Well, all right. The desire to avoid doing productive work as I wait for America’s colonoscopy Tuesday and mine on Thursday has led me to go through the DI’s document and the trial record in some detail. This has taken a bit of digging and even so, I am not confident that my answers will exhaust the possibilities, but let’s take the DI’s complaints about the Kitzmiller decision containing findings that have factual errors.
First, I will note that the DI memo states that these findings are “clearly erroneous.” I should point out what this means, as DeWolf, one of the authors, is a lawyer and this is a technical term of art in the field of appellate review which he is using in its technical sense. Findings of fact are, as a general rule, only reversible on appeal if they are “clearly erroneous.” The Merriam-Webster law dictionary definition is good enough for present purposes:
clearly erroneous adj
: being or containing a finding of fact that is not supported by substantial or competent evidence or by reasonable inferences (supplemental matter omitted from original)
It’s important to understand that this does not mean “I disagree with the finding.” Nor does it mean “I disagree very, very strongly with the finding.” It means that the finding is ungrounded in the evidence that forms the trial record. The trial judge, as the finder of fact, has the same discretionary power a jury does: to accept some evidence as credible and to reject other evidence. The existence of evidence to the contrary of a finding does NOT make it clearly erroneous; the non-existence of evidence in support of the finding (or from which the finding may be reasonably inferred) generally will.
I review this material with that definition in mind. There is no doubt that the DI disagrees substantively with the decision and there is no doubt that others do as well. My purpose here is not to argue the case against ID or the case for ID; it is to evaluate whether the court handled the job of finding facts as it is supposed to do it, or whether the court departed from ordinary standards of fairness and judgment. It is very much the kind of review I would undertake if I were, in some dystopian alternative universe, made to represent the Dover Area School Board on an appeal and had to assess the likelihood of successfully mounting these challenges. Having represented many Pennsylvania municipalities that were accused of violating the civil rights of their residents – in situations where I was hired by an insurance carrier and could not decline the work – this sort of dystopia does seem very real to me and I approach it in that spirit.
The DI identifies seven alleged cases of “clearly erroneous” findings, and they are set out in Table C of the .pdf linked above by @swamidass, with the decision in the first column, the plaintiffs’ (misidentified as the “ACLU’s”) proposed findings in the second column, and the DI’s basis for claiming error in the third column. Since the passages can be lengthy, I suggest that anyone who wants to follow this out in detail have Table C handy, because I’m not going to reiterate all of the content and am going to try to summarize. Unfortunately this will take time and text, so if you want to make jokes about how a lawyer writes a fifty-page document and calls it a “brief,” this would be the time to do it. The seven topics follow:
I. Behe on the sufficiency of literature on the immune system.
The judge recounted Behe being presented with a large collection of works on the evolution of the immune system, and testifying that this was not sufficient evidence of evolution, and that it was not “good enough.” This finding corresponds to plaintiffs’ proposed finding no. 77.
This exchange did indeed happen and is on the 10/17/05 afternoon transcript. The judge says that Behe said these materials were not “good enough.” Behe in fact did specifically say, as the DI claims, that it was not that they were not good enough, but that they were insufficient to the purpose because they were addressed to different questions from those he was asking. The substance of the finding, in other words, is accurate but the attribution of that specific expression to Behe is false.
II. Whether ID is supported by peer-reviewed research, data or publications.
The decision states that ID is not supported by peer-reviewed research, data or publications. This finding corresponds to plaintiffs’ proposed finding no. 116. The plaintiffs cited the testimony of Padian and Forrest in support, and did not rely upon the testimony of Minnich.
The DI objects to this finding, saying that Minnich testified to there being between seven and ten peer-reviewed papers supporting ID. The DI also says that additional peer-reviewed publications were cited in an amicus brief.
In fact, the testimony of Padian and Forrest does support the finding, and the decision goes on to describe how: Padian and Forrest both reviewed the literature in a search for peer-reviewed publications supporting ID, and Behe repeatedly conceded in his testimony the absence of peer-reviewed research to support various of his claims. This alone is enough to prevent the finding being “clearly erroneous” as the court is entitled to decide what weight to give different parts of the testimony.
Minnich’s testimony claims between seven and ten papers. He names none of them, but does indicate that one or two were published by Douglas Axe, another by Behe and another by Stephen Meyer. He then admits that the Axe papers do not mention intelligent design. The Behe paper appears to be the Behe and Snoke paper in Protein Science, which does not mention intelligent design or irreducible complexity. The Meyer paper is presumably the literature review in the Proceedings of the Biological Society of Washington which gave rise to the Sternberg controversy. But most of these details are missing from the testimony – what is actually in the record there is mostly the bald claim that this indefinite number of papers exists out there somewhere, and that Axe, Behe and Meyer are among the authors of some of them. If this is the best evidence in the record for the existence of peer-reviewed papers, it’s not surprising that the judge didn’t rely upon it.
The DI also references a list of peer-reviewed publications that are said to have been cited in an amicus brief. I haven’t examined that list; however, the amicus brief is not a part of the evidentiary record on which findings of fact may be based, so for these purposes it really doesn’t exist. If the defendants wanted to show that ID had a peer-reviewed publication record, they really failed to make an evidentiary case on this point. The court’s finding definitely is not clearly erroneous.
III. Whether ID features scientific research or testing.
The decision states that ID also “features no scientific research or testing.” This corresponds to plaintiffs’ proposed finding no. 119. Both the decision and the proposed finding cite the testimony of Fuller and Behe in support. Fuller’s testimony 10/24/05 afternoon, p. 115 clearly supports the finding:
Q. But on the justification side when it comes to intelligent design, that’s the scientific testable side?
A. Yes.
Q. And intelligent design has not yet made its case on the justification side?
A. No, because it’s not sufficiently developed yet. You actually have to have more theory developed, you have to have more interpretation of existing phenomena to then be able to develop the appropriate kinds of tests.
Behe’s testimony is not as simple as that; it’s fair to say that in the cited passages (10/19 afternoon session, p. 22-23 and 105-106) he is asked various questions about whether he or others are involved in testing aspects of ID, with no clear positive answer and some clear negative answers. But Fuller’s testimony is adequate to support the finding and so the finding plainly is not clearly erroneous.
The DI complaint is that Minnich did testify about “knock-out” experiments taking out genes of a bacterial flagellum and demonstrating that any of them will break the flagellum, and he observed that this made the flagellum “irreducibly complex.” This testimony occupies about two pages of the transcript. But Minnich elsewhere admitted, 11/4/05 morning, p. 82, that tests of irreducible complexity test evolution, not intelligent design. And even were that not so, the court has the discretion, as the finder of fact, to decide what testimony to credit and the claim of clear error in the finding is just wrong.
IV. Whether ID is predicated on supernatural causation
The DI quotes the decision at page 66 to the effect that ID is predicated on supernatural causation, but sticks an ellipsis in to omit the words “as we previously explained and as various expert testimony revealed” together with cites to that testimony. The principal discussion of this point is at p. 29 to 31 of the slip opinion, and is supported by testimony from experts on both sides, none of which the DI claims has been misstated.
The DI says that both Minnich and Behe “testified otherwise at trial.” Of course, the court is not bound by their testimony and is charged with weighing the testimony offered by all of the witnesses. No clear error is possible here, where the findings adopted by the court were, in fact, supported by competent evidence. But it’s much worse than that. Minnich and Behe both gave testimony which actually supported the finding. Minnich:
Q. And in order for intelligent design to be considered science, the definition of science has to be broadened to consider supernatural causes, true?
A. I want to qualify it. Can I qualify it? Again, if you go back to the basic question, we see design in nature. Is it real or apparent? If you are only going to accept natural causes, then you’ve just removed half the equation, so you’re not going to see it, even if it’s staring you in the face. So in that aspect, that’s a definitional fiat.
Q. Well, the answer to my question, and I understand you had a qualification, was true. For intelligent design to be considered science, the definition of science or the rules of science have to be broadened so that supernatural causes can be considered, correct?
A. Correct, if intelligent causes can be considered. I won’t necessarily – you know, you’re extrapolating to the supernatural. And that is one possibility.
Q. I only have 45 seconds left, Dr. Minnich.
A. Okay.
Q. Would you agree that the theory of intelligent design takes us only as far as needed to prove or to infer the existence of an intelligent designer and then it stops there and that’s where theology takes over? Would you agree with that?
A. Philosophy or theology.
For Behe, the court turned to his writings. I don’t have the document cites to identify the sources here (the cites are presumably to exhibits of record) but this is what the court says, which the DI does not contest:
First, Professor Behe has written that by ID he means “not designed by the laws of nature,” and that it is “implausible that the designer is a natural entity.” (P-647 at 193; P-718 at 696, 700).
Then there’s the other defense expert, Fuller:
Q. If you could turn to Page 18 of your report, please.
A. Yes.
Q. And if you could look about halfway down that paragraph, there’s a sentence that starts, Third. And I’m going to read it. It says, Third, ID’s rejection of naturalism and commitment to supernaturalism does not make it unscientific. Did I read that correctly?
A. Yes.
It is fair to say that the evidence that ID is predicated upon supernatural causation was overwhelming, with the defense experts offering only partial, qualified disagreements with it. Yes, if you take the bald assertions by each witness that supernatural action is not required, and you ignore the remainder of the testimony, you could conclude otherwise. But this sort of thing is exactly why we have cross-examination. No clear error.
V. Characterization of the stance on the supernatural presented by Of Pandas and People
I hardly know what to say on this one. Of Pandas and People, as we all know, began explicitly as a creationist textbook, and so denying its reliance upon the supernatural really does require the sort of rip-roaring chutzpah one usually associates with the DI. The DI would like the court to rely on some of the passages in it to the exclusion of others. The court plainly is not required to do so, and may take the book’s admissions (which are of the sort we call “admissions against interest” in the language of evidentiary law) rather than its apologetics as a better guide to its intent. No possible argument for clear error here.
VI. Defense expert acknowledgement of point that ID proposes that animals did not evolve naturally but were created supernaturally.
This one is twisted up a bit by the DI, which tortures the quote a bit and leaves material out, so let’s go to the slip opinion itself, which says at p. 67-69:
ID is predicated on supernatural causation, as we previously explained and as various expert testimony revealed. (17:96 (Padian); 2:35-36 (Miller); 14:62 (Alters)). ID takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural. (5:107 (Pennock)). Further support for the conclusion that ID is predicated on supernatural causation is found in the ID reference book to which ninth grade biology students are directed, Pandas. Pandas states, in pertinent part, as follows:
Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. 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.
P-11 at 99-100 (emphasis added). Stated another way, ID posits that animals did not evolve naturally through evolutionary means but were created abruptly by a non-natural, or supernatural, designer. Defendants’ own expert witnesses acknowledged this point. (21:96-100 (Behe); P-718 at 696, 700 (“implausible that the designer is a natural entity”); 28:21-22 (Fuller) (“. . . ID’s rejection of naturalism and commitment to supernaturalism . . .”); 38:95-96 (Minnich) (ID does not exclude the possibility of a supernatural designer, including deities).
It is notable that defense experts’ own mission, which mirrors that of the IDM itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1267. First, defense expert Professor Fuller agreed that ID aspires to “change the ground rules” of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. (28:26 (Fuller); 21:37-42 (Behe)). Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. (38:97 (Minnich)).
In its peculiar way of quoting the decision in Table C, the DI is trying to create the impression that Jones claimed that the defense experts acknowledged that ID posits abrupt creation of animals by a supernatural creator, as the Pandas book indisputably claims. It is not clear to me that this is what Jones means by the words “this point” just before the testimonial citations. I think that “this point” refers to the predication of ID upon supernatural causation. As indicated in point IV, above, the defense experts DO make significant acknowledgements of this broader point.
If we take “this point” to mean abrupt, non-evolutionary special creation, it would certainly be true that Behe claimed no such thing in his trial testimony; I’m less sure about the others as I did not read through the entirety of their testimony, but would assume this is true of them, too. But this is not, I think, the correct reading of Jones. That the DI also suspects that it is not the correct reading is, I think, suggested by the odd way in which the decision’s wording is reordered and cited in column 1 of Table C.
VII. Whether Behe excludes the possibility of exaptation through his definition of IC.
Here the DI’s quote of the decision lacks context and so I think a longer quote of the passage is helpful.
In addition to Professor Behe’s admitted failure to properly address the very phenomenon that irreducible complexity purports to place at issue, natural selection, Drs. Miller and Padian testified that Professor Behe’s concept of irreducible complexity depends on ignoring ways in which evolution is known to occur. Although Professor Behe is adamant in his definition of irreducible complexity when he says a precursor “missing a part is by definition nonfunctional,” what he obviously means is that it will not function in the same way the system functions when all the parts are present. For example in the case of the bacterial flagellum, removal of a part may prevent it from acting as a rotary motor. However, Professor Behe excludes, by definition, the possibility that a precursor to the bacterial flagellum functioned not as a rotary motor, but in some other way, for example as a secretory system. (19:88-95 (Behe)).
As expert testimony revealed, the qualification on what is meant by “irreducible complexity” renders it meaningless as a criticism of evolution. (3:40(Miller)). In fact, the theory of evolution proffers exaptation as a well-recognized, well-documented explanation for how systems with multiple parts could have evolved through natural means. Exaptation means that some precursor of the subject system had a different, selectable function before experiencing the change or addition that resulted in the subject system with its present function (16:146-48(Padian)). For instance, Dr. Padian identified the evolution of the mammalian middle ear bones from what had been jawbones as an example of this process. (17:6-17 (Padian)). By defining irreducible complexity in the way that he has, Professor Behe attempts to exclude the phenomenon of exaptation by definitional fiat, ignoring as he does so abundant evidence which refutes his argument.
Now, it’s true, as the DI points out, that Behe does elsewhere in his testimony acknowledge that “some evolutionary biologists certainly think that exaptation is real.” That doesn’t actually change the game Behe was playing here, and I think that whether you think the court got it right or not, Miller’s argument, which the court accepted, fits. And Behe’s cited testimony doesn’t help him on that point, because he does indeed seem to be insisting on a definition of irreducible complexity which relies solely on the current function of the system.
Q. Dr. Miller testified about something called the Type 3 secretory system, the TTSS, and he said that that showed that the flagellum was not irreducibly complex, do you agree with that assessment?
A. No, I disagree. That’s a mischaracterization.
Q. Why do you disagree?
A. Well, I think we have some slides from Professor Miller’s presentation, and he said that, let us start with the bacteria flagellum, and he has a drawing of the flagellum from a recent paper. Let me just make another similar point. You see these little three, four-letter abbreviations all over here? Each one of those is of the complexity of a hemoglobin molecule that I showed on an earlier slide. Each one of those has all the sophistication, all the needs to have very complex features to bind together that hemoglobin had.
Can you press the slide again to advance the figure on this same thing of Professor Miller’s? Professor Miller says that well, okay, you start with the bacterial flagellum, and if you remove the pieces, then he says, press again, please, he says, “That leaves just ten,” and he says, his characterization, his mischaracterization of my argument is that what’s left behind should be non-functional. And if we go to the next slide of Professor Miller’s, he says, “But it’s not. Those ten parts are fully functional as a protein secretion system,” but again I tried to be very careful in my book to say that we are focusing on the function of the system, of the bacterial flagellum, and while a subset of the flagellum might be able to be used as something else, if you take away those parts it does not act as a rotary motor. So it is irreducibly complex as I tried to carefully explain. I’m sorry.
Q. So is it fair to say that Dr. Miller makes a misrepresentation of what your claim is by his representation?
A. This is a mischaracterization, yes, that’s correct, and I think I pointed that out on the next slide. I pointed this out, as I said earlier we’ve debated this back and forth for a while. I pointed it out recently in my book chapter. I write, "Miller asserted that the flagellum is not irreducibly complex because some proteins of the flagellum could be missing, and the remainder could still transport proteins perhaps independently. "Again he was equivocating, switching the focus from the function of the system to act as a rotary propulsion machine to the ability of a subset of the system to transport proteins across a membrane. However, taking away the parts of flagellum certainly destroys the ability of the system to act as a rotary propulsion machine as I have argued. “Thus, contra Miller, the flagellum is indeed irreducibly complex.”
Behe might well have meant to say, or wished to say, something else, but his testimony supports the finding. He may well have testified inconsistently with it elsewhere, but witnesses do this – they testify with internal inconsistency and it falls to the court to figure out whether to try to smooth that out or to take it as delivered. But the court has no obligation to make its finding in the one way when the other is a perfectly reasonable reading of the testimony AND is consistent with how Miller characterized Behe’s previously stated position. There is not the slightest hint of clear error here.
Conclusion:
As I score it, out of the seven claims we are looking at five cases where there is no reasonable argument for clear error. The two remaining cases include one actual error and one possible error, depending on how one reads the opinion:
I, where the court should not have attributed the statement to Behe that the literature was not “good enough,” but where the substantive characterization of Behe as dismissing the literature as containing no answers to his questions was accurate, and
VI, Where there is a possible (but, in my opinion, less likely) reading of the opinion in which Behe and the others are characterized inaccurately as having testified that they believe in abrupt, non-evolutionary special creation.
If we grant, for the sake of argument, that these are both erroneous, they are quite insubstantial. They are not the pillars on which the decision stands. Behe might well object to them, and might have reasonably asked the court to amend its decision to more clearly (VI) and more accurately (I) reflect the content of his testimony.
One final note: @swamidass asked if any attempt had been made by anyone to request correction of any misstatements in the ruling. I have reviewed the docket and the post-decision filings show no request for correction by anyone.