Cooper’s Confusion

Seth Cooper is upset. Apparently unsatisfied with his attempt to smear the Dover, PA school board that replaced the “intelligent design” advocates whose ill-considered policy cost the district \$1M by blaming the replacements rather than those responsible, Cooper has another screed up to try to claim somebody, anybody, else may be guilty of something or other. Cooper is at least on board with the current target of choice: ID advocates have declared open season on Judge John E. Jones III’s character and skills. Cooper teams up with Leonard G. Brown III for this one.
Cooper is mainly mad about the Foundation for Thought and Ethics being excluded by Jones from direct participation in the Kitzmiller case last year. The result is a sob story with rather a lot of cock and bull in it. Given that I realize that I am mortal, I’ll just spend a bit of time with this segment of Cooper’s prose:

On April 28, 2005 Texan Jon Buell received subpoenas from the ACLU. Buell is President of FTE, the non-profit organization that publishes Pandas. Headquartered near Dallas, FTE receives revenues from sales of the textbook and has intellectual property ownership of its contents. From a handful of news stories, Buell was dimly aware of the distant Pennsylvania lawsuit. He had received no contact from the Dover Board’s attorneys. ACLU subpoenas demanded he be deposed in May, and that he turn over all documents related to Pandas. Surprisingly, the ACLU also demanded Buell turn over all unpublished working-draft materials for FTE’s as-yet-unreleased textbook, The Design of Life: Discovering Signs of Intelligence in Biological Systems.

The ACLU’s subpoenas of FTE were a broadside representing potential catastrophe for the publisher. The ACLU had secured as consultants the pro-Darwin and Oakland-based anti-ID lobby group, National Center for Science Education (NCSE). The NCSE has long been a harsh critic of Pandas, and the ACLU sought to place the important Design of Life draft into their hands.

FTE promptly filed motions in Texas and Pennsylvania for a protective order to quash the subpoenas. On May 12, 2005, Judge Jones conducted a hearing. He entered a weak protection order, denying the motion to quash. FTE was required to hand over its Design of Life manuscript and related Pandas documents. Judge Jones simply warned the ACLU and NCSE not to publicize Design of Life’s contents prior to publication and instructed the ACLU to notify FTE attorneys as to who received draft copies.

OK, so Cooper didn’t like the fact that drafts of The Design of Life were put into the hands of the plaintiffs and their lawyers and consultants. Is that the complete story, Seth? Well, of course not.

What Seth doesn’t say anywhere in his essay is the one name that must figure largely in any complete history of this event: William A. Dembski. Dembski’s involvement is more than any missing footnote, no, Dembski’s affiliations and actions were central to this little melodrama. Moreover, once one appreciates Dembski’s role in this, the entire thesis that Jones performed as an activist judge in the release of The Design of Life can be seen to be so much poppycock.

(See also Ed Brayton’s post detailing why Cooper and Grumm are wrong on the FTE “timeliness” issue.)

In his expert report prepared for the Thomas More Law Center in the Kitzmiller case, William A. Dembski identified himself, among other things, as having worked as academic editor for the Foundation for Thought and Ethics since 1997. Dembski’s selection as a defense witness was presented to the court in early March, 2005. One would assume that Dembski had been contacted at some point prior to that in order to gain his approval to be called as an expert witness. So, what this establishes is that a representative of the Foundation for Thought and Ethics was not only aware of the Kitzmiller case by that early March date (no later than 3 March), but had a particularly close relationship with the defending attorneys of the Thomas more Law Center. Cooper and Grumm’s implication that FTE’s cognizance of their involvement in the case came so late as April 28th is twaddle. The person to be upset with over FTE’s being late-off-the-mark in pressing for an official role in the case beyond having their Academic Editor, William Dembski, serve as an expert witness, would be either William Dembski himself, if he did not communicate about the issues in the KvD case, or Jon Buell, if Buell ignored warnings from Dembski.

As to The Design of Life, take a moment to reflect on this passage from FTE Academic Editor William Dembski’s expert report in the KvD case.

7 Of Pandas and People

I have a special interest in the supplemental biology textbook Of Pandas and People.51 Since 1997, I have worked as the academic editor for the Foundation for Thought and Ethics, which publishes this book.52 Moreover, since the summer of 2001, I have worked on producing the third edition of this book. Not only have I acted as the development editor of the third edition, but I have also become its principal author, rewriting substantial portions of the second edition as well as adding a great deal of new material, much of which I have written myself but some of which I have solicited from Michael Behe and Jonathan Wells (who, along with me, are now coauthors of the third edition, the original authors being Dean Kenyon and Percival Davis). The book has so drastically expanded in size and scope that the third edition is being renamed The Design of Life: Discovering Signs of Intelligence in Biological Systems. It is due to be published this year (2005).
Having worked so closely in revising, expanding, and updating the second edition of this book, I feel I know it better than anyone. It is clear that the book is now dated. Indeed, the first edition was published in 1989 and the second edition (published in 1993) involves only minor changes in relation to the first edition.53 Of Pandas and People was and remains the only intelligent design textbook. In fact, it was the first place where the phrase “intelligent design” appeared in its present use. Since the second edition of this book, intelligent design has gone from a small and marginalized challenge confronting neo-Darwinian evolution to a comprehensive scientific research program for re-conceptualizing biology (cf. Appendix 4).

What this passage clearly shows, and what Cooper and Grumm pass over in silence, is the fact that Dembski relies upon his experience in producing The Design of Life as a reason for him to be considered an expert on the scientific status of the 1993 edition of Of Pandas and People. A basic fact of life for people writing expert reports in our legal system is that the process of discovery means that anything relied upon in an expert report may be requested by the opposing attorneys as substantiation of the claims made. And here we have Dembski saying that the reason his opinion about Of Pandas and People should be taken more seriously than someone else’s was exactly because of his work in drafting The Design of Life. The plaintiffs simply requested the referenced material that Dembski based his claim upon, as was their right. This was via the usual procedure of discovery.
When one wishes to assign “blame” for The Design of Life being distributed beyond FTE’s keeping, it simply makes no sense to claim that Jones engaged in “activism”. One could ding William Dembski for using The Design of Life as a reference in his expert report, which was the proximal trigger — and sufficient reason — for the plaintiffs’s request. One could ding the lawyers of the Thomas More Law Center, who may not have communicated strongly enough the basic rules that govern expert reports and the need to turn over referenced materials. One could even ding the various lawyers of the Discovery Institute, Seth Cooper then among them, who failed to advise the DI-affiliated experts on general procedures of discovery. The plaintiffs’s experts certainly were warned about being careful concerning what, precisely, was cited as a substantiating reference in their expert reports. In fact, TMLC lawyers requested the manuscript of plaintiffs’s expert John Haught’s book, Is Nature Enough?, but because Haught did not rely upon it in his expert report, plaintiffs’s attorneys declined to provide it.
In this case, an ounce of prevention might have been better than the reams and reams of bellyaching that the Discovery Institute and Foundation for Thought and Ethics have since engaged in over the release of The Design of Life. And the person best situated to have provided that modicum of sensible action, both to protect The Design of Life and to have properly and timely advised FTE of possible legal involvement, was FTE Academic Editor — and one-time TMLC expert witness candidate — William A. Dembski. It isn’t Judge Jones’s fault that in neither instance did Dembski do so.

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16 thoughts on “Cooper’s Confusion

  1. Karen

    “Since the second edition of this book, intelligent design has gone from a small and marginalized challenge confronting neo-Darwinian evolution to a comprehensive scientific research program for reconceptualizing biology,” writes Dr. Bill Dembski

    Well, I’d say that ID has gone from being a small and marginalized challenge confronting neo-Darwinian evolution to being a small and marginalized challenge confronting neo-Darwinian evolution.

  2. Larry Fafarman

    Wesley Elsberry said:

    — “One could ding William Dembski for using The Design of Life as a reference in his expert report, which was the proximal trigger — and sufficient reason — for the plaintiffs’s request.” —

    I totally disagree with your idea that Dembski tacitly waived confidentiality of the manuscript of the Design of Life just by mentioning that he was working on the manuscript. I feel that he would have tacitly waived such confidentiality only if he had cited or quoted the manuscript. You have not shown that Dembski used the manuscript “as a reference in his expert report.” Apparently his only purpose in mentioning the manuscript was to help show his familiarity with the book’s previous edition, the 2nd edition of the book Of Pandas and People — he said, “Having worked so closely in revising, expanding, and updating the second edition of this book, I feel I know it better than anyone.”

    And how long are you going to keep kicking that dead horse about the “attempt to smear” a new member of the Dover school board? That “attempt to smear” was withdrawn almost immediately.

  3. Austringer Post author

    Larry, you can totally disagree, but that doesn’t change the way that the courts treat discussion of sources in expert reports. They will continue to require experts to turn over the materials that they cite whether you disapprove of it or not. Notice that a parallel request of the defense for a manuscript from a plaintiffs expert failed precisely because it was not mentioned in his expert report.

    As for confidentiality, Dembski had previously posted drafts of various chapters of The Design of Life to his website. Trying to claim confidentiality when chunks of the manuscript had already been placed out on public display doesn’t sound like a winner of an argument.

    And it isn’t a “dead horse” so long as there is a pattern of recidivist behavior — Cooper keeps trying to blame other people for a failure that rests squarely upon the ID-advocating school board members of the DASD.

  4. Larry Fafarman

    — “Larry, you can totally disagree, but that doesn’t change the way that the courts treat discussion of sources in expert reports. They will continue to require experts to turn over the materials that they cite whether you disapprove of it or not.” —

    To “cite” a source usually means to quote or paraphrase something contained in that source — all Dembski did was just mention the existence of the manuscript. Even Judge Jones conceded that the manuscript was still entitled to some degree of confidentiality, as he ordered the plaintiffs to not publicly disclose the manuscript’s contents.

    – “As for confidentiality, Dembski had previously posted drafts of various chapters of The Design of Life to his website.” –

    Did Dembski identify those posts as drafts of various chapters of the new book? Anyway, these were parts of his new book that he voluntarily chose to disclose — that does not mean that there were not parts of his book that he did not want to disclose.

    – “And it isn’t a ‘dead horse’ so long as there is a pattern of recidivist behavior — Cooper keeps trying to blame other people for a failure that rests squarely upon the ID-advocating school board members of the DASD.” –

    The “dead horse” here is the false charge that one of the new board members was guilty of a conflict of interest — that false charge was immediately withdrawn when the true facts were presented.

  5. Austringer Post author

    Still not dealing with the inconvenient fact that Dembski’s manuscript wasn’t the only one requested by lawyers in the case, I see. On the one hand, Dembski’s was produced: it was {discussed|mentioned|cited|referenced|whatever} in his expert report. Haught’s was not produced, as he had not {discussed|mentioned|cited|referenced|whatever} it in his expert report. Deal with it.

    Yes, Dembski identified chapters posted as being part of the forthcoming book. Sure, Dembski may not have wanted to disclose parts of the book — that’s an understatement. However, he chose to rest part of his claim to expert status upon its existence, and that was an implicit “here, have a look at this”. It really is that simple. Now, one can argue over whether Dembski didn’t get effective notice that he wasn’t supposed to {discuss|mention|cite|reference|whatever} anything he didn’t want to hand over to the opposing side from TMLC or his lawyer buddies at the DI, or whether he did get effective notice and blew them off anyway. That sort of speculation will be just as productive as wishing the rules of discovery were different than they are.

    dead horse about the “attempt to smear”

    Tell me again about what “dead horse” you want to talk about. I was talking about the “attempt to smear” one, you know, the one that fits with “recidivist”.

  6. Larry Fafarman

    – “Still not dealing with the inconvenient fact that Dembski’s manuscript wasn’t the only one requested by lawyers in the case, I see.” –

    It’s not inconvenient — it’s just irrelevant.

    In the part of Dembski’s expert witness report that you quoted above, Dembski did not quote or paraphrase anything in the draft manuscript of the Design of Life — he only mentioned the manuscript’s existence. His mere mention of the manuscript’s existence did not give the plaintiffs a license to go on a fishing expedition.

    The plaintiffs probably would have demanded the manuscript even if Dembski had not mentioned it in his expert witness report, because the plaintiffs were demanding everything — past, present, and future — that had any connection to the book Of Pandas and People, including emails, letters, telephone records, and office memos. See Jon Buell’s motion to quash the subpoena at —
    http://www2.ncseweb.org/kvd/all_legal/2005-05_FTE-related/2005-05_FTE_subpoena_Pandas_drafts/2005-05-09_FTE_motion_quash_subpoena.pdf

    —”Yes, Dembski identified chapters posted as being part of the forthcoming book.” –

    Dembski was not obligated to disclose the whole draft manuscript just because he had posted parts of it. There may have been parts that he had good reason to withhold — for example, he might have intended to revise them or might have wanted others to review them before release.

    –”That sort of speculation will be just as productive as wishing the rules of discovery were different than they are.”—

    What “rules of discovery”? Can you cite a rule of discovery that requires a party to turn over anything that is mentioned in an expert witness report?

    – “Tell me again about what “dead horse” you want to talk about.” –

    The “dead horse” is the false charge that a new school board member was guilty of a conflict of interest because he was a Dover plaintiff and allegedly voted on a board decision concerning the lawsuit. The charge was withdrawn almost immediately.

  7. Larry Fafarman

    –”Here’s some remedial reading for Larry” –

    Sorry, but when I click on the link, I just get the message, “file is damaged and cannot be repaired.” I have a lot of trouble trying to read pdf files on this computer. Anyway, you have said nothing here that suggests that the file might refute my arguments.

  8. Austringer Post author

    Larry, you don’t go in much for arguments. You make assertions. And you don’t keep track of things very well. I quoted you saying that the “dead horse” was the “attempt to smear”. You deleted that to continue to pretend that you were discussing something other than Cooper’s bad behavior. I understand that you don’t much like the stuff that you actually said — it just isn’t convenient to your pretense to winning every discussion that you enter. Much better to pretend that you never said it, and even that you said something else instead.

    Dembski said more than that TDoL existed. He noted that he had become its principal author. He bragged about TDoL’s “expansion in size and scope”. Dembski was staking part of his expert status on his having done this work. Both then and now, people have been arguing that Dembski should not have to actually let those he opposed see what basis there was for his bragging. That could expose him to impeachment, after all. The plaintiffs’s response, which I linked to, laid out the various arguments why TDoL was properly requested. We know by the judge’s order that he concurred in part with their arguments.

    What “rules of discovery”? Can you cite a rule of discovery that requires a party to turn over anything that is mentioned in an expert witness report?

    I am not a lawyer, but Federal Rule of Civil Procedure 26(a)(1)(B) looks like just the ticket:

    (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

    Dembski’s expert report showed that Dembski might use TDoL to support his claims at trial. Its appearance in the expert report cannot be interpreted as evidence that he intended the opposite, that is, never to mention it at all at trial.

    Try installing Ghostscript and Ghostview. Then you can use Ghostview to look at PDFs. I have a computer that for some reason rejected Adobe Acrobat Reader, and Ghostview does fine for me there.

  9. Larry Fafarman

    – “I quoted you saying that the ‘dead horse’ was the ‘attempt to smear’. You deleted that to continue to pretend that you were discussing something other than Cooper’s bad behavior.” –

    The example you gave of an “attempt to smear” was an honest mistake that was immediately retracted. Don’t you ever make mistakes?

    –”Dembski said more than that TDoL existed. He noted that he had become its principal author.”—

    Apparently he mentioned TDoL just to help show that he was an expert on TDoL’s predecessor, the 2nd edition of the book “Of Pandas and People.” He said, “Having worked so closely in revising, expanding, and updating the second edition of this book, I feel I know it better than anyone.”

    Also, as I said, the plaintiffs demanded all material related to the Pandas book, and I mean “all.”

    –”I am not a lawyer, but Federal Rule of Civil Procedure 26(a)(1)(B) looks like just the ticket:
    (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;” —
    Another “ticket” is FRCP Rule 26(c)(7), which says that the court may issue a protective order saying “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.”

    Dembski may have felt that some parts of the manuscript were not ready for release. How would you like to be in the middle of working on a manuscript and then be told that you have to give a copy to an adversary in court?

  10. Austringer Post author

    The current anti-spam method in place is Akismet. Comments may be snagged by Akismet. If you have a problem, take it up with the Akismet authors.

  11. Austringer Post author

    The example you gave of an “attempt to smear” was an honest mistake that was immediately retracted. Don’t you ever make mistakes?

    First, I have no means of determining that Manzari and Cooper made “an honest mistake”. They made a mistake, certainly, but did they make it honestly? They set out to accuse Bryan Rehm and the new school board of malfeasance to the tune of \$1M. Their accusation was one that could be taken as saying their targets were criminally culpable. The accusation remains just as it was in their online article. This is what Larry is billing as the retraction, a bit of text at the end of the article in italics:


    Editor’s note: Correction – The Dover Board considered rescinding the evolution policy at the December 5th meeting; Board member Bryan Rehm did not participate in the consideration.

    The seriousness of the accusation of conflict of interest for Rehm at the December 5th meeting contrasts sharply with the sloppiness of the research to back it up, which, so far as I can see, didn’t exist. Manzari and Cooper just made it up. Any attempt to verify Rehm’s role in the December 5th meeting would have resulted in learning that Rehm, in fact, wasn’t present and wasn’t even yet a confirmed board member. I am, in fact, being generous in my criticism of Manzari and Cooper, since I am merely attributing laziness and assigning their error to ignorance. That’s sloppy and despicable, but not as despicable as the case would be if they were assumed to be competent researchers and knew full well that what they were writing about Rehm was a complete falsehood.

    Yes, I make mistakes. In my PT article, I originally said Seth Cooper had a current DI affiliation. That wasn’t correct. I updated the post to show the correct affiliation information while using strikethrough markup that showed my original text. Readers of my page got an immediate advisory that the incorrect text was, in fact, incorrect. So for myself, I haven’t tried to act as though I don’t make mistakes, I try to provide the correct information as quickly as possible, and I have made sure that the erroneous information is marked as such at that point in the text.

    Now, if I continued to claim that anyone who ever had a past association with the DI had a current affiliation with them, it would be perfectly appropriate to note my mistake in so identifying Seth Cooper in that PT post as a data point showing that tendency.

    In parallel fashion, Cooper’s continuing predilection for assigning blame anywhere except where it lies is best appreciated by showing his past attempts to do so as well.

  12. Austringer Post author

    Another “ticket” is FRCP Rule 26(c)(7), which says that the court may issue a protective order saying “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.”

    Yeah. Jones’s protective order appears to have been in full compliance with that. Larry asked for a rule of discovery. He apparently did not like it much that I came up with one.

    Dembski may have felt that some parts of the manuscript were not ready for release. How would you like to be in the middle of working on a manuscript and then be told that you have to give a copy to an adversary in court?

    Make up your mind, Larry. Are you discussing things in light of the law, or are you concocting legal-sounding rationalizations for the outcomes that you prefer emotionally? I notice that you called Ed Brayton a hypocrite for saying that he had an emotional preference for how a particular decision should go; it seems that you are expressing this in the very same sort of terms.

    If I were forced to hand over a work prematurely to an adversary, it would suck in a major way. It would suck even more if I had stupidly opened the door to that result by bragging about how working on it had made me the expert of the moment in my expert report. The law, though, would care no more about whether I thought it sucked than it did for Dembski.

    Here’s the footnote from page 9 of Judge Jones’s ruling on FTE’s motion to intervene:

    1 It is clear to the Court that FTE improperly assumed that its rights would be protected so long as Dembski remained an expert for the Defendants. As such, we believe that the real motivation or underlying reason that FTE filed the instant Motion was because Defendants terminated Dembski as an expert in this case, which led FTE to conclude that its rights were no longer being protected. Notably however, Dembski was involved in this litigation only as a disclosed witness, and never as an agent or representative of FTE. It was only after Dembski apparently subjected The Design of Life to a premature release by including it in his March 30, 2005 expert report, as previously noted, that the various machinations which led to his termination commenced.

  13. Austringer Post author

    Larry, if you want to say something here, use a trackback. I don’t see any point in the assertion treadmill that is your forte.

  14. W. Kevin Vicklund

    The problem is that Larry doesn’t have a clue as to how to leave a trackback, and if he screwed up the process in any manner would bitch worse than DaveScot did when he couldn’t follow directions at PT on how to track back.

  15. Austringer Post author

    That is soooo not my problem.

    Yeah, I loved that thing about how the PT trackbacks had to be broken because hitting the URL with an HTTP GET request resulted in an error message.

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