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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.

Thursday, February 01, 2007

Fisking another lame defense of Jones' parroting of ACLU brief


Cartoon is courtesy of www.jail4judges.org

"Fatheaded Ed" Brayton called this issue a "dead horse", but we opponents of the Kitzmiller decision need to keep flogging this horse because it is very much alive and is a potential Triple-Crown winner.

In an answer to a customer review of "Traipsing into Evolution" on Amazon.com, Tim Beazley wrote,

ID-iots are famous for taking statements out of context. Their complaint against Jones is similar. Jones' opinion was around 32,000 words in length. The DI complaint focuses on just 5,000 of those words and essentially ignores the remaining 27,000. Hmm.

Hmm yourself. The ID-as-science section that the Discovery Institute study focused on is considered to be one of the most important and controversial parts of the opinion. And unlike some other sections of the opinion, this section is not specific to the Dover case but is universally applicable to similar cases.

Also, in checking for the copying of ideas, we often cannot bite off too much at one time. Computerized text comparisons are virtually useless where the ideas are the same but there is paraphrasing and/or changes in words and/or sentence structures -- then comparison must be done by human reading and interpretation of side-by-side comparisons of the two texts. Other sections of the Dover opinion may be investigated for possible copying later -- indeed, I have already discovered that Judge Jones messed up the Dover opinion's conclusion section by his mindless copying of the ACLU opening post-trial brief.

Beazley said,
Furthermore, some of the criticized duplication involved lengthy quotations of oral testimony and documentary evidence. What exactly does DI want Jones to do when he's quoting someone -- alter the quotes the way they do?

I don't have a big objection to Jones' copying per se -- it is the extreme one-sidedness of the copying that I object to. Virtually all of the Dover opinion's ID-as-science section was essentially copied from the proposed findings in the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. If Jones thought that the defendants' proposed findings were stupid, all the more reason to include them in the opinion in order to refute them. If Jones was really lazy, he could have copied the plaintiffs' answering post-trial brief''s rebuttals of the defendants' proposed findings, but he didn't even do that -- and not copying any of those rebuttals suggests that he did not find them to be persuasive. The main post-trial briefs are at the bottom of the list here (the plaintiffs filed a brief supporting their opening proposed-findings-and-conclusions brief, so the total number of main post-trial briefs is five).

Beazley said,
Much of the duplication involved witness names. Behe`s name, for example, occurs over 60 times in both documents. Should Jones have avoided that "copying" and used "Bozo" instead? "ID" or equivalents occur well over 50 times in both documents. Should Jones have avoided that "copying" and used the term "creationist insanity" instead?

In citing documents and testimony, Jones used the same page numbers, case names, etc., as the ACLU. . . . .

Much of the "copying" was of technical terms used in both documents, such as "irreducible complexity" . . . .

To me, the duplication of words and numbers is not the problem. To me, the problem is the extreme one-sidedness of the duplication of ideas.

Beazley said,
Furthermore, Mr. Perry seems to be completely clueless about how judges' decisions and orders are written. Judges are busy people.

This is not a matter of Judge Jones being too busy -- to save time, he could also have copied the plaintiffs' rebuttals of the defendants' proposed findings. Also, this case had a very high profile and Jones should have taken the time to do things right. Furthermore, Jones did nothing to shorten the case -- in fact, he went out of his way to lengthen it. He could have decided the case without ruling on the ID-as-science issue at all.

Beazley said,
For example, in Bright v. Westmoreland County, the appellate court did indeed criticize an instance of judicial copying, but the facts in that case were unusual for five reasons: 1) The trial judge had told both sides that he intended to grant a defense motion for dismissal, even though the plaintiff had not yet filed his response to the motion; 2) after announcing his decision orally, the judge asked the defendant to submit a proposed written ruling; 3) . . .

At least the trial judge in Bright, unlike Judge Jones, was candid about wholesale one-sided copying of proposed findings.

Beazley said,
. . .Bright provides scant support for the ID-iots

On the contrary, the following statement in Bright provides a hell of a lot of support for the "ID-iots":

Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case. Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004).

Beazley said,
Even worse, in the Anderson case that DI also claimed as "support," the Supreme Court actually stated that even opinions that are 100% verbatim copies are still not reversible, unless there are clear errors . . .

DI did not say that Jones' act of copying by itself would have been grounds for reversal -- DI only said that such copying is frowned upon by the courts and greatly reduces the precedential value of the Dover opinion.

Beazley said,
The only way the ID-iots can make Anderson support their Kitzmiller argument is if they can point to "clear errors" in the Kitzmiller opinion, and there were none . . .

DI did point out some factual errors in Jones' ruling -- but this whole issue is irrelevant because the DI is not claiming that Jones' act of copying by itself would have been grounds for reversal. DI's main points are that Judge Jones' wholesale one-sided copying is frowned upon in the courts and greatly diminishes the Dover opinion's value as precedent.

Beazley said,
Since Jones repeatedly referred to the specific parts of the trial transcript containing the testimony that established a factual basis for his findings, it is ludicrous to allege legal error on those points.

Jones could have -- and did -- misinterpret specific parts of the trial transcript that he referred to.

Beazley said,
The ID-iots also claim that US v. El Paso Natural Gas Co. supports their argument, but in reality the Supreme Court in that case warned only against "verbatim adoption of findings of fact . . . when those findings [take] the form of conclusory statements unsupported by citation to the record."

That quote is not from US v. El Paso Natural Gas Co. but is from Anderson v. Bessemer City, 470 U.S. 564, 572 (1985). Also, the ellipsis in the above quote replaces the crucial word particularly; the complete clause actually reads, "particularly when those findings [take] the form of conclusory statements unsupported by citation to the record" (emphasis added). The word "particularly" significantly changes the meaning of the sentence. This is quote mining at its worst.

Also, in upholding the trial judge's decision, the Supreme Court said in Anderson v. Bessemer City,

Nor did the District Court simply adopt petitioner's proposed findings: the findings it ultimately issued - and particularly the crucial findings regarding petitioner's qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen - vary considerably in organization [470 U.S. 564, 573] and content from those submitted by petitioner's counsel.

In contrast, the DI report's side-by-side comparisons of the Dover opinion's ID-as-science section and the corresponding section of the plaintiffs' opening post-trial brief have nearly the same organization and content -- the side showing the plaintiffs' brief has an almost uninterrupted sequential numbering of points from 33 to 118 (pages 12-34 of the DI report).

Beazley said,
Interestingly, the copying was apparently discovered by none other than Michael Behe. Two thoughts immediately come to mind. First, Michael Behe is not a lawyer.

So what if Behe is not a lawyer? You don't have to be a lawyer to know wholesale one-sided copying when you see it.

Finally, in the York Daily Record's report on this issue (York County is where Dover is located) several local lawyers were asked to comment on the DI's argument. Most of them said essentially the same thing: "The judge copied part of his opinion? So what?"

The York Daily Record report is no longer posted online. However, Casey Luskin commented,

The York Dispatch has two articles—an editorial and a news article, each of which rely upon ACLU attorney Witold Walczak justifying Judge Jones’ copying by saying, “This is something lawyers do routinely, precisely so judges can use them.” It should come as no surprise that Mr. Walczak is defending a ruling which copied a brief he probably helped write. The York Daily Record similarly cited attorneys noting that judges are allowed to rely upon the findings of fact from a party . . .

. . . . The Third Circuit Court of Appeals, which governs all federal courts in Pennsylvania, held that it is “highly disapproved of” for judges to adopt wholesale the briefs of parties in a “verbatim or near verbatim” fashion. As legal scholar Bruce Green from the Louis Stein Center for Law and Ethics at Fordham Law School told the Associated Press, it is “not typical for judges to adopt one side's proposed findings verbatim.”

Another commenter, Neely, wrote,
It is clear from Tim Beazley's patronizing tone, demeaning language and endless verbiage, that he is more interested in vilifying the ID folks than in honestly evaluating Judge Jones' performance.

Unlike Michael Behe, I am a lawyer. In 27 years of practicing law, including clerking for a federal judge (where I drafted dozens of opinions), doing extensive appellate work and supervising the work of 80 other lawyers, I never saw a judicial opinion draw more than a few quotes directly from pleadings. Even then there was attribution to the source.


I cannot post this response on Amazon.com because I have not purchased anything there. Of course, anyone who is able to post on Amazon.com is welcome to post there a link to this article, and I would appreciate it if somewhat would.

Related articles on this blog:

Wesley Elsberry's nit-picking pettifoggery

"Crazy Ed" Brayton again

Casey Luskin rebuts critics of report charging that Judge Jones parroted ACLU

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