Despite no longer working as legal counsel for the Discovery Institute, Seth Cooper has still been quite busy writing articles on their behalf slamming Judge Jones' ruling in Kitzmiller. Not content with the whopper he told a few months ago in an article he wrote with Joe Manzari of the American Enterprise Institute, he's now back with this article on the DI website. Wesley Elsberry has already handled the main charge that Cooper makes regarding the question of whether Judge Jones should have allowed the plaintiffs to subpeona draft versions of the next edition of Pandas; I'm going to deal with some of the other arguments he makes.
Cooper seems quite upset that Judge Jones did not allow Jon Buell and the Foundation for Thought and Ethics to intervene in the case 5 months after the case was filed. Buell himself has made all the same arguments that Cooper maeks for why they should have been allowed to intervene, plus more. I refuted all of those arguments in a post from April. But I want in particular to address Cooper's accusation that Judge Jones was hostile and unfair to Buell during testimony and in his ruling on the motion to intervene. Cooper writes:
Another hearing was conducted before Judge Jones on June 14. FTE President Buell testified. Reports from those present for the hearing indicate that Judge Jones appeared hostile towards Buell and the proposed intervention. Additionally, Judge Jones appeared offended at any intimation that the Dover Board's attorneys were not competently representing FTE's interests.
The transcript of that hearing is, of course, publicly available. I challenge you to read that and find anything that suggests hostility on the part of Judge Jones (the portion concerning Buell begins on page 41, the first part of that hearing was devoted to handling a motion to quash testimony from two reporters subpeonaed in the case). In fact, Judge Jones says virtually nothing during the direct examimation of Buell except to interact with the attorneys in response to objections. There is nothing the least bit hostile or rude anywhere in that transcript.
Cooper also claims that this alleged hostility manifested itself in the Judge's ruling on the motion to intervene, which he denied:
Six weeks later, Judge Jones issued his order denying FTE's motion to intervene. The hostility FTE's attorneys sensed at the hearing was manifest in his order. Rather than issue a matter-of-fact ruling, Judge Jones declared FTE's arguments "both unavailing and disingenuous." (Is it disingenuous for a publisher to want to protect its own economic and intellectual property rights?) Judge Jones declared that even though Buell resided in Texas, there were enough news stories about happenings in Dover, PA, that he should have sought intervention earlier.
This is a rather blatant distortion of what the ruling said (and again, that ruling is publicly available, you can read it for yourself). The "both unavailing and disingenuous" line comes at the bottom of page 7, and it is not made in response to the FTE's arguments in general, as Cooper claims, but in response to one particular argument - timeliness. And the record will clearly show that "unavailing and disingenous" applies even more clearly to Cooper's highly dishonest representation of the substance of Jones' ruling. Based on what Cooper said above, one would think that Judge Jones ruled on timeliness solely because "there were enough news stories" in Texas about the Dover case that Buell should have seen them in order to file a timely motion to intervene (the motion was filed a full 5 months after the case was filed). That is patently false and the ruling proves it.
Judge Jones did not merely assume that there were enough press stories in Texas that Buell should have been aware of the litigation earlier; Buell admitted under oath that he was aware of the case in January of 2005, one month after it was filed - and 4 months before filing a motion to intervene:
Buell's testimony before the Court on July 14, 2005 revealed that he, the President of the proposed intervenor corporation, was first aware of the lawsuit as early as January 2005, within a month of when the suit was filed. As of January 2005, Buell admitted that he was aware that Pandas formed part of the lawsuit.
Timeliness is an important factor in determining whether to allow someone to intervene in a case, and there is much case law regarding how to evaluate timeliness. Listening to Cooper, you would think that Judge Jones just said, "Ah, you should have known about it, if you didn't too bad" and banged the gavel. In fact, the text of the ruling shows not only that there were valid substantive reasons to conclude a lack of timeliness, but also that Jones properly applied controlling precedent in that regard:
Within one month of Plaintiffs filing the instant action and as noted, 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, leading proponent on IDT, editor, and one of the authors who contracted with FTE to write The Design of Life 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. Because the President of FTE was aware that Pandas was involved in the lawsuit in January 2005, it was incumbent upon him to have examined the alleged substantial impact of the litigation upon the distribution of Pandas well prior to May 23, 2005, which was less than one month before the close of discovery. See Haymond v. Lundy, 2002 U.S. Dist. LEXIS 18110, *13 (E.D. Pa. 2002) ("When a proposed intervenor knew or should have known of the pendency of a lawsuit at an earlier time, but failed to act at that time
to protect its interests, that inaction will weigh heavily against the timeliness of the motion.") (citing Del. Valley Citizens' Council for Clean Air v. Pennsylvania, 674F.2d 970, 975 (3d Cir. 1982)).
Basically, Buell's argument here was "gosh, it didn't occur to me that Pandas might be a big part of the litigation until May." I think it's reasonable to call such reasoning unavailing and disingenuous. The court is not obligated to delay and complicate ongoing proceedings 5 months into a trial by adding a new defendant and starting all over again, at great cost to both sides and to the court, just because a third party didn't think things through fast enough. And this is especially true when the person trying to intervene can make every argument they want to make in an amici brief filed with the court (and they did).
Buell's testimony certainly was disingenuous in many parts. For example, he goes to some lengths to distinguish "creation science" from "intelligent design", and he says that Pandas deals only with intelligent design and not creation science (despite the fact that all of the early drafts up to the Edwards decision in 1987 used explicitly creationist language and the "intelligent design" was nowhere to be found). In particular, I like this shift in position. Buell claims that ID, unlike creation science, does not depend on the validity of the Bible or defending any Biblical claims:
Q What are the differences between creation science and intelligent design?
A Well, creation science, the driving impetus is to affirm the genesis narrative in the Bible. And the driving impetus in intelligent design begins with observation, observation of the genome, and the obvious product of intelligence that we see in living systems.
There's just one little problem with this: the principal author of Pandas, Dean Kenyon, had made the exact same argument about "creation science" in his affidavit in the Edwards trial:
Creation-science means origin through abrupt appearance in complex form, and includes biological creation, biochemical creation (or chemical creation), and cosmic creation. Evolution-science is equivalent to evolution. Evolution is generally understood by scientists (although some would disagree) to include biological evolution (or organic evolution) from simple life to all plants and animals, biochemical evolution (or chemical evolution or prebiotic evolution of the first life), and cosmic evolution (including stellar evolution) (of the universe). Creation-science does not include as essential parts the concepts of catastrophism, a world-wide flood, a recent inception of the earth or life, from nothingness (ex nihilo), the concept of kinds, or any concepts from Genesis or other religious texts.
And if you want to go beyond mere disingenuousness and into outright lying, take a look at Buell's incredibly dishonest claims about the case in this post on a blog. He writes:
Was there a systematic replacement in Pandas manuscripts of the words "creationism," "creationist," and "creation" with the term "intelligent design," as alleged?
Let's look at the three terms one at a time. Neither "Creationism" nor its synonym, "Creation Science" was ever used in any Pandas manuscript, as alleged.
This, ladies and gentlemen, is a baldfaced lie. Included in the earlier manuscripts of Pandas that the FTE turned over to the plaintiffs' attorneys in the case, and entered into evidence during the trial, was an early manuscript titled Creation Biology from 1983 (this was entered into evidence in the trial, as P-563 Creation Biology Textbook Supplement [FTE006517 - FTE006742]). I'm going to quote numerous instances of these terms being used in that manuscript. From Chapter 3, pp. 10-11:
Evolution can at least explain these things, it might be urged, but the only explanation advancable by creationism poses more questions than it answers. But unanswered questions are an essential part of science; they define the areas of needed research. Reopened questions often expose time-hallowed but spurious answers that have impeded the progress of science, in some cases, for generations because no one imagined that they needed to be revealuated. [sic] Creationists have an obligation to advance possible explanations of such things as marsupial bones. And It is worthwhile noting (as we shall see later in this chapter) that evolution does not have all the answers about marsupial bones and the like; why should creationism be criticised because it cannot as yet answer questions that evolution has never satisfactorally addressed?
There the word "creationism" appears three times in a single paragraph. From p 3-29:
One obvious objection to this concept (which is actually an objection to creationism in general) is that adaptations are not perfect.
From pp. 6-1, 6-2:
Not that the ancient world, and the modern for that matter lacked for supernatural creation stories. One of the criticisms advanced against creationism embodies this very point: Which creation story shall we consider to be the true one? Yet it seems to us that if creation by an intelligent entity is taken to be the Kernel of creationism, then the most fundamental postulate of creationism must be that species were originally created as species, which immediately raises the questions of just which ones, how many of them, and when?
From p. 6-12:
What of the creationist? If creation is true, it would be possible (though this is not demanded by the concept of creation) that there are limits to the amount of variation that natural selection and other evolutionary mechanisms can produce. If such limits exist, creationism should establish that, and then find out what they are. Moreover, if creation is true, there may very well be species on the face of the earth that have undergone no substantial change since the day in which they were created. Is there any way of identifying such species if they exist? Creation research should address this problem. Finally, if creation is true it should be possible to mentally and perhaps even genetically reconstruct the originally created species. Here are questions enough to show that creationism is at least as open to research as evolutionary theory purports to be.
This is very important: notice that in the paragraph above, creationism is used as a form of "creation". That clearly disproves his contention that "creation" and "creationism" have distinct meanings. Buell claims:
Although they differ by only one letter, "creationist," is not a variant of "creationism;" it is a variant of "creation," a modifier that means "of the viewpoint of creation."
So he is arguing that a "creationist" is merely someone who believes in "creation", not in "creationism", and "creation" is perfectly acceptable while "creationism" is what was rejected in Edwards. That would be a silly enough argument on its own, but it's a whole lot sillier - not to mention dishonest - when you see that his own early manuscript purports to show that "creationism" is a valid scientific theory. At this point, I think Mr. Buell should consider himself fortunate that he was not allowed to intervene in the case. If he had, and he had told this same lie on the witness stand, he might well have found himself in the same position that Alan Bonsell and William Buckingham found themselves - sitting in the witness stand as the judge stared at them and asked them why they were lying in his courtroom.
Disingenuousness and dishonesty appears to be Buell's stock in trade. And based on the rank misrepresentation and spin that Cooper applies to Judge Jones' ruling concerning the motion to intervene in Kitzmiller, it appears to be Cooper's primary skill as well.
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Ed - Thank you for the major effort on this research and impeachment of Mr. Cooper, and yes, I agree, it would have been fun to see him on the stand in Dover.
I hope Chris Mooney is paying close attention to the prevalence of DI lying as he gets ready to "debate" Wells.
It's not Cooper who would have been fun on the stand, it's Buell. The irony about Cooper, though, is that he was the one who was in direct contact with the Dover school board when they were looking at adopting an ID policy, and he was the one who told them that the policy they were adopting was a bad idea and that they would lose in court if they adopted it. Then after that prediction comes true, he howls in outrage about the court ruling against them.
"he was the one who was in direct contact with the Dover school board when they were looking at adopting an ID policy, and he was the one who told them that the policy they were adopting was a bad idea and that they would lose in court if they adopted it"
Assuming he told the truth about that conversation. Buckingham says they discussed the legality of teaching ID in that conversation. The Board asserted an attorney client privilege to the conversation, yet Cooper says it wasn;t privileged--after the fact. Here he is: "To be clear, prior to the filing of the lawsuit I never advised the members of the Dover Board in a privileged, attorney-client capacity." Now, if he wants to quibble that such a relationship occurred after the filing of the lawsuit, why is publicly disclosing information that conflicts with his "client's" version?
I think his client was right.
I'll go so far as to predict that after the fact they too were glad Buell was not allowed to go on the stand.
But this won't stop them from saying so to the contrary.
Obviously feeling grateful for having dodged a bullet with Buell they will do the exact opposite and boast that his being on the stand would constitute a 'slam dunk' on their behalf.
A lie to be sure, but again, they'll talk up a storm about how much they wished Buell were able to appear but if another case were to appear soon(and it may do just that) there will no doubt be no concerted effort on their part to enlist Buell's aid on the stand.
MYOB'
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It is interesting to me the frequency with which creationist complaints about the Kitzmiller trial do not focus around the facts of the case, but instead around complaining that those facts were allowed to be looked at and judged on at all.
It is also odd to me that so many of the creationist complaints about Kitzmiller revolve around the fact that the Thomas Moore Law Center by itself represented the creationist side of the argument. The judge should have given more deference to the Discovery Institute's amicus curiaes, the FTE should have been allowed to participate, something, and therefore the trial was somehow unfair. But these complaints are never directed at the TMLC itself-- you know, the group that apparently botched things such that the FTE/DI could have done better. The complaints and attacks are always directed at the judge.
But the judge only tried and ruled on the case that was in front of him-- it was not his job to fix the affairs of the Dover School Board's attourneys. Meanwhile, if the FTE intervening or the DI participating more centrally would have had any outcome on the of the case, surely that would have taken the form of some kind of different sort of strategy or argument put forth during the trial. We never seem to find out what the Discovery Institute or the FTE would have done differently in the trial, though, nor do any of these after-the-fact backseat driver analyses actually attack the TMLC for whatever it did to ruin the trial. Of course, come to think of it, if whatever it was the TMLC did to ruin the trial could have been fixed by the FTE or DI participating, then surely the FTE or DI could have just advised the TMLC on their errors during the trial itself? Or at least, the Discovery Institute could have influenced the trial through the witnesses it was going to provide, instead of specifically deciding to pull them out at the last minute?
Many curious things afoot here.
A little off point Ed, but how is the book on this trial coming?
Nice work Ed, except for the following.
There is nothing the least bit hostile or rude anywhere in that transcript.
That's not a refutation of the claim. Cooper's sad little claim is carefully worded.
Reports from those present for the hearing indicate that Judge Jones appeared hostile towards Buell and the proposed intervention. Additionally, Judge Jones appeared offended at any intimation that the Dover Board's attorneys were not competently representing FTE's interests.
The word "appeared" is crutical. Cooper is claiming that Judge Jones appeared hostile. That's a visual perception. Just because Judge Jones did not say anything hostile does not preclude the possibility that he appeared hostile to those present at the hearing (not that I think for a moment he was). Judge Jones could have been physically intimindating, pulled faces, made rude gestures, or even mooned them, and none of that would appear in the written transcript. In order to refute Cooper on this point you would need someone who was in the room at the time.
On Cooper's distortion on Judge Jones' order however, you nailed him.
Ed is going great guns on the book proposal. His co-author, though, needs a huge kick to the rear end.
There was speculation at the time that B&B were wide open for perjury charges, but that would have to be decided by the local prosecutor. Has the Harrisburg DA made any statements on this matter? What's the expiration date on the prospective defendants' liability?
Another point: the Buell hearing was July 14, 2005, not June 14 as Cooper says.