Judge Jones, eat your heart out! Museum of supernatural history opens

An AOL news article about the new Creation Museum in Kentucky says,

Here exhibits show the Grand Canyon took just days to form during Noah's flood, dinosaurs coexisted with humans and had a place on Noah's Ark, and Cain married his sister to people the earth, among other Biblical wonders.

Scientists, secularists and moderate Christians have pledged to protest the museum's public opening on Monday. An airplane trailing a "Thou Shalt Not Lie" banner buzzed overhead during the museum's opening news conference . . . .

. . . "Teachers don't deserve a student coming into class saying 'Gee Mrs. Brown, I went to this fancy museum and it said you're teaching me a lie,"' Dr. Eugenie Scott, executive director of the National Center for Science Education, told reporters . . . .

LOL

Other articles about the museum are here, here, and here.
.

READ MORE

List of posts about Judge Jones' speeches and interviews; another interview found

I just discovered a recording of another of Judge Jones' public-speaking events, a radio interview in which he directly discussed the Dover case. The code on the URL link for the interview indicates that the interview occurred on March 22 of last year (this date is also consistent with the weather report given during the recording), before Jones started his official policy of not publicly speaking directly about the case (his spokesperson falsely stated that it has always been his policy to not publicly speak directly about the case). Jones' interview covers about the first 52 minutes of the recording.

I am taking this opportunity to list this blog's other posts that discuss Jones' public speeches and interviews. The 22 posts listed below plus this post constitute 8% of this blog's posts, plus there are many other posts about Jones here, so it is obvious that Jones is a big topic here. Here is the list:

Judge Jones the hypocrite

Judge Jones is hot speaker on the lecture circuit

Judge Jones flunks history and philosophy as well as law and science

More "breathtaking inanity" from Judge Jones



Judge Jones wrong about Founding Fathers' "true religion"

More buffoonery from Judge Jones

Ed Brayton: Judge Jones is above criticism

False stereotyping of criticism of Judge Jones

Judge Jones hides behind "judicial independence" issue

Report on Judge Jones' speech at KU

More on judicial independence

Judge Jones' lame excuses

Judge Jones the megalomaniac

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

Judge Jones is still on the lecture circuit

Judge Jones falsely denies speaking publicly about Dover case specifics

Videos of Kansas U. "Difficult Dialogues" talk series

Judge Jones still talking through his hat

Even Ed Brayton finds fault with Judge Jones' "true religion" speech

Judge Jones said, "some of my colleagues . . . think I'm crazy"

Update: Judge Jones is still on the lecture circuit

READ MORE

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

READ MORE

Update: Judge Jones is still on the lecture circuit

An article last month about Judge Jones said,

His calendar is booked with speaking engagements though the middle of 2007, mainly from people asking him to speak about judicial independence.

I don't know who would want to hear Judge Jones speak about judicial independence. Anyone interested in his views on the subject can just read his old speeches, like the one he gave to the Anti-Defamation League last February. In a Nov. 26 speech, he moaned that all of the media criticisms of his Dover decision "omitted to note the role of precedent, how judges work, the Rule of Law." He probably doesn't have much new stuff to add to what he has already said on the subject.

I think it is too early to tell what effect the ACLU parroting scandal will have on his popularity as a speaker.

READ MORE

Wesley Elsberry's nit-picking pettifoggery

Wesley Elsberry (aka Herr Fuhrer Esley Welsberry -- pronounced "Velsberry," according to John A. Davison) , in responding to Casey Luskin's latest defense of the Discovery Institute report that charged Judge Jones with copying the Kitzmiller v. Dover opinion's ID-as-science section directly from the ACLU, said,

Response to Wesley Elsberry

Wesley Elsberry attacks me as if I implied the study applies to the entire Kitzmiller ruling.

Casey’s reasoning before was based on citing a ruling that was about a case where the entire decision was provided by the lawyers for one of the parties and signed by the judge, while the DI “study” only took into account one section. It was precisely because the DI study did *not* consider the whole decision that I found Luskin’s citation of Anderson v. Bessemer City to be inappropriate.

Copying is copying, whether it involves one section or the whole darn opinion. And the section that was copied -- the ID-as-science section -- was far from unimportant. Sheeeesh.

What we have here is a clear case of equivocation on Luskin’s part. The term being used in two ways is “judicial copying”. Even the citation given by Luskin shows that the Third Circuit thinks of “judicial copying” as something different than what Luskin then offers.

Third Circuit version of “judicial copying”: “verbatim adoption of a party’s proposed findings of fact and conclusions of law”

According to Luskin, the correct 3rd circuit citation is not "verbatim" adoption but is "verbatim or near verbatim" adoption (citing In re: Community Bank of Northern Virginia, 418 F.3d 277, 319 (3rd Cir. 2005)). Letting a judge evade a possible charge of improper copying by merely changing a few words or sentence constructions would be silly.

Luskin’s version of “judicial copying”, though, is broad enough to cover the current point of discussion, Judge Jones’s decision in Kitzmiller v. Dover Area School District. That means that Luskin is talking about a situation where the judge’s decision had about 38% of its text taken from proposed findings of fact.

Elsberry's 38% figure is for the whole opinion, but Luskin was talking about the ID-as-science section only. Elsberry's figures for that section were in the range 48-70%.

(Casey said) Moreover, I never denied that the case law I cite deals with entire rulings, but as I will argue, the policies underlying judicial disapproval of large-scale copying of entire rulings can be extracted and applied here.

I never asserted that Casey “denied” some property of his citation. Pseudo-aggrieved put-uponness noted; it isn’t very becoming, though.

"Pseudo-aggrieved put-uponness"? What in the hell is that? Also, Casey never asserted that Wesley asserted that Casey "denied" some property of the citation (that "property" being that the cases cited concerned entire rulings).

Then Elsberry goes on to quibble about differences in the results of arbitrary word-count programs:

My algorithm is much, much better and has no subjective component, and I only claim it as good to two significant digits. The section on whether ID is science is not “90.9%” due to the plaintiff’s proposed findings of fact. The actual figure as I calculated it is 66% . . . . . Even when I used more liberal parameters of 5 words in a run and up to 2 skipped words, the match level only rose to 70%.

Elsberry's own computerized word-count comparisons are inconsistent -- he gives figures varying from 48% to 70% for the ID-as-science section. As I said, the only way to determine the extent of the copying of ideas is by a side-by-side comparison of the meanings of the sentences and sentence combinations in the two documents. It may be possible to quantify the correlation by counting the percentage of sentences and sentence combinations in the Dover opinion's ID-as-science section that have counterparts in the plaintiffs' opening post-trial brief.

Furthermore, as I have said, the extent of Jones' copying of the plaintiffs' opening post-trial brief is not the only issue here, and IMO is not even the primary issue -- to me the primary issue is the fact that Jones ignored the other post-trial briefs: the defendants' opening brief and the plaintiffs' and defendants' answering briefs. Because of the great size and complexity of the case -- with hundreds of hours of testimony and thousands of pages of documents -- I don't have a big problem with extensive copying of the briefs.

Wesley Elsberry is crazier than the Mad Hatter in Alice in Wonderland.

The Kitzmiller decision is also discredited by Jones' remarks about "true religion" in his commencement speech at Dickinson college. Those remarks showed greatly hostility against organized religion and this hostility must have biased him against the defendants. However, I don't know if remarks that judges make outside of court are citable inside court.

The original Kitzmiller defendants (the ousted school board members) -- unlike the losing parties in the cases that Casey Luskin cited in support of the DI report, e.g., Bright v. Westmoreland County and U.S. v. El Paso Natural Gas Co. -- had no opportunity to appeal the case. As an unreviewed opinion of a single judge, the Dover opinion really needed to be flawless in order to have any precedential value. Instead, the Dover opinion and Judge Jones himself are riddled with flaws.

READ MORE

Judge Jones said, "some of my colleagues . . . think I'm crazy"

The Denver Post reported that Judge John E. Jones III, the infamous judge who decided the Kitzmiller v. Dover case, said at an annual meeting of the Anti-Defamation League in Denver in June,

Some of my colleagues ... think I'm crazy. I hope you'll see other judges follow my lead.

Imagine what some of his colleagues must think of him now, after the Discovery Institute has revealed that most of the approximately 6000-word ID-as-science section of his Dover opinion was virtually copied from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.

The Denver Post article also said,

Judges are imperfect and should be taken to task, Jones said. "That's what the appeals process is for."

But Jones knew beforehand that an appeal in the Dover case was unlikely because of the changeover in the Dover school board membership. Also, his above statement insinuates that he thinks that the only proper place for criticism of a judicial decision is an appeal of that decision. Furthermore, Jones has complained that criticisms of his Dover decision made no attempt to illuminate the issues of the "role of precedent, how judges work, [and] the Rule of Law," as though those issues were relevant to the criticisms.

The Denver speech was at least the second time in just a few months that Judge Jones was a speaker at an ADL meeting -- he also spoke at the ADL's national executive committee meeting in February in Palm Beach, Florida.

READ MORE

Even Ed Brayton finds fault with Judge Jones' "true religion" speech

I and others have severely condemned the following statement made by Judge John E. Jones III in a commencement speech at Dickinson College:

. . . .this much is very clear. 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.

In two posts and their associated comments, here and here, Ed "It's my way or the highway" Brayton conceded the following points contradicting Jones' preceding statement:

(1) The first sentence in Jones' statement above is "too broad" -- a gross understatement.

(2) In regard to the second sentence above, the religious beliefs of a given Founder are not an indicator of whether or not he supported the establishment clause.

Regarding the first point above, Ed favorably cited a recent book about the religious beliefs of the Founders. In regard to the second point, Ed said,

. . . . .whether a given founding father was a Christian or not doesn't tell us anything about his position on separation of church and state.

Also, I think that all of this worship of the founding fathers is going to create a backlash against them. We should certainly pay attention to their ideas, as we should pay attention to all reasonable ideas, but for various reasons we should not blindly follow the Founders' ideas. "Originalism" is itself a kind of "judicial activism."

I am not out of the woods yet in regard to computer problems. I was able to partially fix an old computer by using a restorer CD from my latest computer, but the restoration left me stuck with the very coarse obsolete CGA graphics (640X480 pixels or something like that -- the resolution control is disabled), so my display is of course very poor. However, at least I can now with difficulty make posts and comments on my blog.

READ MORE

Prophetic speech

The tribute speaker at Dickinson College's conferral of an honorary degree upon Judge Jones in May spoke prophetic words:

What a wild ride it's been for you, Judge Jones. And something tells me it's not over.

READ MORE

Judge Jones still talking through his hat

Happy new year, everyone.

Judge Jones is still using red-herring issues like judicial independence and the "Rule of Law" in a desperate attempt to dodge and discredit legitimate criticisms of his Kitzmiller v. Dover rulings. Jones said in a recent November 26 speech at Bennington College,

What all of them had in common -- all of these criticisms -- was that they omitted to note the role of precedent, how judges work, the Rule of Law. Trial judges carefully find the facts in a case and apply existing precedent as handed down by higher courts -- most notably, in this case, the Supreme Court of the United States. There was simply no attempt [in these media criticisms] to illuminate those issues or educate the public.

Providing "illumination" or "public education" about those issues -- i.e., "the role of precedent, how judges work, and the Rule of Law" -- are generally not purposes of criticisms of judicial decisions, so why should the criticisms of the Kitzmiller rulings discuss those issues? Also, Jones' suggestion that his critics and the general public need a "civics lesson" in how the courts are supposed to operate is very insulting.

Also, the main reasons why a lot of the criticisms of the Kitzmiller rulings are not accompanied by citations of laws and precedents are that (1) many of those rulings were discretionary and (2) there were no laws or precedents to apply. And there are certainly many laws and precedents that can be cited in support of criticisms of the Kitzmiller rulings -- examples are contained here, here, here, and here.

Jones continued,

In this case [Kitzmiller v. Dover Area School District], without getting excessively legal, there were two tests I had to apply. They are the Lemon Test and Endorsement Test, and what they are, in essence, are carefully crafted tests handed down by the Supreme Court that you overlay against the facts of the case to decide whether or not a particular policy violates the Establishment Clause within the First Amendment of the Constitution.

It is necessary to get "excessively legal" because there is much, much more to the rulings in the Kitzmiller case than just the decision to use the Lemon and Endorsement tests. BTW, "carefully crafted" or not, the infamous Lemon Test has fallen into extreme disfavor.

Jones continued,

To hear these critics tell it, we live in a world where judges make essentially ad hoc determinations. This is really a false world that they tend to propagate, where judges rule according to personal bias, particular whims or political philosophies, or in order to please political benefactors--or, worse perhaps, respond to the perceived public will at any given time.... And that gets into a still larger issue that I think is of somewhat crisis proportions, which I call a crisis in judicial independence. Many judges across the country feel exceedingly threatened by a public, a punditry, and a political establishment that tends to launch ad hominem attacks against individual judges when they disagree with them....

Almost none of Jones' critics expressly said that he should have ruled according to the wishes of his "political benefactors." Even Phyllis Schlafly's remark that he "stuck the knife in the backs of those who brought him to the dance" could be interpreted as meaning that she expected him to be fair and not that she expected him to rule in a certain way.

The current big controversy over the issue of judicial independence could not have come at a better time for Jones.

Also, "protesting too much" on the question of whether Jones was biased against the Dover defendants, the article about Jones' Bennington College speech pointed out again that he is a "Bush-appointed Republican Lutheran." His infamous plagiarized remarks about the Founders' "true religion" say a lot more about whether he was biased.

READ MORE

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.

READ MORE

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.

READ MORE

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.

READ MORE

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.

READ MORE

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.

READ MORE

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.

READ MORE

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.

READ MORE

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.

READ MORE

Plagiarism charge hits general media

See --

York Dispatch

-- and --

Seattlepi.com

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

READ MORE

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:

WorldNetDaily

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.

READ MORE

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.

READ MORE