Partial Dover Update

We won't have a transcript of the Behe cross examination for a few days yet, but here are a couple of reports on it. Laurie Goodstein's article in the NY Times details some of the problems that Behe ran into. For instance, he is arguing for an incredibly broad definition of science, one not accepted by any scientific organization. Under questioning, he admitted that under his definition, astrology would be considered a scientific theory. The cross examination poked a lot of big holes in Behe's testimony and in the defendant's case:

The cross-examination of Professor Behe on Tuesday made it clear that intelligent-design proponents do not necessarily share the same definition of their own theory. Eric Rothschild, a lawyer representing the parents suing the school board, projected an excerpt from the "Pandas" textbook that said:

"Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks and wings, etc."

In that definition, Mr. Rothschild asked, couldn't the words "intelligent design" be replaced by "creationism" and still make sense? Professor Behe responded that that excerpt from the textbook was "somewhat problematic," and that it was not consistent with his definition of intelligent design.

Mr. Rothschild asked Professor Behe why then he had not objected to the passage since he was among the scientists who was listed as a reviewer of the book. Professor Behe said that although he had reviewed the textbook, he had reviewed only the section he himself had written, on blood clotting. Pressed further, he agreed that it was "not typical" for critical reviewers of scientific textbooks to review their own work.

Laurie Lebo picks up on another problem for Behe on the stand in an article for the York Daily Record:

In his writings supporting intelligent design, Michael Behe, a Lehigh University biochemistry professor and author of "Darwin's Black Box," said that "intelligent design theory focuses exclusively on proposed mechanisms of how complex biological structures arose."

But during cross examination Tuesday, when plaintiffs' attorney Eric Rothschild asked Behe to identify those mechanisms, he couldn't.

When pressed, Behe said intelligent design does not propose a step-by-step mechanism, but one can still infer intelligent cause was involved by the "purposeful arrangement of parts."

And Mike Argento, who has played much the same role in this trial as HL Mencken played in the Scopes trial (though without the deceitful behind the scenes involvement), has a scathing article on Behe's testimony and includes yet another amusing little exchange:

At one point during Rothschild's cross-examination, the lawyer asked the scientist whether he was co-authoring a book, a follow-up to "Of Pandas and People," with several other intelligent esign moolahs. He said he wasn't.

The lawyer showed him depositions and reports to the court, quoting two of the other authors as saying he was a co-author.

Behe said that he wasn't a co-author of the book but that the statements by those guys weren't false. He said one of the authors was "seeing into the future."

Rothschild asked, "Is seeing into the future one of the powers of the intelligent-design movement?"

It seems that on issue after issue, these guys just can't get their story straight. It would have been even more fun had Dembski been allowed to testify. With his track record, the attorneys would have had a field day picking out the inconsistencies between his various positions over the years, and between his positions and those of his fellow IDers.

More like this

Law.com has an interesting article about Eric Rothschild and Steve Harvey, the two Pepper Hamilton attorneys who led the legal team for the plaintiffs in the Dover trial. One statement really stuck out to me: Rothschild said what he was proudest of throughout this whole trial was his cross-…
As Wesley and I work on our book on the history of the Dover trial, one of the things we will have to incorporate and comment on is the absolutely frantic attempts by the DI to rewrite that history after the ruling came down. Watching their reaction evolve has been a source of great amusement to me…
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By request, I'm bringing over this old post on the outcome of the Dover trial. What it reveals to an astonishing degree is how delusional and disconnected from reality the Discovery Institute gang are. Michael Behe has previously commented on his testimony in the Kitzmiller trial. He felt good…

Jim-

I actually think there is some hope for the Dover school board in this case. I think we're hammering their witnesses, but I'm not convinced that means we're gonna win. Here's what I think is a plausible scenario for a ruling in their favor. The judge may well say something like:

"Yes, there's clearly a religious motivation behind the policy on the part of a couple of the school board members. But the actual policy itself is so narrow and inconsequential that it doesn't cross the line. They didn't mandate the teaching of ID, they only inform the students that there are other views out there and refer them to the library if they want to research it on their own. It simply doesn't do enough to trigger strict scrutiny and I accept that there is a rationally related secular purpose in at least making students aware that there are multiple views and encouraging them to research on their own."

I don't know how likely it is, but I think it's plausible. Sometimes winning all the big arguments during a case has nothing to do with the outcome.

Indeed, getting things like Behe's confused "they just don't understand me" testimony on the record goes a long way to ripping the scientific veneer off the ID movement, whatever the result of this one case. And I never knew of those Creationism = Design drafts in the Pandas textbook.

It's important too, not for those of us who already know these snake-oil salesmen for what they are, but for thoughtful people who haven't paid much attention to this issue may not realize what is at stake.

The closer ID gets to the Promised Land, the more they have to open themselves up and admit they have nothing to offer should they ever get there.

Plus, it's good practice for the next round, in Kansas or whereever.

They didn't mandate the teaching of ID, they only inform the students that there are other views out there and refer them to the library if they want to research it on their own.

I dunno. The policy explicitly mentions Pandas, and if that book has no secular scientific pedagogic value and can only serve to advance a distinctly religious viewpoint, doesn't it meet the test?

When pressed, Behe said intelligent design does not propose a step-by-step mechanism, but one can still infer intelligent cause was involved by the "purposeful arrangement of parts."

Natural selection also causes a "purposeful arrangement of parts" so no, this doesn't really help you. You can't detect "design" without claiming to know your designer and you've still yet to propose a way to do so that isn't an either/or fallacy.

From Ed's imagined response by the Judge:

It simply doesn't do enough to trigger strict scrutiny...

Then, couldn't (Shouldn't?) the judge not take the case based on that statement? I am not familiar enough with law practices to understand, but I thought that a judge could deny hearing a case if they didn't believe it violated anything?

VoiceOfGrog wrote:

Then, couldn't (Shouldn't?) the judge not take the case based on that statement? I am not familiar enough with law practices to understand, but I thought that a judge could deny hearing a case if they didn't believe it violated anything?

The issue raised in my hypothetical is not whether there should be a court case but what legal standard should be applied to the act under review. Determining the standard of review is the key, typically, to which way the case is going to go. This is because the standards differ greatly in their deference to the legislative body's judgement (in this case, the school board's). Under a "strict scrutiny" standard, the burden shifts substantially on to the school board to show a "compelling governmental interest" that is served by the policy and that the policy is the most "narrowly tailored" that could secure that interest. Under what is called the "rational basis" test, the opposite is true. All they have to show under that standard is that the policy under review is rationally related to a governmental interest, regardless of how well it serves that interest. Basically, any excuse will do.

No, a judge could choose to summarily dismiss a case if there were no violation, which is what the hullaballoo this summer over the "motion to dismiss" was about. But in this situation, the judge is hearing the case in order to ascertain whether or not this policy violated the law.

Furthermore, "strict scrutiny" is an entirely different concept. "Strict scrutiny" applies in situations where the court has already issued a ruling, and essentially requires one side to show that its position stands up under enhanced scrutiny to show that it is different from prior policies that were struck down. Saying that a particular policy does not go far enough to trigger "strict scrutiny" isn't saying that there wasn't a justiciable issue or that there was no question of violating a law, just that the defendants in this situation have made a justified defense of their policy.

A better example is looking at what will and won't trigger strict scrutiny: In discrimination cases, for example, a discrimination made on racial grounds will receive strict scrutiny, and defendents will be required to prove that they are not engaging in any discriminatory action. On the other hand, allegations of discrimination by gender may not receive strict scrutiny, if the defendants can simply show that there were no discriminatory actions: for instance, if a fire company requires all applicants to be able to lift and carry a certain weight for a certain distance, and this results in fewer female members, it is not discrimination. If the results of a fire company test was that fewer black applicants were accepted than whites, however, there would be a case to be made here, because strict scrutiny does apply to racial hirings. It doesn't mean that there is necessarily discrimination here, it could just be random chance, but the defendants are going to be required to prove this.

Anyways, what the strict scrutiny here refers to is whether or not the defendants in Dover must prove that their policy is secular in purpose and complies with Lemon and Edwards, which is strict scrutiny, or whether the onus is on the prosecution to show that not only are the actions of the school board expressly religious in nature, but are actively violating the law.

My best guess, from reading the court transcripts, is that the judge is going to rule for the plaintiffs. Defense strategies that appear to be aimed more at swaying a jury are really not helping their case with the judge, who I think is beginning to lose his patience with having to explain the legal definition of hearsay to a defense attorney, or the part where the defense attorney attempted to tie a witness's membership in the ACLU to a support for illegal pornography.

The defense strategy might work with a jury trial, or in the Kansas hearings, where they had partial "judges," but they don't work very well in federal bench trials. I would think that this trial would probably end with the judge simply re-affirming the precedent of the Edwards ruling. He's certainly not going to overturn Edwards under any circumstances, not at this level, so the best that Dover could hope for would be for a ruling that their policy does not violate Edwards [i]only so long as it does not extend to any actual lessons[/i]. This is one of the main reasons why the DI bugged out, they realized that there was absolutely nothing for them to win in Dover. The best a Dover ruling could give them was that it's acceptable to mention ID in class and tell kids to go look it up on their own, which I predict will have about the same level of success as telling kids that we're not going to teach them math, but that they can go read a copy of Newton's Principia on their own time if they'd like, and it's up to them as to whether or not they want to learn calculus.

But no, in this case the judge will probably just rule that this is quite clearly an attempt to teach religious ideas in public school science classes. I mean, let's face it, Dr. Forrest, Dr. Pennock, and the Wedge Document have pretty much made that case anyways. Since he is a federal judge, bound to enforce the precedent of federal laws, he will have to apply the precedent set in Edwards, that such cannot be taught in public school. It's pretty basic: Lemon set up a test for whether a given policy was religious in nature, and Edwards ruled that any public school policy which fails the Lemon test is illegal. Since the Thomas More attorneys are not going to be able to persuade a federal district court judge to overrule either of those decisions, and since there is already enough evidence to trip at least one of the Lemon prongs, the defense case is basically dead in the water, and they know it.

Hyperion wrote:

My best guess, from reading the court transcripts, is that the judge is going to rule for the plaintiffs. Defense strategies that appear to be aimed more at swaying a jury are really not helping their case with the judge, who I think is beginning to lose his patience with having to explain the legal definition of hearsay to a defense attorney, or the part where the defense attorney attempted to tie a witness's membership in the ACLU to a support for illegal pornography.

I think this is an accurate reading. As you observe, their tactics have been of the sort you would use in a jury trial. Bringing up that she is a "card carrying member of the ACLU" and that the ACLU thinks kiddie porn is great is a slimy tactic used to poison the well with a jury of not terribly bright people; did the TMLC seriously think that this was going to work on a Federal judge? I know from my conversations with the folks who have been there observing and working on the case that they all say that the TMLC attorneys are just vastly overmatched in terms of talent and ability, and that's been my impression from the transcripts as well.

"intelligent design theory focuses exclusively on proposed mechanisms of how complex biological structures arose."

Here's why Behe doesn't need to explain ID's mechanisms: because the mechanisms are those proposed by evolutionary biology. Hence, ID focuses exclusively on those mechanisms, and why they are insufficient.

But to admit that on the witness stand would give the game away.

Professor Behe responded that that excerpt from the textbook was "somewhat problematic," and that it was not consistent with his definition of intelligent design.

That's why I pity him. I have no trouble thinking that Behe sincerely believes that most of the history of life on Earth happened as conventional biology describes it. He just wants a little nudge. But he's bound his fate to a group of people who think that fur, fins, and feathers are too complex to have arisen naturally.

I'd suggest to Prof. Behe that he change course: instead of trying to revolutionize biology by forcing scientists to admit to the power of creation, preach to creationists about the indisputable facts of evolution, as far as he himself believes them.

Looks to me like the ID movement is going to be hurt by this case, but the Dover school board *might* escape with little-to-no harm.

By Michael "Sotek… (not verified) on 19 Oct 2005 #permalink

To Hyperion's excellent analysis, I would add that it appears that the Plaintiff's attorneys are significantly more familiar with the writings of the various witnesses than the Defendant's attorneys have been. My impression, although tempered by my inability to actually view the bobbing and weaving, is that the Defense has been genuinely surprised by many of the answers they have received to their questions.

I had a hearing today in which my first witness just couldn't muster on the stand what she managed on the phone. That means I was under-prepared, and it showed.

By Doctor_Gonzo (not verified) on 19 Oct 2005 #permalink

My buddy Dan Ray has informed me that I made quite a substantial mistake in this post. It turns out that the strict scrutiny/rational basis standard has not been used in establishment clause cases, but only in equal protection, due process and free speech cases. I was not aware of that. So feel free to disregard much of what I wrote above; I was wrong.

Get your transcripts folks!

Hot off the presses, Behe on direct.

The best stuff (looks like astrology is a science too by his definition) has gotta be on cross.

Ed, you said "...I was wrong." Well, that's why we trust that you are right the rest of the time. It's people who never admit making a mistake whose credibility goes down hill until it disappears in the swamp.