FTE and Jon Buell’s Day in Court

Over on the Discovery Institute’s weblog, Casey Luskin writes:

In 2005, a federal judge banned Pandas outright from science classrooms in Dover, Pennsylvania — but only after denying FTE [Foundation for Thought and Ethics] the right to appear before the court to defend the book.

Hmmm. Why does that sound odd?

Maybe because the text “Of Pandas and People” (OPaP) is not explicitly mentioned in the order made by Judge John E. Jones III at the end of his decision:

NOW, THEREFORE, IT IS ORDERED THAT:

1. A declaratory judgment is hereby issued in favor of Plaintiffs pursuant to [290]28 U.S.C. ?? 2201, [291]2202, and [292]42 U.S.C. ? 1983 such that Defendants’ ID Policy violates the Establishment Clause of the First Amendment of the Constitution of the United States and Art. I, ? 3 of the Constitution of the Commonwealth of Pennsylvania. 2. Pursuant to Fed.R.Civ.P. 65, Defendants are permanently enjoined from maintaining the ID Policy in any school within the Dover Area School District. 3. Because Plaintiffs seek nominal damages, Plaintiffs shall file with the Court and serve on Defendants, their claim for damages and a verified statement of any fees and/or costs to which they claim entitlement. Defendants shall have the right to object to any such fees and costs to the extent provided in the applicable statutes and court rules

so the blunt statement that OPaP is “banned from classrooms” appears to be an unsupported extrapolation. Can a student check a copy out from the library and have it in his or her possession in a classroom? There seems to be nothing to prevent that. Can a science teacher or administrator teach credulously from OPaP in a classroom? That would appear to be against the sense of the order. Can a civics teacher show that egregious hogwash sometimes intrudes into public policy, using OPaP as a noisome example? I see nothing in the order that would prevent OPaP from appearing in the classroom for that purpose. Given the assessment the book received:

Accordingly, the one textbook to which the Dover ID Policy directs students contains outdated concepts and badly flawed science, as recognized by even the defense experts in this case.

the notion that OPaP is a good fit as an authoritative source in a science curriculum is just laughable. Could a defense by FTE salvage OPaP from that evaluation? That seems quite doubtful.

Maybe Luskin’s statement sounds odd because Jon Buell, President of FTE, did actually appear in the courtroom of Judge John E. Jones III, and there attempted to defend the book. Of course, Buell made a laughingstock of himself, of FTE, and of the sham called “intelligent design” — pretty serious work for just one day in court, I’d say. NOVA’s focus on the bad boys of the Kitzmiller v. DASD case could have been filled out to three “B”s, Bonsell, Buckingham, and Buell, if only Jones had ruled favorably on FTE’s motion to intervene.

Who is to blame for FTE’s inability to take part in the trial portion of KvD? It isn’t Judge Jones. This is a matter of public record, something that Luskin should have been aware of before spinning stuff. One can make a case for either FTE President Jon Buell or IDC advocate and FTE Academic Editor William A. Dembski having tripped up on this one, as becomes clear with just a small excursion to the transcript of the court’s consideration of FTE’s motion to intervene. At the time that FTE finally decided to file its motion to intervene, it was already late in May, 2005. Notably, this only happened about the time that the Thomas More Law Center and the Discovery Institute were apparently having some serious behind-the-scenes disagreements over the conduct of the case. FTE seemed to be far more willing to act on DI orders than the TMLC had proved to be, so having FTE obtain a co-defendant role in the case was likely a high priority for the DI. This may explain the DI’s continuing angst over the exceedingly poor showing that Buell had in court, so much so that they won’t even draw attention to it, but instead place blame — erroneously, of course — on Judge Jones.

Did FTE receive due process? It is hard to argue that they did not, given the copious public record demonstrating that they did. That seems to be why Luskin just tosses off a slur, apparently hoping that no one will take a closer look. There are several elements of interest in Buell’s testimony, including the howler that FTE is not a religious organization, the curious silence of Dembski, and Buell’s ignorance of the one issue that might have given FTE entry to the case.

FTE and Religion

Buell was cross-examined by Pepper Hamilton partner Eric Rothschild, who went on to cross-examine Michael Behe in the trial. There is a sequence of questions and answers that is eerily reminiscent of Mike Myers as Austin Powers trying to deny any affiliation with an embarrassing personal item, with Jon Buell maintaining that FTE is not a religious organization, no, no, not at all, while Rothschild introduces document after document that makes that case.

The first denial: what about the IRS Form 990 that says of FTE:

Q And the explanation that the Foundation provides to the IRS is that its primary exempt purpose is promoting and publishing textbooks presenting a Christian perspective, isn’t that right?

A That’s what it says.

Q Okay. And Pandas is one of those publications, isn’t it?

A No, Pandas doesn’t fit this because this is not an accurate statement.

Q Okay. This —

A This statement was — we had a new CPA do our 990 and audit we had never used before. He wasn’t even from the state of Texas. He was not familiar with us. You know, I neither saw that statement, nobody gave him that information, and I didn’t — I certainly didn’t approve it.

Q Okay. So — and so this statement that’s filed with the IRS so that the Foundation can be exempt from paying income tax is false; is that what you’re saying?

A Well, I’m saying that I didn’t see that statement.

Q And just if you could turn to the preceding page of the document, those are your initials on the page, aren’t they, towards the bottom of the page?

A Yes.

The second denial: what the FTE articles of incorporation said:

Q Now, your counsel brought up your articles of incorporation and I’d like to show those to you as well. These are the articles of incorporation that the Foundation filed with the state of Texas.

THE COURT: I’m not sure that was recognized as a question.

THE WITNESS: Oh, I’m sorry, yes, I’m sorry.

THE COURT: Let’s keep this moving.

MR. ROTHSCHILD: Sorry, Your Honor.

BY MR. ROTHSCHILD:

Q And on the second page of the document there’s a signature space with your signature on it?

A On the second page of the document? Yes, uh-huh, I see it.

Q If you go to the third page of the document, it identifies the purposes for the — for which the corporation
was formed?

A Right.

Q And what it states is that the primary purpose is both religious and educational, and then it talks about making known the Christian gospel and understanding of the Bible?

A Yes.

Q Is it your testimony that that’s also an inaccurate submission?

A It was boilerplate that the attorney that was helping us become established used. I felt that it was inappropriate. He said we need to be clear in identifying yourself as having a genuine nonprofit purpose, and so the language that originated with me is the phrase, “but is not limited to.”

Q And everything else was the attorney’s?

A Yes, most of it, I think nearly all of it, possibly all of it.

Q So the accountant got it wrong and the attorney got it wrong?

A It’s true.

The third denial: what an FTE fund-raising document says FTE’s purpose is:

BY MR. ROTHSCHILD:

Q Mr. Buell, this document is something that was pulled off the Internet, but you recognize it as a purpose statement for the Foundation that used to be distributed?

A Yes. I don’t actually — I don’t actually remember this statement, but it’s obviously an FTE statement.

Q And in this statement it says, “The Foundation for Thought and Ethics has been established to introduce Biblical perspective into the mainstream of America’s humanistic society, confronting the secular thought of modern man with the truth of God’s word.”

A Yes, that’s right.

Q And then it talks about how there would be a public — a textbook published which will present the scientific evidence for creation side by side with evolution.

A Yes, and this, by the way, was written before — I can just tell from the language, this was very early, before the National Academy defined the term creation science. So the terms of art that are in play today were not in existence at that time.

Q This was just your use of the word creation?

A Yes, right.

Q And into the third paragraph it describes the Foundation as a Christian think tank, correct?

A Yes. I would say in contrast to that, there’s what we’ve done for over 25 years, which is not to be a Christian think tank, but to actually engage in primary works of science.

Q And that includes Pandas, correct?

A It includes Pandas, yes.

The fourth denial: what a post-Pandas-publication FTE fund-raising letter says:

BY MR. ROTHSCHILD:

Q You recognize this as a letter that you wrote to raise funds for the Foundation?

A Yes, I do.

Q And this is written in 1995, well into the Foundation’s 25 year existence?

A Ah-hah, um-hum.

Q And just, Mr. Buell, so the record is clear, if you can say yes.

A I’m sorry, yes.

Q Not a problem. And this letter was written after both editions of Pandas had been published, correct?

A That is correct.

Q And in fact it mentions Pandas, right, the letter?

A Yes, it does.

Q And at the bottom of the first page, what it says is, “Our commitment is to see the monopoly of naturalistic curriculum in the schools broken. Presently school curriculum reflects a deep hostility to traditional Christian views and values, and indoctrinates students to this mindset through subtle but persuasive arguments.”

Do you see that?

A I see that.

Q That’s what you wrote, correct?

A Yes.

Q And your view one of the areas of curriculum that is a primary offender in terms of showing hostility to Christian views and values is the subject of biology, isn’t that right?

A Yes, that’s right. I think that anybody should oppose this from an education — should oppose that stature or the status of education being lopsided, just from an educational standpoint.

Q Because the teaching of biology you consider to show a deep hostility to traditional Christian views and values?

A I think that the teaching of biology is done with an artificial removal of biology from the sciences which can legitimately entertain intelligent cause. I think that is an artificial truncation of science.

Q And then if you go over to the next page, in the first paragraph, you blame — you blame the current deplorable condition of our schools resulting in large part in denying the dignity of man created in God’s image, correct?

A Yes, correct.

Q And the rest of the paragraph builds on that concept, right?

A That’s right. Many teachers tell me they have difficulty with — in the classroom with student behavior because there is no — there’s no sense of respect or accountability to the teacher, to the school, or to authority.

Q And effectively what you’re advocating in this fundraising letter is that the FTE’s publications are an antidote or a partial antidote to these problems of hostility to Christian views and the cultural decay in our schools, isn’t that right?

A I would say that they’re not an antidote to the hostility to Christian views, but they are an antidote to the hostility toward positive character qualities and moral traits and a positive outlook and philosophy.

Q And you think Pandas would contribute to that cause?

A I think Pandas would reestablish a level playing field where in science we’re free to entertain intelligent causation wherever we find it.

Q And also it would be a remedy or antidote to these issues of character that you’re talking about?

A You know, that would be up to individual — individuals and their own choices.

Q Isn’t that what you’re advocating here, Mr. Buell?

A What I’m saying here is that I think that many would, once they see that it’s a plausible option for them. But that would be their choice. That would be how they may respond.

The fifth denial: what an FTE letter to a publisher said:

BY MR. ROTHSCHILD:

Q Mr. Buell, do you recognize the document we’ve just introduced as an exhibit?

A Yes.

Q It’s a letter that you wrote to a potential publisher of Pandas?

A Yes.

Q And just to prod ourselves here, if you turn to the second page, there’s mention of a book called Biology and Origins, is that right?

A Yes.

Q And Biology and Origins was the working title for the book that became Pandas, correct?

A Well, it was the field test edition that was used prior to the publication of the book.

Q There aren’t two different books. This is the book that eventually, after field testing, became Pandas, correct?

A Right.

Q And turning to the front page, there is some mention here of polls showing that three quarters of the public want creation taught in schools, and it’s about half way down the page, and another poll about biology teachers.

Do you see that?

A I see the first — yes, I see them both.

Q And are these the polls you were talking about in your direct testimony?

A The second one is.

Q Okay. And the first one —

A No, I wasn’t referring to that.

Q Now, this first page talks about a decision out of the United States Fifth Circuit Court of Appeals on the Louisiana Balanced Treatment Act that was on appeal to the United States Supreme Court, correct?

A Correct.

Q And that’s a decision known as Edwards versus Aguillard?

A Yes, um-hum.

Q It was eventually decided by the Supreme Court?

A Right.

Q This letter was written before that decision?

A I believe that’s right.

Q Okay. And what you said was at issue for the United States Supreme Court was whether there could be state mandated teaching of creation, correct?

A I don’t know. Would you point me to that passage?

Q Yeah, I’m sorry, it’s on — the paragraph that begins “The U.S. Fifth Circuit.” And if you —

A On the — okay. All right.

Q That’s what you wrote the decision was about, right, whether the United States Supreme Court would allow state mandated teaching of creation or not?

A Didn’t I write that that was what it was about?

Q Yes.

A Yes.

Q And then if you go down to the bottom of the page, you have some projections of how this book, then called Biology and Origins, would do if the Supreme Court reversed the decision and did not allow state mandated teaching of creation, you said modest expectations, correct?

A Yes.

Q Even those modest expectations were not actually realized, correct?

A Right.

Q And then you say that if they uphold it, if they allow state mandated teaching of creation, you could throw out these projections, the nationwide market would be explosive, right?

A I said that, but that does not mean that I would favor that.

Q Okay. But what you are saying is, if state mandated teaching of creation is not allowed, we have these modest expectations; and if it is allowed, then the market for this book is explosive, right?

A Yeah, I think that was just, you know, good salesmanship and honest analysis.

Q Do you recognize the document that I just gave you?

A I recognize that it’s our document and that it’s my handwriting on it.

Q And was this — this document was a part of a drafting of either Biology and Origins or Pandas?

A Yes, it played some role in that, that’s right.

It’s so-oooo not his bag, baby. Yeah, right.

Does Buell think that he was fooling anyone? Does Luskin think that a cross-examination of Buell at trial would be less damaging than what happened that day on this point?

St. Peter only got three denials in. Jon Buell is almost twice the man St. Peter was, apparently.

The Curious Silence of Dembski

The transcript tells the tale:

THE COURT: I’m not sure that that helps me. What I am interested in is, the suit was filed on December 14th. It’s quite clear now that your client understood that the suit was filed as early as January of ’05. Discovery is closed in the suit. We’re moving inextricably towards a trial at some point in the late summer/fall — actually the fall as previously set by the Court. I am trying to understand why there was no motion to intervene prior to the filing of this motion to intervene.

MR. BOYLE: I think there was no movement to intervene because the press reports did not give the true nature of the suit or the nature of FTE’s involvement in the suit. And that this was not a matter that affected the FTE at all until they received a subpoena from this court.

THE COURT: But wasn’t Mr. Dembski involved from a point in time, it seems to me — and I don’t know the exact point in time — but at some point after January of ’05 Mr. Dembski was clearly involved as, at least at that time, the defendant’s expert. Mr. Dembski works hand in glove, obviously, with Mr. Buell and with his not-for-profit.

Are you telling the Court that the only source of information that your client had was through press accounts?

MR. BOYLE: That’s what the testimony I believe indicates, Your Honor, that —

THE COURT: That strains credulity. I can’t believe that. In a matter that is — that is this important to your client, and certainly had some notoriety that transcended simply the community of Dover, and even Pennsylvania, and it was — and Mr. Buell just told me that he understood — if I understood his answer correctly, and I think I did — as early as January he understood that Of Pandas and People was something that was the subject, or a subject of the lawsuit. Now, I am having difficulty understanding what the trigger point was for the motion to intervene. It looks to me like the trigger point came after Mr. Dembski was dropped as an expert. And to me it looks like Mr. Dembski was dropped as an expert because he didn’t want to produce, or because his employer didn’t want to produce the manuscript of The Design of Life. And it was only after that that I saw the motion to intervene.

Dembski represented FTE, and was so proud of that fact that he crowed about how he was the FTE Academic Editor for “The Design of Life”, a brag that meant that he exposed FTE to production of the then-in-development manuscript of the book. However, Dembski apparently failed to keep Jon Buell abreast of how the case was structured or how it was progressing. Dembski could easily have told Buell that “Of Pandas and People” was of central importance to the case; Dembski himself spent significant effort in his expert report for the case defending it, and certainly Dembski would have had access to at least descriptions of the expert reports of his fellow DI CRSC defense experts, who did the same. But according to sworn testimony from Buell, Dembski stayed mum until the subpoena for TDoL was being drafted. With friends like that…

Buell’s Ignorance of TMLC Involvement

FTE’s motion critically depended upon their interests not being adequately represented by the Thomas More Law Center. However, Judge Jones directly questioned Buell late in the day over exactly how he knew that TMLC would not adequately represent FTE’s interests (see pages 108 to 112 in the transcript). Buell had not the foggiest notion of what TMLC would or would not be doing, nor even of how many lawyers TMLC had put on the case. This issue is one prong of a legal test for allowing intervention, and in his decision, Judge Jones lays out clearly how Buell failed to deliver:

First, at this late date, the Court would have expected a coherent statement of what FTE intends to prove or demonstrate if the Court were to permit intervention, as well as specific reasons as to why the Defendants are not adequately protecting FTE’s interests; however, despite repeated questioning in that regard by the Court during the July 14, 2005 hearing, FTE was unable to verbalize how its interests and the Defendants’ interests diverge concerning the merits of the lawsuit. Moreover, Buell’s testimony revealed that the very experts that insisted on private counsel from FTE to provide confidential legal advice in preparation for and during expert depositions, Dembski and John Campbell (“Campbell”), which resulted in their being terminated as experts for Defendants, will be brought back into this case if FTE is permitted to intervene. It is absurd to the Court that Buell has now testified on multiple occasions that he would go to jail prior to revealing the draft text of The Design of Life; however, if the Court allows FTE to intervene, Buell would place that issue squarely back into play by FTE’s apparent intention to use Dembski as its expert witness.

Woulda Coulda?

Luskin’s statement proposes something that would have been unlikely to have made any difference. Would FTE have made a case that TMLC could not? They sure failed to convince Judge Jones on that point.

From the transcript:

MR. BOYLE: If intervention were granted, Your Honor, we would — we would take a different tact with respect to the policy, the Dover policy. Our approach is —

THE COURT: What?

MR. BOYLE: — to litigate intelligent design.

THE COURT: What would you do?

MR. BOYLE: Pardon?

THE COURT: What would you do? I still haven’t heard it. You say you would take a different tact. I don’t understand what it is.

MR. BOYLE: Well, we would attempt — we would establish to separate the difference between intelligent design and creation science.

THE COURT: And you don’t think that the defendants are doing that?

MR. BOYLE: I think the defendants are, by the statements made by their clients, are limited to — I think they have to defend a policy. I think they have to decide to defend a political —

THE COURT: And that’s the very subject of this litigation. And it seems to me by your comments that you want to make this a broader litigation by the intervention, and I’m not sure —

MR. BOYLE: I think —

THE COURT: — that that makes sense.

From the order:

In making these determinations, we have also found that Applicant will not add anything to the litigation, but rather, FTE’s participation in this litigation will be merely duplicative of Defendants’ efforts.

They had their chance to lay out something different that FTE, and only FTE, might have brought to the case. They weren’t expelled; they flunked.

What would FTE’s intervention have brought to the case? There’s William “ID is just the Logos theology expressed in the idiom of information theory” Dembski, who would have made an appearance as an “expert”, and would have had to withstand cross-examination on both the content of OPaP and TDoL, plus the various places he has linked theology to IDC. That would have brought aboard Jeff Shallit, who was well-placed to make mincemeat of Dembski’s exaggerated claims to expert-hood and Dembski’s various inconsistent and incoherently described ideas, as well as getting attention from Rob Pennock and Barbara Forrest. I’d have done for Dembski as Nick Matzke did for Michael Behe, pointing out inconsistencies and misstatements on Dembski’s part as they happened, and filling in the legal team on the various embarrassing bits from Dembski’s past that could have been the basis for many a re-enacted moment in the NOVA program. After all, a good deal of that work was already done by the time Dembski ran away from the case the first time. I’m pretty much set anytime for helping out when Dembski does actually make an appearance in a courtroom concerning IDC.

Tell us again, Casey, how Jon Buell showing up for the trial would have made things better for either FTE or the Dover Area School District. As far as I can see, Buell on the witness stand at trial would have come off as a worse fibber than the other two “B”s, Bonsell and Buckingham, and that’s some stiff competition, worthy of a gathering of Ananias Club candidates.

It seems to me that FTE and the DI dodged a self-inflicted bullet when FTE’s untimely and unsupported motion to intervene was properly denied.