved in this case . . . . . at that early date it was clear that I had more lawyers in the case than I had parties. Now, I don't dislike lawyers, some of you may, but I practiced myself for 22 years before I became a judge. But at that point I was somewhat fearful because too many lawyers, like too many cooks, can indeed spoil the broth.

There is nothing wrong per se with having more lawyers than parties, but there were 9-10 plaintiffs' attorneys of record. Though the law (42 USC §1988) requires attorney fee awards to be "reasonable," Jones nonetheless approved an exorbitant attorney fee award of over $2 million (later negotiated down to $1 million). What a jerk.

I would greatly prefer a fee cap in both establishment clause and free exercise clause cases, but I think that the present version of PERA is much better than nothing. And I think that a reasonable fee-cap bill would be a shoo-in.



Friday, December 08, 2006

Christian Science Monitor article on global-warming controversy

Many Darwinists have tried to lump together evolution skeptics and global-warming skeptics. A Christian Science Monitor article about global warming says,

Amid mounting evidence that temperatures are rising on planet Earth, the "skeptics" and "agnostics" are a smaller band than they used to be. Yet those who do still harbor doubts about a looming global-warming crisis are quietly continuing to test alternative ideas about how climate works and what, if not the burning of fossil fuels, might be causing the temperature creep . . . . .

. . . . . even critics acknowledge that science is a discipline that needs its maverick thinkers - and that the global-warming skeptics and their research provide a kind of reality check on the climatology field . . .

"To imply that any scientist who has questions about global warming is somehow part of an orchestrated campaign" by industry or interest groups greatly oversimplifies the spectrum of motivations among those outside the consensus view, says Annie Petsonk, a lawyer with Environmental Defense. "It is much more complicated than that."

History shows that science is a field in which it can be difficult to achieve consensus -- even when the question at hand has no public-policy implications. When the question gets tangled up with politics, economics, and lifestyles, the ranks of the unconvinced can thin far more grudgingly.



Cornelia Dean on Scientific Disputes in the Courts

A recent New York Times commentary by Cornelia Dean discusses the general subject of scientific disputes in the courts (this is a two-page article). Incidentally, Dean has been criticized many times by both Evolution News & Views and Darwinian Fundamentalism for biased reporting on the evolution controversy.

Dean's article says,

Perhaps the knottiest problem . . . . has been deciding what scientific evidence or testimony should be considered in the first place.(emphasis added)

However, deciding what scientific evidence or testimony to consider is not the only knotty problem; other knotty problems -- which Dean completely ignores -- are deciding whether or not to rule on a scientific question and whether or not to hear or look at scientific evidence or testimony. For the following reasons, courts should IMO avoid deciding scientific questions except when such a decision is absolutely necessary to reach a decision in the case:

(1) The courts have no general constitutional or statutory authority to decide scientific questions.

(2) For various reasons, the courts are ill-suited to decide scientific questions.

(3) Many scientific questions cannot be answered with any degree of certainty.

(4) Often the courts get to hear only a very narrow range of expert opinions on a scientific question.

(5) A court ruling on a scientific question can prejudice scientific debate and adversely affect careers.

An amicus brief submitted by 85 scientists in the Kitzmiller v. Dover intelligent design case discusses why courts should try to avoid deciding scientific questions. Also, two legal scholars -- one of them definitely anti-ID -- said that Judge Jones should not have ruled on the scientific merits of ID; see here and here.

In Edwards v. Aguillard, a case where the courts refused to even hear scientific arguments, the Supreme Court said (482 U.S. 578, 595-596),

. . . .the postenactment testimony of outside experts is of little use in determining the Louisiana Legislature's purpose in enacting this statute. The Louisiana Legislature did hear and rely on scientific experts in passing the bill, but none of the persons making the affidavits produced by the appellants participated in or contributed to the enactment of the law or its implementation. The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law.

Of course, Judge Jones did not follow this Edwards precedent when he decided the Kitzmiller v. Dover case.

I think that product liability cases and environmental cases might generally be the only kinds of cases where courts can justify ruling on scientific questions. In these kinds of cases, deciding scientific questions may be essential for deciding the case.

The current global-warming case before the Supreme Court is really a matter of whether the US Environmental Protection Agency is obligated to consider regulating greenhouse gas emissions and not a matter of how the EPA should regulate those emissions or even whether the EPA should regulate those emissions. In a Supreme Court oral hearing on this case, Massachusetts et al. v. Environmental Protection Agency et al., No. 05-1120, James Milkey, Mass. Assistant Attorney General, argued(pages 3-4),

EPA's principle (sic) grounds was that it lacked authority over the emissions of the four substances at issue, even if they, in fact, endanger public health and welfare . . .

We are not asking the Court to pass judgment on the science of climate change or order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations.

Also, Dean wrote,

They [lawyers] know their desired outcome at the outset, so they gather arguments to support it. While it would be unethical for scientists reporting on their work to omit findings that don’t fit their hypotheses, lawyers are under no compunction (sic) to introduce evidence that hurts their cases; that’s the other side’s job.

That is not entirely true -- in criminal trials, prosecutors are obligated to reveal evidence that would tend to exculpate the defendant.



Wednesday, December 06, 2006

Judge Jones the megalomaniac

megalomania: "a delusional mental disorder that is marked by infantile feelings of personal omnipotence and grandeur." -- Merriam-Webster online dictionary

Roddy Bullock said on The ID Report blog,

All judges face difficult decisions, and all judges make bad decisions. But the aftermath of the Dover litigation has shown that in this case it seems U.S. District Court Judge John E. Jones, III found a chance to push the limits of judicial restraint for a once-in-a-lifetime chance at history-making. Like a present day Clarence Darrow, he recognized the chance for media-driven immortality—the lights, the cameras, the high-powered attorneys, even Charles Darwin’s great-great-grandson was at his trial. Dispensing with subtlety or nuance, in the opinion of Kitzmiller v. Dover Area School District Judge Jones seemed determined to single-handedly win the culture war based on a set of facts suitable only for a skirmish. Knowing his scolding of a few religious folk would make him a darling to those he clearly holds in higher esteem, he took great delight in detailing the “breathtaking inanity” of the local school board. If only he had stopped there he might have retained some judicial dignity; but he felt it necessary to hold as a legal ruling that intelligent design is not science, and lifted word-for-word portions of the ACLU briefs to prove it.

Realizing on page 137 of his 139-page opinion that the slip of his judicial activism was showing, the judge awkwardly pulled down his worked-up robe by sternly assuring us “this is manifestly not an activist Court.” As if his self-serving denial of activism were not confirmation enough of, well, his activism, Judge Jones has spent the last year on the sawdust trail doing what judges rarely do: explaining and justifying. Obviously enjoying his new cult following, he assures fawners everywhere how importantly epic was his decision (while patronizing critics with a “a badly needed civics lesson”).

Ed "It's my way or the highway" Brayton of course disagrees with the above assessment, saying,

This is a pure ad hominem. It has nothing at all to do with the validity of his ruling, it's purely a conclusionary attack based upon a psychological analysis of the judge that Bullock has absolutely no way of supporting. He cannot possibly know Judge Jones' motivations for he is not inside Jones' head.

However, it is not necessary to be inside Jones' head, because his own words condemn him. Jones said in a speech at a national executive committee meeting of the Anti-Defamation League,

I was at one time counted as a potential candidate for governor of Pennsylvania in 2002. In the face of that, I chose to, as it were, jump off the political bandwagon -- merry-go-round expresses it better -- and seek a federal judgeship. An odd choice, some believed, but it wasn't really that, because since my days as a young lawyer, I had always aspired to be a judge. I love my job, and I wanted to have a chance to handle matters of importance.

What guarantee or promise was there that he would ever be the judge in a really important case? And why did he think that a federal district judge would be more likely to handle matters of importance than a governor of a major state?

As he continued his ADL speech, Jones got carried away in a megalomaniacal description of his feelings of basking in fame and glory --

It was evident that the lawyers had a very palpable sense that they were involved in something bigger and different than anything that they had ever experienced. As a result, I watched during the proceedings as some very good lawyers became even better. They took their game, so to speak, up a few notches because of the case they found themselves in. And for those of you who prefer sports analogies, it was at least a playoff game for them, if not the Super Bowl, and they knew that.

In September of last year, as you now know, we commenced the trial. It was, at times for me and I think for most of us who were involved in the trial, a rather surreal experience. As I noted at the outset, as judges, we labor most days in relative obscurity. The first day of the Dover trial, however, I arrived at the Federal Courthouse in Harrisburg to find it ringed with television satellite trucks, the hallways were jammed, and security, despite our best efforts, was clearly overloaded. We had electronic and print media from around the world present throughout the trial. We even had Charles Darwin's great-great grandson in attendance.

I can never see what is taking place in my courtroom before I emerge from chambers and take the bench, so I wondered what I would find. Well, when I emerged and as I walked up to take my seat on the first day of the Dover trial, I saw something that I had never seen before in my judicial career. I saw a courtroom packed wall-to-wall with high-tech gear, lawyers, parties, spectators, United States marshals, and a number of sketch artists. The sight of all this almost took my breath away. In fact, it took me a few moments to compose myself as the trial started. I had never seen anything like it.

. . . . as I looked at the monkeys projected on the wall in the courtroom, I was gripped for the very first time with the thought that I might be presiding over something that, at least in its time, was viewed as not only historic, but was perhaps a newer version of the Scopes Monkey Trial. And I had a very palpable sense, a very curious sense, that I could be living history.

At this point, the men in white coats should have come to take Jones to the loony bin to be committed for megalomania.

Bullock also wrote,

To prove beyond doubt that he could not be more pure of heart, he wants us all to know that he really is religious. Really. While the record shows he thought little of his religion prior to becoming a judge or thereafter, progressive reports (from him) since the Kitzmiller opinion have built him up to practical sainthood. Doesn’t he pastor his dear Lutheran church?

And Brayton responded,

Pure hogwash. In fact, Jones has spoken hardly at all about his religious faith, for the obvious reason that it has nothing to do with the validity of his ruling.

Wrong again, Ed. In an article in The Lutheran magazine, Jones talks a lot about his long and extensive religious background. But this article is just window dressing, because Jones' commencement speech at Dickinson College showed great hostility towards organized religion:

"The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state."

Furthermore, Jones' fans have made a really big deal about his being a "churchgoing" Republican.