Barbara Forrest supplemental expert report

I'm a little wary of the relatively quick decision by Judge Jones if it does come down next week. That suggests to me that it will be a narrow decision addressing only the specifics of the Dover Board's intent, and perhaps not addressing the broader "Is ID a sectarian ploy to smuggle creation in?" question. The latter broader decision would be very helpful; the former narrower decision less so.

RBH

Even if it's a quick decision, I don't think the judge will rely very much on the intent of the school board. The first duty of a trail court judge is to not look foolish on appeal. The Supreme Court, especially Scalia, has generally not looked with favor on "motivation."

He dissented in Edwards v Aguillard on this ground:

http://www.talkorigins.org/faqs/edwards-v-aguillard.html

Even in cases, where the court directly focused on the religious motivations of the state, he objected. See his concurring opinion in the Florida Voodoo animal sacrifice case:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=508&invol=520

For that reason, I think Judge Jones will steer away from the motivations of the school board and find that ID itself is a sham for creationism. [The school board may have intended to circumvent Aguillard, or it may not have been aware of the ID/creationism connection, or may have been fooled into thinking ID was legitimate science--but it doesn't matter what they thought if ID is indeed a sham] That would be a factual determination, especially in light of some of the perjury committed by certain witnesses and Behe's candid admissions.

It would be difficult to upset a factual ruling on appeal and a finding that ID is a sham for creationism would be a great result.

Judge Jones is smart enough to bulletproof his decision on appeal.

Judge Jones is smart enough to bulletproof his decision on appeal.

Legal question: If Judge Jones finds narrowly for the plaintiffs, can they appeal to a higher court over the status of ID itself?

If Judge Jones finds narrowly for the plaintiffs, can they appeal to a higher court over the status of ID itself?

I'm a little wary of the relatively quick decision by Judge Jones if it does come down next week. That suggests to me that it will be a narrow decision addressing only the specifics of the Dover Board's intent, and perhaps not addressing the broader "Is ID a sectarian ploy to smuggle creation in?" question. The latter broader decision would be very helpful; the former narrower decision less so.

Maybe it's offtopic, but i just wanted to say, that it's really interesting to read everything this with comments... You, discuss here a lot of interesting thing on different news =). Thanks for that =)

I think Barbara Forrest's testimony will be key

Assuming Judge Jones rules in favor of the plaintiffs and rules widely that ID is creationism, who would appeal?

The Discovery Institute can't appeal. It's not their case.
The Thomas More Law firm can't appeal. It's not their case, either.

The suit is against the Dover Area School District, not the individuals who sat on the board. I would think it highly unlikely that DASD would mount an appeal. For what purpose?

Of course, this is my opinion. What I know about law I got from watching TV! I'd appreciate commentary from a real legal beagle.

The ACLU-PA blog "Speaking Freely" is reporting that Judge Jones is probably going to hand down his decision next week. Trust me, those ACLU guys are close to the source.

Speculation - The TMLC is not charging anything to defend the Dover board. They might have had the Dover board sign an agreement where they are bound to appeal if they lose. If they lose the TMLC may insist the Dover board go through the appeal process (even though the current board is probably hostile to that idea).

I believe if the Dover board loses they will be subject to paying the plaintiff's legal fees. Risking an appeal lossLosing an appeal would subject them to more plaintiff's legal fees.

Anyhow, assuming the plaintiff's win, as far as speculation on any possible appeals I think the agreement between the TMLC and Dover board would be key. They could possibly be contractually bound to appeal.

One of you legal folks could probably shed some light on this.

It might be a case of the DASB paying $1 mill now for PACLU fees or $2 mill in PACLU fees if they lose the appeal.

The current board does not support the old boards position and may just want to cut their losses.

They might have had the Dover board sign an agreement where they are bound to appeal if they lose. If they lose the TMLC may insist the Dover board go through the appeal process (even though the current board is probably hostile to that idea).

Correct me if I'm wrong, but I thought I read that if there is no appeal, then the decision is only binding on the parties, and so ID would still have some legs.

This brings up an interesting question: What would you think if the plaintiffs lost, which would allow them to appeal to a higher (broader, more powerful) court?

You always want to win. You represent only your client and not everyone who wants to see ID defeated everywhere. ID proponents could only do better elsewhere if they could convince themselves that somehow this court didn't get the best evidence (i.e., it was the lawyers fault). But there is no better evidence and these were their lawyers. An agreement that plaintiffs must allow their counsel to appeal would probably have ethical problems. Off the top of my head, it would run afoul of the principle that the parties before the court are supposed to be the "real parties in interest." And Bill is right: only the Dover board could appeal and its members say they won't. So root for a victory; so long as the judge addresses the ID=religion argument, (so that DI can't blame the local yokels for forgetting their lines), this decision will have a lasting impact.

Even if the decision is not appealed, it will still be a valuable case. Many U.S. District Court opinions are published. Although not technically "binding precedent" they remain valuable and can be cited for the legal propositions resolved by the case. In fact one of the more famous creation/evolution cases is a District Court case that wasn't appealed, the McLean v Arkansas case:

http://www.talkorigins.org/faqs/mclean-v-arkansas.html

Also, the case itself "happened." Michael Behe testified under oath that ID is the scientific equivalent of astrology. That can be used as evidence if Behe testifies in any other case. Dembski, for example, is probably shot as an expert after his web blog shenanigans. Cross examination over "stre theater" would be just too juicy. Barbara Forrest's documentation of "creinteligentdesignationism" will still be there for use in future cases.

As a lawyer, I'll take the trial court win every time. Weird things happen on appeal.

I'd be unhappy if the plaintiffs lost because I'm suspicious of the higher courts, especially the Supreme Court and as a practical matter, the vast majority of appeals in civil cases are unsuccessful.

You're all assuming that the Plaintiff's will win of course.
Pretty shocking if they didn't for sure.
But still possible??
If the Plaintiffs didn't win, and went on to appeal, where would that leave the current school board?
... or would they be irrelevant to any appeals process??

As I understand it, the current school board--the ones elected in November--ran on a "throw the anti-evolution rascals out" platform. I'm not sure when they officially take office, and there was also some suggestion that they were waiting for Judge Jones's opinion before taking any drastic action about the pro-ID standards.

I would assume that even if Judge Jones upheld the pro-ID standards, the new board--after studying the opinion and consulting their attorneys, to make sure any action they took wouldn't get the school district in a deeper jam--would simply proceed to revoke the new standards calling for the references to ID and "of Pandas," which would return the situation to the status quo before the idiots took over.

One interesting question is what the new school board will do if Judge Jones does rule correctly against ID, as still seems very likely. It would seem to me that the new board might decide NOT to appeal the judge's decision--if nothing else, to stop the outflow of attorney's fees. That might leave the Thomas More law group and some of the pro-ID amici to go it alone on an appeal, which would have very little left "at stake" for the school district...

Comment #62998 Posted by Jeremy on December 15, 2005 02:17 PM (e) (s) They might have had the Dover board sign an agreement where they are bound to appeal if they lose. If they lose the TMLC may insist the Dover board go through the appeal process (even though the current board is probably hostile to that idea). Correct me if I'm wrong, but I thought I read that if there is no appeal, then the decision is only binding on the parties, and so ID would still have some legs.

Stevie old buddy, how could the Thomas More appeal on their ownself? They represent the District. My years of Perry Mason tell me that the law firm *representing* the client can't mount an appeal. After all, the law firm wasn't sued, the District was.

Going back to my original question, if the Judge finds for the plaintiffs and the District choses not to appeal, where does that leave "intelligent design?"

Hopefully, where it belongs. On its ass. In the street.

From Comment #62998 Posted by Jeremy on December 15, 2005 02:17 PM
****They might have had the Dover board sign an agreement where they are bound to appeal if they lose. If they lose the TMLC may insist the Dover board go through the appeal process (even though the current board is probably hostile to that idea).*****

I don't think that such an agreement could be legally binding.

*****Correct me if I'm wrong, but I thought I read that if there is no appeal, then the decision is only binding on the parties, and so ID would still have some legs.*****

You are right. ID would still have a lot of legs.

****This brings up an interesting question: What would you think if the plaintiffs lost, which would allow them to appeal to a higher (broader, more powerful) court?*****

If the plaintiffs lose, there would still be the question of whether the current anti-ID board would maintain the previous board's pro-ID decision. If that decision is rescinded, then the plaintiff's case becomes moot and no appeal would be accepted.

Also, I doubt that the losing side will have to pay the winning side's legal expenses, for the following reasons -- (1) I presume that both sides have been represented for free, and (2) only "reasonable" legal expenses are reimbursable, and neither sides legal expenses have been reasonable.

From Comment #63005 Posted by Joe McFaul on December 15, 2005 03:16 PM
****Even if the decision is not appealed, it will still be a valuable case. Many U.S. District Court opinions are published. Although not technically "binding precedent" they remain valuable and can be cited for the legal propositions resolved by the case.****

I don't know where you are a lawyer, but the federal 9th court of appeals circuit, the largest in the USA, has a rule that no federal district-court opinions may be cited in litigants' briefs or court opinions of any federal court in the 9th circuit, and district-court opinions are rarely published in citable law books (e.g., Federal Reporter and Federal Reporter 2nd Series). There are good reasons for that -- (1) the district court decision and opinion come from a single judge rather than a 3-judge panel as in a federal appeals court, (2) the legal arguments might not be well developed in a case that has not gone through the appeals process, (3) the appeals court may decide that an opinion does not have sufficient generality to be worthy of official publication, and (4) it would be unfair to prejudice future cases by the court opinion of a case that was not appealed and that may have been poorly presented by the losing side.

*****Michael Behe testified under oath that ID is the scientific equivalent of astrology. That can be used as evidence if Behe testifies in any other case.*****

Behe would not be bound by what he said at the Dover trial -- he could just say that he changed his mind. And I think that there has been too much emphasis on Behe's opinions.

****As a lawyer, I'll take the trial court win every time. Weird things happen on appeal.****

I don't know where you are a lawyer, but the federal 9th court of appeals circuit, the largest in the USA, has a rule that no federal district-court opinions may be cited in litigants' briefs or court opinions of any federal court in the 9th circuit, and district-court opinions are rarely published in citable law books (e.g., Federal Reporter and Federal Reporter 2nd Series). There are good reasons for that --- (1) the district court decision and opinion come from a single judge rather than a 3-judge panel as in a federal appeals court, (2) the legal arguments might not be well developed in a case that has not gone through the appeals process, (3) the appeals court may decide that an opinion does not have sufficient generality to be worthy of official publication, and (4) it would be unfair to prejudice future cases by the court opinion of a case that was not appealed and that may have been poorly presented by the losing side.

*****Michael Behe testified under oath that ID is the scientific equivalent of astrology. That can be used as evidence if Behe testifies in any other case.*****

Behe would not be bound by what he said at the Dover trial --- he could just say that he changed his mind.

And I think that there has been too much emphasis on Behe's opinions.

From Comment #63288 Posted by 'Rev Dr' Lenny Flank on December 18, 2005 01:52 AM -- And yet the Supreme Court itself cited the (unappealed) Maclean case in upholding summary judgement on the Aguillard case (in which the lower courts also cited the unappealed Maclean case as precedent).

I personally am against

As for Behe, I would be very happy if he never testifies again at a hearing on a lawsuit over the teaching of intelligent design in the public schools. His testimony has definitely not been helpful.

Larry,

I agree with Lenny, Behe's testimony was on par with ID's science.

If the defense thought Dembski would have done better, they would have kept him instead of Behe.

As for Behe, I would be very happy if he never testifies again at a hearing on a lawsuit over the teaching of intelligent design in the public schools. His testimony has definitely not been helpful.

Comment #63466 Posted by 'Rev Dr' Lenny Flank on December 20, 2005 08:15 AM -- No one cares what you think. (shrug)

Comment #63469 Posted by sir_toejam on December 20, 2005 08:27 AM --- What you are asking for is an impossibility; there is NOBODY better acquainted with the "science" of ID than Behe.

Where is it written that Behe must testify at every ID trial?

Larry, all those volumes of Federal Supplement are full of nothing but federal district court opinions. That's what Fed. Supp. is for. While not all district court opinions are published, the important ones that apply the law to new and interesting factual settings usually are published. And it's the judge his (or her) self who determines which opinions get published.

I think we can be quite certain that the judge didn't take the time to write at the length and in the detail that he did if he didn't want the opinion published. And, again, it's not up to anyone else but him whether it's going to be published.

As to your other questions; they are moot unless there is an appeal, which there won't be.

the fight will be in other district courts unless and until there is an appeal somewhere. the distric courts will look to dover as the first and well documented ruling, and very likely will give that ruling a lot of weight.

They don't HAVE to, but they will, and you know it.

Comment #63663 Posted by Steviepinhead on December 20, 2005 08:21 PM -- Larry, all those volumes of Federal Supplement are full of nothing but federal district court opinions. That's what Fed. Supp. is for. While not all district court opinions are published, the important ones that apply the law to new and interesting factual settings usually are published. And it's the judge his (or her) self who determines which opinions get published.

Anyway, some people seem to have the idea that all they need to do to win a lawsuit against ID in any court in the USA is just to wave a copy of this Kitzmiller v. Dover opinion under the noses of the judges, and I think that those people are sadly mistaken.

Larry, I have to admit I was tempted to be a little more tart in my response. Then I took a second look at what you had written, as well as another look at what I had started to say in "Preview," and deliberately decided on a more factual tone. I cannot claim to always be so restrained, for better or worse.

As I read the Federal Rules of Appellate Procedure together with the Ninth Circuit Rules, that court of appeals only prohibits citation of its own unpublished opinions (in most circumstances). The NInth Circuit rule (Circuit Rule 36-3) does not appear to address citation of unpublished district court opinions one way or the other.

While the federal courts of appeal may cite themselves and other courts of appeal much more often than they cite published district court cases, the latter are not without their persusasive value--if well-written--as others here have pointed out. I can recall a long-ago district court case, for example (Buick v. McPherson, if I'm recalling correctly [and I could be wrong, about either the name or the level of the court--it would be easy enough to check, but I'm already late for a holiday party!]), which essentially invented the law of product liability on the spot, but did so in such a persuasive manner that the core holding has been followed in all American jurisdictions by case law or statute.

While I don't know that Judge Jones's opinion here will achieve that kind of distinction, my own view is that it will have a more positive longterm impact than you seem to think. In other words, though I agree that it is better not to give hubris too free a rein, I disagree with your "sadly mistaken" thesis (though it may indeed take more than simply waving a copy of the opinion--good lawyering and careful preparation of the fact and expert witnesses never hurt!).

That is the way you morons always operate.

Anyway, some people seem to have the idea that all they need to do to win a lawsuit against ID in any court in the USA is just to wave a copy of this Kitzmiller v. Dover opinion under the noses of the judges, and I think that those people are sadly mistaken.

LOL, too bad; he was the ONLY witness willing to testify to the "science" of ID (that wasn't totally jaundiced - like Dembski)

Suppose that Meyer and Dembski testify somewhere else, instead of Minnich and Behe. What, exactly, will they testify to that Behe or Minnich did not? How, exactly, will they win the case when Behe and Minnich could not?

And won't they be asked to explain some of the more egregious statements Behe and Minnich made? I'm pretty sure those statements WILL be waved in their faces---with Behe in particular, since he is the father of intelligent deisgn, as it were.

In fact, how could Behe's statement NOT be cited?

Comment #63693 Posted by Steviepinhead on December 20, 2005 09:55 PM -- Larry, I have to admit I was tempted to be a little more tart in my response. ---- As I read the Federal Rules of Appellate Procedure together with the Ninth Circuit Rules, that court of appeals only prohibits citation of its own unpublished opinions (in most circumstances). The NInth Circuit rule (Circuit Rule 36-3) does not appear to address citation of unpublished district court opinions one way or the other.

Comment #63662 Posted by sir_toejam on December 20, 2005 08:17 PM --- ****Where is it written that Behe must testify at every ID trial?**** lol. it's not written anywhere, of course, but thanks for the dumbass strawman question. why do you think Behe was picked to testify by the TMLC to begin with? Do you even have the most limited comprehension of what intelligent design purports, and who were the primary authors?

Comment #63698 Posted by 'Rev Dr' Lenny Flank on December 20, 2005 10:04 PM I'm curious ---- what, exactly, do you think IDers can do anywhere else that they DIDN'T do in Dover, and win?

(1) --- don't say that ID is like astrology.

(2) --- argue that there are parts of ID that are not religious. These parts are scientific criticisms of evolution theory.

Point out that ID is not a scientific theory, because ID is not a scientific explanation for the origin of species.

(3) --- find an agreeable school board that does not consist of fundies and their toadies.

It would really help to change the name of intelligent design, which implies that there is an intelligent designer, but it is too late for that.

Larry, have you, uh, actually READ the decision . . . ?

Behe is obviously not a good spokesperson for ID.