Casey Strikes out

More out of curiosity than anything else, I read through the rest of Casey Luskin's paper on various court cases (already blogged about it in general here Luskin's Turn). I was really curious how he commented on the Dover Court Case.

He opens with a summary that is actually a pretty good summary. But as he dove into his commentary, I think he missed a point. One of the factors that he missed completely is when the court examined what an impartial observer would take from the disclaimer the School Board wanted read. He completely ignored that part of the trial that determined that a typical student would hear the disclaimer and take it as an indictment against the Theory of Evolution.

I also think Casey missed the boat with his own disclaimer trying to absolve the Discovery Institute of their involvement. Yes, when it reached a point of Trial, the DI backpedaled with the best of them and tried to dissuade the School Board from their action. But up until that point they were involved, and advised, and provided the text book 'Of Pandas and People" that was so central to the case. Lauri Lebo made an interesting point in her book "The Devil in Dover" that during the trial the school board members seemed to be waiting for support from the DI that never materialized. The DI did the same thing with the school teacher/soccer coach in Tejon CA. After the suit was filed they claimed to have advised them to settle. But how much pushing and coaching did the teacher received before that point? We will never know because it didn't actually come to trial, but I believe the DI was one of the sources for the videos supporting ID that she was planning on showing.

Now I always thought Casey was a lawyer, well he must be out of practice because I see nothing wrong with the Court setting up their ruling as a primer for other Courts. They did it

" . . . in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us."

So apparently Casey would prefer to be able to hold this trial over and over again. Talk about a waste! You know when the outcome would be different? If those sluggards over at the DI would get off their collective butts and try and do some actual science. I mean look at it, a Federal Judge, a Conservative Federal Judge could not rule in their favor! A Judge so conservative that many people thought the trial was a slam dunk -- until it actually got underway. If they can't win in that courtroom, where could they win? So the Judge making a sweeping decision that went beyond the bounds of the immediate case is perfectly reasonable. in fact many cases are so decided in order to do exactly what Judge Jones tried to do -- set a precedent other Courts can look to for guidance. That's part of the whole judicial process!

But in reality, I bet Casey and his friends would love this to be tried in school districts across the country. Sooner or later the odds would grant them at least a temporary victory and they would just go insane! However Courts have been forever making their rulings with an eye towards the future. the case may not be binding outside of the small Pennsylvania area, but it's impact has been felt across the country. That is what Casey and his pals do not like!

Here is one of the funny things to me. If the Judge had ruled that ID was science, would Casey and his cohorts have been complaining about a lack of judicial restraint? Oh Hell No! They would have been crowing like roosters! Instead they have to attack a conservative judge and accuse him of a lack of judicial restraint and judicial activism mainly because they got their collective butts handed to them.

I love this quote of Casey's:

"The judicial over-reach and activist, policy-making intentions of the judge may cause other courts to question whether the Kitzmiller ruling represents carefully considered legal work."

Of course he never answers this question, he just tried to raise it as a doubt and then just walks away. Does he support this comment? No! Does he offer evidence that other courts are not going to consider this case? No! He simply tries to cast a shadow of doubt and then leaves you hanging. This a a common gambit to raise doubt in a readers mind where there really isn't any.

Here is another one:

"Another aspect of the Kitzmiller ruling that may cause jurists to doubt its persuasiveness is the fact that over 90% of its celebrated section on whether ID is science was copied verbatim or nearly-verbatim from the plaintiffs’ “Findings of Facts and Conclusions of Law,” proposed by attorneys working with the ACLU.277 While there is no question that courts are permitted to draw upon such documents when constructing rulings and that such behavior does not constitute any kind of unethical “plagiarism,” case law suggests that large-scale judicial copying is highly disapproved of by courts,278 even when the extent of the copying does not provide grounds to overrule the lower court."

OK, this one circulated quite soon after the ruling was published. Judge Jone did copy a great deal of information form the plaintiffs findings of facts. However, there is nothing wrong in this. But look at Casey's wording: "may cause", "verbatim or nearly-verbatim", "While there is no question that courts are permitted to draw", "unethical 'plagiarism' ", and "suggests". How mealy mouthed can one lawyer get? Without coming out and saying it he, and the others at the DI, didn't like that the judge used the winners documents as a basis for the ruling. I do love the slipped in 'nearly-verbatim' line. So if you use words that are similar and mean the same thing, are you being 'nearly-verbatim'? Only a lawyer can tell you -- but be prepared for a long confusing session.

Casey also thinks, and I use that word loosely, that

"The Kitzmiller ruling was predicated upon a false definition of intelligent design."

I have to disagree. The definition before the Court was the presented by both Michael Behe and Scott Minnich. Even though the DI didn't like the caveats they had to use under cross-examination, it was pretty clear that ID involves supernatural causation, even if the official definition of the DI doesn't use those terms, they were clearly evident in the trial transcript. Here is a quote from Judge Jones' ruling with appropriate references made by the defense witnesses:

" . . . 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))."

This article, at least specifically where Casey discusses the Dover Trial. does not represent an objective look at the trial and how a teacher, lawyer, or other policy maker should see it. It represents a very specific spin on the trial that is not represented in the ruling nor the results of the ruling. Over 3 years since the trial and Casey and his buds are still trying to spin things their way.