The Questionable Authority

Disclosure and the Discovery Institute

The fine folks at the Discovery Institute aren’t happy with tomorrow’s PBS documentary on the Dover Intelligent Design case, and they’re doing their best to make sure that everyone knows just how unhappy they are. They’ve been frantically tossing articles up on their Media Complaints Division Blog trying to make sure that their version of reality gets some exposure. I’m not going to bother going through all of their complaints right now. Most of their new material consists of a rehashing of discredited arguments from when the ruling came out. There’s one post that caught my eye, though, mostly because it’s such a fantastic exemplar of the level of honesty and academic discourse that makes Discovery what it is.

Near the beginning of a post entitled, “Was Justice Denied to Foundation for Thought and Ethics during the Kitzmiller Intelligent Design Trial?” Rob Crowther lavishes praise on a legal analysis of one of Judge Jones’s pretrial rulings:

Last year attorneys Seth Cooper and Leonard Brown published an article entitled, “A Textbook Case of Judicial Activism: How a Pro-ID Publisher Was Denied its Day in Court,” which describes how the publisher of the textbook Of Pandas and People, Foundation for Thought and Ethics (FTE), was denied the right to become a party to the Kitzmiller trial, despite the fact that its intellectual property rights were implicated in the lawsuit.

Crowther mentions the Cooper & Brown article again later in the post, calling it an “excellent article” that his readers should take a look at.

I’m certainly not opposed to blog writers referring their readers to other material. I’m all for encouraging people to go and read more about interesting subjects. It’s just that I’m also a fan of full disclosure, and there are a couple of relevant facts that Crowther didn’t bother bringing up.

The authors of the article that he’s recommending as if it’s an independent resource are not actually independent legal scholars. At the time that they wrote the piece, Brown was one of the lawyers who had represented FTE in their failed attempt to intervene and Cooper worked at the Discovery Institute and had provided legal advice to the Dover school district folks when they were putting their project together. Their “article” was “published” in that legendary forum for legal analysis, The Discovery Institute Website.

Full and open disclosure – gotta love it.

Comments

  1. #1 Les Lane
    November 12, 2007

    If quantity of blather were a measure of scientific quality, the Discovery Institute would highly reputable indeed.

  2. #2 Ric
    November 12, 2007

    That is indeed a very interesting fact to bring to light!

  3. #3 Olorin
    November 12, 2007

    To an attorney not in the employ of the Discovery Institute, the claim that FTE was denied justice is risible.

    The DI’s Nov. 10 Evolution News & Views implies that intervention is a normal kind of thing to do. This is not true. Intervention in a court trial is an extreme measure; it greatly complicates the trial. Intervention requires clear evidence of a substantial loss by the intervenor, and that neither of the named parties has an incentive to protect the interests of the intervenor. Seems unlikely at first look in this case.

    The DI, after half a year (8/22/06), got around to alleging that “[n]ot only were FTE’s intellectual property rights compromised through its being required to hand over the Design of Life manuscript to NCSE, but Pandas is now banned by a federal judge who said other courts should follow his opinion. How likely is it that public high school educators will now seek to purchase copies of Pandas?”

    First, it is unclear exactly which “intellectual property rights” were violated. The only likely candidate is a trade secret in the unpublished manuscripts. However, if FTE thought their disclosure would have been injurious, they could have sought a protective order to seal them. These are not uncommon. Neither FTE nor Thomas More ever requested such an order.

    The only other possible injury would be economic damage to sales of Pandas. It is certain that the Kitzmiller decision would not have been otherwise—or even less harsh on ID as a soi-disant scientific theory—without the FTE manuscripts. That is, use of the manuscripts by itself had no effect on sales, and therefore was not the cause any injury. (The DI also implies injury to their new gasp, “The Design of Life,” but without explaining any connection between that and Pandas.)

    The DI’s 8/22/06 CSC document also claims that FTE itself filed an amicus curiae brief in Kitzmiller. I can find no record of a brief by FTE other than that in support of its motion to intervene.

  4. #4 Oleg Tchernyshyov
    November 12, 2007

    These guys aren’t strangers to astroturfing.

    At one point, Anika Smith, a Discovery Institute associate, wrote a letter to a campus newspaper (SMU Daily) in support of her DI colleagues. The letter was signed: Anika Smith is a recent graduate of Seattle Pacific University. She can be reached at anikas@spu.edu.

    This was quickly uncovered. DI, of course, said: So what?

  5. #5 Oleg Tchernyshyov
    November 12, 2007
  6. #6 Tegumai Bopsulai, FCD
    November 12, 2007

    I believe that justice was denied to FTE president John Buell. In the witness stand he revealed himself to be devoid of thought and ethics. It is not just that he has not been tried for “truth in advertising” violations, let alone perjury.

  7. #7 Ron Okimoto
    November 12, 2007

    Buell’s willingness to claim that statements of Christian religious motivations was just a ruse to grease getting non profit status for FTE is equivalent to the Discovery Institute’s willingness to claim that the Wedge document was just a “fund raising” document in order to discount its content. If the Discovery Institute had mailed this “fund raising” document out in order to solicit funds wouldn’t they be open to being accused of having commited the federal crime of mail fraud? It has always struck me as strange that the Discovery Institute would claim to have lied in the Wedge document about their religious intentions in order to hide the dishonest motivations behind the Teach ID scam. Either they lied about their religious intentions put forward in the Wedge document, or they knowingly lied to attract funding. Which is worse?

  8. #8 John Pieret
    November 12, 2007

    Now here’s a surprise. If you go to Judge Jones’ ruling it turns out that one major ground for denying the motion to intervene was that the delay in seeking it would have prejudiced the parties, both of whom opposed the intervention, by delaying the case and adding expenses. The “excuse” for the delay was that the Foundation for Thought and Ethics (FTE) anf its President, Jon A. Buell, didn’t “focus” on the potential harm it faced if Pandas was found to be religious rather than scientific in content. The Judge found that “FTE’s arguments in this regard are both unavailing and disingenuous” because:

    Within one month of Plaintiffs filing the instant action … Buell was aware of its existence, as well as the fact that Pandas formed part of the lawsuit. At that juncture, as well as over the next few months, Buell received press or media reports concerning more specific details of the case. It is beyond question that this case has received intense media scrutiny and that it has attracted the attention of advocates on both sides of the issues presented. Despite this, FTE took no action regarding an attempt to intervene even after Defendants’ former expert [Dembski], leading proponent on IDT, editor, and one of the authors who contracted with FTE to write The Design of Life [successor to Pandas] specifically addressed The Design of Life in his expert report dated March 30, 2005, which prompted Motions for Protective Orders to be filed by the Defendants and FTE. In the face of this, as aforestated it was not until May 23, 2005, that FTE filed the instant Motion.

    In short, Buell got on the stand and … to put it mildly … fibbed his head off about what he knew and when he knew it. There’s more, of course, but isn’t it nice to know that IDeologists’ moral standards remain constant?

  9. #9 Doc Bill
    November 12, 2007

    So, are you telling me that FTE didn’t have legal counsel that recommended they intervene in the case before the deadline?

    That would be Brown, right? The Lawyer Guy who’s complaining. I guess he was hired way late, huh? Otherwise he would have said something earlier, right?

  10. #10 W. Kevin Vicklund
    November 13, 2007

    Olorin: the FTE filed to quash the subpoena (meaning they didn’t have to turn over the drafts), but instead got a seal (meaning that only certain people were allowed to examine the documents and the documents were not open to public viewing upon being filed)*.

    The FTE did file an amicus curiae. Find it and other amici briefs here.

    Speaking of Buell, here’s an interesting exchange during a pretrial hearing. Buell is under direct examination by Leonard Brown (the FTE’s attorney):

    Q Why do you market it to science teachers instead of school boards?

    A Well, we market to science teachers because they’re the people that have the expert — the training and expertise to evaluate the book. And we don’t believe that if the book is handed down from above, from an authority structure like a school board, that there’s going to be a positive educational experience, especially if the school board requires that the teacher or teachers use the book. And so we’ve always counselled — when we get a call from a school board member, we’d always counsel them to turn the book over to the teacher, just hand it casually, don’t say, you know, I really think this is a great book or whatever, just give it to the teacher, the science teacher, and just say, you know, I would like to know what you think of it, and with your background and expertise, I would like, you know, I would like to hear about that.

    Q When — has there ever been a time when you have refused to send a book to a school district because of a school board policy?

    A Yes, there have been two notable instances where the school board was ready, was poised to pass a resolution requiring the use Of Pandas and People, one in Louisville, Ohio, and one right up the road from us in Plano, Texas. And because in Louisville there was a confusion between creation science and intelligent design, and they wanted to get the school board to pass a policy that it would be used, we wrote them a letter and said we will not sell you copies Of Pandas and People. We did the same thing in the case of a Plano school district.

    Buell Direct, pages 63-64

    That’s right, Buell admitted that they have refused to sell Pandas to schools that adopted policies similar to Dover’s policy. The kicker is that Buell admitted to having received and read, no later than January of that year, a news article (one of many, in fact) that detailed the Dover policy and identified Pandas as the textbook in question. Buell knew or should have known that his textbook was involved in a lawsuit over a policy for which he would have refused to sell the book at the very beginning of discovery. Furthermore, his own academic editor was supposed to be a star witness for the defense and knew the extent to which the book was going to play a part in the lawsuit.

    *parentheticals added for benefit of others – I figure Olorin already knows what they mean

  11. #11 W. Kevin Vicklund
    November 13, 2007

    Sorry, some errata: it was Boyle, not Brown, asking the questions, though Brown was there. Also, the particular newspaper article did not specifically name Pandas – rather, Buell admitted, under questioning from the judge, the following:

    Q What did you know? What did you know?

    A I knew that the books were put in a library and that students were told that they could go check the book out.

    Q Well, that was my next question. So is it fair that as early as January you knew that Of Pandas and People somehow figured in this dispute?

    A Yes, that’s true.

    page 109

    It’s also informative to read the rest of the judges very pointed questioning of Buell and his lawyer. It’s usually not a good thing when the judge conducts his own examination. Pay particular attention to the question about why they think the defendant lawyers won’t adequately represent FTE’s interests – it’s clear they have no idea what TMLC is planning fo its defense.

  12. #12 Olorin
    November 13, 2007

    W. Kevin: Yes, FTE did file an amicus brief; my bad in not picking it up earlier.

    Buell also said in his testimony that FTE filed a protective order in Northern Texas; I don’t know offhand what happened to it; and the transcript is ambiguous as to whether another one was filed in MD PA, or whether the N TX was applied in MD PA.

    As to the judge’s direct examination of Buell: The tenor of Jones’ own questions to several of defendant’s witnesses seems to indicate that Jones felt that these witnesses were attempting to evade certain questions.

    The transcript of Buell’s testimony also indicates that one of the purposes of the intervention was to introduce the testimony of Dembski and other ID expert witnesses who had absquatulated themselves from the trial. This seems somewhat surprising to me, since it had previously seemed that Dembski had engineered his own removal after realizingg that his “vise strategy” was falling apart in Behe’s deposition. It is generally agreed that the major goal of the DI’s amicus brief was to reintroduce Dembski’s expert opinion, but without the tribulations of cross-examination.

  13. #13 W. Kevin Vicklund
    November 13, 2007

    The PA order covered the drafts of Pandas (at least and especially Design of Life), whereas the TX order covered all other discovery documents, such as fund-raising letters. The two judges issued nearly identical orders. (By the way, I hope it was clear that I wasn’t busting your chops there, just pointing you in the right direction)

    As far as the whole Dembski thing goes: best guess is that FTE thought that they could “wipe the slate clean” by reintroducing him with a new expert report that didn’t mention Design of Life. The judge wasn’t having any of that. It wasn’t about preventing Dembski from being cross-examined so much as it was about preventing Design of Life from falling into the “evilutionists” hands.

    Don’t forget, FTE had the right to immediately appeal the denial of intervention, had they so desired. Truth be told, they’re lucky they didn’t get intervention granted – since they had nothing to add, the outcome wouldn’t have changed, and they’d be responsible for part of the attorney fees. Somehow, I doubt Pepper-Hamilton would have waived those fees. (Note that being granted intervention doesn’t automatically convey the right to appeal)

  14. #14 Olorin
    November 13, 2007

    Do the research, first, Olorin. FTE and the defendant moved separately for protective orders in the PA court. FTEs motion was denied outright. Defendants was granted only partially.

  15. #15 Olorin
    November 13, 2007

    Thanks, W. Kevin. I occasionally bust my own chops, but only while playing the trumpet. My trove of Kitzmiller documents is not nearly as complete as I had thought.

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    February 19, 2008

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