Kitzmiller v. Dover Area School District Trial transcript: Day 10 (October 17), AM Session, Part 1 THE COURT: All right. Good morning to all. We have some exhibits to take before we get into our first witness. So let's take -- what's your pleasure? What do you want to take first from the Plaintiffs? MR. HARVEY: Mr. Stough's exhibits. THE COURT: All right. I have -- it looks like, predominantly, we have, I'm not sure that I should or want to read all of them, but they look like news articles that are not going to be admitted yet, at least at this point. The non-news articles, so to speak, would be. MR. HARVEY: Letters to the editor. THE COURT: P-671 would be -- that's correct, the letters to the editor chart. The affidavit is 670. 674, again, I think, is the chart. 672 is the chart. 675 is the chart. MR. HARVEY: Just to be clear, Your Honor, those exhibits were the editorials and the letters themselves with the chart. THE COURT: With the chart, that's correct. And P-702 was the letter that the witness received. I think all the other exhibits were articles themselves. Tell me if I'm wrong. MR. HARVEY: You're correct, Your Honor, with the exception of two article exhibits that were already admitted. THE COURT: All right. So are you moving for the admission of the exhibits that I recited? MR. HARVEY: Yes, Your Honor. MR. GILLEN: Your Honor, we object. We object to the -- it looks to me like we object to everything except the affidavit prepared by Mrs. Aryani, which is, I believe, 670. THE COURT: That would be 670. And I think you interposed objections -- I understand the gist of your objections having had those placed on the record at the time those exhibits were referred to. All right. Well, 670, the affidavit, will be admitted. P-702, I'll hear argument on that, but I would not be inclined to admit 702. But if you want to make additional argument, you can. MR. HARVEY: Your Honor, I have nothing further to say. THE COURT: All right, I'm not going to admit 702, which is a letter by an unknown author, handwriting on it is unreliable, and he testified about the receipt of the letter, and I think that was sufficient. But I don't believe the letter itself should be admitted. Now, Mr. Harvey, what do you want to say about the other exhibits? They would be 671, 674, 672, and 675, all of them being letters to the editor and/or editorials and the chart? The charts, I would certainly be inclined to admit. I understand the objection, but I don't think the chart, as being summaries of the contents, are objectionable, so I'll admit the chart so you can focus your argument on the letters themselves and the editorials. MR. HARVEY: It's simply that they come in on the effect test. They're probative on that issue. The Supreme Court in the Epperson case considered letters to the editor. So this is -- they're certainly relevant. They're probative. They're not unduly prejudicial. They're authentic. They cover the time period, June 2004 to September 2005, so that the relevant time period. They should come into evidence. And they're not offered for the truth of the matter asserted, of course. They're offered for the effects test, so there's no hearsay issue either. MR. GILLEN: Your Honor, I do think I have a little more to offer you by way of value here. I thought all weekend about our colloquy on Friday. I want to suggest, this is why the request for admissions is erroneous and why the question that you posed on Friday is addressed in the law and doesn't require admission into evidence. First, I want to suggest that what's being offered to you here is a flawed chain of reasoning, and it runs as follows: Mr. Stough has no personal knowledge, but he read the articles, which are hearsay. Based on that hearsay, he formed a belief, a state of mind that Dover Area School District was advancing religion. Based on that hearsay in his state of mind, his state of mind is now being offered with the support of these articles to prove the fact he believes that Dover Area School District was advancing religion. For the reasons I've stated, I believe that that cannot happen under the Federal Rules of Evidence. But on Friday, Judge, you asked me a good question that I've thought about. It is this. You said, Mr. Gillen, I think you set the bar too high. I think that he doesn't have to attend the board meetings to be apprised of the effect. Your Honor, in thinking of that, I want to suggest that the law and the way the law treats the test that you have to apply in this case addresses your concern without requiring the admission of this hearsay. And this is why. The test that you're asked to apply in this case, if you believe the endorsement test applies -- we say it doesn't. We say it doesn't get outside the classroom. But if you so hold, then the test asks you to find what a reasonable observer would believe. Now, Judge, when the law asks you to make that determination, there is no necessary connection between the actual knowledge of a given Plaintiff and the knowledge that the law imputes to the objective reasonably informed observer for the purpose of the test. Let me give you two brief examples that demonstrate this is the way the law treats it and this is why the problem that you see isn't a problem that comes from the evidence. Just take a display case right up there in the State Capitol. There's a cross. A Plaintiff could see that cross and believe that the State is advancing religion. THE COURT: Well, that's why the endorsement test is used for displays such as the Ten Commandments. MR. GILLEN: Exactly. Now, Judge, look at the outcome of such a case. If that Plaintiff comes in and brings a claim, there's two different outcomes. It could succeed or fail. But my point to you, Your Honor, is, it could succeed or fail based on knowledge or facts in evidence that were utterly unconnected to the actual knowledge of the Plaintiff. In one case, the claim could fail, because the evidence of record, the facts of the matter could demonstrate that, although the Plaintiff didn't know it, the reality is, it's a forum. THE COURT: Well, you argue the endorsement test, and I might agree with you on the endorsement test. I understand your point exactly. But I think what Mr. Harvey argues is that, and the courts have done this, as you know, they've done alternative analysis. They've done it under purpose and effect, and then they've interposed endorsement in case, I suppose, appellate courts want to see it done both ways. I might agree with you that, if we do it on an endorsement analysis, admission is problematic. Now Mr. Harvey says, they get admitted on the effect test, the straight effect test. What I grapple with on the effect test, I all tell you all rather candidly, is effect upon whom? And I have yet to decide that, obviously. You would say, I think, Mr. Harvey, that it's broader than simply the 9th grade students. I think you would say not. Is that -- MR. GILLEN: Correct, Judge. The effect of a curriculum change is the effect on the instruction in the classroom. MR. HARVEY: Regardless, Your Honor, it's the reasonable observer in the community, whether it's the 9th grade student or somebody else. And -- THE COURT: Well, but are we sure about that? You say that for the effect test, but admittedly, courts have done it both ways. Some courts have limited it to the recipients or the direct recipients of the policy, being the 9th grade students. You cast it in a conjunctive sense. Other courts have said, no, it's limited to the intended recipients, being the 9th grade students. In that case, of course, the testimony doesn't come in on the effect test in any event; so no harm, no foul, from your perspective. MR. GILLEN: Correct, Your Honor. MR. HARVEY: Your Honor, I believe the courts have looked at the reasonable observers in both contexts and have discussed these -- THE COURT: In both the endorsement and the effect? MR. HARVEY: Yes, and looked at the effect on the community, what message is being sent to the community as preceived by this reasonable observer. And the reasonable observer, whether it's a 9th grade student or not, would read this note that's being handed to me by my counsel -- no. THE COURT: Always great to have co-counsel. MR. HARVEY: Absolutely. Would certainly be reading what's in the paper, the letters to the editor and editorial. These are the local papers. I mean, this is about a good as source as you can get. THE COURT: But Mr. Gillen says, it's hearsay, it hasn't been established, and why should the reasonable observer be permitted to rely on something that is not conceded to be true. MR. HARVEY: Well, Your Honor, I guess we're going to determine in this case whether that's true or not. But nevertheless, that is what is out there in the community. And another point is, it's not just what was published in the classroom. This was published in the entire community. So we have it put out there for the entire community. THE COURT: I understand that. And I think you have evidence on that point to be sure, and in your case, you've established that. But on these particular areas, which would be editorials, you know -- and I'll address this to you, Mr. Gillen. These are editorials, these are opinion pieces. You say though, implicitly they assume facts. MR. GILLEN: Exactly, Your Honor. The difference between these letters that were published in the newspaper and 702, which is a deplorable thing to send to someone, is a difference of degree not kind. They're both just someone's opinion as to what's going on and in a paper. It is not evidence for this Court. They are not here in front of you. All it is, is, on that, on that sort of evidence, Judge, a man could be convicted of something based on nothing more than what people think and put in the paper. I mean, let me suggest that the western legal tradition did not give up trial by ordeal, trial by combat, trial by compurgation, so we could have trial by press clipping. I mean, it's just -- MR. HARVEY: Mr. Gillen apprehends this fundamentally. He is continuing to assume that we're offering these for the truth of the matter asserted to prove the underlying facts. Let me be clear about that. We have put in much evidence to prove the underlying facts. We will put in additional evidence, including the testimony of the reporters themselves, that these things were said, that they actually happened. These articles for this are not being offered for this purpose. THE COURT: Here's what I want to do. I'm going to ask that -- I'm going to defer a ruling on 671, 674, 672, and 675. I believe that it's appropriate for me to read, particularly the underlying documents, not the charts. I saw the charts, but I didn't see the underlying documents. I'll do that. And I would like to ask Mr. Harvey, if you would do me the favor of reminding me that we need to revisit that. I know you're burdened with a lot. All counsel are. But if you would allow me to circle back after I've read those, and then I might take some additional argument at that time. One of the disadvantages I have is that I have not read the contents. And I will say, too, that I recognize, Mr. Harvey, your argument that it doesn't go to the truth. I think that's the argument that you need to make under the circumstances. I understand Mr. Gillen's argument, that it necessarily has to go to the truth. One of the things that will happen between now and perhaps the time that we revisit these is that we're going to have testimony, I believe, from the reporters that may tie up some of these ends, or may not tie up some of the ends, as the case may be. I think it's prudent to withhold ruling on 671, 674, 672, and 675. We will not admit 702. We will admit 670. Now are there any other exhibits for that witness that I missed, Mr. Harvey? MR. HARVEY: No, Your Honor, just the articles, and I understand you're withholding ruling on those as well. THE COURT: Right. So we'll not take those at this time. I'll rely on you at a later point in time also to indicate that you want to move for admission of the articles, if you choose to do so, any or all of the articles. All right. Now the -- for Padian, we have, his CV is 292. Are you move for the admission of that? MR. WALCZAK: Yes, Your Honor. THE COURT: That's admitted, I assume without objection, is that correct, Mr. Gillen? It's a CV. MR. GILLEN: It is. Actually, Mr. Muise will speak to that. MR. MUISE: There is no objection. THE COURT: And the D-282 was referred to on cross. That was the U.S. Office of Special Counsel letter. What is your pleasure on that? Do you want to do anything with that at this time? MR. MUISE: Well, we would move for its admission, Your Honor. MR. WALCZAK: We would oppose, Your Honor. It's hearsay. The document was not discussed in court. We don't know about the authenticity. We don't know whether it's reliable. We don't know whether it's accurate. It was used to attempt to impeach the witness, and he didn't have any knowledge. We would object. THE COURT: Mr. Muise. MR. MUISE: Well, again, Your Honor, I think for the purpose of what we want it for the contents of that document, I mean, it was read into the record. THE COURT: Well, I gave you latitude on it, and I allowed part of it to be read into the record over counsel's objection. But I would be reluctant to admit the letter on the whole. I think Mr. Walczak's point is well-taken. It is essentially a hearsay document. MR. MUISE: Your Honor, at this point then, we would like to reserve the admission of that until, because we're actually pursuing the possibility of getting a way to have that authenticated. THE COURT: That's fine. MR. MUISE: We'll reserve. We won't move that right now. We'll reserve the admission of that document until later. THE COURT: That's fine. I'll certainly give you the opportunity to do that. But at this point, I'll not admit D-282 then. So the only exhibit for that witness would be 292, which would be the CV, unless I am missing something. MR. WALCZAK: Your Honor, in this case, we actually would like to move in the slides from Professor Padian's demonstrative exhibit. THE COURT: Do you have numbers on them? MR. WALCZAK: We have -- it's going to be Exhibit 720. We have not. We're trying to get a nice color copy. THE COURT: That would encompass all the slides? MR. WALCZAK: I would think it would be easier for the Court to consider all of the slides. And what we have are quotes from either Pandas, quotes from some of the creationist writers. And then the rest of them are either photographs or charts that were prepared by Professor Padian about which he testified here. So certainly on the latter two, there should be no problem. The first two are really, I mean, it's -- MR. MUISE: Your Honor, I think the same thing was so done with Dr. Miller. And in terms of, to assist this Court in making its final determination, obviously, there's a lot of testimony that the Court is going to have to review. If they want to provide it to the Court for demonstrative purposes to assist in review of the testimony, we would have no objection to that. We would actually prefer to do the same thing with our expert witnesses, because we're going to have similarly quite a few demonstrative exhibits that I think would facilitate the Court. And as long as it's going to be presented to the Court for that purpose, then we wouldn't object, and we would appreciate the same latitude as well. THE COURT: Well, you're talking about nothing more than a slide that was up during his presentation, is that correct, or some version thereof? MR. WALCZAK: I think there was about a hundred slides. Up to now, we have only introduced those to assist the Court. And I guess they're not properly part of the record. What we're saying with Professor Padian is, at least for the photographs and the charts that he prepared, we would like to move those into evidence. THE COURT: All of which though were viewed or referred to during his testimony, that was my -- MR. WALCZAK: Absolutely. Only what's been put up. THE COURT: I think Mr. Muise is correct. There was a similar issue with respect to Professor Miller at the outset of the case, was there not? Didn't you want to do the same? MR. MUISE: I think that Mr. Rothschild -- THE COURT: I thought you did, because I think some of the -- I may have the wrong witness. But I think some of the demonstrative slides that were shown were not marked as exhibits, and we did have a discussion, unless my memory fails, and you were going to revisit that and mark those up. So that's fine, but I think what you need to do is, just everybody get on the same page, and I'll take those whenever. I don't need them until the end of the case, obviously. And the same courtesy to Defendants. So if you're going to put the slides up, it will go both ways. But I think it will be helpful for the record. It is certainly helpful for me to revisit those and to put them back in so, however, you want to reproduce them and then enter them. If you want to do it under one exhibit number with bate stamps or one exhibit number with subnumbers, letters, however you do it, it matters not to me. MR. WALCZAK: I'm sorry. I guess I'm not understanding. Mr. Muise is saying that it would be okay to enter the entire demonstrative into evidence? THE COURT: I thought that's what he said, yeah. MR. MUISE: For demonstrative purposes, Your Honor, to assist the Court, not as substantive evidence in addition to the testimony. It's part and parcel to his testimony is the demonstrative exhibits that are going to be provided to assist the Court. MR. WALCZAK: So our position is that, we want to go a step beyond that for the photographs and for the charts. THE COURT: Well, I don't want to waste an excessive amount of time on this, but they were up, and they were up without objection. So I don't know how you separate demonstrative out. I mean, if there's something on the slide -- that's why I said, I think you're going to have to coalesce a little bit on this. If there's something on the slide that's problematic -- here's what I would suggest you do. Let's cut to the chase. Why don't you get a packet of what you want to introduce. From the defense standpoint, you're going to have to do the same. Share it with opposing counsel. I guess there could be statements on an individual slide or presentation that may be at issue. And then let's argue over those, if we have to. Otherwise, they come in for all purposes, as far as I'm concerned. That's what you're saying, I think? MR. WALCZAK: Yes, Your Honor. THE COURT: Demonstrative? What does that mean in the context of this trial? If they're part of record, they're part of the record. I don't think they come in for a limited purpose. If you think that there's something on the slide, and the same for you as far as their slides are concerned, then I think you should argue over that individual. MR. MUISE: That's fine. Again, as long as we have the same latitude with our experts. THE COURT: So I think you have to put a packet together so we see what it is you want to do. MR. WALCZAK: We'll get that packet together. We'll share it with defense counsel. We'll discuss it. And then only if there are some problems -- THE COURT: Not only with Professor Padian, but any other witness, because I really suspect there are other ones that you may want to put in. And you may, too, in your case-in-chief. All right. Any other exhibits? MR. WALCZAK: No. Thank you, Your Honor. THE COURT: All right. Thank you. With that, then we will take your witness. And again, to reiterate, we're going to start the defense case, although the Plaintiffs reserve, by the cordial agreement of all counsel, the right and the opportunity to present some witnesses out of turn at a later point in time. MR. MUISE: Your Honor, at this time the Defendants call Dr. Michael Behe. Whereupon, MICHAEL BEHE having been duly sworn, testified as follows: COURTROOM DEPUTY: State your name and spell your name for the record. THE WITNESS: My name is Michael Behe. M-i-c-h-a-e-l. The last name is B-e-h-e. DIRECT EXAMINATION ON QUALIFICATIONS BY MR. MUISE: Q. Good morning. Could you please introduce yourself to the Court? A. Good morning, Your Honor. My name is -- THE COURT: I got it. THE WITNESS: Professor Michael Behe. BY MR. MUISE: Q. Dr. Behe, where do you reside? A. I live in Bethlehem, Pennsylvania. Q. Are you married? A. Yes, I am. Q. Do you have children? A. Yes, we do. We have nine children. Q. And you are a Catholic, sir? A. Yes, I am, uh-huh. Q. You share the same religion as Plaintiffs' expert, Dr. Ken Miller, is that correct? A. Yes, we do. MR. MUISE: May I approach the witness, Your Honor? THE COURT: You may. BY MR. MUISE: Q. Dr. Behe, I handed you two binders. One of them has exhibits that are marked that we're going to be working through, through the course of your testimony, so you can refer to those when necessary. Now I'd ask at this time, if you could, just open up that binder and refer to Defendant's Exhibit 249, which should be your curriculum vitae under tab 1; is that correct? A. That's correct, yes. Q. Is that a fair and accurate copy of your CV? A. Yes, it seems to be. Q. Again, I want you to refer to it as we go through some of your background and qualifications to offer your expert opinions in this case. Sir, what is your profession? A. I am a professor in the department of biological sciences at Lehigh University in Bethlehem, Pennsylvania. Q. And you're a biochemist? A. That's correct, yes. Q. How long have you taught at the college level? A. For 23 years. Q. Now you say you presently teach at Lehigh University, is that correct? A. That's right. Q. Have you taught in other colleges? A. Yes, I taught at Queens College of the City University of New York for three years. Q. So how long have you taught at the college level? A. A total of 23 years. Q. Has that been in chemistry and biochemistry? A. Yes, both chemistry and biology departments. I'm a biochemist. It fits into both. Q. So you're a tenured professor at Lehigh University? A. Yes. Q. And what subjects have you taught at the college level? A. A number of subjects. I've taught biochemistry at the undergraduate level. I've taught courses on protein structure and (inaudible) -- COURT REPORTER: Would you repeat that? What did you say after protein structure? THE WITNESS: Nucleic acid structure. BY MR. MUISE: Q. We're obviously going to be talking about some difficult things throughout this morning, some technical terms. We need to make sure we go slow and articulate those to help out our court reporter here. A. Sure. Q. Okay. Could you continue, please? A. I also taught organic chemistry, general chemistry on occasion. I have taught a, what's called a, college seminar course, a writing course for biology majors, and others as well. Q. And what are the subjects that you presently teach at Lehigh University? A. Well, this term, I'm teaching the general biochemistry course. Q. Have you taught any courses about evolution? A. Yes, I teach one. It's that college seminar course that I mentioned. It's titled Popular Arguments on Evolution. Q. And is that a course that's for all majors, is that correct? A. Yes, it's for incoming freshmen with any background or any intended major. Q. And during that course, you discuss Darwin's theory of evolution? A. Yes, it's a discussion course where we read popular arguments on the topic of evolution. We discuss Darwin's theory. We discuss alternative ideas as well. Q. How long have you been teaching this seminar? A. Oh, about 12 years now. Q. So in total, you have 23 years of teaching science at the college and graduate level, is that correct? A. Yes, that's right. Q. Now you said you were a biochemist, and we heard testimony from Dr. Miller that he was a cell biologist. What's the difference between a biochemist and a cell biologist? A. Well, a biochemist studies the molecular bases of life, and sometimes these things blur together, but a biochemist generally studies molecules that are too small to see with a microscope. Cell biology, on the other hand, as its name implies, studies cells, things that can be seen with light microscopes, electron microscopes, and which generally consist of large aggregates of molecules rather than individual ones. Q. Now we're going to hear some testimony later in this trial from a microbiologist. How does a microbiologist differ from a biochemist? A. Well, classically microbiology is concerned with single celled organisms, bacteria, viruses, single celled eukaryotic cells as well, and sometimes focuses on the sorts of diseases that those things cause. Q. Now, sir, do you conduct experiments in your work? A. Well, at this point, for the past couple years, I've been more interested in theoretical issues rather than experimental ones. Q. Have you though conducted experimental work in your past? A. Yes, quite a bit. Q. Was there a particular focus of your experimental work? A. Yes, I focused on nucleic acid structure. Q. Is that the focus of your current research? A. No, it isn't. Q. What is the focus of your current research? A. Currently, I'm interested in the issue of intelligent design in biochemistry and aspects of that. Q. And how long have you been doing that? A. Oh, I guess, perhaps the past seven, eight years. Q. Sir, what degrees do you hold? A. I have a bachelor of science degree in chemistry from Drexel University and a Ph.D. in biochemistry from the University of Pennsylvania. Q. And when did you receive your Ph.D. in biochemistry from the University of Pennsylvania? A. In 1978. Q. I take it, you wrote a dissertation to get your Ph.D.? A. Yes, I sure did. Q. What was that dissertation? A. It was entitled Biophysical Aspects of Sickle Hemoglobin Gelation. It dealt with the behavior of something called sickle cell hemoglobin, which underlies sickle cell disease, which many people have heard of. Q. Do you belong to any professional memberships? A. Yes, I do. I am a member of the American Society for Biochemistry and Molecular Biology. I'm also a member of something called the Protein Society. Q. Now, sir, have you published articles in peer reviewed science journals? A. Yes, I have. Q. Do you have an approximation of how many peer reviewed articles you published? A. I think at about 38 or 39. Q. And what are some of the scientific journals that you published in? A. Well, I have published in Nature, Proceedings in the National Academy of Sciences, Journal of Molecular Biology, the Journal of Biological Chemistry, Biochemistry, Nucleic Acids Research, and some others as well. Q. Doctor, you're a fellow with the Discovery Institute? A. Yes, I am. Q. What does that mean? A. Well, pretty much it means that, my name gets put on the letterhead, and every now and again, we get together and talk. And it's pretty much a means of communicating with other people who are interested in issues that I am. Q. Does the Discovery Institute maintain any control over the work that you do? A. No. Q. Are you considered an employee of the Discovery Institute? A. No. Q. Do they direct you in the work that you do? A. No. Q. Now, sir, you're the author of a book called Darwin's Black Box, correct? A. Yes, that's right. Q. And that's a book about intelligent design, is that accurate? A. Yes, that's right. Q. How many copies has that book sold? A. Somewhere over 200,000 at this point. Q. Has it been translated into other languages? A. Yes, it's been translated, I think, into 10, a little more than 10 languages; Portuguese, Spanish, Hungarian, Dutch, Korean, Japanese, Chinese, and some other ones, too, I think. Q. Now you also contribute to the 1993 version of the Pandas book, is that correct? A. Yes, I did. Q. What was your contribution? A. I wrote a portion that dealt with the blood clotting cascade. Q. We've heard testimony about some prior versions of Pandas. Did you make any contributions to any prior versions of the Pandas other than that 1993 version? A. No, just that second edition. Q. Now, sir, you've been described as an advocate for intelligent design, is that accurate? A. Yes, uh-huh. Q. And you stated that you are a Catholic, correct? A. Yes. Q. Is Darwin's theory of evolution inconsistent with your private religious beliefs? A. No, not at all. Q. Do you have any religious commitment to intelligent design? A. No, I don't. Q. Do you have any private religious convictions that require you to advocate in favor of intelligent design? A. No, I do not. Q. Sir, why did you get involved with intelligent design? A. Well, I used to think that Darwinian theory was a complete and good explanation for life, but in the late 1980's, I read a book by a scientist by the name of Michael Denton. The book was called Evolution: A Theory in Crisis, which raised questions about Darwinian theory that I had never thought about before. At that point, I began to think that it might not be an adequate scientific explanation as much as it was claimed; and at that point, I began to think more about these topics and think about the topic of intelligent design as well. Q. Is your interest in intelligent design based on what the scientific evidence shows? A. Yes. Q. Sir, are you familiar with a term called young-earth creationist? A. Yes, I've heard. Q. Do you consider yourself to be a young-earth creationist? A. No, I'm not. Q. Are you familiar with the term old-earth creationist? A. I've heard that one, too. Q. Do you consider yourself to be an old-earth creationist? A. No, I do not. Q. Are you familiar with the term special creation? A. Yes, I've heard it. Q. Do you consider yourself to be a -- I'm not sure if the term is a special creationist or a creationist in terms of special creation. Either way, do you consider yourself that? A. Neither one, no. Q. As you testified to, you authored Darwin's Black Box, which is a book about intelligent design. And we have up on the screen. Is that what's shown up on the screen, is that exhibit, is that demonstrative, is that a picture of the cover of your book? A. Yes, that's a picture of the hard cover edition of the book. Q. What is the subtitle? A. It's called The Biochemical Challenge to Evolution. Q. Now you use the term black box in this book. Does that have a particular meaning in science? A. Yes. In science, it's used sometimes to indicate some system or some structure or some machine that does something interesting, but you don't know how it works. You don't know how it works because you can't see inside the black box and, therefore, can't figure it out. Q. So what's the connection then with Darwin's Black Box? A. It turns out that in Darwin's day, the contents of the cell were unknown. People could see it do interesting things. It could move. It could reproduce and so on. But how it could do that was utterly unknown. And many people at the time, many scientists at this time such as Ernst Haeckel and others, Thomas Huxley thought that, in fact, the basis of life, the cell, would be very simple, that it would turn out to just be a glob of protoplasms, something akin to a microscopic piece of Jell-O. But in the meantime, in the past 150 some odd years, science has advanced considerably and has determined that the cell is, in fact, full of very, very complex machinery. And so the Black Box of the title is the cell. To Darwin and scientists of his time, the cell was a black box. Q. Now when was this book published? A. It was published in 1996. Q. And if you could, give us sort of the Reader's Digest summary of what's in this book? A. Well, in brief, in Darwin's day, the cell was a -- an obscure entity, and people thought it was simple, but the progress of science has shown that it's completely different from those initial expectations, and that, in fact, the cell is chock full of complex molecular machinery, and that aspects of this machinery look to be what we see when we perceive design. They look like they are poorly explained by Darwin's theory. And so I proposed that a better explanation for these aspects of life is, in fact, intelligent design. Q. So again, this is a book about intelligent design? A. Yes. Q. Did you write this book to make a theological or philosophical argument? A. No. Q. What was the purpose of writing the book? A. The purpose of the book was to say that the physical empirical evidence, the scientific evidence points to a conclusion of intelligent design. Q. I take it that, this book does address Darwin's theory of evolution? A. Yes, it does. Q. Does it do so by relying on scientific data and research? A. Yes, it does. Q. Sir, is it accurate to say that, in this book, you coined the term irreducible complexity? A. Yes. Q. Had you used that term previous to the publication of this book? A. Not in any publication that I can remember. Q. Through the writing of this book, did you become familiar with the scientific evidence as it relates to the Darwin's theory of evolution? A. Yes, I did. Q. Sir, was this book peer reviewed before it was published? A. Yes, it was. Q. By whom? A. Well, the publisher of the book, Free Press, sent it out to be -- sent the manuscript out to be read prior to publication by five scientists. Q. What were the backgrounds of some of these scientists? A. One is a man named Robert Shapiro, who is a professor in the chemistry department at New York University and an expert in origin of life studies. Another man was named Michael Atchinson, I believe, and he's a biochemistry professor, I think, in the vet school at the University of Pennsylvania. Another man, whose name escapes me, I think it's Morrow, who was a biochemistry professor at Texas Tech University. Another biochemist, I think, at Washington University, but his name still escapes me. And I have forgotten the fifth person. Q. Now did you suggest any names of reviewers for the publisher? A. Yes, I suggested names, uh-huh. Q. From your years as a scientist, is that a standing practice? A. It's pretty common, yes. A number of journals, a number of science journals require an author, when submitting a manuscript, to submit names of potential reviewers simply to help the editors select reviewers. Oftentimes, the editor is not really up-to-date with who's working in which field. Q. Dr. Padian, if my recollection is correct, testified on Friday that it wasn't a standard practice to identify potential reviewers for your work. How do you respond to that? A. Well, Professor Padian is a paleontologist. Maybe I'm not familiar with paleontology journals. Perhaps in those, it's not common. But it certainly is common in biochemistry and molecular biology journals. Q. Now after this book was published, was it reviewed by scientists? A. Yes, it was reviewed pretty widely. Q. And some criticisms were offered, is that correct? A. Yes, that's fair to say. Q. Did you respond to these criticisms? A. Yes, in a number of different places. Q. Did you respond to them at all in any articles that you published? A. Yes, I've published several articles. One, I published, which is perhaps the most extensive, is called a Reply to My Critics in Response to Reviews of Darwin's Black Box. Q. Sir, if you could look in that binder that I gave you at Defendant's Exhibit 203-H. And I believe it should be under tab 2 in front of you. A. Yes, thank you. Q. Is that the article you are referring to? A. Yes, this is it. Q. And when was this article published? A. That was published in the year 2001. Q. And where was it published? A. In a journal called Biology and Philosophy. Q. Is that a peer reviewed journal? A. Yes, it is. Q. What kind of journal is it? A. It's a philosophy of science journal. Q. Now we have heard testimony in this case about peer reviewed science journals. Are science journals the only medium by which scientists publish their scientific ideas and arguments? A. No, scientists publish other ways as well. Q. Do they publish their ideas and arguments in books, for example? A. Yes, that's certainly a prominent medium by which to publish scientific arguments. Q. Does the scientific community take science books seriously? A. They certainly do. Q. Have you prepared some exhibits to demonstrate this point? A. Yes, I do. If you can show the next slide, please. This is a -- the table of contents from an issue of Nature from May of this year. And if you could advance to the next slide, this is a blow-up of a part of the portion. You can see that this is the spring books issue. In every issue of Nature, they review at least one or two different books on scientific topics. Once or twice a year, they have a special issue in which they concentrate on books. Altogether, Nature reviews perhaps 100 to 200 science books per year. Q. This is the prominent Nature magazine that we've heard some testimony about here in court? A. Yes, Nature is the most prominent science journal in the world. Q. Have you provided some examples of some books where scientists are making scientific arguments? A. Yes, to help see what's -- what is done here, if you could go to the next slide. These are some relatively recent books by scientists making scientific arguments. For example, up on the upper left-hand corner is a relatively new book called Rare Earth by a couple of scientists at the University of Washington named Peter Ward and Donald Brownlee. In this book, they argue that the position of the Earth in the universe is so rare, so special, because of factors such as its existing in a portion of the galaxy where heavy metals are relatively common, where super novas are not so common, that it may be one of the few places, perhaps the only place in the universe where intelligent life could exist. Up on the upper right-hand portion of the slide is a book entitled The Fifth Miracle by a physicist by the name of Paul Davies who writes about -- often writes about physical topics such as The Big Bang and the laws of nature and so on. In this, he reviewed the literature on the origin of life, and concluded that, currently, we have no understanding of how life could have originated on the earth. And he says that a completely new understanding or completely new ideas on that topic are required. On the bottom left-hand corner of the slide is a picture of the cover of a book called At Home in the Universe by a man named Stuart Kauffman, who is a professor of biology at the University of Toronto currently. And in this, he explains his ideas about something called self-organization and complexity theory. And he writes why he thinks Darwinian mechanisms are insufficient to explain what we know about biology. On the lower right-hand corner of the slide is a relatively new book called Endless Forms Most Beautiful, subtitled The New Science of Evo Devo, which stands for evolutionary developmental biology. Q. Now my understanding from the testimony from Dr. Padian on Friday, that's a fairly up and coming area in scientific research? A. Yes, that's right. It's generated some excitement, uh-huh. And this is written by a man named Sean Carroll, who's a professor of biology at the University of Wisconsin. And in this book, he gathers a lot of data and cites a lot of papers to argue the case that, in fact, much of evolution is not due to changes in protein structure as had once been thought, but perhaps is due to changes in regulatory regions that tell the cell how much of a particular protein to make. If we could go to the next slide then. Here are four more books of scientists making scientific arguments. The top two are by the same author. The first one might be difficult to read. It's Richard Dawkins on the top left and the top right. His book here is entitled The Selfish Gene. And in this book, he argues that evolution is best understood not at the organismal level, but rather at the level of the gene, a fragment of DNA which can be replicated. On the upper right is another book by Dawkins entitled The Extended Phenotype in which he argues that genes cannot only affect the body of the organism in which they reside, but can affect the larger environment as well. And I think a good example he uses is that of a beaver in which, presumably, genes in the beaver's body push it to cut down trees and build dams thereby affecting the environment. I'm not sure if I mention, but Richard Dawkins is a professor of biology at Oxford University in England. I have a copy of the cover of my book there in the lower left, which I include in this category. On the lower right-hand side is a book called The Astonishing Hypothesis, The Scientific Search for the Soul, which is a written by a man named Francis Crick, who is a Nobel laureate, Nobel Prize winner who, along with James Watson, first deduced the double helical structure of DNA. And in this book, he argues that, in fact, what we call the mind, or what some people think of it as the soul, is, in fact, in actuality the effects the chemical and neurological processes in the brain. Q. Do you have several more slides? A. Yes, I do. Actually, the next slide here, I wanted to concentrate a little bit on this book, which is a brand new book published about a month or two ago, and it's entitled The Plausibility of Life, and it's subtitled Resolving Darwin's Dilemma. It's written by two authors, a man named Mark Kirschner, who is a chairman of the department of systems biology at Harvard University Medical School, and a man named John Gerhart, who is a biology professor at the University of California at Berkeley. And Darwin's dilemma that they proposed to resolve in this book is that, in Darwinian theory, natural selection needs a source of variation to select among. And they argue that random variation is insufficient to supply that. And instead, they offer arguments for, what they call, a form of essentially directed variation. But what I want to concentrate is on some text that they have in the beginning of the book. Let me just read this. They write, quote, This book is about the origins of novelty in evolution. The brain, the eye, and the hand are all anatomical forms that exquisitely serve function. They seem to reveal design. How could they have arisen? Let me make a couple points about this. First of all, they treat the origins of novelty as a live question. This is something that is currently unresolved. And the further point is that, they think that the physical structures of these forms seem to, in their words, reveal design. Q. Now this book was published by Yale University Press, is that correct? A. Yes, that's right. Q. That's an academic press? A. Yes, it is, a very prestegious one. If we could look at the next slide. They go on further in their introduction to make some points that I thought would be useful to make here. In this, they say, In this book, we propose a major new scientific theory, which they call facilitated variation. Let me just emphasize that the point that, in fact, these eminent biologists are saying that they are proposing a new theory, and the means by which they are proposing that new theory is to write about it in this book. And if you look further along on this slide, they write, quote, We present facilitated variation not only for the scientist, but also for the interested nonscientist. So the point is that, scientific books can propose new scientific theories, and they can be addressed to a broad audience, not only to scientists, not only to specialist groups, but also to the wider public as well. And if we can go to the next slide. They explain in this slide why, in fact, they use the language that -- kind of language that they use in their book. They write, quote, Even if we had tried to confine the message to professional biologists, we would have had problems. In which subfield would this book be understood? We decided that a common, straightforward vocabulary was essential just to reach scientists as a group. To move beyond scientists to the lay public required further adjustments, but fewer than one might expect. So the point here is that, if you are addressing a scientific topic which cuts across subdisciplines, the subdisciplines, which might have their own specialized vocabulary, the best way to do it might be to write the book in plain English or as in plain English as is possible. That's what Kirschner and Gerhard tried to do. Q. Is that what you, in fact, tried to Darwin's Black Box? A. That's exactly what I tried to do. Q. You authored numerous peer reviewed articles, many in scientific journals, which you eluded to previously. Is there one area in which you have published the most in these science journals? A. Yes, nucleic acid structure. Q. Have you authored any articles appearing in peer reviewed science journals that make intelligent design arguments? A. Yes, I did, one. Q. What article is that? A. It was an article that I published with a man named David Snoke, who's in the physics department at the University of Pittsburgh, and was published in a journal called Protein Science. Q. Sir, again, I would direct your attention to the exhibit book that was provided. And if you look under tab 3, there should be an exhibit marked Defendant's Exhibit 203-J. Do you see that, sir? A. Yes. Q. Is that the article you're referring to? A. Yes, that's right. It's entitled Simulating Evolution by Gene Duplication of Protein Features That Require Multiple Amino Acid Residues. Q. Again, you said that was published in Protein Science? A. Yes. Q. A peer reviewed science journals? A. Yes, that's correct. Q. And published in 2004? A. That's right, last year. Q. Could you give us a thumbnail sketch of what that article is about? A. Yes. It's a theoretical study that uses models to describe the process of protein evolution of new features, and we say that it seems to present, focus on problems for Darwinian evolution. Q. Now you stated that you consider this to be an intelligent design article, is that correct? A. Yes, I do. Q. And why is that? A. Because it asks questions about how much unintelligent processes can explain in life and, therefore, points our attention to what intelligence is required to explain as well. Q. Now we eluded to a concept of irreducible complexity, a concept that you introduced in your book, Darwin's Black Box. Did you use the term irreducible complexity -- let me back up. Did you use the concept of irreducible complexity in this particular paper? A. Yes, I did. Q. Did you actually use the term irreducible complexity in this paper? A. No, in fact, we did not use that term. Q. Why not? A. Well, in the original manuscript as we had written it and sent it to the journal Protein Science, the term did, in fact, appear. But one of the reviewers of the manuscript told us to remove the term from the manuscript and find another description for what we were trying to focus on. Q. Why did he tell you to remove that term? MR. ROTHSCHILD: Objection, Your Honor. We haven't been produced any of these materials, these drafts, or any responses to the drafts. MR. MUISE: Your Honor, I don't know why they need a copy of the draft. He was asked about these questions during his deposition about this particular article. I'm just -- I'm not recounting any drafts. They, obviously, have a copy of the article. MR. ROTHSCHILD: We do have a copy of the article, Your Honor, but if they're going rely on this exchange here, I think they have to produce the evidence that it actually occurred. THE COURT: If he's going to talk about a manuscript, that could be a problem. MR. MUISE: Well, Your Honor, he's only eluded to that he made changes on this particular article based on recommendations from the editorial board. And I asked him why they asked him to make those changes on it. He was asked these same questions during his deposition, Your Honor. It's kind of surprising they're objecting to this. MR. ROTHSCHILD: This did come up in the deposition. But if they're going to rely on this as evidence, as this being actually an article about irreducible complexity, and this is the evidence they're going it rely upon, then they got to produce the evidence. Otherwise, it's hearsay. THE COURT: What are you asking they produce? MR. ROTHSCHILD: The manuscript that Dr. Behe sent which used the term irreducible complexity and any written responses that they received. THE COURT: Are you saying that there is a discovery request that could arguably have been intended to cover production of that manuscript and you didn't get it or -- I guess Mr. Muise's point is, you didn't ask for it. MR. ROTHSCHILD: Well, I mean, there's no discovery request that specific. Though we're entitled to the materials that the expert relies upon as the basis for his opinion, which, as a general matter, has certainly been exchanged by both sides and were cited in reports and exchanged. And this is an instance where I don't -- I don't believe the burden is on the Plaintiffs to request documents because the issue is, if you're going to bring hearsay into this case, which is what Dr. Behe is doing, or counsel is doing for a very substantive point, then I object that it's hearsay and -- THE COURT: That is the change to the manuscript? MR. ROTHSCHILD: The change to the manuscript and any response which, I think, Professor Behe is portraying as the reason why an article about irreducible complexity suddenly became an article not about irreducible complexity. MR. MUISE: I don't believe that's what he received to. He said he discussed the concept of it. He was told to take the word out in one of the drafts, and so he did. And the article that they have a copy of is the one that the article came out. They were asked, they asked him those same questions. He said the same thing. The the editor told me to take the word out. THE COURT: Do you have the manuscript? MR. MUISE: I don't have it here with me, Your Honor. I'm not sure if that manuscript is still here. Again, the point is, it's the editorial, the editor told him that, and that's all he's testified to. MR. ROTHSCHILD: It's hearsay. THE COURT: Isn't that hearsay? MR. MUISE: Well, Your Honor, as we've gone through time and time again, the experts can rely on hearsay when they're formulating opinions. And it's an explanation of why this concept is not going to be in there. And I'm certain that Mr. Rothschild is going to cross-examine him as to why that concept is not in here, and it's just making it plain. The editor told him to take the term out, argue the concept, but take the term out. MR. ROTHSCHILD: This is exactly the point, Your Honor. I mean, this is not the kind of hearsay that an expert in biochemistry or intelligent design would rely upon, which is presumably other scientific materials. This is a personal exchange about what happened with this article. And I would like to cross-examine him about it. But this is hearsay, and I don't have the evidence. THE COURT: Well, I do think the quality -- I think you attempt to equate this hearsay with the hearsay that might otherwise be allowed with an expert. I think there is a distinction here. And I think this is hearsay arguably that's of a quality that ought not be admitted. MR. MUISE: Your Honor, it's also -- it's offered to demonstrate what it is, why he took that term out. I mean, you don't have to even rely -- THE COURT: Isn't that a highly material point? MR. MUISE: It certainly explains his actions why he did that. THE COURT: Sure. But I think that the hearsay that we're talking about is a different type of hearsay than the hearsay that might customarily be that an expert's report might customarily be predicated on. I see a distinction. I understand Mr. Rothschild's point. Well, let me ask you this. If Mr. Muise produces the manuscript for the purpose of -- is it in the building, the manuscript? Does it exist here? MR. MUISE: Your Honor, I'd have to consult with Dr. Behe about whatever the letter exchanged, if there's anything available. THE COURT: If you can't produce a manuscript for the purpose of cross examination, then I'll sustain the objection at this point, and you can move on. BY MR. MUISE: Q. Dr. Behe, with the article that was actually published, did you discuss the concept of irreducible complexity? A. Yes. Q. But the term itself was not included in there, correct? A. That's correct. Q. Have you submitted any other articles on intelligent design to peer reviewed science journals? A. Yes, I did. One article I submitted to a journal called the Journal of Molecular Evolution. And it actually contained a subset of the material that was eventually published in the article or Reply to my Critics in the journal of Biology and Philosophy. Q. Did they publish that article in that journal? A. No, they didn't. Q. Did the publisher give you a reason for not doing so? A. Yes, he did. MR. ROTHSCHILD: Objection, Your Honor. The same hearsay. MR. MUISE: Your Honor, it kind of remarkable to me. He's -- you've heard throughout this trial that, you know, they are not submitting their articles for peer review. Here, he's attempting to do that, and he's got publishers that are telling him that they're not going to publish them. And I'm enlisting from him what it is the publishers are telling him why these things aren't being published. That's entirely relevant to this -- to these proceedings. THE COURT: But it's hearsay. MR. MUISE: He can certainly testify to that because that demonstrates what he -- what he was told, and what the effect of that is, is relevant. It doesn't necessarily even have to go to the substance of the conversation. It goes to what is being told as to why these peer reviewed journals are not being published. MR. ROTHSCHILD: I think the fact that they are being rejected by peer review publications are certainly relevant, and he can testify about that, because that's what happened to him. But the reasons are being introduced for the truth. This is why we are rejecting it. THE COURT: I agree with that. The objection is sustained. BY MR. MUISE: Q. Sir, do you perceive a bias against publishing intelligent design articles in science journals? A. Yes, I do. Q. Could you explain? A. It's based on my personal experiences trying to publish such material. It's based on conversations with other people. It's based on news stories about persons who did, in fact, publish an article mentioning intelligent design. So, yes, I do. Q. Now, sir, you had a part in drafting a section contained in the 1993 version of Pandas, correct? A. Yes. Q. I believe you testified it was the blood clotting section? A. Yes, that's correct. Q. Is that section still valid based on current scientific evidence? A. Yes, it is. Q. Did you write about the blood clotting cascade in Darwin's Black Box? A. Yes, I did. Q. Is that section similar to the blood clotting cascade section you wrote in Pandas? A. Yes, it's similar. It's lengthier, but it's similar. Yes. Q. I believe you testified you didn't contribute to any parts of the prior drafts of Pandas, is that correct? A. That's correct, just to this one. Q. In the blood clotting cascade section of Pandas, were you advancing any religious or philosophical arguments? A. No, I was not. Q. What were you doing in that section? A. I was making a scientific argument that the blood clotting cascade is poorly explained by Darwinian processes but is well explained by design. Q. Now is it your understanding that this book Pandas is part of the controversy in this lawsuit? A. Yes, I understand that. Q. What is your understanding of how this book will be used at Dover High School? A. I understand that there is a short statement that is read to students that says that the book Of Pandas and People is available in the school library for students to access. Q. Do you see that as a good thing? A. Yes, I do. Q. Why? A. Because the book Of Pandas and People brings a different viewpoint, a different perspective to the same data that is viewed oftentimes through a Darwinian perspective, and it can show students that viewing data from different directions oftentimes can affect how we judge the strength of data, how we judge the problems associated with a particular viewpoint and so on. Q. Now this book was published in 1993, correct? A. Yes. Q. And you're aware that Dr. Miller has criticized several sections in this book? A. Yes, I heard him. Q. Do you intend to address his claims in your testimony today? A. Yes, I intend to, yes. Q. Of the sections that he addressed, are they still scientifically valid? A. Yes, they are. Q. Now would you recommend this book as a primary text for biology class? A. No, I wouldn't recommend it as a primary text. It's not intended as a primary text. Q. Any other reasons? A. Well, yes. It was written in 1993. And so science advances pretty quickly, and so it's not appropriate for use as a primary text because of that. Q. Has intelligent design advanced since 1993? A. Yes, it certainly has. Q. Would you recommend that it be used in the manner that Dover High School is using it? A. Yes, I think that's a fine way to use it. Q. And I believe for the reasons you stated previously in your testimony? A. Yes, that's right, because it gives students a different perspective on data, allows them to separate data from theory, allows them to view problems from different perspectives, and some people who think one theory is correct will oftentimes view problems as less severe than people who view the data from a different perspective. Q. Do you think that schools should teach the theory of evolution? A. Yes, I certainly do. Q. And why is that? A. Well, the theory of evolution is widely used in science. It is, in many aspects, well substantiated. It's used by working scientists and any well-educated student should understand it. Q. By advocating intelligent design, is it your goal to not have the theory of evolution taught in the biology class? A. No, certainly not. Q. Has that ever been your goal? A. Never, no. Q. Now Dr. Miller testified on direct as follows: Quote, It's important to appreciate as well what peer review actually means. And what it means is subjecting your scientific ideas to the open scrutiny and criticism of your colleagues and competitors in the field, end quote. Do you agree with that? A. Yes, wholeheartedly. Q. Have you subjected your scientific ideas on intelligent design to open scrutiny and criticism of your colleagues and competitors in the field? A. Yes. I have to say that my ideas on intelligent design have been subjected to about a thousand times more scrutiny than anything I've ever written before. Q. And how have you subjected your ideas to such scrutiny? A. Well, in a number of ways. I've written those papers that were described earlier here. I wrote the book itself. The book has been reviewed. It was sent out earlier to be reviewed. And also, I've been, since the book was published, giving seminars, engaging in discussions and so on before academic groups. Q. And have you had -- have you prepared some slides to demonstrate this point? A. Yes, I have. Here is a selection of a number of seminars and discussions that I've had specifically with academic groups on my ideas about intelligent design since the book was published. Soon after the book came out in the summer of 1996, I spoke with the department of biology at a place called King's College, which is near Lehigh in Wilkes-Barre. Q. Again, these are with academic or science groups, is that correct? A. Yes, these are exclusively academic groups. Q. Included in these seminars are other scientists? A. Yes. A seminar in a department like this normally involves much of the faculty of the department, graduate students, undergraduates, and so on. Sometimes faculty from other departments as well. Q. Could you continue, please? A. Yes, the text in bold are seminars and talks to science departments. So the department of biology at the University of South Florida, I gave a talk in 1996; at the department of chemistry at Villanova University; the department of philosophy, there was a symposium with a man named Daniel Dennett and a man named David Haig held at the University of Notre Dame. Now that's underlined. I underlined talks in which opposing speakers were there presenting alternative points of view. And David Haig is a professor of evolutionary biology at Harvard University. Daniel Dennett is a philosophy professor at Tufts University, and has published several books on Darwinian thought and its philosophical ramifications. Q. Now that was in the department of philosophy. But did you also -- did you argue the scientific arguments? A. Yes. Myself and David Haig made scientific arguments, and Daniel Dennett made both scientific and philosophical arguments. I should add that a number of philosophers are oftentimes interested in scientific ideas and seek philosophical implications for them. So I do get invitations from philosophy departments as well. Q. Continue, please. A. There was a symposium held at a school called Wheaton College, and participants in that symposium included a man named James Shapiro and David Hull. James Shapiro is a professor of microbiology at the University of Chicago. And while he's skeptical of Darwinian theory, he is not a proponent of intelligent design. So he presented an alternative point of view. David Hull is a philosopher of biology at Northwestern University and a firm believer in Darwinian theory. Also, I gave a presentation to the department of mathematics at the University of Texas, El Paso, in 1997. Q. Is there -- I mean, is there a relationship between science and mathematics? A. Yes. Yes, there certainly is. Mathematics is called the language of science. Practically all scientists rely on mathematics for their work and it -- mathematics is used to reach conclusions and to view evidence and to marshal arguments. Next slide, please. A couple more. The department of chemistry at Colgate University in 1997; the department of philosophy, they have a place called Saint Norbert College in Wisconsin. They have a lecture series called the Killeen Chair Lecture. They invited me to present under that lecture series. That was in 1998. I presented to the department of genetics at the University of Georgia in February of 1998; the department of biochemistry at the University of Minnesota, May 1998; the department of chemistry and biochemistry at the University of South Carolina in 1999; and at the University of Massachusetts, there was a panel discussion held with Professor Lynn Margulis. Lynn Margulis is a very prominent biologist, a member of the National Academy of Sciences, who has questioned aspects of Darwin's theory. She and I gave 15 minute presentations, and then there was a panel discussion with a number of panelists, which included the chancellor of the university, David Scott. It was presented in front of an audience of about 1000 members of the university community. Q. Again, in these discussions and seminars that we're going to be reviewing here, you're arguing regarding the scientific evidence for intelligent design, is that correct? A. That's correct, yes. Next slide, please. 1999, I gave a presentation at the department of biochemistry at the Mayo Clinic; in April of that year, I talked to the Brooklyn section of the American Chemical Society. Q. What is that? A. Well, the American Chemical Society is the largest organization of professional chemists in the country, and they have, of course, many local sections. And the invitation for this was from the Brooklyn section of the ACS. Q. Continue, please. A. One of the members of the ACS in Brooklyn is also on the faculty of the department of chemistry at a place called Saint Francis College in Brooklyn, and I also then spoke the next day to the department of philosophy at Saint Francis College. I spoke in the summer of 1999 to a Gordon Research Conference on organic reactions and processes. Gordon Research Conferences are very prominent meetings of scientists on very many different topics. And oftentimes, they're usually attended by between 100 and 200 scientists. And I received an invitation to speak in front of this group. In February of the year 2000, I was invited by an organization called the Royal Society of Medicine, which is in England, to speak at something called an -- a conference on evolution and Darwinian medicine. The Royal Society of Medicine is an organization of physicians and scientists in England that sponsors a large number of conferences. This particular conference was focused on, as its title suggests, what evolution, and in particular, Darwinian theory has to say about diseases and medicine. I debated and discussed the topic of Darwinian evolution and design with a man named Robert Fowley, who was a paleontologist and a member of the Royal Society in England, which the Royal Society is akin to the National Academy of Sciences in the United States. The next one. In April of the year 2000, I gave a plenary lecture to a conference that was held at Baylor University entitled The Nature of Nature Conference. Q. Who participated in that conference? A. This was a large conference with, I think, 50'ish, 50 or so invited speakers in it. It was one of the most eminent conferences that I have ever been to. The topic was The Nature of Nature. It was very widely construed. There were academicians there from a large variety of different disciplines. There were physicists there, such as Alan Guth (phonetic), who is a member of the National Academy of Sciences and a professor of physics at MIT, discussing the nature of the universe, whether the universe is eternal, whether it is undergoing something that he calls inflation, or whether it began in time. There were conversations on that. There were philosophers who discussed the question of whether the mind is a physical object or whether it is not. There were mathematicians there to discuss the topic of whether the fit between mathematical theory and nature, which seems to, many of them, to be uncanny is unreasonable to expect or whether it is reasonable. And, of course, there were also people there discussing Darwin's theory of evolution and intelligent design. I participated in a session on biochemistry and design and Darwinian evolution. And if I recall the order correctly, the first speaker in my session -- there were four speakers. The first speaker was a man named Simon Conway Morris, who is a paleontologist at Oxford University in England and a fellow of the Royal Society. Again, a fellow of the Royal Society is akin to a member of the National Academy of Sciences in the United States. And I think afterwards, I presented. And then I think up next was a man named Mark Tashney, who is a biology professor at Memorial Sloan-Kettering Medical Center in New York City. And he is a member of the National Academy of Sciences in the United States and also a biochemist. And the last person speaking in our session was a man named Christian DeDuve, who is a Nobel Prize winner and also a biochemist who teaches at the Catholic University of Louvan in Belgium. Q. Now we heard testimony in this case, I believe it was from Dr. Forrest, and she described that conference as a creationist conference. How do you respond to that? A. Well, it would surprise many of the speakers there. I would say that, that's simply ludicrous. And I think it says more about the person making such a comment than it does about the conference itself. Q. Let's go to the next slide. In here, you have a few underlined in red. What is the purpose of that? A. Yes, I put in red conferences in which other expert witnesses who are going to be testifying at this trial have participated. For example, in the summer of the year 2000, there was a conference held at a place called Concordia College in Wisconsin, which includes myself, Ken Miller, and Scott Minnich, who, I think, will be up later. In the fall of 2000, I presented a lecture at Catholic University on the general title Fides et Ratio and Scientific Inquiry. Fides et Ratio is the title of an encyclical which was written by Pope John Paul, II, and this was a commentary on the encylical plus a commentary on the relationship of science and religion. Q. Fides et Ratio means faith and reason? A. Yes, that's right. It's Latin for faith and reason. Q. I believe the encylical, was that what Dr. Miller had referred to or testified to? A. Yes, I heard him mention the encylical in his testimony. Q. Continue, please. A. I presented at the department of biology at Wilkes University, which is, of course, close to Bethlehem at the invitation of a former student in the department of biology at Lehigh, who is now on the faculty there; Los Alamos National Laboratories in March of 2000; I participated again in a conference at Haverford College, which was sponsored by the American Association for the Advancement of Science. And they title it Interpreting Evolution. And I spoke there along with Ken Miller and also Warren Nord, who, I believe, is going to testify in this trial. Q. So the American Association for the Advancement of Science put on a seminar entitled Interpreting Evolution, and you were permitted to be one of the speakers there? A. I was invited, not just permitted. Q. Okay. Continue. A. I spoke with the deans of the medical school at the University of New Mexico. I presented at a meeting of the Protein Society in Philadelphia. That doesn't have a date there. But that was also in the year 2002. Q. Now was that presentation related to that article that you wrote with David Snoke? A. Yes, that's correct. This was a presentation, actually a poster session, which laid out the data and the ideas which would later be written up and sent out and published as that paper. Q. And this is one of those professional organization's annual meetings? A. Yes, that's right. This is a meeting of the Protein Society. I guess there was about a thousand people there. It was presented in something called a poster session, like many other presentations there. Q. Next slide. A. In the spring of the of the year 2002, the American Museum of Natural History in New York City sponsored a panel discussion and debate between my -- with myself and William Dembski on one side speaking of intelligent design, and Kenneth Miller and Robert Pennock on the other side advocating Darwinian evolution. This was well attended. Several hundred people, scientists, members of the community. In the fall of the year 2002, a man named William Provine, who is a professor of the history of science and also a revolutionary biologist at Cornell University invited me to come and present a lecture to his introductory class on evolutionary biology. Q. And who is -- is Professor Provine an intelligent design advocate? A. No. Professor Provine is a very, very strong advocate of Darwinian evolution. Q. He invited you though to come up and give a presentation to his biology class at Cornell University? A. That's right. I gave an entire lecture of 45 to 50 minute lecture, I believe. Q. Did he explain to you why he wanted you to come on up? A. Yes. MR. ROTHSCHILD: Objection, hearsay. MR. MUISE: Your Honor, he's going to explain why he came up and his understanding as to why he was given the presentation. MR. ROTHSCHILD: Exactly my objection. THE COURT: I'll allow it. I'll overrule the objection. THE WITNESS: His stated purpose was that he wanted students in the class to hear an alternative view to Darwinian evolution so that they could better make up their minds which they thought was more accurate. BY MR. MUISE: Q. Apparently, he didn't consider this was going to cause some harm to his students? A. No, his opinion -- MR. ROTHSCHILD: Objection. THE COURT: Sustained. Sustained. BY MR. MUISE: Q. Go to the next one, please. A. Yes, there's a college called Hillsdale College in Michigan. They sponsor a lecture series for their students every year in something called the Center for Constructive Alternatives. They sponsored a lecture series on intelligent design. And I was one of the participants. Chestnut Hill College in Philadelphia, they have a lectureship for students who are going to enter biomedical professions. I was invited to speak before that group. I was invited to speak before the department of department of biochemistry and biophysics at the University of California, San Francisco, in the year of 2003. In 2004, the Claremont-McKenna College in California has a lecture series called the Atheneum series, and in that year, it was a series on intelligent design. I spoke at that. And, I believe, later on, Eugenia Scott spoke in the same series, and Professor Scott -- or Dr. Scott is a, I think, the director of the National Center for Science Education. Q. Now you made -- now these are presentations that were given to academic groups, scientific groups, is that correct? A. Yes, these are specifically ones before academic groups. Q. Focused principally on areas of science, is that correct? A. Yes, that's correct. Q. You also made presentations in other settings, is that correct? A. Yes. I've given a number of other lecture as well before most any group that would invite me, including many student groups. Q. You gave a presentation at Dover High School, is that correct? A. Yes, in the spring of this year, I gave a seminar in Dover High School. Q. Now you're a member of the American Society for Biochemistry and Molecular Biology, correct? A. Yes, that's right. Q. Now Plaintiffs' experts, and Dr. Forrest, and Dr. Miller have criticized you for not taking the opportunity to present your argument for intelligent design at the Society's annual meetings. How do you respond to that criticism? A. Well, I think it's disingenuous for a couple of reasons. The first reason -- all three reasons, let's put it that way. I'm a member of the Protein Society, and I did present my work before a meeting in the Protein Society in the year 2002, I believe. Number 2, Professor Miller and I appeared on a show called Firing Line on the public broadcasting system that was hosted by William Buckley at that point to debate and discuss the topic of evolution and intelligent design. And on that show, Professor Miller said -- MR. ROTHSCHILD: Objection, Your Honor, hearsay. MR. MUISE: Your Honor, it's going directly to the point -- I mean, you'll understand when he continues his testimony that they had a joint agreement. They submitted a joint request to do this. And this was denied. So, I mean, Dr. Miller had -- he's recounting a conversation he had with Dr. Miller, which is going to explain the actions that he took. THE COURT: What joint agreement? MR. MUISE: Your Honor, he's responding to -- Plaintiffs' experts have criticized and particularly criticized him -- THE COURT: I understand what you're doing, but he's about to recite something that Dr. Miller said on Firing Line that sounds to me like it's going to be hearsay. MR MUISE: No, Your Honor, it's going to explain subsequent actions. It's going to be like if somebody said, you know, I went to the store because he asked me to go to the store. It's explaining subsequent conduct. THE COURT: Where is that in the hearsay exceptions? Is it a present sense impression? MR. MUISE: It explains his actions, Judge. It explains why he's done, why he's going to take the actions that he did. You'll get Dr. Miller complaining that they're not presenting. He challenges them. That's all he's going to testify to. And he's going to testify that they wrote a joint letter and submitted it off. It explains the purpose of the joint letter. THE COURT: He can say that they wrote a joint letter. I understand that. That's not what he's about to do. He's about to apparently quote Dr. Miller, Professor Miller chapter and versus what he said. I'll sustain the objection. MR. ROTHSCHILD: And the letter hasn't been produced either, Your Honor. THE COURT: Well, we'll get to that. Let's not anticipate what we don't have. I'll sustain the objection to that question. BY MR. MUISE: Q. Have you been challenged to give a presentation at one of these annual meetings? A. Yes, I have. Q. Who challenged you? A. Professor Ken Miller. Q. How did you respond to that challenge? A. I said I'd be delighted to make a presentation before any group of scientists. Q. Did you follow that up, take any action on that? A. Yes, I did. I co-signed a letter with Professor Miller addressed to the Presidents of the American Society for Biochemistry and Molecular Biology and also the American Society of Cell Biology, proposing that at their next meetings, they -- MR. ROTHSCHILD: Objection, Your Honor. THE WITNESS: Sponsor -- THE COURT: Hold on. MR. ROTHSCHILD: The letter hasn't been produced, and I do think it's hearsay. I mean, if he has it and can, you know, read it into evidence, that's one thing. But, first of all, it's another declarant that he's effectively taking credit here for, Ken Miller, and we don't have a letter to cross-examine. THE COURT: He says he was a co-author of the letter. He's paraphrasing the letter. He's not reading from it. MR. MUISE: In fact, it's a greater objection to read from the actual letter than from him to explain. THE COURT: I think that would be a problem. No, I'll overrule the objection. If he is summarizing or paraphrasing the letter, which he is the co-author of, I'll overrule the objection, and you may proceed. MR. ROTHSCHILD: I also have an objection. We haven't been produced the letter, which deprives us of the opportunity to cross-examine. MR. MUISE: Your Honor, I mean, they had an opportunity to request any of the documents that they wanted to request. There's no -- there's been total disclosure in this particular case. There's been a lot of documents that's been gone back and forth. THE COURT: I bet that letter is readily available, and I'm going to further bet that we're not going to finish with this witness today. Why don't you get the letter -- I'm not -- I've overruled the objection. But I think it's a fair request, that if some of the testimony is predicated on the letter and the summary of the letter, that that be produced. I don't think that's a hardship to ask that the letter be produced. MR. ROTHSCHILD: Your Honor, this certainly was not part of, in any way part of his expert report or a rebuttal report, to the best of my recollection. THE COURT: Are you objecting that it's beyond the scope of his expert report? MR. ROTHSCHILD: Well, I do think it's beyond the scope, but the greater concern is, you know, Mr. Muise is suggesting that, you know, we somehow missed out on our chance to discover this in advance of testimony. THE COURT: I've cured that. I've asked that he produce the letter, so I'm going to -- let's proceed. Let's move on. Were we in mid answer when we got the objection? MR. MUISE: He was in the middle, Your Honor. THE COURT: I think you were in the middle, Professor, of summarizing the contents of the letter, and you can proceed with your answer, wherever you left off, if you would like. THE WITNESS: We wrote a letter proposing a symposium at the annual meeting of the societies. We sent it off and received an acknowledgment that it had been received, but then no further action from the societies. And furthermore, I think that, the original question -- BY MR. MUISE: Q. Regarding the criticism. I believe you answered there were three points you wanted to make, and you've made two. I think this is the third point? A. The third point is that, one has to understand the structure of meetings to see why they may not be the best place to present such ideas. As I mentioned before, large national scientific meetings have many people, but generally most presentations are made as what are called poster presentations, where you get a large poster board, tape up figures and text on it, and go into a large hall with hundreds of other scientists, and display your poster. People wander by and look at it, and can either read it by themselves or continue on or they can stop and talk with you a bit. But it is not a place for a sustained conversation, a sustained discussion about topics such as intelligent design which require a lot of preliminary background, explanation, and so on. Rather, the seminars and discussions that I've just gone through are, in my opinion, much better forums for presenting such material, because generally you can speak continuously for 50 minutes to an hour. There are generally 20 to hundreds of other scientists, active admissions, and so on, who are listening quite closely to the argument you are making and who can respond with discussion and questions and counter arguments of their own. So I view it as a much better forum than a large national meeting. Q. Sir, I'd like to refer you back to your CV. It's Defendants' Exhibit 249. I want to review some of the additional articles or writings that you have done relating to the topics of intelligent design and evolution and defending intelligent design against claims such as it's religion and it's not science and so forth. If you look at your CV under publications, there's one published in 2004, a chapter entitled Irreducible Complexity, Obstacles to Darwinian Evolution. And that was a chapter you wrote for a particular book, correct? A. Yes, that's right. It appeared in a book called Debating Design, From Darwin to DNA, which was edited by a man named Michael Ruse, who is a philosopher of biology and a strong proponent of Darwinism and a man named William Dutsky, who is a proponent of intelligent design, and it was published by Cambridge University Press. Q. I believe, if you look at the exhibits that have been provided to you, that chapter is included on the tab 7 as Defendants' Exhibit 203-I under tab 7. If you could verify that for me, please? A. Yes, that's correct. Q. Were there opponents of intelligent design that contributed chapters to that book? A. Yes. It was debating design. That included proponents of intelligent design, of Darwinian evolution, of something called self-organization and complexity theory, a wide range of viewpoints. Q. Was Dr. Miller one of the people that contributed a chapter of that book? A. Yes, he also contributed a chapter. Q. If you go down to the next publication on your curriculum vitae, there's a chapter written in 2003 entitled Design and Details, The Origin of Biomolecular Machines, close quote. And that was published in a particular book? A. Yes, it was. It was published in a book called Darwinism, Design and Public Education, which was published by Michigan State University Press. I contributed a chapter to that as well. Q. Were there again competing arguments, arguing intelligent design and teaching it in schools and so forth? A. Yes, that's right. Again, this was a companion book which had many different viewpoints. Q. And further down your CV, in 2003, you contributed a chapter entitled The Modern Intelligent Design Hypothesis, Breaking Rules, is that correct? A. Yes, that's right. Again, this was a collection of essays published by Routledge Press, which also contributed -- contained a contribution by Professor Miller. Q. And that book was edited by Neil Manson? A. Yes, he's a philosopher of science. Q. If you go to the next page in your curriculum vitae, you have an article in Natural History, is that correct? A. Yes, that's right, entitled The Challenge of Irreducible Complexity. Q. That was published in 2002? A. That's correct. This was part of a section in the issue of the magazine which kind of was associated with the discussion and debate that they sponsored, that the American Museum of Natural History sponsored. The American Museum of Natural History is the publisher of Natural History. It contain contributions from myself, William Dembskie, and Robert Pennock and Kenneth Miller, as well as several others. Q. Going down again in your curriculum vitae, there was a chapter you contributed to a book by another one of Plaintiffs' experts, Robert Pennock, and the chapter was entitled Molecule, Machines, Experimental Support for the Design? A. Well, it's called Molecular Machines. Q. Sorry. A. It was published by MIT Press, yes. Q. And if you go down further on that page in your -- I'm sorry. Go to the next page of your curriculum vitae. I believe it's page 4. It appears there's an article, Self-organization and Irreducibly Complex Systems, A Reply to Shanks and Joplin. Do you see that? A. Yes, that's correct. That -- Q. I'm sorry. A. I'm sorry. That was published in a journal called Philosophy of Science, which is a very prestegious journal in its field. And in it, I respond to objections to the concept of irreducible complexity which were advanced by a man named Neil Shanks, who is a philosopher, and Carl Joplin, who is a biologist, and argued why their objections were incorrect. Q. If you look again at your exhibit book, I believe under tab 4, it's marked as Defendants' Exhibit 203-G? A. Yes. Q. Is that the article you are referring to? A. Yes, it is. Q. And then down further on that page, you contributed an article in 1998 to Rhetoric and Public Affairs, is that correct? A. Yes, that's right, entitled Intelligent Design as an Alternative Explanation for the Existence of Biomolecular Machines. Q. And I believe one more. If you turn over to page 6, at the top, there's a contribution to the Boston Review in 1997. Do you see that? A. Yes, I do. Q. What was that? A. Well, Boston Review is actually a publication of the Massachusetts Institute of Technology, I believe, their political science department or some such thing. They had a review of my book, Darwin's Black Box, published or written by a man named Alan Orr, who is a professor of evolutionary biology at the University of Rochester. And after his review, they invited contributions, further discussion by, I think, around a dozen academics, from a dozen academics or so. And the symposium was discussing my book and also a book that was published recently by a man named Richard Dawkins, who is a professor of evolutionary biology at Oxford in England. And it included contributions from myself, from a man named Russell Doolittle, who is a professor of biochemistry at the University of California, San Diego, a man named James Shapiro, who is at the University of Chicago, and many others. Q. And I believe you also have contributed three pieces that were actually published in the New York Times, is that correct? A. Yes, that's right. They called me up and asked me to write about my ideas in, I think, in 1996, 1999, and this year as well. Q. So the New York Times solicited your ideas on intelligent design? A. That's correct. Q. Is it fair to say that in these writings and in these conferences that we've just gone through, that you've been defending your arguments, you've been defending the scientific argument for intelligent design, as well as defending against arguments that it's creationism? A. Yes, I've done that continuously. Q. And again, arguing the scientific evidence in support for intelligent design? A. That's correct. Q. And were you also arguing with regard to the perhaps lack of scientific evidence for some aspects of Darwin's theory of evolution? A. Yes, I argued that as well. MR. MUISE: Your Honor, may it please the Court, I tender Dr. Michael Behe as an expert in biochemistry, evolution, intelligent design, creationism, and science education. MR. ROTHSCHILD: I'm not sure he was ever actual previously proffered as an expert on science education. THE COURT: All right. Let's handle biochemistry, evolution, intelligent design, and creationism. Any objection there? MR. ROTHSCHILD: No, Your Honor. THE COURT: All right. Do you know if you have any objection with respect to science education? MR. ROTHSCHILD: I mean, he was not tendered as an expert in science education. I'm not sure what the basis of his expertise is in science education. I mean, I understand he teaches, but -- THE COURT: Do you want to ask him some questions? MR. ROTHSCHILD: Yes. THE COURT: I think it's probably an appropriate time for a break. MR. MUISE: I was kind of timing it to that, Your Honor, looking at that. But if I may say, we have a stipulation that they're qualified to testify as to their opinions that are in their reports, and he certainly is opined about the value of Pandas and of intelligent design to be part of the science curriculum. I mean, it's fairly embraced by that. And we have a stipulation on this, so it's kind of surprising that he's objecting. THE COURT: Why don't you talk about that during the break and see if it triggers the need for any voir dire on qualifications, specifically on science education, and if it does, we'll hear that. If it's fairly encompassed within the stipulation and it does not, then we'll admit him for that purpose. He's certainly admitted for the other purposes then based on the stipulation and the fact that there's no objection. We'll reserve judgment on the science education. Although, you know, I will say that, it seems fairly contemplated within his report, but I'm not sure what the essence of your stipulation was, so I recognize that you reserve your right to conduct some voir dire if you see the need to do it, and I'll hear you on that after we return. So let's break for 20 minutes. We'll return after that period, and we'll see what your pleasure is with respect to the expert qualifications. We'll be in recess. (Whereupon, a recess was taken at 10:40 a.m. and proceedings reconvened at 11:00 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 10 (October 17), AM Session, Part 2 THE COURT: All right. What's your pleasure with respect to the last qualification? MR. ROTHSCHILD: Your Honor, we'll withdraw the objection and save the questions for cross. THE COURT: All right. He's admitted then for the purposes as stated by Mr. Muise, and you may proceed. MR. MUISE: Thank you, Your Honor. DIRECT EXAMINATION BY MR. MUISE: Q. Dr. Behe, I first want to review with you the opinions you tend to offer in this case before we get to the basis of those opinions, okay? A. Yes. Q. Sir, do you have an opinion as to whether intelligent design is science? A. Yes, I do. Q. And what is that opinion? A. Yes, it is. Q. Do you have an opinion as to whether intelligent design makes testable scientific claims? A. Yes, I do. Q. What is that opinion? A. Yes, it does. Q. Do you have an opinion as to whether intelligent design posits a positive argument for design? A. Yes, I do. Q. What is that opinion? A. Yes, it does. Q. Do you have an opinion as to whether intelligent design requires the action of a supernatural creator? A. Yes, I do. Q. And what is that opinion? A. No, it doesn't. Q. Do you have an opinion as to whether intelligent design is young-earth creationism? A. Yes, I do. Q. What is that opinion? A. No, it isn't. Q. Do you have an opinion as to whether intelligent design is old-earth creationism? A. Yes, I do. Q. And, sir, what is that opinion? A. No, it isn't. Q. Do you have an opinion as to whether intelligent design is special creationism? A. Yes, I do. Q. And what is that opinion? A. No, it isn't. Q. Do you have an opinion as to whether intelligent design is a religious belief? A. Yes, I do. Q. What is that opinion? A. No, it isn't. Q. Do you have an opinion as to whether Darwin's theory of evolution is a fact? A. Yes, I do. Q. What is that opinion? A. No, it isn't. Q. Do you have an opinion as to whether there are gaps and problems with Darwin's theory of evolution? A. Yes, I do. Q. What is that opinion? A. Yes, there are. Q. Do you have an opinion as to whether making students aware that Darwin's theory is not a fact promotes good science education? A. Yes, I do. Q. What is that opinion? A. Yes, it does. Q. Do you have an opinion as to whether making students aware of gaps and problems with Darwin's theory of evolution promotes good science education? A. Yes, I do. Q. What is that opinion? A. Yes, it does. Q. Do you have an opinion as to whether making students aware of intelligent design promotes good science education? A. Yes, I do. Q. And what is that opinion? A. Yes, it does. Q. And, sir, do you have an opinion as to whether providing students with the opportunity to review the book Of Pandas and People promotes good science education? A. Yes, I do. Q. What is that opinion? A. Yes, it does. Q. Sir, what is intelligent design? A. Intelligent design is a scientific theory that proposes that some aspects of life are best explained as the result of design, and that the strong appearance of design in life is real and not just apparent. Q. Now Dr. Miller defined intelligent design as follows: Quote, Intelligent design is the proposition that some aspects of living things are too complex to have been evolved and, therefore, must have been produced by an outside creative force acting outside the laws of nature, end quote. Is that an accurate definition? A. No, it's a mischaracterization. Q. Why is that? A. For two reasons. One is, understandable, that Professor Miller is viewing intelligent design from the perspective of his own views and sees it simply as an attack on Darwinian theory. And it is not that. It is a positive explanation. And the second mischaracterization is that, intelligent design is a scientific theory. Creationism is a religious, theological idea. And that intelligent design is -- relies rather on empirical and physical and observable evidence plus logical inferences for its entire argument. Q. Is intelligent design based on any religious beliefs or convictions? A. No, it isn't. Q. What is it based on? A. It is based entirely on observable, empirical, physical evidence from nature plus logical inferences. Q. Dr. Padian testified that paleontologists makes reasoned inferences based on comparative evidence. For example, paleontologists know what the functions of the feathers of different shapes are in birds today. They look at those same structures in fossil animals and infer that they were used for a similar purpose in the fossil animal. Does intelligent design employ similar scientific reasoning? A. Yes, that's a form of inductive reasoning, and intelligent design uses similar inductive reasoning. Q. Now I want to review with you the intelligent design argument. Have you prepared a slide for this? A. Yes, I have. On the next slide is a short summary of the intelligent design argument. The first point is that, we infer design when we see that parts appear to be arranged for a purpose. The second point is that the strength of the inference, how confident we are in it, is quantitative. The more parts that are arranged, and the more intricately they interact, the stronger is our confidence in design. The third point is that the appearance of design in aspects of biology is overwhelming. The fourth point then is that, since nothing other than an intelligent cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims notwithstanding, the conclusion that the design seen in life is real design is rationally justified. Q. Now when you use the term design, what do you mean? A. Well, I discussed this in my book, Darwin's Black Box, and a short description of design is shown in this quotation from Chapter 9. Quote, What is design? Design is simply the purposeful arrangement of parts. When we perceive that parts have been arranged to fulfill a purpose, that's when we infer design. Q. Can you give us a biochemical example of design? A. Yes, that's on the next slide. I think the best, most visually striking example of design is something called the bacterial flagellum. This is a figure of the bacterial flagellum taken from a textbook by authors named Voet and Voet, which is widely used in colleges and universities around the country. The bacterial flagellum is quite literally an outboard motor that bacteria use to swim. And in order to accomplish that function, it has a number of parts ordered to that effect. This part here, which is labeled the filament, is actually the propeller of the bacterial flagellum. The motor is actually a rotary motor. It spins around and around and around. And as it spins, it spins the propeller, which pushes against the liquid in which the bacterium finds itself and, therefore, pushes the bacterium forward through the liquid. The propeller is attached to something called the drive shaft by another part which is called the hook region which acts as a universal joint. The purpose of a universal joint is to transmit the rotary motion of the drive shaft up from the drive shaft itself through the propeller. And the hook adapts the one to the other. The drive shaft is attached to the motor itself which uses a flow of acid from the outside of the cell to the inside of the cell to power the turning of the motor, much like, say, water flowing over a dam can turn a turbine. The whole apparatus, the flagellum has to be kept stationary in the plane of the bacterial membrane, which is represented by these dark curved regions. As the propeller is turning, much as an outboard motor has to be clamped onto a boat to stabilize it while the propeller is turning. And there are regions, parts, protein parts which act as what is called a stator to hold the apparatus steady in the cell. The drive shaft has to traverse the membrane of the cell. And there are parts, protein parts, which are, which act as what are called bushing materials to allow the drive shaft to proceed through. And I should add that, although this looks complicated, the actual -- this is really only a little illustration, a kind of cartoon drawing of the flagellum. And it's really much more complex than this. But I think this illustration gets across the point of the purposeful arrangement of parts. Most people who see this and have the function explained to them quickly realized that these parts are ordered for a purpose and, therefore, bespeak design. Q. If I could just direct your attention again to the exhibit book. In tab 5, there's a Defense Exhibit marked 203-B, as in bravo? A. Yes. Q. And is that a depiction of the bacterial flagellum from the same textbook as we see up here in the demonstrative? A. Yes, it is. Q. That's a fair an accurate depiction of the bacterial flagellum? A. Yes, it is. Q. Now does the conclusion that something was designed, does that require knowledge of a designer? A. No, it doesn't. And if you can advance to the next slide. I discussed that in Darwin's Black Box in Chapter 9, the chapter entitled Intelligent Design. Let me quote from it. Quote, The conclusion that something was designed can be made quite independently of knowledge of the designer. As a matter of procedure, the design must first be apprehended before there can be any further question about the designer. The inference to design can be held with all the firmness that is possible in this world, without knowing anything about the designer. Q. So is it accurate for people to claim or to represent that intelligent design holds that the designer was God? A. No, that is completely inaccurate. Q. Well, people have asked you your opinion as to who you believe the designer is, is that correct? A. That is right. Q. Has science answered that question? A. No, science has not done so. Q. And I believe you have answered on occasion that you believe the designer is God, is that correct? A. Yes, that's correct. Q. Are you making a scientific claim with that answer? A. No, I conclude that based on theological and philosophical and historical factors. Q. Do you consider your response to that question any different than Dr. Miller's response that he believes God is the author of the laws of nature that make evolution work? A. No, in my view, they're quite similar, yes. Q. Have other scientists acknowledged these design features of the flagellum? A. Yes, they have. And if you advance to the next slide. In 1998, a man named David DeRosier wrote an article in the journal Cell, which is a very prestegious scientific journal entitled The Turn of the Screw, The Bacterial Flagellar Motor. David DeRosier is a professor of biology at Brandeis University in Massachusetts and has worked on the bacterial flagellar motor for most of his career. In that article, he makes the statement, quote, More so than other motors, the flagellum resembles a machine designed by a human, close quote. So David DeRosier also recognizes that the structure of the flagellum appears designed. Q. Again, sir, if I could direct your attention to the exhibit book, under Tab 18, there is an exhibit marked Defendants' Exhibit 274. Is that the article from Dr. DeRosier that you've been referring to? A. Yes, that's it. Q. And I believe we have additional quotes from that article, is that correct? A. Yes, that's right. On the next slide, I quote a paragraph from the article to show that Professor DeRosier not only says it looks like a machine, he treats it as a real machine, as a real machine, not as a metaphorical machine. Let me just read the quotation from the article. Quote, In E. Coli and S. typhimurium, flagella turning at speeds of 18,000 rpm push cells at 30 microns per second, but the speed records are set by motors in other bacteria that turn at rates exceeding 100,000 rpm and push cells at hundreds of micrometers per second. What is all the more remarkable is that flagellar motors can run in both directions, that is clockwise and counterclockwise. These motors also deliver a constant torque of 4500 piconewton nanometers at speeds over 6000 rpm. And if you continue onto the next slide, he has a table in the article listing mechanical properties of this structure. Table 1 is entitled Statistics for Flagellar Motors of S. typhimurium/E. coli versus Myosin, Kinesin, and -- I can't read the rest. And he writes, he lists values for the rotational speed, the linear speed, the torque of the motor, the force it generates, and the efficiency of the motor. And if you look under the efficiency of the motor, he says that it's unknown, but the efficiency could be upwards of -- it could be approaching 100 percent, which would make it the most efficient motor in the universe. Q. So these are machine like properties? A. Yes, they are, and he treats them as such. Q. Now you indicated that he used the term machine. I believe Dr. Miller had testified that it's just a metaphor. Do you agree? A. No, I completely disagree. Biologists routinely talk about machines in the cell, and they use the term literally not metaphorically. Q. Is the bacterial flagellum the only machine in the cell? A. No. The flagellum, while a good visual example, is just one example of molecular machines in the cell. The cell is chockful of molecular machines. Q. Have you prepared some slides to demonstrate that point? A. Yes, I have. The next slide is showing the cover of an issue of the journal Cell from the year 1998. Then they issued a special review issue on the topic of macromolecular machines, molecular machines. And can I draw your attention down to the lower left-hand corner of the figure where the artist who prepared the drawing illustrates something that resembles a watch or some sort of mechanical object, apparently to convey the topic of machinery. Q. Go ahead. I'm sorry. A. Let me continue. If you advance to the next slide, I have a photocopy of the table of contents of the journal Cell. And on the next slide, the first seven articles in this special issue on molecular machines are listed. I'd like to read the titles of some of those articles. The first is entitled The Cell as a Collection of Protein Machines, Preparing the Next Generation of Molecular Biologists. The next article is Polymerases and the Replisome, Machines within Machines. Eukaryotic Transcription, An Interlaced Network of Transcription Factors and Chromatin-Modifying Machines. Mechanical Devices of the Spliceosome, Motors, Clocks, Springs, and Things. And several other articles along the same vein. So the point is that, the cell is full of machines and that they are treated as such by scientists. Q. Now this journal that you're referring to, Cell, that's a fairly prominent scientific journal? A. Yes, it is a prestegious journal. Q. I believe we have another slide to demonstrate this point? A. Yes. On the next slide, it shows the bottom of the second page of the table of contents. That, I just inserted a little picture of the cover there. It didn't actually occur in the original page. But down at the bottom of that page, they have a little blurb describing this special issue of the journal Cell. If you look at the next slide, that blurb is blown up for easier reading. And let me quote from it. It says, quote, Like the machines invented by humans to deal efficiently with the macroscopic world, protein assemblies contain highly coordinated moving parts. Reviewed in this issue of Cell are the protein machines that control replication, transcription, splicing, nucleocytoplasmic transport, protein synthesis, protein assembly, protein degradation, and protein translocation. The machines that underlie the workings of all living things. So again, this special issue recognizes that these are machines and that the cell is run by machines. Q. So again, if I direct your attention to the exhibit book, Tab 6 in particular, Defendants' Exhibit 203-C, as in Charlie, is that the cover of the Cell, the table of contents and that section that you just referred to in your testimony? A. Yes, it is. Q. Did any scientist explain why these are indeed machines? A. Yes. In the initial article in this special review issue, which is shown on the next slide, the initial article was written by a man named Bruce Alberts, who was, until a couple months ago, the president of the National Academy of Sciences. He wrote the initial article called The Cell as a Collection of Protein Machines, Preparing the Next Generation of Molecular Biologists. And in his article, he wrote, quote, Why do we call the large protein assemblies that underlie cell function protein machines? Precisely because, like the machines invented by humans, these protein assemblies contain highly coordinated moving parts. So he was emphasizing that this is why we call them machines. They act like machines. They contain highly coordinated moving parts. They transduce energy just like the machines of our experience. Q. So they're machines and not metaphors? A. That's exactly right. Q. Up top here in that title of that article, it says, preparing the next generation of molecular biologists. Does Dr. Alberts make any suggestions in this article? A. Yes, in the article, he makes the suggestion that upcoming generations of molecular biologists should be trained in engineering principles so that they can better understand the operation of the cell. Q. Do sciences recognize evidence of design in nature? A. Yes, they do. Q. And do you have some examples to demonstrate that point? A. Yes, I do. On the next slide is the cover of a book written by a man named Richard Dawkins, who is a professor of biology at Oxford University and a very strong proponent of Darwinian evolution. In 1986, he wrote a book entitled The Blind Watchmaker, why the evidence of evolution reveals a universe without design. Nonetheless, even though he is, in fact, a strong Darwinist, on the first page of the first chapter of his book, he writes the following. Quote, Biology is the study of complicated things that give the appearance of having been designed for a purpose, close quote. So let me just emphasize that here's Richard Dawkins saying, this is the very definition of biology, the study of complicated things that give the appearance of having been designed for a purpose. Q. Does he explain why they appear design, how it is that we can detect design? A. Yes, he does. And that is shown on the next slide. It is not because of some emotional reaction. It is not due to some fuzzy thinking. It's due to the application of an engineering point of view. He writes on page 21 of the first chapter, quote, We may say that a living body or organ is well designed if it has attributes that an intelligent and knowledgeable engineer might have built into it in order to achieve some sensible purpose, such as flying, swimming, seeing. Any engineer can recognize an object that has been designed, even poorly designed, for a purpose, and he can usually work out what that purpose is just by looking at the structure of the object, close quote. So let me just emphasize that he, in other words, is stating that we recognize design by the purposeful arrangement of parts. When we see parts arranged to achieve some sensible purpose, such as flying, swimming, and seeing, we perceive design. Q. Now is it fair to say that he's looking at, and intelligent design proponents look at physical structures similar to like the paleontologist does and then drawing reasonable inferences from those physical structures? A. That's exactly right. What intelligent design does is look at the physical, observable features and use logic to infer deductions from that. Q. Now you, as well as Dawkins in the slides that we've just been looking at, refer to purpose. Now when you use -- when you were using purpose, are you making a philosophical claim by using that term? A. No. The word purpose, like many other words, can have different meanings. And the purpose here used by Professor Dawkins and in intelligent design does not refer to some fuzzy purpose of life or some such thing as that. It's purpose in the sense of function. And I think on the next slide, I emphasize that Dawkins is using some sensible purpose, such as flying, swimming, seeing. An engineer can work out the purpose of an object by looking at its structure. He's talking about purpose in the sense of function. Q. Now this appearance of design, is this a faint appearance? A. No, indeed. This is not just some marginal vague impression. Richard Dawkins, a strong proponent of Darwinian evolution, insists, he says, quote, Yet the living results of natural selection overwhelmingly impress us with the appearance of design, as if by a master watchmaker, impress us with the illusion of design and planning, close quote. Let me make two points with this. He thinks that this is an illusion because he thinks he has an alternative explanation for what he sees. Nonetheless, what he sees directly gives him the overwhelming impression of design. Q. Have other scientists made similar claims regarding the evidence of design in nature? A. Yes. On the next slide is a quotation from a book written by a man named Francis Crick. Francis Crick, of course, is the Nobel laureate with James Watson who won the Nobel Prize for their discovery of the double helicle structure of DNA. In a book published in 1998, he wrote, quote, Biologists must constantly keep in mind that what they see was not designed, but rather evolved. So apparently, in the view of Francis Crick, biologists have to make a constant effort to think that things that they studied evolved and were not designed. Q. I want to return to Richard Dawkins here for a moment and The Blind Watchmaker. Did he borrow his title from somewhere? A. Yes, the watchmaker of his title has an illusion which he explained on page 4 of his book. He says, quote, The watchmaker of my title is borrowed from a famous treatise by the 18th century theologian William Paley. And he starts to quote William Paley. So he is using his book as an answer to, or an argument to, William Paley's discussions of these issues. And he treats William Paley with the utmost respect. Q. I believe we have a slide to highlight that. A. Yes, here's a quotation from William Paley. Paley is best known for what is called his watchmaker argument. And that is briefly this. He says that, when we walk -- if we were walking across a field, and we hit our foot against a stone, well, we wouldn't think much of it. We would think that the stone might have been there forever. But if we stumble across a watch and we pick it up, then Paley goes on to say, when we come to inspect the watch, we perceive that its several parts are framed and put together for a purpose; for example, that they so formed and adjusted as to produce motion, and that motion so regulated as to point out the hour of the day. Let me close quote here, and say that, he is talking about the purposeful arrangement of parts. Let me continue with a quotation from William Paley. Quote, he says, The inference we think is inevitable, that the watch must have had a maker, close quote. So he is inferring from the physical structure of the watch to an intelligent designer. Q. Is that a theological argument? A. No, this is a scientific argument based on physical facts and logic. He's saying nothing here about any religious precept, any theological notion. This is a scientific argument. Q. Does Richard Dawkins himself recognize it as an argument based on logic? A. Yes, he does, and he goes to great lengths to address it in his book, The Blind Watchmaker. Q. What sort of reasoning or argument is this that we're talking about, this scientific argument that you're referring to? A. This is an instance of what is called inductive reasoning when we -- Q. I'm sorry. We have a slide here to demonstrate this point? A. Yes, thank you. Just to help illustrate this point, I just grabbed an article from the Encyclopedia Britannica online entitled Inductive Reasoning. And the Encyclopedia Britannica says, quote, When a person uses a number of established facts to draw a general conclusion, he uses inductive reasoning. This is the kind of logic normally used in the sciences. Let me skip the middle of the quotation and say, It is by this process of induction and falsification that progress is made in the sciences. So this William Paley's argument, the kind of argument that, say, Professor Padian made about bird feathers and so on are all examples of inductive reasoning, and they are all examples of scientific reasoning. Q. This is the sort of reasoning that is employed in science quite readily? A. Yes. As the article makes clear, this is the normal mode of thinking in science. Q. Is that the sort of reasoning you employ to conclude design, for example, in your book Darwin's Black Box? A. Yes, this is exactly the kind of reasoning that I used in Darwin's Black Box. On this slide here, which includes an excerpt from Chapter 9 entitled Intelligent Design, I say the following. Quote, Our ability to be confident of the design of the cilium or intracellular transport rests on the same principles as our ability to be confident of the design of anything, the ordering of separate components to achieve an identifiable function that depends sharply on the components, close quote. In other words, the purposeful arrangement of parts. Q. Did you provide specific examples of that in your book? A. Yes, I did. In that Chapter 9, if you continue, I applied that same reasoning to the biochemical examples that I had discussed in earlier chapters. Let me quote a couple of passages here. Quote, The function of the cilium is to be a motorized paddle. In order to achieve the function microtubules, nexin linkers, and motor proteins all have to be ordered in a precise fashion, close quote. Next quote. The function of the blood clotting system is as a strong-but-transient barrier. The components of the system are ordered to that end. They act to form an elegant structure that accomplishes a specific task, close quote. Next quotation. Quote, The functions of the other biochemical systems we have discussed are readily identifiable and their interacting parts can be enumerated. Because the functions depend critically on the intricate interactions of the parts, we must conclude that they were designed, close quote. So again, the reasoning is exactly the same. It is the purposeful arrangement of parts. Q. Again, I would ask you to, if we could return to the summary of the argument for intelligent design. A. Yes. Thank you. Here again is the slide that we looked at earlier summarizing the argument for intelligent design, and perhaps, in retrospect, more of it will be understandable. The first part is that we infer design when we see that parts appear to be arranged for a purpose. Not only I do that, not only did William Paley do that, but Richard Dawkins and David DeRosier do the same thing. The strength of the inference is quantitative. The more parts that are arranged, and the more intricately they interact, the stronger is our confidence in design. The third part is, the appearance of design in aspects of biology is overwhelming, as everybody, including Richard Dawkins, admits. And the final point is that, since nothing other than an intelligent cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims, notwithstanding, the conclusion that the design seen in life is real design is rationally justified. If I could just take a moment to point out something. This argument for design is an entirely positive argument. This is how we recognize design by the purposeful arrangement of parts. Q. Now Plaintiffs' experts, including Dr. Miller, testified that they have yet to see a positive argument for design advanced by intelligent design proponents. I believe we have a slide from his actual testimony here. A. Yes, that's a photocopy of his testimony. And on the next is a transcription of a portion of that testimony. And he was asked about the argument, and he said that the design argument is in every respect a completely negative argument. If one combs the pages Of Pandas and People, or for that matter, if one looks at Dr. Behe's book, or if one looks at the writings of other people who -- that one can't find such an argument. And he goes on to say, quote, I have yet to see any explanation advanced by any adherent of design that basically says, we have found positive evidence for design. The evidence is always negative, and it basically says, if evolution is incorrect, the answer must be design, close quote. Q. How do you respond to that criticism? A. Well, in two ways. First of all, let me just say that, of course, I think it's a mischaracterization. But on the second, it's kind of understandable, because Professor Miller is looking at the evidence through his own theoretical perspective and can only see things that seem to fit with his own theoretical perspective. So this, I think, shows the importance of being able to look at data from different points of view so that one can see, can see it from different perspectives. But additionally on the next slide, in order to help him see, I would direct him to read more closely Chapter 9 of Darwin's Black Box, the chapter entitled Intelligent Design, where I explain exactly how one perceives design and explains why the biochemical systems that I discussed earlier in the book are good examples of design. I would further direct him to go and look at the structures of the machinery found in the cell without Darwinian spectacles on and see the very, very strong appearance of design, which everybody admits to, David DeRosier, Richard Dawkins, and so on, which is easily perceived even by a lay people in the figure of the flagellum, and also to read such material in the professional scientific literature, as I refer to in the journal Cell, the special issue on molecular machines. Q. Dr. Behe, is intelligent design science? A. Yes, it certainly is. Q. And why is that? A. Because it relies completely on the physical, observable, empirical facts about nature plus logical inferences. Q. And that again is a scientific method? A. That is the way science proceeds. Q. I want to ask you if you agree with this testimony provided by Dr. Miller. He testified that it is a standard scientific practice for scientists to point to the scientific literature, to point to observations and experiments that have been done by other people in other laboratories, have been peer reviewed, have been published, and to cite to that evidence, cite to those data, and to cite to those experiments in their arguments. Do you agree with that? A. Yes, I agree completely. Q. Is that what you have done, and intelligent design has done in presenting its arguments? A. That's what I have done. That's what the scientists that wrote those books I showed earlier have done. That's have a very common practice in science. Q. Did Crick and Watson employ the same procedure? A. Yes, that's correct. Francis Crick and James Watson, whose names I have mentioned earlier, who won the Nobel Prize for determining the double helicle structure of DNA, actually did not do the experimental work upon which their conclusions were based. The experimental work, which consisted of doing x-ray fiber defraction studies on DNA, was actually done by a woman named Rosalyn Franklin, and they used her data to reach their conclusions. Q. I want to ask you if you also agree with Dr. Miller that the question is not whether you or any other scientist has done experiments in your own laboratories that have produced evidence for a particular claim, the question is whether or not the inferences that you and the scientists draw on your analysis from that data are supported? A. Yes, I agree completely. Again, those books that I showed in the beginning, that is exactly what those scientists did. They looked very widely for all relevant scientific information that would bear on the argument that they were making. Q. Again, is that what Crick and Watson employed? A. Yes, that's what Crick and Watson did, too. Scientists do it all the time. Q. Is that what you're doing in support of your claim for intelligent design? A. Yes, that's exactly right. Q. And have you argued that intelligent design is science in your writings? A. Yes, I have. Q. Is intelligent design falsifyable? A. Yes, it is. Q. And I want to get to that in a little bit more detail later. Now just to summarize. When you say you are relying on logical inferences, you're referring to inductive reasoning, correct? A. Yes, inductive reasoning. Q. And other than intelligent design, as you discussed, and you discussed a little bit about paleontology, do you have an example of this sort of reasoning, inductive reasoning that's used in sciences? A. Well, I think an excellent example of inductive reasoning is the Big Bang theory. Most people forget that in the early part of the 20th century that physicists thought the universe was timeless, eternal, and unchanging. Then in the late 1920's, observations were made which led astronomers to think that galaxies that they could observe were rushing away from each other and rushing away from the Earth as if in the aftermath of some giant explosion. So they were using inductive reasoning of their experience of explosions to, and applying that to their astronomical observations. And let me emphasize that they were -- the inductive method, as philosophers will tell you, always extrapolates from what a we know to instances of what we don't know. So those scientists studying the Big Bang were extrapolating from their knowledge of explosions as seen in, say, fire crackers, cannon balls, and so on, and extrapolating that to the explosion of the entire universe, which is quite a distance from the basis set from which they drew their induction. But nonetheless, they were confident that this pattern suggested an explosion based on their experience with more familiar objects. Q. And basically, we don't have any experience with universes exploding, correct? A. I do not, no. Q. And scientists do not? A. No, scientists don't either. Q. Again, is this similar to the reasoning used in paleontology? For example we haven't seen any live pre-historic birds, for example, but they have features that resemble feathers, as we know them from our common experience today, and we infer that they were used for flying or similar functions, again based on our common experience? A. Yes, that's right. That's another example of induction from what we know to things we don't know. Q. Again, that's scientific reasoning? A. Yes, it is. Q. Can science presently tell us what caused the Bang? A. No. I'm not a physicist, but I understand the cause of the Big Bang is still unknown. Q. Is that similar to intelligent design's claim that science presently cannot tell us the source of design in nature? A. Yes, that's very similar. All theories, when they're proposed, have outstanding questions, and intelligent design is no exception. And I'd like to make a further point that I just thought of and was going to make earlier, but that, that induction from explosions of our experience to explosions of the universe is analogous to, similar to the induction that intelligent design makes from our knowledge of objects, the purposeful arrangements of parts in our familiar world and extrapolating that to the cell as well. So that, too, is an example of an induction from what we know to what we have newly discovered. Q. Now was the Big Bang theory controversial when it was first proposed? A. Yes, it turns out that the Big Bang theory was, in fact, controversial because -- not because of the scientific data so much, but because many people, including many scientists, thought that it had philosophical and even theological implications that they did not like. And on the next slide, I have a quotation of a man named Arthur Eddington, which is quoted in a book by a philosopher of science, Susan Stebbing. Arthur Eddington wrote, quote, Philosophically, the notion of an abrupt beginning to the present order of nature is repugnant to me, as I think it must be to most. And even those who would welcome a proof of the intervention of a creator will probably consider that a single winding up at some remote epoch is not really the kind of relation between God and his world that brings satisfaction to the mind, close quote. Let me say a couple things. I don't think I mentioned that Arthur Eddington was a very prominent astronomer of that age. The second point is that, notice that the reason that he does not like this theory, this scientific proposal, is not because of scientific reasons, but because of philosophical and theological reasons. But nonetheless, that does not affect the status of the Big Bang proposal, which was based completely on physical, observable evidence plus logical inferences. And because of that, it was strictly a scientific theory, even though Arthur Eddington saw other ramifications that he did not like. Q. I believe you have another quote to demonstrate that point? A. Yes. Here's a passage from a book by a man named Karl von Weizsacker. Karl von Weizsacker was again an astronomer in the middle part of the 20th century, and he wrote a book in 1964 entitled The Relevance of Science where he recalled his interactions with other scientists when the Big Bang theory was being proposed. Let me quote from that passage. Quote, He, and he's referring to Walter Nernst, who was a very prominent chemist of that time, said, the view that there might be an age of the universe was not science. At first, I did not understand him. He explained that the infinite duration of time was a basic element of all scientific thought, and to deny this would mean to betray the very foundations of science. I was quite surprised by this, and I ventured the objection that it was scientific to form hypothesis according to the hints given by experience, and that the idea of an age of the universe was such a hypothesis. He retorted that we could not form a scientific hypothesis which contradicted the very foundations of science. He was just angry, and thus the discussion, which was continued in his private library, could not lead to any result. What impressed me about Nernst was not his arguments. What impressed me was his anger. Why was he angry? Close quote. Let me make a couple comments on this passage. This is an example of when people are arguing about what science is. To Walter Nernst, the very idea that there could be a beginning to the universe was unscientific, and we could not entertain that. On the other hand, von Weizsacker said that science has to take its hints from what evidence is available. We have to form hypotheses according to the hints given by experience. And to me, this is very similar to what I see going on in the debate over intelligent design today. Many people object that this can't be science, this violates the very definition of science, whereas other people, myself including, say that we have to form hypotheses according to the hints given by experience. Q. Does the Big Bang continue to be controversial in more modern times? A. Yes. Surprisingly, it's still controversial and still mostly because of its extra scientific implications. For example, here is an image of an editorial which appeared in the journal Nature in the year 1989 with the surprising title Down with the Big Bang. And if you advance to the next slide, we can see it more easily. The subtitle of the article, where it is written, quote, Apart from being philosophically unacceptable, the Big Bang is an over-simple view of how the universe began. So let me point out that this was written by a man named John Maddox. John Maddox was the editor of Nature, the most prestegious science journal in the world. For 20 years, he was the editor, and he wrote an editorial entitled Down with the Big Bang, at least partly because he viewed the idea of the Big Bang as philosophically unacceptable. Q. Do you have another quote from this? A. Yes, I do. Actually in the test of the Maddox article, he goes on to explain in further detail some of his objections to the Big Bang. And he says the following. Quote, Creationists and those of similar persuasion seeking support for their opinions have ample justification in the doctrine of the Big Bang. That, they might say, is when and how the universe was created, close quote. Let me make a couple of points here. Again, he does not like this theory apparently because of its extra scientific implications, because he sees theological implications in the theory. He says that creationists have ample justification, and he objects to that justification. Let me make another point. He's using the word creationist here in a very broad sense to mean anybody who thinks that the very beginning of the universe might have been a -- an extra -- a supernatural act, that the laws of the universe might have been made, have been set from somewhere beyond nature. And he uses the word creationist in a very pejorative sense to incite the disapprobation of the readers against people who would hold this view. Q. Do the implications that Maddox refers to here, does this make the Big Bang theory creationism? A. No, it certainty does not. One has to be very careful in looking at scientific ideas, because many scientific ideas do have interesting philosophical or other ramifications, and the Big Bang is one of those. Nonetheless, the Big Bang is an entirely scientific proposal, because again, it is based simply on the observable, empirical, physical evidence that we find in nature plus logical inferences. Q. Do you see similarity between the Big Bang theory and intelligent design? A. Yes, I do. I see a number of similarities. First, some people have seen controversial philosophical and perhaps even theological implications of those two proposals. But in both cases, they are based entirely on the physical, empirical evidence of nature plus logical inferences. Q. Is it true that the Big Bang bracket can be a question of cause? A. Yes, that's a good point to consider. The Big Bang hypothesis struck many people, such as John Maddox and Arthur Eddington and so on, as perhaps having pretty strong, even theological implications. Maybe this was a creation event. But nonetheless, physicists were able to work within the Big Bang model that the question of what caused the Big Bang was just left as an open question and work proceeded on other issues within the Big Bang. Q. Do you see any similarity in that regard with intelligent design? A. Yes, I do. The design in life can be readily apprehended by the purposeful -- by the purposeful arrangement of parts. However, identifying a designer or identifying how the design was accomplished, they are different questions which might be much more difficult and much harder to address. Questions such as that can be left aside and other sorts of questions could be asked. Q. Does this make intelligent design a, quote, unquote, science stopper, as we heard in this case? A. No more than it makes the Big Bang a science stopper. The Big Bang posits a beginning to nature which some people thought was the very antithesis of science. It presented a question, the cause of the Big Bang, which could not be answered, and which has not been answered to this very day, and nonetheless, I think most people would agree that a large amount of science has been done within the Big Bang model. Q. So after the Big Bang theory was proposed, we didn't shut down all our science departments and close up all the laboratories and just stop scientific exploration? A. Not to my knowledge. Q. I believe you have a quote from one of your articles making the point regarding the scientific nature of intelligent design, is that correct? A. Yes, that's right. I think it's on the next slide in the article Reply to my Critics, which I published in the journal Biology and Philosophy, I pointed this out explicitly. Let me just go to the underlined part, the bold part. Quote, I wrote, The conclusion of intelligent design in biochemistry rests exclusively on empirical evidence, the structures and functions of the biochemical systems, plus principles of logic. Therefore, I consider design to be a scientific explanation, close quote. Q. Now another complaint that we've heard in the course of this trial is that intelligent design is not falsifyable. Do you agree with that claim? A. No, I disagree. And I think I further in slides from my article in Biology and Philosophy in which I wrote on that. If you get to the next slide -- oh, I'm sorry. Thank you. You got that. In this, I address it. I'm actually going to read this long quotation, so let me begin. Quote, In fact, intelligent design is open to direct experimental rebuttal. Here is a thought experiment that makes the point clear. In Darwin's Black Box, I claimed that the bacterial flagellum was irreducibly complex and so required deliberate intelligent design. The flip side of this claim is that the flagellum can't be produced by natural selection acting on random mutation, or any other unintelligent process. To falsify such a claim, a scientist could go into the laboratory, place a bacterial species lacking a flagellum under some selective pressure, for mobility, say, grow it for 10,000 generations, and see if a flagellum, or any equally complex system, was produced. If that happened, my claims would be neatly disproven. Close quote. So let me summarize that slide. It says that if, in fact, by experiment, by growing something or seeing that in some organism such as a bacterium grown under laboratory conditions, grown for and examined before and afterwards, if it were seen that random mutation and natural selection could indeed produce the purposeful arrangement of parts of sufficient complexity to mimic things that we find in the cell, then, in fact, my claim that intelligent design was necessary to explain such things would be neatly falsified. Q. I got a couple questions about the proposal that you make. First of all, when you say you place something under selective pressure, what does that mean? A. Well, that means you grow it under conditions where, if a mutation -- a mutant bacterium came along which could more easily grow under those conditions, then it would likely propagate faster than other cells that did not have that mutation. So, for example, if you grew a flask of bacteria and let them sit in a beaker that was motionless, and the bacteria did not have a flagellum to help it swim around and find food, they could only eat then the materials that were in their immediate vicinity. But if some bacterium, some mutant bacterium were produced that could move somewhat, then it could gather more food, reproduce more, and be favored by selection. Q. Is that a standard technique that's used in laboratories across the country? A. Yes, such experiments are done frequently. Q. And I just want to ask you a question about this grow it for 10,000 generations. Does that mean we have to wait 10,000 years of some sort to prove this or disprove this? A. No, not in the case of bacteria. It turns out that the generation time for bacteria is very short. A bacterium can reproduce in 20 minutes. So 10,000 generations is actually, I think, just a couple years. So it's quite doable. Q. Have scientists, in fact, grown bacteria out to 10,000 generations? A. Yes, there are experiments going on where bacteria have been grown for 40,000 generations. So again, this is something that can be done. Q. So this is a readily doable experiment? A. That's correct. Q. Sir, do you believe that natural selection is similarly falsifyable? A. No. Actually, I think that, in fact, natural selection and Darwinian claims are actually very, very difficult to falsify. And let me go back to my article, Reply to my Critics from the journal Biology and Philosophy. And I don't think I'm actually going to read this whole thing, because it refers to things that would take a while to explain. But let me just try to give you the gist of it. Let me read the first sentence. Quote, Let's turn the tables and ask, how could one falsify a claim that a particular biochemical system was produced by Darwinian processes? Close quote. Now let me just kind of try to explain that in my own -- well, verbally here. Suppose that we did that same experiment as I talked about earlier. Suppose a scientist went into a laboratory, grew a bacterium that was missing a flagellum under selective pressure for motion, waited 10,000, 20,000, 30,000, 40,000 generations, and at the end of that time, examined it and saw that, well, nothing much had been changed, nothing much had changed. Would that result cause Darwinian biologists to think that their theory could not explain the flagellum? I don't think so. I think they would say, number 1, that we didn't wait long enough; number two, perhaps we started with the wrong bacterial species; number 3, maybe we applied the wrong selective pressure, or some other problem. Now leaving aside the question of whether those are reasonable responses or not, and some of them might be reasonable, nonetheless, the point is that, it's very difficult to falsify Darwinian claims. What experiment could be done which would show that Darwinian processes could not produce the flagellum? And I can think of no such experiment. And as a matter of fact, on the next slide, I have a quotation, kind of putting a point on that argument. In that same article, Reply to my Critics, I wrote that I think Professor Coyne and the National Academy of Sciences have it exactly backwards. And Professor Jerry Coyne is an evolutionary biologist who said that intelligent design is unfalsifyable, and in a publication of the National Academy, they asserted the same thing. I wrote that, A strong point of intelligent design is its vulnerability to falsification. A weak point of Darwinian theory is its resistance to falsification. What experimental evidence could possibly be found that would falsify the contention that complex molecular machines evolved by a Darwinian mechanism? I can think of none, close quote. So again, the point is that, I think the situation is exactly opposite of what much -- of what many arguments assume, that ironically intelligent design is open to falsification, but Darwinian claims are much more resistant to falsification. MR. MUISE: Your Honor, if I may say, I know we took kind of a later break, but I'm about to enter into another area. The noon hour is almost -- THE COURT: How about we go to about 12:15? Does that work for you? MR. MUISE: That may end up causing me to stop in the middle of a line of questioning, that's why I'm just raising it now. THE COURT: You would be better off now? MR. MUISE: I would prefer it now. THE COURT: Let's do that then. We'll take our lunch break at this point. Why don't we return at about 1:20. After our lunch break, we'll pick up with our next topic by Mr. Muise at that time. We'll be in recess until 1:20. (Whereupon a lunch recess was taken at 12:00 noon.) Kitzmiller v. Dover Area School District Trial transcript: Day 10 (October 17), PM Session, Part 1 THE COURT: Be seated, please. All right. We return, and Mr. Muise, you may continue. DIRECT EXAMINATION CONTINUED BY MR. MUISE: Q. Thank you, Your Honor. Dr. Behe, I want to ask you some questions about the term theory and its understanding in the science community. As the record has shown so far that the statement that is read to the students in this case uses this definition, " A theory is defined as a well tested explanation that unifies a broad range of observations." Is that a good definition of a theory? A. Yes, it seems to be. Q. Are you aware of the National Academy of Sciences' definition of the word theory? A. Yes, I've heard it. Q. Let me see if this is what your understanding of that definition is. In science "a well substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences, and tested hypotheses." Do you agree with that definition? A. Well, that's certainly one definition of the word theory, but you have to be sensitive to the fact that the word theory can be used in other senses as well. Q. It can be used in other senses in the scientific community? A. Yes, in the scientific community itself. Q. Now, using the National Academy of Sciences' definition of theory, does that mean a theory is almost certainly right? A. No, it's not. And that might surprise some people unless you, until you start to think of a couple of examples, and perhaps I'd like to discuss two examples of a well substantiated theory that was widely held, but nonetheless which turned out to be incorrect. The first -- Q. I'm sorry, and you prepared a slide to make this point? A. I did, but first let me mention something else. Before -- let me ask, let me mention an older example that most people are familiar with, and that's the example of geocentrism, the idea that the earth is the center of the solar system, the center of the universe, and that the stars and sun circle around the earth. Now, it turns out that was very well substantiated because people could look up and watch the stars and the sun circle around the earth. So they had very good evidence to support their view. Furthermore, that theory was used for ages to help sailors and so on navigate the seas. So it was pretty well substantiated. Nonetheless, of course as everybody knows it turned out to be incorrect, and Copernicus proposed that in fact the sun is the center of the solar system and that the earth, while revolving on its axis, travels around the sun. So again that's an old example, but nonetheless it shows that a well accepted theory nonetheless is not necessarily correct. Q. And you have an example of that in more modern times? A. Yes, a more modern example from the late 19th century is something called the ether theory of the proposition of light, and that's shown on this slide here. I pulled off an article from the web describing ether theory from the Encyclopedia Britannica, and they say that, "The ether theory in physics, ether is a theoretical universal substance believed during the 19th century to act as the medium for transmission of electromagnetic waves, much as sound waves are traveled elastically such as air. "The ether was assumed to be weightless, transparent, frictionless, undetectable chemically or physically, and literally permeating all matter and space." Now, this theory arose from the fact that it was known that light was a wave, and like waves in the ocean and waves in air that we perceive as sound, waves need a medium to travel in. But if light is a wave, what does it travel in in space? Ether. Ether was the medium through which light traveled. Q. Who was it that was the proponent of this theory? A. Well, it's a good thing we use this article from the Encyclopedia Britannica, because on the next slide we see that a man named James Clerk Maxwell, who was arguably the greatest physicist of the 19th century, wrote an article for the Ninth Edition of Encyclopedia Britannica in the 1870's, the title of which was Ether. And you should keep in mind when he wrote this for this publication, this was not going to be read not only by the general public at large, but by all physicists as well. So he was writing of the idea as it was commonly held at that time in the highest levels of physics, and he wrote the following: "Whatever difficulties we may have in forming a consistent idea of the constitution of the ether, there can be no doubt that the interplanetary and interstellar spaces are not empty, but are occupied by a material substance or body which is certainly the largest and probably the most uniform body of which we have any knowledge." Now, later on Einstein's work caused physics to abandon the ether theory. Physicists no longer believed that the ether does in fact fill space, but let's look further on the next slide. This is a copy of James Clerk Maxwell's article taken from a collection of his papers, his article on the ether, and I want to concentrate on the lower portion down here and I think on the next slide that's blown up a little bit. I'm not going to read this, I'm just going to point out that you can observe that he's using a lot of precise numbers about the energy of light by the sun, and it turns out he's using that to do calculations, and in the calculations he is deducing the properties of the ether. For example, these large red arrows are pointing to the coefficient of rigidity of ether, which is given by the formula Ro V squared, which is 842.8. The next red arrow points to a line labeled density of ether, which is equal to Ro, which is equal to 9.36 times 10 to the minus 19th power. Now, the point I want to make using this slide is that James Clerk Maxwell, the greatest physicist of his time, whose equations for electricity and magnetism are still ought to physics students today, was using his well accepted theory to do precise calculations and deduce precise physical properties of a substance that did not exist. And so the point is that even a well accepted theory, even a feature which seems to be required by something else such as the wave nature of light, can nonetheless be inaccurate and turned out to be not only wrong, but utterly imaginary. Q. Again I guess that would demonstrate the nature that scientific theories are tentative, is that correct? A. Yes, I think that it helps to make that claim that scientific theories are tentative more than just a hypothetical claim. The history of science is replete with examples of what seemed to be correct explanations which turned out to be incorrect. Q. Now, is Darwin's theory of evolution a theory in the sense of the National Academy of Sciences' definition? A. Well, it partly is and partly isn't. Q. Did you prepare a slide to demonstrate that point? A. Yes. A slide here is an excerpt from a book written by a man named Ernst Mayr, who, Ernst Mayr was a very prominent evolutionary biologist, who died just I think last year at the age of 100, and was privy to a lot of the development of what's called neo-Darwinian theory in the middle of the 20th century, and he wrote a book entitled One Long Argument, and in it he makes the case that Darwin's theory is not some single entity, and let me just quote from that. He says, "In both scholarly and popular literature one frequently finds references to Darwin's theory of evolution as though it were a unitary entity. In reality, Darwin's theory of evolution was a whole bundle of theories, and it is impossible to discuss Darwin's evolutionary thought constructively if one does not distinguish its various components. The current literature can easily lead one perplexed over the disagreements and outright contradictions among Darwin specialists, until one realizes that to a large extent these differs of opinion are due to a failure of some of these students of Darwin to appreciate the complexity of his paradigm." So you have to realize that Darwin's theory is not a single claim. There are multiple claims within what's called Darwin's theory, and they can be, they can have different levels of evidence behind them. Q. Did he break out these five claims in this One Long Argument that you're referring to? A. Yes, he did. He went on to say, well what are those ideas that are grouped together under Darwin's theory? He called them, he identified five different components, the first of which is "evolution as such." He says this is the theory that the world is not constant or recently create nor perpetually cycling, but rather is steadily changing. So what we might call change over time. Q. Is that a theory or is it an empirical observation of facts? How would you describe that? A. Well, yeah, I myself would call that more an observation rather than a theory. We see that the earth seems to have changed over time. The second -- Q. Go ahead. A. The second aspect of Darwin's theory that Mayr discerned was common descent. This is the theory that, "Every group of organisms descended from a common ancestor and that all groups of organisms, including animals, plants, and microorganisms, go back to a single origin of life on earth." The third point is something called multiplication of species. This theory explains the origin of enormous organic diversity. I won't read the rest of the quote there, but it's just a question why are there so many species, the multiplication of species. The fourth component of Darwin's theory according to Mayr is something called gradualism. According to this theory, "Evolutionary change takes place through the gradual change of populations and not by the sudden saltational production of new individuals that represent a new type." So gradualism, things thing gradually over time. And the last component according to Mayr is natural selection. According to this theory, "Evolutionary change comes through the abundant production of genetic variation, the relatively few individuals who survive, owing to particularly well adapted combinations of inheritable characters, give rise to the next generation." So this is what's commonly called survival of the fittest. Q. Is this strength of the scientific evidence equal for each of these five separate claims? A. No, they vary greatly in the strength of evidence that's behind each of those. Q. Has it been your experience that supporters of Darwin's theory of evolution and opponents of intelligent design have conflated the evidence for the occurrence of evolution, the change over time, with the evidence for the mechanism of evolution, natural selection? A. Yes. In my experience many people confuse the various parts of Darwin's theory. They don't make the distinction that Ernst Mayr makes, and people see that there has been change in the world and a lot of people then assume that because there has been change in the world, then it must have been change driven by natural selection. And that's a mistaken conclusion. Q. Are there other senses in which the word theory is used by scientists? A. Yes. You have to realize that scientists themselves use the word theory in a very broad, with a very broad range of senses. Not only in the sense that the National Academy gave to it, but scientists themselves use it to indicate many other things. Q. Now, you did a search of Pub Med searching for the term theory, is that correct? A. Yes, that's right. In order to illustrate how scientists themselves use the word theory, I did a search in a database called Pub Med, which is maintained by the National Library of Medicine, which is a division of the National Institutes of Health of the federal government, and this is a database of abstracts and titles of almost all biological articles that are published. It contains millions and millions of articles. Q. And have you prepared several slides to demonstrate this point? A. Yes, I have. In this first one, which might be a little bit hard for me to read, but nonetheless the red arrow down here, I certainly won't read the whole abstract, but if you can see the little red arrow down here, let me just read a phrase from this. This says that, "This study does not support the previous theory." And so they are using the word theory here to mean a previous idea that has now been shown to be wrong or have evidence against it. Q. If I may, Dr. Behe, just interrupt you here briefly that might help you in your testimony as well, if you go to the exhibit book that you've been provided, and if you look under Tab 8 I believe, there's an exhibit marked Defendant's Exhibit 203-A, as in Alpha. A. Oh, okay. Yes. Q. Is that the search that you conducted on Pub Med in which the slides are derived from? A. Yes, that's correct. Yes, uh-huh. Q. And if it will help you to perhaps look at those as opposed to trying to review it on the screen, work between the two. A. Okay. Thank you. And the next slide up on the screen here is if you follow the red arrows, and those points to other occasions of the word theory, it says in this article, "The membrane pacemaker theory of aging is an extension of the oxidative stress theory of aging." So in here the scientists are using the word theory to explain, or to refer to ideas that are very limited in scope, which may or may not have much evidence to support them. So in a much different sense than the National Academy used in its booklet. You could go to -- oh, thank you for the next slide. Let me just see if I can find that one article. Here it is. Okay. If you look at this other article from Pub Med, it's pointing to a sentence that begins, "In theory, change in climate would be expected to cause changes elsewhere." So again a scientist here is using the world theory to refer to, you know, we would expect this to happen, a kind of expectation. Now, I put up here a publication of my own that I published with my dissertation advisor Walter Englander, and if you could read the top it reads, "mixed gelation theory," and it refers to mixtures of sickle cell hemoglobin with other types of hemoglobin. So again we were using the word theory to describe ideas and results that have a very limited providence. And finally on the next slide this is an article taken from an issue of Science Magazine seven years ago, a special issue which focused on the question of why is there sexual reproduction. And the article was entitled "Why Sex? Putting Theory to the Test," and the author said the following. "Biologists have come up with a profusion of theories since first posing these questions a century ago." These questions meaning why is there sexual reproduction, and again the author here is using the word theory in terms of competing hypotheses, competing ideas, none of which have much evidence behind it, none of which have wide acceptance in the scientific community. Q. I want to return to Ernst Mayr and ask you are the parts of Darwin's theory as he's listed here well tested? A. No, they are not. If you look at the top ones, evolution as such, common descent, multiplication of species, those are all well tested. The claim of gradualism is in my opinion rather mixed. There's evidence for, and some people argue against it. But the component of Darwin's theory natural selection which is sometimes viewed as the mechanism that Darwin proposed for evolution is very poorly tested and has very little evidence to back it up. Q. I want to go through in a little bit more detail on some of these claims. Going back to that first claim, and I believe you testified probably akin to an empirical observation, is that correct? A. Yes, evolution as such that the world is changed over time, and life as well. Q. Does intelligent design refute the occurrence of evolution? A. No, it certainly has no argument with this component of Darwin's theory. As a matter of fact I think there is a, on the next slide there's an excerpt from Of Pandas and People where the authors write, "When the word is used in this sense, that is the sense of change over time, it is hard to disagree that evolution is a fact. The authors of this volume certainly have no dispute with that notion. Pandas clearly teaches that life has a history, and that the kinds of organisms present on earth have changed over time." And let me make the point that Ernst Mayr calls this component evolution as such. That is the basic idea of evolution. Q. So when you hear a claim that intelligent design is anti-evolution, are those accurate? A. No, they are completely inaccurate. Q. Returning back to the slide with Ernst Mayr, the second claim, does intelligent design speak to that second claim of common descent? A. No. Intelligent design looks to see if aspects of life exhibit a purposeful arrangement of parts as evidenced by their physical structure. It does not say how such a thing might have happened. Q. Is common descent nevertheless addressed in Pandas? A. Yes. I've read sections that do address common descent. Q. How does it fit then within intelligent design? A. Well, some people point to empirical difficulties that they see for common descent, but common descent itself is not a claim, either for or against is not a claim of intelligent design theory. Q. Would it be accurate then to say it's viewed more as a difficulty with Darwinism rather than a claim for intelligent design? A. Yes, that's correct. Common descent applies more to Darwinian claims, which claim descent with modification, than it does to intelligent design, because intelligent design is focused exclusively on the question of whether we can discern the effects of intelligence in life. Q. In which of these claims is intelligent design focused principally upon? A. Intelligent design focuses exclusively on the fifth claim of Ernst Mayr, or the fifth component that Ernst Mayr identified in Darwin's theory, that of natural selection, or in other words what is the mechanism of evolution, how could such things happen. Q. Is it your view that that is where the scientific evidence for these five claims is perhaps the weakest? A. Yes, that is in fact the most poorly supported aspect of Darwin's theory. As a matter of fact, that's where the evidence in my view points away from Darwin's theory. Q. Again so does intelligent design question all parts of Darwin's theory of evolution? A. No. It focuses exclusively on the question of the mechanism of evolution, and I tried to make that clear as this picture shows. This is an issue of something called the reports of the National Center for Science Education, which is a group which strongly advocates for the teaching of Darwinian evolution in school, and I wrote a letter to the editor of The Reports, which was published in an issue approximately four years ago. And here's an excerpt from that letter where I explain, "The core claim of intelligent design theory is quite limited. It says nothing directly about how biological design was produced, who the designer was, whether there has been common descent, or other such questions. Those can be addressed separately." It says, "Only that design can be empirically detected in observable features of physical systems." And I go on to say, "As an important corollary it also predicts that mindless processes such as natural selection or the self-organization scenarios favored by Shanks and Joplin will not be demonstrated to be able to produce irreducible systems of the complexity found in cells." So I tried to clearly explain that the only focus of intelligent design is on the mechanism of evolution, or the question of whether or not aspects of life show the marks of intelligent design. Q. And you said this was published in The Reports by the National Center for Science Education? A. Yes, that's correct. Q. And that's an organization where Dr. Kevin Padian is the president? A. Yes, I understand he's the president of that. Q. And Dr. Alters and Forrest are also associated with this organization? A. I think Dr. Forrest is and Dr. Miller is. I'm not sure about Dr. Alters, and also Professor Pennock has a reply in that same issue of The Reports. Q. Now, Dr. Miller in his expert report that he's provided in this case said that Darwin's theory actually has many mechanisms. Do you agree with that? A. No, I disagree, and here is a little copy of Professor Miller's expert report, and he lists a number of things, including genetic recombination, transposition, horizontal gene transfer, gene duplication, sexual selection, developmental mutation and so on, and he says that, "The relative importance of these and other mechanisms of evolution, these conflicts continue to motivate." So he seems to be calling these mechanisms. He's making a mistake here. Except for sexual selection, all the other components listed in his report, gene transfer, transposition, recombination, are simply ways that diversity is generated in nature. But diversity has to be acted upon in Darwin's understanding by natural selection. So natural selection is the only mechanism of Darwinian evolution. The sexual selection that he lists, that is a mechanism, but it's a subset of natural selection where features have selected value due to the consideration of their ability to allow an organism to attract mates or otherwise reproduce. Q. Do other scientists agree with your position on this? A. Yes, they do. Here's an excerpt from an article by a man named Jerry Coyne, who was writing in a magazine called The New Republic. Now, Jerry Coyne is a professor of evolutionary biology at the University of Chicago and a vocal opponent of intelligent design, as the title of the article shows. He writes an article entitled The Case Against Intelligent Design. Nonetheless, he disputes what Professor Miller has said, the idea that he had talked about, Jerry Coyne says the following, "Since Darwin's theories have been expanded, and we now know that some evolutionary change can be caused by forces other than natural selection. For example, random and nonadaptive changes in the frequencies of different genetic variance, the genetic equivalent of coin tossing, have produced evolutionary changes in DN A sequences," and here is an important point. "Yet, selection is still the only known evolutionary force that can produce the fit between organism and environment, or between organism and organism, that makes nature seem designed." So Professor Coyne was saying that well, there can be random genetic changes in organisms, but the only mechanism pertinent to the discussion of whether there is design in nature or not is Darwin's idea of natural selection. Q. Do any other scientist besides intelligent design proponents question the ability of natural selection to explain various aspects of life? A. Yes, a number of scientists who are not design proponents also question the ability of natural selection to account for features of life, and one example is shown on this slide, a man named Stewart Kauffman, who is a professor of biology at the University of Toronto now, in wrote a book called The Origins of Order: Self organization and Selection in Evolution, and that was published by Oxford University Press, and in the introduction to his book he wrote the following, "Darwin's answer to the sources of the order we see all around us is overwhelmingly an appeal to a single singular force: natural selection. It is this single force view which I believe to be inadequate, for it fails to notice, fails to stress, fails to incorporate the possibility that simple and complex systems exhibit order spontaneously." So in this quotation Professor Kauffman is summarizing his view that the Darwinian mechanism of natural selection is inadequate to explain some features of biology. Q. Does Dr. Kauffman still maintain that view? A. Yes, he does. He also contributed an article to the book Debating Design, to which I and others also contributed, which was published by Cambridge University Press last year in which he reiterates his views about self-organization and complexity. He wrote in the underlying bold portion, "Much of the order in organisms I believe is self organized and spontaneous. Self-organization mingles with natural selection in barely understood ways to yield the magnificence of our teeming biosphere. We must therefore expand evolutionary theory." In other words natural selection is not sufficient. We have to expand evolutionary theory to include something else other than natural selection if we want to explain what we see in biology. Q. Sir, you've already shown that the theory of evolution does not consist of a single claim, and you testified that proponents of the theory of evolution tend to conflate evidence for one claim to support another claim, and also you testified that opponents of ID, intelligent design, claim that it's anti-evolution, and you showed a slide of Pandas which refutes that particular claim. Now, when we say, when we use the term Darwin's theory of evolution, what is the common understanding for that? A. Well, the common understanding is that natural selection has driven all of the change in the world, we see in the biological world. Q. Now, the evolution as such, understanding that life is changed over time, that was understood before Darwin's time, is that correct? A. Yes. People have been proposing such things for I think a couple of hundred years before Darwin's day. Darwin's distinctive contribution to this discussion was the proposal of natural selection. It was he who had proposed what people considered to be a completely unintelligent mechanism for the production of the complexity of life. Q. With that understanding, sir, is Darwin's theory of evolution a fact? A. No. No theory is a fact. Q. Are there gaps and problems with Darwin's theory of evolution? A. Yes, there are. Q. Is there one principal contention you have with the explanatory power of the theory of evolution that's is particularly relevant for intelligent design? A. Yes, I think the major overwhelming problem with Darwin's theory is what I summarized in my expert report. I stated the following, "It is my scientific opinion that the primary problem with Darwin's theory of evolution is the lack of detailed, testable, rigorous explanations for the origin of new complex biological features." MR. ROTHSCHILD: Your Honor, objection, just to the extent I just want to make sure that the expert report is not coming into evidence. I don't object to the slide as long as that's clear. MR. MUISE: The report is not coming, Your Honor. It's just for demonstrative purposes to demonstrate his opinion. THE COURT: I'll consider that just to be a clarification objection. MR. ROTHSCHILD: Thank you, judge. THE COURT: There's no need for a ruling. You can proceed. BY MR. MUISE: Q. Dr. Behe, do scientists who do not adhere to intelligent design share your opinion of this? A. Yes, they do. A couple of examples are shown next. Here is an excerpt from a book by a man named Franklin Harold, who's an emeritus professor of chemistry at Colorado State University, and four years ago he published a book entitled The Way of the Cell with Oxford University Press, and he quote, "We must concede that there are presently no detailed Darwinian accounts of the evolution of any biochemical system, only a variety of wishful speculations." So he also seems to share that view. Q. Has Dr. Miller acknowledged such problems? A. Yes. Dr. Miller himself wrote in his expert statement, "Living cells are filled of course with complex structures," and let's skip down to the underlying bold statement, he continues, "One might pick nearly any cellular structure, the ribosome for example, and claim correctly that its origin has not been explained in detail by evolution." So again everybody agrees that Darwinian theory has not given an explanation of many, many features of life. Q. With that in mind, sir, I have some specifics I want to ask you. Has the theory of evolution, in particular natural selection, explained the existence of the genetic code? A. No. Q. Has the theory of evolution, in particular natural selection, explained the transcription of DNA? A. No. Q. Has the theory of evolution, in particular natural selection, explained translation of "M" RNA? A. No. Q. Has the theory of evolution, in particular natural selection, explained the structure and function of the ribosome? A. No. Q. Has the theory of evolution, in particular natural selection, explained the structure of the cytoskeleton? A. No. Q. Has the theory of evolution, in particular natural selection, explained nucleosome structure? A. No. Q. Has the theory of evolution, in particular natural selection, explained the development of new protein interactions? A. No. Q. Has the theory of evolution, in particular natural selection, explained the existence of the proteosoma? A. No. Q. Has the theory of evolution, in particular natural selection, explained the existence of the endoplasmic reticulum? A. No. Q. Has the theory of evolution, in particular natural selection, explained the existence of motility organelle such as the bacterial flagellum in the eucaryotic syllium? A. No. Q. Has the theory of evolution, in particular natural selection, explained the development of the pathways for the construction of the syllium and flagella? A. No. Q. Has the theory of evolution, in particular natural selection, explained the existence of defensive apparatus such as the immune system and blood clotting system? A. No. Q. Sir, is it fair to say that under this broad category of difficulties that we just reviewed lies much of the structure and development of life? A. Yes, that's correct. Q. Does this cause you to question whether a Darwinian framework is the right way to approach such questions? A. Yes, it does, because if Darwinian theory is so fruitless at explaining the very foundation of life, the cell, then that makes a person reasonably doubt whether it's, whether some other explanation might be more fruitful. Q. Sir, in your expert opinion is there a problem with falsification of Darwin's theory? A. Yes, there's a big problem with that. Falsification is roughly the idea that there is some evidence which would make somebody change his mind that a theory was right or not right. In many instances Darwinian theory is extremely difficult to falsify, and let me give one example. On the next slide is shown a figure of vertebrate embryos taken from a biochemistry textbook by Voet and Voet, and this is the biochemistry textbook that is used widely in colleges and universities across the United States. The figure here is drawn after a figure that was first drawn in the 19th century by a man named Ernst Haekel, who was an embryologist and supporter of Darwin's theory. As you see in the figure, the vertebrate embryos all begin by looking virtually identical, very extremely similar, and yet in the course of their development they develop into completely different organisms. A fish, reptile, bird, amphibian, human, and so on. And Ernst Haeckel thought it was exactly in accord with what Darwin expected. And the reasoning is illustrated by a quotation on the next slide from a book entitled Molecular Biology of the Cell, which was written by Bruce Alberts, who I mentioned earlier was president of the National Academy of Sciences. One of his co-authors is James Watson, the Nobel laureate who with Francis Crick won the prize for discovering the double helical shape of DNA, and other illustrious authors. And in the textbook they explain those embryological facts by saying the following, "Early developmental stages of animals whose adult forms appear radically different are often surprisingly similar. "Such observations are not difficult to understand. The early cells of an embryo are like cards at the bottom of a house of cards. A great deal depends on them, and even small changes in their properties are likely to result in disaster." So if I can summarize their reasoning here, the authors were saying these extremely similar embryos are exactly what we expect, because in vertebrates the basic body plan is being laid down in the early generations. And if you upset the foundation of a structure, that's likely to essentially destroy it. So what we expect is for later stages of development to be dissimilar, but the earlier stages to be very, very similar. Nonetheless, it turns out that those drawings were incorrect, and a number of years ago in the late 1990's the journal Science ran a story about a study that had been done to try to reproduce Haeckel's, results, and it turns out they could not be reproduced. And the story was entitled Haeckel's Embryos: Fraud Rediscovered, and if you look at the illustration in the news story, on the bottom row one sees the drawings of embryos as Haeckel produced them, and on the top row you see photographs of embryos which were taken by a modern team of embryologists, looking very, very much different. And on the next slide are excerpts from the news story. It was written, it says, "Generations of biology students may have been misled by a famous set of drawings of embryos published 123 years ago by Ernst Haeckel. 'The impression they give that the embryos are exactly alike is wrong,' says Michael Richardson, an embryologist at St. George's Hospital Medical School in London," and he was the lead author of the study which showed the incorrectness of Haeckel's results. "Not only did Haeckel add or omit features, but he also fudges the scale to exaggerate similarities." Now, here is the point with respect to the topic of falsification. Since these studies have appeared, no Darwinian biologist that I'm aware of has decided that Darwinian biology is incorrect. But if a theory, Darwin's theory, can live with one result, and its utter opposite with virtually identical embryos and with significant variation in the embryos, then it says nothing about that topic. It doesn't predict anything. It will live with whatever result experimental science comes up with, which means that Darwin's theory has nothing significant to say about a major feature of life, embryology, because if you think about it, if one kind of organism is to give rise to another kind of organism over time, then the embryological plan for building that first organism has to change into the embryological plan to build the second kind of organism, and yet how that could happen is a topic that Darwin's theory of evolution does not address in the least. Q. Sir, if I could direct your attention to the exhibit book, under Tab 16, Defendant's Exhibit 271? A. Number 16 did you say? Q. Tab 16, that's right. Is that a copy of that article, it's an on-line version of Haeckel's Embryos: Fraud Rediscovered? A. Yes, it's a copy of the article that does not have the illustrations in it. Q. Was the article written by Elizabeth -- A. Pennisi. Q. Pennisi, the one you've been referring to? A. Yes. Q. Does the bacterial flagellum in the Type 3 secretory system, and we're going to be talking about these in a little bit greater detail later, but is there an analogy also with regard to the falsifiability that you could -- A. Yes. As I'll discuss later, again Darwinian theory can't decide whether the Type 3 secretory system might have arisen from the flagellum, the flagellum from the secretory system, whether both developed independently, or other pertinent questions. So again the question of falsifiability, if it doesn't, can't predict any of those, then it has nothing to say about those features. Q. Now, does Darwin's theory have difficulty explaining what we see in nature regarding sexual reproduction? A. Yes, turns out that it does. It was realized not long after Darwin published his theory, it was realized by a man named August Weisman that Darwinian theory actually predicts that most organisms should reproduce asexually because, one reason is because Darwinian theory, one goal of an organism, goal in the terms of a better evolutionary result, is to get more of the organism's genes into the next generation. If an organism reproduced asexually by clonal reproduction, the offspring would contain all of the genes of the organism. But during sexual reproduction, for each offspring reproduced the parent gets only half of its genes into the next generation. And this has been a conundrum that has been unsolved in Darwinian theory for over a century, and during that time scientists have not just been sitting around. They've been trying very hard to come up with explanations for that, and as a matter of fact they've come up with so many suggestions, so many theories, that in 1999 a man named Kondrashov published an article in the journal Heredity entitled Classification of Hypotheses on the Advantage of Amphimixis, and for amphimixis read sexual reproduction. There were so many competing ideas that he had to classify them into groups to try to keep better track of them, and he -- Q. This was written in 1993? A. Yes, in 1993, about ten years ago. Let me just read the first sentence here, "After more than a century of debate, the major factors of the evolution of reproduction are still obscure." Q. If I could direct your attention again to your exhibit book, Tab Number 9, and it's listed as Defendant's 270, is that the article you're referring to? A. Yes, that's the one. And if I could continue the quote after the bolded text, he continues, "During the past 25 years, hypotheses have become so numerous and diverse that their classification is a necessity. The time is probably right for this. No fundamentally new hypothesis has appeared in the last five years, and I would be surprised and delighted if some important idea remain unpublished." So he was expressing his view that an exhaustive look had been done and that we have not yet come up with an answer. Q. Do you have additional slides and articles to demonstrate this point? A. Yes, that's right. This was in 1993. In the year 1998 Science, the journal Science issued a special issue which focused on the evolution of sex, and in that the leadoff article of a number of articles in that issue was the one entitled Why Sex? Putting Theory to the Test. Now, notice the word theory is not being used in the sense that the National Academy gives to it. And if you look at this little abstract which is, or this little blurb up on the left-hand corner I think on the next slide that's enlarged, it stated that, "After decades of theorizing about the evolutionary advantages of sex, biologists are at last beginning to test their ideas in the real world." So let notice a couple of things about that. Again they're using theory, theorizing, in a sense like brainstorming. Furthermore, they say that this brainstorming, this theorizing goes on ahead of the activity of testing it. And furthermore that the testing can be put off decades from when the theorizing takes place. Q. If I could direct your attention again to the exhibit book under Tab 10 and there's an exhibit listed, Defendant's Exhibit Number 269, is that a copy, it looks like an on-line version copy of the article that you're referring to? A. Yes, that's right. Q. I believe you have another slide you'd like to cite? A. Yes. There's an excerpt from this article which is on the next I think -- oh, yes, I'm sorry. Yes, this is kind of a repeat of one that I've done already, "Biologists have come up with a profusion of theories since first posing these questions a century ago." So clearly this is an idea that has stumped science for a very long time. Another excerpt from the article is shown on the next slide. The author writes, "How sex began and why it thrived remains a mystery. Why did sex overtake asexual reproduction?" I'm going to skip down here, and the author continues, "Sex is a paradox in part because if nature puts a premium on genetic fidelity, asexual reproduction should come out ahead. All this shuffling is more likely to break up combinations of good genes than to create them. Yet nature keeps reshuffling the deck." Q. And if I could just so the record is clear, those last two quotes that you read from were from which articles? A. They were from the article Why Sex? Putting Theory to the Test by Bernice Wuethrich. Q. Again do you have another slide to make this point? A. Yes, I do. This is a quotation of a man named George Williams. George Williams is a prominent evolutionary biology at the State university of New York at Stonybrook, and he wrote a book in the mid 1970's entitled Sex and Evolution, and a part of that book was quoted in a book recently by Richard Dawkins of Oxford University, and the quotation is this. "This book," that is George Williams' book, "this book is written from a conviction that the prevalence of sexual reproduction in higher plants and animals is inconsistent with current evolutionary theory. There is a kind of crisis at hand in evolutionary biology," and Dawkins comments on this quotation on the next slide. Richard Dawkins, an evolutionary biologist at Oxford University, Dawkins says, this is Dawkins speaking, "Maynard Smith and Hamilton," which refers to two prominent evolutionary biologists, "said similar things. It is to resolve this crisis that all three Darwinian heroes along with others of the rising generation, labored. I shall not attempt an account of their efforts, and certainly I have no rival solution to offer myself." So the point is that this problem is still unresolved, and yet this goes to the very heart of evolutionary theory, or a theory of evolution that expects that most species would reproduce asexually can be likened to a theory of gravity that expects that most objects will fall up. And in either case a reasonable person might wonder if the theory is missing some large piece of the puzzle, and certainly I think as an educator students should be apprised of facts like these. Q. Sir, does Darwin's theory account for the origins of life? A. No, Darwin's theory does not even address the origin of life. Q. Is this an unsolved scientific problem? A. Yes, it certainly is. And it also poses, it poses a large problem for Darwin's theory as well, and -- Q. What is that problem? A. I think I have a little excerpt from my expert report in which I dealt with that question, and I said the following, "The problem that the Origin of Life poses for Darwin's theory is the following. If the beginning of life required something extra, something in addition to the unintelligent operation of natural processes that Darwin's theory invokes, then it would be fair for a curious inquirer to wonder if those other processes ended with the beginning of life, or if they continued to operate throughout the history of life," and I'll stop there, close quote. So the point is this. If we cannot explain the origin of life by unintelligent processes, and if intelligent processes were in fact involved with that, then we might wonder did they continue throughout the history of life, or did they stop at that point. Q. Sir, do you have an additional slide to make this point regarding the questions of the origins of life is left unresolved? A. Yes, I do. Just a couple. It's easy to find scientists involved in a study of the origin of life who are very willing to say that we have not a clue as to how life started, and here's a convenient source, this was an interview by PBS with a man named Andrew Knoll, who is an eminent professor of biology at Harvard who studies the early development of life, and one of the topics they wanted to speak with him over was, "Why it's so devilishly difficult to figure out how life got started." And on the next slide they put the question to Andrew Knoll, they say, "How does life form?" And Professor Knoll says, "The short answer is we don't really know how life originated on this planet." And skip a bit, "We remain in substantial ignorance." Next slide, they asked another question, the interviewer asked, "Will we ever solve the problem of the origin of life?" And Knoll says, "I don't know. I imagine my grandchildren will still be sitting around saying that it's a great mystery." So that here's a person involved in studying the origin of life who says quite frankly that we don't know what's going on and he doesn't have any particular expectation that our grandchildren will understand the origin of life. Q. Sir, if I could direct your attention to the exhibit book under Tab 12, Defendant's Exhibit Number 267, is that the interview that you've just been testifying to? A. Yes, it is. Q. I'd like to direct your attention to what I have put up on the screen here is an excerpt from a booklet entitled Science and Creationism which was put out by the National Academy of Sciences in 1999, and if you could please read that quote? A. Yes. The National Academy wrote, "For those who are studying the origin of life, the question is no longer whether life could have originated by chemical processes involving nonbiological components. The question instead has become which of many pathways might have been followed to produce the first cell," and I'll stop there, close quote. Q. Do you have any problems with this statement? A. Yes. I find it very disturbing, because in that statement you don't see any reference to the results of workers in the field. You don't see any reference to the data of what people have come up with. Instead, in this publication they focus on the attitudes of the scientists involved, and while the attitudes might be an interesting sociological phenomenon, they do not go to the question of whether we can explain the origin of life. And furthermore, this booklet is written for teachers and indirectly then for their students, and by advising teachers or letting teachers or by saying this to teachers, it seems to me the National Academy is encouraging them to have their students think of this problem in the same way that workers have been doing for the past fifty years in the same way that has proved fruitless for over half a century. Q. Sir, is there a scientific controversy regarding intelligent design in evolution? A. Yes, there is. Q. And what leads you to that conclusion? A. Well, in addition to, you know, the articles and counterarticles and things that have been mentioned earlier in the day, and besides the conferences and symposia that I have attended, there have also been a number of published books and articles debating design, and a good example of that is shown on the screen here, this is the cover of the book entitled, excuse me, Debating Design: From Darwin to DN A ,and it was edited by two people, William Dembski, who's a philosopher and mathematician and intelligent design proponent, and Michael Ruse, who's a professor of the philosophy of science and a student of Darwinian thought, and in this number of academics contributed chapters arguing not only about intelligent design and Darwinism, but also complexity theory, self-organization, and other views as well. Q. And I believe you testified previously that some of the experts that are testifying on behalf of plaintiffs in this case have also contributed chapters to this particular book? A. That's correct. Kenneth Miller has a chapter in there. I think Robert Pennock has a chapter in there as well. Q. And I believe you also testified during the qualifications portions that you contributed a chapter to a book that was written by Robert Pennock, scientists debating the question of intelligent design? A. That's correct, published by MIT Press. Q. And there was also a similar book -- MR. ROTHSCHILD: Objection, Your Honor. I think it's mischaracterizing the title. MR. MUISE: Your Honor, I didn't say what the title was. It's what the -- MR. ROTHSCHILD: I think he did say it, Your Honor. MR. MUISE: The nature of the book. I don't believe I stated the title. If I stated the title -- THE COURT: How did he mischaracterize it? MR. ROTHSCHILD: He called it scientists debating intelligent design, or something to that effect. He used the word scientists. It's actually Intelligent Design and Its Critics, if it's the Pennock edited book. MR. MUISE: Okay. I don't see much a distinction with that, Your Honor, but -- MR. ROTHSCHILD: It think it's a loaded question. THE COURT: Well, for the record you don't doubt, Mr. Muise, that's the correct title, or do you? Let's just be clear. MR. ROTHSCHILD: Sorry, Intelligent Design, Creationism, and Its Critics, I am corrected. MR. MUISE: I believe that's the correct title, Your Honor. I'm just verifying. (Brief pause.) MR. MUISE: Let's go back to your -- THE COURT: Just so we're -- MR. MUISE: I do have it here, Your Honor, and I just want to make it clear what the title is, and I believe Mr. Rothschild is accurate. THE COURT: All right. Then there's no need for a ruling on it. You can just clarify it for the record. BY MR. MUISE: Q. The book by Robert T. Pennock was entitled Intelligent Design, Creationism and Its Critics: Philosophical, Theological and Scientific Perspectives, is that correct? A. That's correct. Q. And that book was published by the MIT Press? A. That's correct, yes. Q. You contributed an article making scientific arguments for intelligent design in that book? A. That's correct, I did. Q. I should clarify, you submitted a chapter, is that correct? A. Yes that's, right. Q. Were there other scientists who submitted chapters in that particular book? A. Yes. There were several arguing against my ideas and several others arguing on other points. Q. Were these scientists making scientific arguments in that book? A. Yes. Q. Again similarly I believe there was a book that was edited by John Campbell and Steve Meyer entitle Darwinism: Design in Public Education, is that correct? A. Yes, that's right. Q. Published by Michigan State University Press? A. Yes, that's correct. Q. And several scientists and others contributed articles for that particular book, is that correct? A. Yes, that's right. Q. If I could direct your attention to the exhibit, Tab 13, marked as Defendant's Exhibit 266. A. Yes. Q. Do you know what that, what is Defendant's Exhibit 266? A. It is a publication in the journal Theoretical Biology by two authors, Richard Thornhill and David Ussery entitled A Classification of Possible Roots of Darwinian Evolution. Q. And who are Thornhill and Ussery? A. They are two scientists, David Ussery is at the Institute of Biotechnology and Technical University of Denmark and, Technical University of Denmark, and Thornhill I'm not quite sure of. Q. Is that an article that was published in a scientific journal? A. Yes, the Journal of Theoretical Biology is indeed a scientific journal. Q. What was that article about? A. As its title implies, it was trying to group, put into groups possible pathways that a Darwinian evolutionary pathway might take, and it was particularly concerned with the problem of irreducible complexity. Q. Did it particularly refer to irreducible complexity? A. Yes, it did. It refers to irreducible complexity by name I'm certain, virtually certain, and it makes reference to my book as well to illustrate the problem. Q. So would it be fair to say based on these articles and books and symposia that you've been attending that scientists are debating this issue in scientific and academic circles? A. Yes, that's what I would say. MR. MUISE: Your Honor, I'm about to start into another area. I know we've only been going for an hour, but I'm not sure how that'll work out. THE COURT: No, keep going. MR. MUISE: Okay. THE COURT: Because we've not been at it long enough to take a break. BY MR. MUISE: Q. Dr. Behe, I'd like to return to the concept irreducible complexity, which you testified was a term that you coined in Darwin's Black Box, is that correct? A. Yes, that's right. Q. Now, you testified that the design arguments speaks of the purposeful arrangement of parts. Are there any other aspects of the design argument? A. Yes, and that's correct. There are other aspects, and they're shown on the next slide. Just like Ernst Mayr showed that there were several aspects to Darwinian theory, there are aspects to the intelligent design argument. The intelligent design argument itself, the positive argument for it is the purposeful arrangement of parts, as I have described. However, in an inductive argument, if somebody else offers a counterexample to the induction, then one has to address that to make the inductive argument stand. So there's also a negative argument which says that despite Darwinian claims that the inductive positive argument is unrefuted, that is that Darwinism cannot account for the purposeful arrangement of parts. Q. So that's your argument against the plausibility of a Darwinian explanation for design, is that correct? A. Yes, that's right. Q. Do you have several slides that further make this point? A. Yes. Now, what would make Darwinian explanations seem implausible? Well, Charles Darwin himself wrote how his argument could be refuted. In his writings in his book On the Origin of Species he wrote that, "If it could be demonstrated that any complex organ existed which could not possibly have been formed by numerous successive slight modifications, my theory would absolutely break down," adding, "but I can find out no such case." In this passage Darwin was emphasizing that his was a gradual theory. Natural selection had to improve things slowly, in tiny steps over long periods of time. If it seemed that things were improving rapidly, in big leaps, then it would start to look suspiciously as if random mutation and natural selection were not the cause. Q. Have other scientists acknowledged that this is an argument against Darwin's theory of evolution? A. Yes. In his book Finding Darwin's God Kenneth Miller has written that, "If Darwinism cannot explain the interlocking complexity of biochemistry, then it is doomed." Q. I believe we have a quote from another prominent scientist? A. Yes. Richard Dawkins in his recent book The Ancestor's Tail, from which I quoted recently, wrote "That it is perfectly legitimate to propose the argument from irreducible complexity, which is a phrase I use, as a possible explanation for the lack of something that doesn't exist, as I did, for the absence of wheeled mammals." Let me take a second to explain Dawkins' reference. He's saying that this problem is a problem for biology, but nonetheless he thinks that everything in biology has a Darwinian explanation. So that whatever we do see in biology necessarily is not irreducibly complex, and I think in my opinion that's an example of begging the question. But he does recognize the concept of irreducible complexity. Q. Sir, I'd like at this point for you to define irreducible complexity, and we have a slide here. A. Yes, in my article from the journal Biology and Philosophy, I defined it this way. "By irreducibly complex, I mean a single system which is necessarily composed of several well matched interacting parts that contribute to the basic function, and where the removal of any one of the parts causes the system to effectively cease functioning." Q. Now, you have up there "necessarily" in italics. Is there a reason for that? A. Yes, the definition that I gave in Darwin's Black Box did not have those italicized words necessarily, but after the books came out and an evolutionary biologists at the University of Rochester named Allen Orr pointed out that it may be the case that if you had a system that was already functioning, already doing some function, it's possible for a part to come along and just assist the system in performing its function, but after several changes perhaps it might change in such a way that the extra part has now become necessary to the function of the system but that could have been approached gradually. And I, in thinking about it I saw that he was thinking of examples that I did not have in mind when I wrote the book. So I kind of tweaked the definition here in this article to try to make it clear and try to exclude those examples that I didn't have in mind. Q. Is it a common practice within the science community for a scientist to adjust, modify, or tweak their theories based on criticisms that they get from other scientists? A. Oh, sure. That's done all the time. Nobody is perfect, nobody can think of everything at once, and a person is always grateful for criticism and feedback that helps to improve an idea. Q. Does criticism undermine the idea that you were trying to convey by irreducible complexity? A. No, it didn't. It clarified it, and after his, after reading his SI I saw that he was thinking of things that I did not have in mind. So I tried to clarify that. Q. You have this system in underlying capitalized and in red. What's the purpose for that? A. Well, that to me has turned into a point of confusion because some people, including Professor Miller, have been focusing the discussion on the parts of the system and saying if one removes a part and then can use the part for some other purpose, then they say that means that it's not irreducibly complex, but that is not the definition I gave to irreducible complexity, that is not the concept of irreducible complexity that I described in Darwin's Black Box. I said that if you take away one of the parts from the system, the system, the function of the system itself ceases to work, and whether one can use the part for anything else is beside the point. Q. So then it is fair to say Dr. Miller's uses the wrong definition of your concept and then argues against that different definition to claim that your concept is incorrect? A. Yes. It's a mischaracterization, yes. Q. Now, Dr. Padian testified on Friday that the concept of irreducible complexity applies above the molecular level, is that correct? A. No, that is incorrect. In Darwin's Black Box I was at pains to say that the concept of irreducible complexity applies only to systems where we can enumerate the parts, where we can see all the parts and how they work, and I said that in biology therefore that necessarily means systems smaller than a cell, systems whose active molecular components we can elucidate. When you go beyond a cell, then you're necessarily talking about a system, an organ or animal or any such thing, that is so complex we don't really know what we're dealing with, and so it remains a black box, and so the term irreducible complexity is confined to molecular examples. Q. Well, I want to read to you several sections, passages from Pandas that Dr. Padian referred to as claiming that this is the concept of irreducible complexity, and I'd like your comment on each one of those as I go through. The first one, "Multifunctional adaptations where a single structure or trait achieves two or more functions at once is taken as evidence by the proponents of intelligent design of their theory," and the reference is page 72 of Pandas. A. Well, if -- I'm sorry, what is the question then? Q. The question is, is that a definition or is that within your concept of irreducible complexity? A. No, that's not the way I define the term, and I'm not quite sure what he has in mind. Q. And the second example is, "Proponents of intelligent design maintain that only a consummate engineer could anticipate so effectively the total engineering requirements of an organism like the giraffe." That's a citation from page 71. Is that a reference to the concept of irreducible complexity? A. No, it isn't. Again, irreducible complexity focuses on the cell and systems smaller, because we have to elucidate all the parts, and you have to keep in mind that the parts of a biological system are molecular parts, even though most people commonly think of large organisms. Let me just say that, you know, that you should keep in mind that Darwinism has other problems beyond irreducible complexity. So Pandas might have been pointing to those. Q. Two more such examples. The third one, two more of out of four, this is the third out of four, "But it has not been demonstrated that mutations are able to produce the highly coordinated parts of novel structures needed again and again by macroevolution." And again, is that referring to the concept of irreducible complexity? A. Well, again unless he's referring to the molecular level, then no, that is not correct. It turned out that molecular changes, small changes in DN A can actually cause large changes in an organ. You might lose the finger or get a duplicate of a finger or some such thing, so you have to apply the concept of irreducible complexity to the molecular revel. Q. And the last example, "Design theory suggest that various forms of life began with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings," that's a reference to page 25 of Pandas. Is that a reference to the concept of irreducible complexity? A. No, it is not. Again one more time, the concept of irreducible complexity applies to the molecular level simply because in biology the molecular level is where changes are taking place. There are active components. That's where the rubber meets the road in biology. So one has to restrict one's self to that level. Q. Is that the level where we can identify the components of the systems? A. Yes, that's the critical thing. We have to see how things are working so we can realize what's going on and decide whether or not an explanation is plausible. Q. So it would be fair to say those four examples I read to you may illustrate or highlight other difficulties with Darwin's theory, but they're not specifically addressed in the concept of irreducible complexity? A. Yes, that's right. Just because irreducible complexity is a problem, that doesn't mean that it's the only problem. Q. Now, again can you give us an example of an irreducibly complex biochemical system? A. Yes, an excellent example is again the bacterial flagellum, which uses a large number of parts in order to function, and again if you remove the components, if you remove the propeller, if you remove the hook region, if you remove the drive shaft or any multiple parts of the flagellum, it does not work. It's ceases to function as a propulsive device. Q. Now, Professor Miller has testified that the flagellum is not irreducibly complex. Do you agree with him? A. No, I don't. Q. I'd like for you to go through and explain your objections to his claim. A. Okay. This is a slide from Professor Miller's presentation on the flagellum. Let me just first read through the slide completely and then I want to point to several mischaracterizations that are contained on the slide. He writes, "The observation that there are as yet no detailed evolutionary explanations for certain structures in the cell, while correct, is not a strong argument for special creation, 'design.' As Michael Behe has made clear, the biochemical argument from design depends upon a much bolder claim, namely that the evolution of complex biochemical structures cannot be explained even in principle." This has three mischaracterizations I'd like to point out in turn. The first one is what many people considered to be an informal logical fallacy, and that is called poisoning the well. It is given the reader a, leading the reader to suspect the other person's argument. It's kind of a version of an ad hominem argument. When he uses the term special creation and quotation in design, that looks to me like he's indicating to the reader that the people who make these arguments are trying to mislead you into thinking that this is design, but it's really special creation. What's more, again the word creation has very negative overtones and is used as a pejorative in many academic and scientific circles. Furthermore, the phrase special creation occurs nowhere in Darwin's Black Box. I never used the phrase special creation in any of my writings except perhaps to say that intelligent design does not require this. And so again I think it is a mischaracterization and it appears to me an attempt to kind of prejudice the reader against this, against my argument. The second point is this. The second mischaracterization is this. He says, "The observation that there are as yet no detailed evolutionary explanations for certain structures in the cell, while correct, is not a strong argument for special creation that is 'design.'" Here Professor Miller is doing something more understandable. He's essentially is viewing my theory through the lens of his own theory. So all he sees is essentially how it conflicts with his own theory and thinks that that's all there is to it. But as I have explained throughout the day today, if we could go to the next slide, that an inability to explain something is not the argument for design. The argument for design is when we perceive the purposeful arrangement of parts, the purposeful arrangement of parts such as we see in the flagellum, such as we see the molecular machinery such as described in that special issue of Cell and so on. We can go to the next slide, this is a copy of the first slide of Professor Miller's, the third mischaracterization is this. He says, "As Michael Behe has made clear, the biochemical argument from design depends upon a much bolder claim, namely that the evolution of complex biochemical structures cannot be explained even in principle." This is a mischaracterization. It's essentially absolutizing my argument. It's making overstating my argument in order to make it seem brittle, to make it more easily argued against. Q. Have you addressed such a claim in Darwin'S Black Box? A. Yes, if you read Darwin's Black Box you see that I say the following, "Even if a system is irreducibly complex and could not have been produced directly, however one cannot definitely rule out the possibility of an indirect circuitous route. As the complexity of an interacting system increases though, the likelihood of such an indirect route drops precipitously." So here I was arguing well, there's a big problem for Darwinian theory. These things can't be produced directly, but nonetheless you can't rule out an indirect route, but nonetheless building a structure by changing its mechanism and changing its components multiple times is very implausible and the likelihood of such a thing, the more complex it gets, the less likely it appears. So the point is that I was careful in my book to qualify my argument at numerous points, and Professor Miller ignores those qualifications. Q. Do these qualification also demonstrate the tentative nature in which you hold your theories? A. Yes, that's right. I always -- well, I try to state it in what I thought was a reasonable way and in a tentative way as well. Q. I believe we have a couple of more slides from Dr. Miller that you -- A. Yes, this is essentially a continuation. These will be slides number 2 and 3 from his slides on the flagellum. This is just a continuation of his overstated arguments. He says, "The reason that Darwinian evolution can't do this is because the flagellum is irreducibly complex," and he quotes my definition of irreducible complexity from Darwin's Black Box, and continue on the next slide. And he states that, "That claim is the basis of the biochemical argument for design." But again that is not the basis for the biochemical argument for design. The basis for the biochemical argument for design is the purposeful arrangement of parts. Irreducible complexity shows the difficulties for Darwinian processes in trying to explain these things. Q. Now, Dr. Miller claims that natural selection can explain the flagellum. Do you agree with that claim? A. I'm sorry, can you restate that? Q. Dr. Miller claims that natural selection can explain the bacterial flagellum. Do you agree with that claim? A. No, I disagree, and we go on to the next slide, which is another one of Professor Miller's slides from his presentation on the bacterial flagellum, and he tried to explain molecular machines using kind of simple concepts to try and make it more understandable to a broad audience. So for example on the right-hand side which he labels "Evolution," he has little colored hexagons, which are exist, which are separated, and then he has the hexagons forming little groups and arrows pointing between the hexagons and the groups of hexagons, and finally there is kind of a large aggregation of hexagons. On this, which he labels "Design," he has the colored hexagons separate and arrows pointing to a larger aggregation of hexagons. Now, I'm sure Professor Miller was trying to get across a concept which is difficult, but in my viewing and my understanding and presenting it this way, this overlooks enormous problems that actual molecules would encounter in the cell. Q. Have you addressed these claims in other writings that you have done? A. Yes. Professor Miller has presented exactly the same argument in several other settings, and I have addressed it several times, most recently in my chapter in Debating Design, and if you go to the next slide -- Q. Is this a figure from that book, Debating Design? A. Yes, this is Figure 2 from that chapter. And the slide is entitled "An irreducibly complex molecular machine, can it arise from individual functional precursors." I used little colored squares instead of hexagons, but nonetheless the concept is kind of the same. The colored squares are supposed to represent individual proteins which perhaps existed in the cell already, there is six different ones, and the complex molecular machine now is supposed to be an aggregate of all six proteins with a new function that the system has that the individual parts did not have. Unfortunately while this illustrates, you know, something, it leaves out many concepts which are critical to evaluating the likelihood of such a thing. May I continue? Q. Yes, go ahead. A. For example, proteins, the components of molecular machines are not little colored squares. They are not little colored hexagons. They are very complex entities which we will see in a second. Additionally, notice this red square. The red square with the little arrow places it against the green square and the yellow and the blue. Why is it there? Why didn't it go down there? Why is it sticking to B and C and D? Why doesn't it float away? None of those questions are answered, this is an oversimplified way to look at a very complex problem. For example, let me just make one more comment. Notice that in machines in our common experience, if you put a part in a place different from where it usually is, that often times breaks the machine. If in an outboard motor you took the propeller and you put it on top instead of down by the rotor, then the machine would not function. And it's the exact same way for molecular machines. Q. Have you prepared some slides to demonstrate some of the more complexity of these parts? A. Yes, I'm afraid we're going to have to go a little bit into the complexity of these molecular systems. THE COURT: Do you want to break here, Mr. Muise? MR. MUISE: That would be wonderful, Your Honor. THE COURT: Why don't we do that, let's take a 20-minute break here, and we'll return and we'll pick up with those slides at the end of the recess. We'll be in recess. (Recess taken at 2:48 p.m. Proceedings resumed at 3:13 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 10 (October 17), PM Session, Part 2 THE COURT: Be seated, please. You can pick it up where you left off, Mr. Muise. CONTINUED DIRECT BY MR. MUISE: Q. Thank you, Your Honor. Dr. Behe, before we broke we were talking about how proteins aren't simply colored squares or hexagons, that they are far more complex than that, including what makes them stick together in any particular order, and I want to return back to that. We put up a slide which has some indication I believe of proteins, and I'd like you to explain what you meant, that they're more complex than just these colored hexagons. A. Yes, sure. Let me preface my explanation by saying this, that in talking about these matters there's kind of, an intelligent design proponent and a Darwinian theorist who have different goals. A Darwinian wants to persuade his audience that evolution isn't all that difficult, it's doable, and so will not always attend to all the complexity of a system, whereas in order to show the difficulties for undirected unintelligent processes, an intelligent design proponent has to show all of the very severe complexity of systems, and that's often times hard to do because people often times don't have the patience to attend to it, but I apologize in advance but I have to attend to some of the complexities here. So on this slide there are three figures taken from a biochemistry textbook by Voet and Voet of the protein, of the same protein, a protein named hemoglobin. Hemoglobin is the protein that binds oxygen and carries it from your lungs and dumps it off in peripheral tissues such as your fingers and so on. Now, this is a rendering of the structure of hemoglobin, and actually this rendering itself does not show the full complexity of hemoglobin. Let's focus -- Q. You're referring to Figure 8-63 on this slide? A. Yes, that's correct. Let's focus on this yellow glob here. You'll notice a number of circles. They represent atoms in one of what are called the protein chains of hemoglobin, but the amino acids in that protein chain are actually different. So if it was actually rendered in more detail you would see a lot of different colors of atoms, indicating different groups and so on, and the identity of all these amino acids is also frequently very critical to the function of a protein. Hemoglobin itself consists an aggregate of four proteins designated here by the blue and the green and the light blue colors, and it is the aggregate of the four protein chains, that is the active molecular machine in this cell that carries oxygen from your lungs to your tissues. Nonetheless, a drawing like this of such a complex system is often times bewildering to students, and so artists with the proper purpose of getting across some conceptual points to students will draw simplified renditions of the same figure. For example, in the lower left here this is also supposed to be a rendition of the same protein hemoglobin. But in here the only atoms that are represented are things called the alpha carbons of each amino acid, and the artist has kind of shaded it to show the different directions in which the protein chain is heading. One can also to make a legitimate point to students simplify the drawing even further, and here's another rendering of hemoglobin in Voet and Voet. Here each very, very complex protein chain is rendered as a simple square, and the O sub 2 represents the oxygen that each protein is supposed to be carrying. Now, all of these are legitimate renderings of the protein hemoglobin, but when we discuss these matters and we discuss difficulties with evolution and we discuss arguments for intelligent design, we have to keep in mind that this is the actual protein, this is the actual machine in the cell, and so these are the things that we have to deal with. Q. Again that last figure you're referring to is 8-63? A. That's right, uh-huh. Q. And the two previous, the one just previous to that was Figure 10-37 and the one prior to that 10-13? A. That's correct. Now, let's consider a further point. We have this yellow conglomeration of circles representing the atoms of the protein chain, with this blue one and this green one and this light blue one. Why do they stick together? Why don't they just float away? How come they are in the arrangement they are? Why don't we have the yellow one over here? The green one down here? Well, it turns out that proteins arrange themselves. Molecular machines are actually much more sophisticated than the machines of our common experience, because in our common experience with things like say outboard motors, an intelligent agent assembles the parts of those machines. But in the cell the molecular machines have to assemble themselves. How do they do that? They do it by having surfaces which are both geometrically and chemically complementary to the proteins to which they're supposed to bind, and I think -- Q. Do you have a slide to demonstrate that for us? A. Yes, I do. I think it's the next one. Okay, remember here's another little cartoon version which gets rid of some complexity of the system in order to make an important point to students. This is also a figure taken from the biochemistry textbook Voet and Voet. This is meant to convey why two molecules, why two proteins bind to each other specifically in the cell. This one up here is supposed to represent one protein. The second one is supposed to be this greenish area, and it's supposed to have a depression in it in which the yellowish protein binds to and sticks. Now, let me point out a couple of things. You'll notice that the shapes of the proteins are matched to each other. They're geometrically complementary, kind of like a hand in a glove. But not only are they geometrically complementary, they're also chemically complementary. You see these little circles and NH and this thing here? Well, these are chemical groups on the surface of the two binding proteins, and they attract each other. Certain groups attach other groups. I think the easiest to understand is the one right here, there's a red circle marked with a minus sign in it. That indicates an amino side chain of a protein that has a negative charge. When it binds to the larger one, notice that on the surface of the larger protein there's this blue circle with a plus sign in it. That is taken, that is meant to indicate an amino acid side chain with a positive charge. Negative and positive charges attract. So therefore these guys stick together. If this were a negative charge these two proteins would not stick together. They would float away from each other. It's not sufficient to have just one group in the protein be complementary to another group in a protein. Usually proteins have multiple amino acids that stick together and cause them to bind to each other. For example, look up here, this little circle labeled H. H is supposed to stand for something called hydrophobic, which essentially means oily. It doesn't like to be in contact with water. It lines up with another H on the green protein so that the two oily groups can stick together and avoid water. So it's kind of like oil, you know, oil and water, they don't mix. If they're in this configuration the two oily groups can stick together and be away from water, and there are other groups, too, which I won't go into which exhibit things call hydrogen bonding which also help the proteins stick together. So in molecular machines, in aggregates of proteins, all of the proteins which are sticking together have to have all these complementary surfaces in order for them to bind their correct partners. If they do not have the complementary surface, they don't bind and the molecular machine does not form. Now, interestingly, remember Darwin's theory says that evolution has to proceed in small steps, tiny steps. Well, one way something like this might form is by, you have to have mutations that might produce each of these interactions at a time. For example, I think there's a quotation from an article in Nature which kind of make this point, and I'll explain it after I quote it, it's from an article by a man named John Maynard Smith, who is a very prominent evolutionary biologist who died about a year ago I believe, and he wrote in a paper called Natural Selection and the Concept of a Protein Space, which was published in Nature in 1970, "It follows that if evolution by natural selection is to occur, functional proteins must form a continuous network which can be traversed by unit mutational steps without passing through nonfunctional intermediates," and by unit mutational steps, we mean each of those pluses, each of those H's, each of those OH's and so on that I showed you in that little cartoon drawing on the previous slide. If for example a mutation came along that changed a positive into a negative charge and disallowed an interaction that needed to occur, that would be a detrimental one. John Maynard Smith is saying that we need to proceed, you know, one step at a time. So the point is that those little colored squares are enormously complex in themselves, and further the ability to get them to bind specifically to their correct partners also requires much more additional information. It is not a single step phenomenon. You have to have the surfaces of two proteins to match. Q. A difficulty of getting two changes at once? A. Yes, that's exactly right. If you can do this one tiny, tiny step at a time, then Darwinian evolution can work. If you need to make several changes at once, two, three, four, there were multiple interactions that were required for those two proteins to bind. If you need multiple interactions, the plausibility of Darwinian evolution rapidly, rapidly diminishes. Q. And have other scientists made similar observations? A. Yes. On the next slide an evolutionary biologist by the name of Allen Orr, who's at the University of Rochester, published an article in a journal called Biology entitled A Minimum on the Number of Steps Taken in Adaptive Walks in which he makes this similar point. He says, "Given realistically low mutation rates, double mutants will be so rare that adaptation is essentially constrained to surveying and substituting one mutational step neighbors. Thus, if a double mutant sequence is favorable, but all single amino acid mutants are deleterious, adaptation will generally not proceed," and translating that into more colloquial English it means that you have to change again those groups one at a time, and if you need to change two at a time in order to get a favorable interaction, then you are running into a big roadblock for Darwinian processes. Q. Now, have you done any writing or research that emphasizes this particular point? A. Yes. On the next slide I believe is a copy of an article that I published with David Smoke which was published last year in the journal Protein Science, which is entitled Simulating Evolution by Gene Duplication of Protein Features that Require Multiple Amino Acid Residues, and in this paper we were addressing exactly that problem. What happens if you need to change a couple of amino acids before you get a selective effect? And the gist of the conclusion is if you need to change two at once or three at once, then again the expectation that that will happen at a probability becomes much smaller, the length of time one would have to wait for such a mutation to show up is much longer, the population size of a species would have to be much, much longer to have an expectation of such a mutation occurring. Q. And this particular article, the one you wrote with David Smoke, you testified to previously? A. Yes, that's the same one. Q. I believe we have a diagram to further make this point? A. Yes. Here again is a little simplified cartoon version of how proteins might interact, simply to point out the problem that is not apparent in the earlier drawings. Now I've made the shapes of those colored proteins, I've altered the shapes. Now the A is a circle and what's that, a C, the C is a rectangle, and the other proteins have other shapes. How do we get those to bind into a conglomerate molecular machine? In order to get them to bind to each other we have to alter their surfaces to be geometrically and chemically complementary, and that is a large and long, tall evolutionary order. As a matter of fact, it's so tall that one can reasonably conclude that something like this would not be expected to occur. So the point I want to make here is that even if one was to have parts in the cell which if they could develop binding sites to bind to each other, and if that binding together would produce a new selectable property, that still does not help in Darwinian processes, because you still have the problem of adjusting many, many different things before you get the final result. Q. And this diagram is a figure from the chapter that you wrote in Debating Design, is that correct? A. Yes. That's Figure 2. Q. And that's the chapter that you've already testified to previously? A. Yes, that's correct. Q. And I believe we have a slide with the figure legend? A. Yes, that's right. I make this point exactly in my article in that book Debating Design. Let's just look at the bold and underlined text. It's says, "Thus, the problem of irreducibility remains even if the separate parts originally had individual functions." So even if the parts can do something on their own, that does not explain how one can get a multipart molecular machine in a cell. Q. I just want to point out that that figure legend in the figure is from pages 352 to 370 in your chapter? A. No, that's the whole chapter. The figure legend is on one of those pages. Q. As well as that previous diagram? A. Yes, that's correct. Q. Dr. Behe, if I understand you correctly, so even if there are similar separate parts are in the cell, that doesn't explain irreducible complexity? A. That's correct. 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." Q. Dr. Behe, even if that is true, doesn't the Type 3 secretory system help us to explain the flagellum, the development of the flagellum? A. No, it does not help in the least. And that may be surprising to some people, so let me take a second to explain. Most people when they see an argument such as Professor Miller presents will naturally assume that well, perhaps this part, this system that had fewer parts, the Type 3 secretory system, maybe that was a stepping stone, maybe that was an intermediate on the way to the more complex bacterial flagellum. But in fact a number of scientists have said that's not true, and perhaps we could see the next slide. Yes, thank you. For example, in a paper published by Nguyen, et al. five years ago they investigated the Type 3 protein secretion system, and they said the following, "We suggest that the flagellar apparatus was the evolutionary precursor of Type 3 protein secretion systems." In other words, they're saying that from their investigation it looked like the more complex type or more complex flagellum came first, and then the system with fewer parts, the Type 3 secretory system came second and perhaps was derived from that. Exactly what the opposite of what one might first expect. Q. Have scientists reached different conclusions? A. Yes, and it turns out that other groups have reached different conclusions from those of Nguyen at all. For example, in a paper published by Gophna, et al. recently in 2003 in the journal Gene they write, "The fact that several of the Type 3 secretory system proteins are closely related to flagellar export protein has led to the suggestion that the TTSS has evolved from flagella. Here we reconstruct the evolutionary history of four conserved Type 3 secretion proteins and their phylogenetic relationships with flagellar paralog." And then they say, "The suggestion that Type 3 secretory system genes have evolved from genes and coding flagellar proteins is effectively refuted." In other words. They say that the conclusion of the first group was incorrect. Instead they suggest that the Type 3 secretory system and the flagellum developed independently of each other, perhaps from the same precursor gene. And I think on the -- Q. We have another study on this issue, correct? A. Yes. I think that's right. In the year a man named Milton Sayer, who was the one of the authors, the senior author actually on the study by Nguyen, et al. that I referred to a couple of slides ago, wrote an article in a journal called Transient Microbiology called Evolution of Bacterial Type 3 Protein Secretion Systems, he says the following, "It is often not possible to prove directionality of an evolutionary process. At present, too little information is available to distinguish between these possibilities with certainty. As is often true in evaluating evolutionary arguments, the investigator must rely on logical deduction and intuition. "According to my own intuition and the arguments discussed above, I prefer pathway for the Type 3 system deriving from the flagellum. What's your opinion?" So I think you can see from this the very tentative nature of the results regarding the Type 3 secretory system and the flagellum that in fact what is going on is very much up in the air. Q. And again I believe we have another result from -- A. Yes. Let me apologize that again this is a complex subject, and so you really have to delve into it to come to a firm conclusion. This is a quotation from a review article by a man named Robert Macnab who was a professor of biology at Yale University who died in the year 2003, and this article was actually published posthumously. It's entitled Type 3 Flagellar Protein Export and Flagellar Assembly. It was published in journal Biochemica Biophysica Acta, and I underlined words that emphasized the tentativeness and the speculative nature of discussions on this topic. Robert Macnab wrote, "It has been suggested that the Type 3 virulence factor secretion system evolved from the Type 3 flagellar protein export system since flagella are far more ancient, existing in very diverse genre than the organisms which are targets for Type 3 virulence systems. However, it is possible that the original targets were other bacteria. Also, the possibility of lateral gene transfer cannot be ruled out. "Finally, one could argue that evolution from a less complex structure, the needle complex, to a more complex one, the flagellum, is more probable than the other way around," and he continues I think on the next slide, and I think I'll pass over much of this quotation and just go to the last line of his article, and he says, "As the above discussion indicates, there is much about the evolution of Type 3 systems that remains mysterious." So let me point out that in the past couple of years we've had investigators suggest that in fact the flagellum came first and the Type 3 secretory system came after it. We've had other investigators suggest that the Type 3 secretory system came first and the flagellum came after it. We've had other investigators suggest that the Type 3 secretory system and the flagellum arose independently, perhaps from similar genes, so -- Q. Dr. Behe, so what do these widely different opinions mean? A. Well, maybe we could go to the next slide. To me it means this. We see the little cartoon drawing of the flagellum here, and this is a cartoon drawing of the Type 3 secretory system. Q. I'm sorry, this is one of Dr. Miller's slides? A. I'm sorry, yes. This is Dr. Miller's slide. Science knows a lot of information about the structure of the Type 3 secretory system, a lot of information about the structure and function of the flagellum. It knows the sequences of proteins of the flagellum. It knows the sequences of the proteins of the Type secretory system. It sees many similarities between them, both in the amino acid sequence and function, and it still can't tell how one arose or whether one arose first, the other second, or whether they arose independently. So this to me drives home the point that such information simply does not come out of Darwinian theory. Much like our discussion of Haeckel's embryos earlier in the day, Darwinian theory can live with any result that experimental science comes up with on this question and then goes back and tries to rationalize the results afterwards post hoc, and so to a person like myself this exemplifies the fact in fact these results have nothing to do with Darwinian theory. They are no support at all for the claim that natural selection could have produced them. Quite the contrary. Q. I just need to backtrack for one moment. If I may approach the witness, Your Honor? THE COURT: You may. Q. Dr. Behe, I handed you what's been marked as Defendant's Exhibit, 238 correct? A. Yes. Q. Is that the study from Nguyen that you referenced in your testimony on the section of the Type 3 secretory systems? A. Yes, that's correct. Q. It was inadvertently left out of your book, but I just wanted to make sure you identified it as an exhibit. You can just keep that with you and I'll retrieve it later. A. Thank you. Q. I want to see if I can get you correct, Dr. Behe. It's your opinion that this also shows that even knowledge of the structure and sequences of two systems doesn't necessarily give a clue as to how these systems might have arisen, is that true? A. That's exactly right. Q. And could you explain that further? And I believe we have some additional slides for that. A. Yes, I think some text with actually Professor Padian wrote as part of his expert report illustrates this problem, and I'd like to quote you several sections from that report. On the next slide Professor Padian said the following. He said that, "Darwin's main concern, however, was with the mechanism of natural selection, which cannot be observed directly in the fossil record." So to me this means you cannot see natural selection. You see fossils, and how you classify those fossils and what explanations you come up with them is not based directly on the evidence. Rather, it's provided by your theory. And I think we have a further quote from Professor Padian. He said the following, and this is a long quote, so -- Q. If you could read it a little bit slower for our court reporter when you are reading these quotes, please? Thank you. A. Okay. "Molecular biology has produced tremendously powerful tools to compare the DNA sequence of all manner of living organisms, and a few extinct ones, and so help to derive their evolutionary relationships. However, molecular systematics can say nothing about the relationship or role of fossil organisms to each other or to living lineages," and he gives an example. "For example, several recent molecular analyses agree that whales and hippos are each other's closest relatives. From this conclusion some authors have suggested that because both kinds of animals spend time in the water, their common ancestors would have been aquatic. Only the fossil record could show that this inference is incorrect. Therefore, hippos and whales, even if they are each other's closest relatives among living animals, did not have a common ancestor that lived in the water, but that was terrestrial. Only paleontological research and materials could demonstrate this." And let me make a point about this. Professor Padian is saying that molecular studies of DN A sequence of whales and hippos suggested or led to the suggestion that both animals had aquatic ancestors. But they didn't. They had terrestrial ancestors. That means that the molecular information is compatible with either result, with the ancestors being aquatic or the ancestors being terrestrial. That means that the molecular information can't decide what the ancestors were and therefore it can't tell what the selective pressure was or other factors of what might have caused an ancestor of those organisms to produce what we see in the modern world. So that means that does not speak to Darwin's claim that natural selection drove evolution, okay? Well, molecular data can't decide the question. But nonetheless, Professor Padian told us that paleontology did. Paleontology discovered what seemed to be ancestor of both hippos and whales, and saw that they are terrestrial organisms. So can paleontology tell us whether it was natural selection that drove the evolution of these organisms? Well, no. On the previous slide he said explicitly natural selection is not shown directly in the fossil record. That means that there is nothing that can show from the fossil record or from molecular data that current organisms derive by a process of natural selection from organisms in the past or how such a thing might have happened. That means that in fact the inference that such a thing did is simply a theoretical construct in which we try to fit that data into our current theory. The current theory either predicts it, does not predict it, and may be consistent with such evidence, but a lot of theories might be consistent with the same evidence. And I think that, bring it back to the flagellum, I think that's illustrated in the flagellum and Type 3 secretory system 2. We know all the molecular data, we know lots of structural and functional studies, and yet we still can't tell how natural selection could have produced them. Q. So are you saying then at best the evidence, and you were talking about sequence comparisons and in particular the fossil record, at best they may be consistent with natural selection but they also may be consistent with any number of mechanisms that might be derived? A. That's exactly right. Perhaps intelligent design, perhaps complexity theory, perhaps something else. But consistent does not, is not the same thing as evidence for a theory. Q. And the next slide we have is another quote from Dr. Padian that I'd like you to comment about. A. I think this also throws light on this topic. Professor Padian said in his expert statement, he said, "Darwin was not talking about how major new adaptive change took place. He was talking about how minor variations could be selected. He was really talking about the baby steps of evolution. He made only the most passing references to how new major adaptive types might emerge," and I could comment that no one disputes or certainly no one I'm aware of disputes that Darwinian processes, Darwinian mechanism, can explain some things in life. And certainly nobody disputes that baby steps could be explained by random mutation and natural selection. It is exactly the new major adaptive types and new molecular systems for myself as a biochemist that is the focus of dispute. Q. So again though when you say nobody refutes, is that saying that intelligent design does not refute this notion of baby steps that Dr. Padian is referring to? A. That's right. It is very happy to say that Darwinian processes are consistent with those. Q. Here I believe is a continuation of that particular statement from his report. A. Yes, this is Professor Padian continued, referring to Darwin, he said, "Though he was convinced that would happen in the course of time," and let me just comment on that. Well, that's interesting that he was convinced that would happen, but another way of saying that is that Darwin assumed that these small changes would add up to larger changes, or to major new adaptive features, but that is exactly the point of contention. And for a point of contention an assumption is not evidence, let alone proof. So I see this as very pertinent to the question of things like the flagellum Type 3 secretory system and other things as well. Q. So is it clear, I guess in summarizing you think that the flagellum is in fact irreducibly complex, correct? A. Yes, that's right. Q. Does that affect necessarily the positive argument for intelligent design? A. Well, yes. Let's perhaps we can look at another slide here that I just wrote out some text to make this point clear. It's this. For the past number of, past hour or so we've been talking about the argument against Darwinian processes, but I want to re-emphasize to say that it is important to keep in mind that the positive inductive argument for design is in the purposeful arrangement of parts. Irreducible complexity, on the other hand, is an argument to show that Darwinism, the presumptive alternative to design, is an unlikely explanation. However, one also has to be careful to remember that Darwinism isn't positively demonstrated by attacks on the concept of irreducible complexity. Darwinism can only be positively supported by convincing demonstrations that it is capable of building the machinery of the degree of complexity found in life. In the absence of such convincing demonstration it is rationally justified to think that design is correct. Q. So an argument against irreducible complexity is not necessarily an argument against design? A. An argument against irreducibly complexity is not an argument against design, and more importantly it's not an argument in favor of Darwinian evolution. Q. Have other scientists agreed that Darwinian theory has not yet explained complex biochemical systems? A. Yes. I recall there on that slide that I say Darwinism can only be positively supported by convincing demonstrations, and almost everybody agrees that such demonstrations have not yet been forthcoming. For example, on the next slide these are quotations taken from a number of reviews of my book Darwin's Black Box, most of these are by scientists. The first one James Shreeve, a science writer, but all of them making the point that we do not yet have Darwinian explanations for such complex structures. For example, James Shreeve, the science writer, writing the New York Times said, "Mr. Behe may be right that given our current state of knowledge, good old Darwinian evolution cannot explain the origin of blood clotting or cellular transport," and James Shapiro, who is a professor of microbiology at the University of Chicago, wrote in a review that, "There are no detailed Darwinian accounts for the evolution of any fundamental biochemical or cellular system, only a variety of wishful speculations." Jerry Coyne, who's a professor of evolutionary biology at the University of Chicago wrote in a review of the book in the journal Nature, "There is no doubt that the pathways described by Behe are dauntingly complex, and their evolution will be hard to unravel. We may forever be unable to envisage the first protopathways." And Andrew Pomiankowski, who is an evolutionary biologist I believe at the University College London, wrote in a review in New Scientist, "Pick up any biochemistry textbook and you will find perhaps two or three references to evolution. Turn to one of these and you will be lucky to find anything better than 'evolution selects the fittest molecules for their biological function.'" So this is a sampling of writings by scientists agreeing with the point that no, we do not have these demonstrations yet that Darwinian processes can produce complex biological systems. Q. And these were scientists, and in one case a science writer, who are commenting on your particular book, correct? A. Yes. Q. And have scientists in other contexts made similar claims? A. Yes, another good comment on this was by Franklin Harold, who I mentioned before, he's an emeritus professor of biochemistry at Colorado State University, and in his book The Way of the Cell published by Oxford University Press in 2001 he kind of echos James Shapiro. He says, "We must concede that there are presently no detailed Darwinian accounts of the evolution of any biochemical system, only a variety of wishful speculations," and perhaps I might add that besides these people one can add also complexity theorists, who also like Stuart Kauffman who also deny that such things have been explained in Darwinian theory. Q. Sir, have some scientists argued that there is experimental evidence that complex biochemical systems can arise by Darwinian processes? A. Yes, there have been a total of two such arguments which I regard to be very important, because these were claims that there had been experimental demonstrations, not just speculations, not just stories, but experimental demonstrations that either irreducible complexity was incorrect or that complex systems could be built by Darwinian processes. Q. And one of those claims was raised by Dr. Miller, is that correct? A. That's correct. I think on the next slide we see that he wrote in his book Finding Darwin's God ,which was published in 1998, he said, " A true acid test used the tools of molecular genetics to wipe out an existing multipart system and then see if evolution can come to the rescue with a system to replace it." So here he was making the point well, here one test of this claim of irreducible complexity and the ability of Darwinian processes to make complex systems, well, is to find a complex system in a cell, destroy it, and then see if random mutation and natural selection can come back and replace it. And I have to say I agree that's an excellent test of that claim. However, I disagree with Professor Miller's further comments and conclusions. Q. What was the particular system that he was looking at? A. Well, he was referring to what is shown in a little cartoon version on the next slide. This is a figure again taken from that biochemistry textbook by Voet and Voet discussing a system called the lac operon. Now, an operon is a little segment of DN A in a bacteria which codes for a couple of genes, and genes code for proteins, and the proteins usually have related functions or function as a group, and one of them is called the lac operon which is used to, the proteins of which are necessary for the bacterium Escherichia coli to metabolize a sugar called lactose, which is a milk sugar. And it consists of a number of parts. No, let's go back one slide, please, I'm sorry. All these little squares here, this little green thing represents a very complex protein called a repressor, which will bind to the DNA, and when it binds there it stops another protein called an RN A prelimerase from binding to the same spot, and therefore the information carried by these genes is not expressed, and that's important because the sugar lactose is usually not present in the bacteria's environment, and making proteins that metabolize lactose in the absence of that sugar would be wasting energy. So the bacterium wants to keep that turned off until lactose is around. So the repressor turns off the operon, and that means that the genes for these three proteins here are not turned on, not expressed. This first one, which is labeled Z, codes, is the gene for a protein called a beta galactosidase, okay? That's actually the enzyme which chops up lactose. We don't have to go into the detail of how that happens. This little thing marked Y codes for something called a permease. Now, a permease it turns out is a protein who is job it is to allow the lactose to enter the bacterial cell. The bacterial cell is surrounded by a membrane which generally acts as a barrier to largish molecules, and there's this specialized protein, this specialized machine called a permease which, when lactose is around, grabs the lactose from outside the cell, turns it around, and allows it to enter to the inside of the cell. In the absence of that permease the lactose might be present in abundance in the bacteria's environment, but it can't get inside the cell. And so the bacterium can't use it. One other detail of this before I go on is that this repressor kind of sticks to the beginning of the gene and turns it off, but when lactose is present in the environment a small molecule which is a derivative of lactose can bind to the repressor, and that, and again start thinking in terms of the complex shape and structure of hemoglobin, when that happens it interacts in specific ways in order and causes the shape of the repressor to change, and that changed shape makes it now no longer geometrically and chemically complementary to the site that it bound on the lac operon, and it falls off. So in the presence of the inducer the repressor falls off, this prelimerase can come along and those proteins get made in the cell. Q. Would you like the next slide? A. Yes, thank you. Now I'm going to simplify, after that discussion I'm going to try to simplify nonetheless. So let me just list some parts of the lac operon. There's the galactosidase, the repressor, the permease, all three of which are proteins, and something that I've written IPTG/allolactose. That is the small molecule which can bind to the repressor and cause to it fall off of the operon, allolactose is something, is a metabolite of lactose itself, and that's the substance which usually binds to the repressor in the cell, but there's also an artificial chemical called IPTG, which stands for isopropyl thiogalactoside, which is sold by chemical supply companies, which mimics the action of the allolactose, and when a scientist comes and dumps some IPTG into the beaker, that binds to the repressor and causes those genes to be expressed, to be turned on. Okay, those are the parts of the lac operon. Now, for purposes of further illustration let me just mention that in E. coli there are thousands of genes, and many of them are grouped into operons. Unbeknownst to the experimenter, whose name is Barry Hall, there also existed in the E. coli another operon called the EBG operon, which he called it that because it stands for evolved beta galactosidase. He thought this protein evolved in response to the selective pressure that he put on it, and it turns out that that operon also codes for a galactosidase, another galactosidase and another repressor as well. Q. So this was the system that Dr. Miller was talking about in -- A. Yes, I'm afraid this is the background for the system that he started to discuss in his book. Q. Which he sees it as experimental evidence to refute the irreducible complexity claim? A. Yes, that's right, and if you look on the next slide you'll see the part of his book where he discusses that. He says of the system, he says, "Think for a moment. If we were to happen upon the interlocking biochemical complexity of the re-evolved lactose system, wouldn't we be impressed by the intelligence of its design. Lactose triggers a regulatory sequence that switches on the synthesis of an enzyme that then metabolizes lactose itself. "The products of that successful lactose metabolism then activate the gene for the lac permease, which ensures a steady supply of lactose entering the cell. Irreducible complexity, what good would the permease be without the galactosidase? No good of course." And he continues that same discussion on the next slide, he continues, "By the very same logic applied by Michael Behe to other systems, therefore, we can conclude that this system had been designed, except we know that it was not designed. "We know it evolved, because we watched it happen right in the laboratory. No doubt about it, the evolution of biochemical systems, even complex multipart ones, is explicable in terms of evolution. Behe is wrong." Q. Is Dr. Miller right? A. No. Dr. Miller is wrong. Now, Professor Miller is always enthusiastic and he always writes and speaks with great excitement, but I say that when you examine his arguments closely, under close inspection they simply don't hold up and this is enormously exaggerated, and the results of researcher Barry Hall that he is describing here I would happily have included as an example of irreducible complexity in Darwin's Black Box. So let me please try to explain why I say that. Reading Professor Miller's prose one would get, and I certainly did get when I first read it, the impression that this system was completely knocked out in that it completely came back under the experiments that Barry Hall conducted. But it turns out of this multipart system, only one part, the protein beta galactosidase, was knocked out by experimental method. Everything else, the repressor, the permease, and we'll see later IPTG, and importantly as well other proteins which did very, very similar jobs in the cell, were left behind. And the worker Barry Hall himself was always very careful to say that he was only knocking out that one protein. Q. The galactosidase? A. Yes, that's correct. I think on the next slide he makes that point. This is a quotation from a paper by Professor Hall recalling his experiments that he did earlier on the lac operon. He says the following, "All of the other functions for lactose metabolism, including lactose permease and the pathways for metabolism of glucose and lactose, the products of lactose hydrolysis, remain intact. Thus, reacquisition of lactose utilization requires only the evolution of a new," and this should be a beta, "beta galactosidase function." So let me point out that what he did in his laboratory was to take an E. coli bacterium and using molecular biological methods to knock out or destroy the gene for that one part of the loc operon, the beta galactosidase. He left the permease intact, he left the repressor intact, everything else was intact. He just had to get one more component of the system. And what he saw was that he did get bacteria that were again able to use lactose. And when he did the experiments in the 1970's, that's all he saw. He saw he had bacteria that could grow when they were fed lactose. But years later after methods had developed and after he had the ability to do so, he asked himself what protein was it that took over the role of the beta galactosidase, and he named it EBG, evolved beta galactosidase. But when he looked at it further he found it to be a very similar protein to the one that he had knocked out. Essentially it was almost a spare copy of the protein that had been destroyed. So this slide makes a couple of points. Let me just point to a couple. The EBG protein that took the place of the beta galactosidase is homologous to lac proteins. That's a technical term, that means they're very similar. Their protein structures, their sequences are pretty similar, and odds are good that they have the same sort of activity. What's more, after further investigation Professor Hall showed that even the unmutated, even the EBG galactosidase before he did his experiment, the unmutated galactosidase could already hydrolyze, although it was inefficient. So again this was almost a spare copy of the protein, and I think on the next slide, I'll skip that last point on the next slide to drive home the point I want to show you what are the amino acid sequences of the area around what's called the active site of the protein, which is kind of the business end where the lactose binds and where the chemical groups reside which will cause it to be hydrolyzed into two component parts. Notice this. Look at these sequence of letters. Now, I know that they don't mean much to most people in here, but notice the sequence of letters, these are the amino acid sequences, abbreviations for the amino acid sequence of various beta galactosidase enzymes found in E. coli and a related species. Notice here, let's start in here, there's an R here, HEHEMYEHW. Look up top, there's RHEHEMYEHW, the same thing on the lower one, too. They're active sites, their business ends are almost identical. Like I said, these are essentially spare copies of each other. Q. So in fact it wasn't a new evolved element to this system. It was a spare part that was already existing? A. Well, it was there and it did undergo small changes. But nobody, nobody denies that Darwinian evolution can make small changes in preexisting systems. Professor Miller was claiming that a whole new lactose utilizing system had been evolved in Barry Hall's laboratory, and that's, you know, that's very, very greatly exaggerated. Q. Again do you have additional slides to emphasize the point? A. Yes. This might be hard to explain, but Professor Hall says in one of his papers that, "The evidence indicates that either AS-92 and sys trip 977," these are the same of some amino acids, "are the only acceptable amino acids at those positions, or that all of the single based substitutions that might be on the pathway to other amino acid replacements at those sites, are so deleterious that they constitute a deep selective valley that have not been transversed in the two billion years since those proteins emerged from a common ancestor." Now, translated into -- Q. Yes, please into English. A. -- more common language, that means that that very similar protein could only work if it became even more similar to the beta galactosidase that it replaced, and if you then also knock out that EBG galactosidase, no other protein in Professor hall's experience was able to substitute for the beta galactosidase. So the bottom line, the bottom line is that the only thing demonstrated was that you can get tiny changes in preexisting systems, tiny changes in preexisting systems, which of course everybody already had admitted. Another interesting point, another interesting point is shown on that figure from Voet and Voet, the inducer, this little red dot, this little red dot actually stands for this chemical that binds to the repressor which changes its shape which causes it to fall off of the operon and allow the prelimerase to come in and transcribe that information. Well, it turns out that the EBG operon, this place in the DN A and E. coli that had that spare beta galactosidase, did not have a spare permease. So the system was stuck, because it didn't have its own permease. When the repressor binds to this operon, the normal lac operon, if there weren't any lactose around then the repressor would be essentially stuck there indefinitely. And even if lactose were present outside the cell, it had no way to get inside the cell. So what Barry Hall did to allow his experiment to continue was that he added the inducer. He added that artificial chemical IPTG that he can buy from a chemical supply house, and he took some and sprinkled it in the beaker for the specific purpose of allowing the bacteria to survive so that it could take these small little steps to produce a new beta galactosidase. Q. You have a slide to demonstrate that? A. Yes. And Barry Hall was always very careful to explain exactly how these experiments were performed, and he brought it directly to the attention of readers when he described his system. For example he writes, "At this point it is important to discuss the use of IPTG in these studies. Unless otherwise indicated, IPTG is always included in media containing lactose," and that italics is Barry Hall's emphasis. He wanted to make sure his reader understood exactly what he was doing. "The sole function of the IPTG is to induce synthesis of the lactose permease and thus to deliver lactose to the inside of the cell. Neither constitutive nor the inducible of all strains grew on lactose in the absence of IPTG." In other words, if this intelligent agent, Barry Hall, had not gone to the store and gotten some IPTG to help the bacteria survive, they would not have lived. This would not have occurred in the wild. This tells us virtually nothing about how Darwinian evolution could produce complex molecular systems. Q. So again this system would not have worked in nature but for Barry Hall interjecting the IPTG to make this system work? A. Yes. I should point out that Professor Miller does not mention this aspect of Barry Hall's experiments in his discussion, in his book Finding Darwin's God. Q. Is that a significant oversight? A. Well, I certainly would have included it. MR. MUISE: Your Honor, we're about to move into the blood clotting system, which is really complex. THE COURT: Really? We've certainly absorbed a lot, haven't we? MR. MUISE: We certainly have, Your Honor. This is Biology 2. It's a quarter past, and if we're going to go until 4:30, it's probably not worthwhile to start up on the blood clotting because it's fairly complex and heavy and a lot of it is going to be -- THE COURT: Well, we don't have an issue as to his availability through the day tomorrow I assume? MR. MUISE: He's available, Your Honor, for as long as we need him. THE COURT: Any objection if we -- MR. ROTHSCHILD: No. He started it. THE COURT: I was just waiting to see what you'd say. MR. MUISE: We've gone from Biology 101 to advanced biology. So this is where we get. THE COURT: We will recess then for today, and we'll reconvene at 9:00 tomorrow and we will pick up with Mr. Muise's direct examination at that time. So have a pleasant good evening, and we'll see you tomorrow. (Court was adjourned at 4:15 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 11 (October 18), AM Session, Part 1 THE COURT: Good morning to all. Mr. Muise, if it's Tuesday, we must be on the blood clotting. MR. MUISE: We will be getting to blood clotting, immunity systems, and many more complex systems, Your Honor. THE COURT: All right. You may proceed. MR. MUISE: Thank you. (Whereupon, Michael Behe, Ph.D., resumed the stand and testimony continued.) DIRECT EXAMINATION (CONTINUED) BY MR. MUISE: Q. Good morning, Dr. Behe. A. Good morning. Q. Before we do get to the blood clotting, I need to circle back to sort of cover one housekeeping matter. MR. MUISE: If I may approach the witness, Your Honor? THE COURT: Yes. BY MR. MUISE: Q. Sir, I've handed you what has been marked as Defendants' Exhibit No. 237, which is an article from Saier, correct? A. That's right. Q. Is that one of the articles that you referenced during your testimony and appeared on one of the slides regarding the type III secretory system? A. Yes, it is. Q. Okay. Thank you, sir. Sir, yesterday, just to sort of recap and bring us to where we need to begin this morning, I had asked you if some scientists had argued that there is experimental evidence that complex biochemical systems can arise by Darwinian processes, and I believe you indicated there were two that are offered, correct? A. That's right. Q. And the first one was the lac operon? A. Yes. Q. And we discussed that yesterday? A. Yes. Q. And what is the second one? A. The second one concerns what's called the blood clotting cascade, the system for clotting blood in animals. And I should say that, emphasize again that this is the second example of an experimentally -- an experimental result that was offered as evidence against some of the arguments that I made in Darwin's Black Box. In this one, this is directed more to the question of irreducible complexity than to the question of whether Darwinian processes can put together a complex system. Q. Now, sir, we've put up on the slide a figure, 6-5, that appears on page 142 in the Pandas text. Can you explain what we see here? A. That's right. This is an electron micrograph of some red blood cells caught in a meshwork of a protein called fibrin, which forms a blood clot. And most people, when they think about blood clotting, if they think about it at all, it appears to be a simple process. When somebody cuts themself, a minor cut slows down, stops, and heals over, and it doesn't seem like -- it doesn't seem like much at all. But thorough investigation over the past 40 to 50 years has shown that the blood clotting system is a very intricate biochemical system. And I believe there's an illustration of it on the next slide. Q. Now you referred to, I believe, a blood clotting cascade, is that correct? A. That's right. Q. Can you explain a little bit to us as you're explaining what we see here on this particular diagram? A. Okay, sure. Yeah, this is a figure of the blood clotting cascade taken from the biochemistry textbook by Voet and Voet, which is widely used in colleges and universities around the country. You see all these names of things and arrows. The names of things are very complex proteins of the complexity or sometimes more complex than the hemoglobin that I showed yesterday. In blood clotting, the material that forms the clot cannot, of course, be in its solid clotted form during the normal -- during the normal life of an animal or all of the blood would be clotted, and that would be inconsistent with its life. So the material of the clot that actual eventually forms the clot exists as something called fibrinogen, which is actually a soluble pre-cursor to the clot material. It floats around in your bloodstream during normal times. But when a cut occurs, fibrinogen is transformed into something called fibrin, and that happens when another protein comes along and cuts off a small piece of fibrinogen, a specific piece which exposes a sticky site on it, sticky in the sense of those two proteins yesterday that I saw that -- that I showed you that had complimentary surfaces. It exposes a sticky site on the surface of the fibrinogen, which allows the many copies of fibrinogen, now turned into fibrin, to aggregate and stick to each other, forming the blood clot. But what is the component that cuts fibrinogen and activates it? Well, the component is another protein called thrombin. But now we've got the same problem again. If thrombin were going around cutting fibrinogen and turning it into fibrin, all the blood would clot, and that would congeal the blood and kill the animal. So thrombin itself is an inactive form called prothrombin, so it has to be activated when a cut occurs. And that's the responsibility of another protein. And that protein exists in an inactive form, and it's -- the activation of that is the responsibility of another protein. So in the blood -- it's called a blood clotting cascade because one component acts on the next which acts on the next which acts on the next and so on. Now notice that the blood clotting cascade actually has what are called two branches. There is one in this box up here is labeled the intrinsic pathway. And this is labeled the extrinsic pathway. So there are actually two branches to this blood clotting cascade. Q. I believe this section is addressed in the textbook Pandas, correct? A. Yeah, that's correct. On the left is a figure from Of Pandas and People illustrating the blood clotting cascade. And that was drawn after the illustration from the textbook by Voet and Voet. On the right-hand side is the illustration for the blood clotting cascade that appears in Darwin's Black Box. I discussed the blood clotting cascade in one chapter of that -- of my book, and the illustration is very similar to the one in Pandas. Q. I believe the diagram in Pandas is found on page 143? A. Yes, that's right. Q. Now these two diagrams, the one that appears in Darwin's Black Box and one of the blood clotting cascade appear, to my eye, to be virtually similar or almost exactly similar? A. Yeah, they are very similar, except for the color in Pandas and so on. And that's because I wrote the discussion in Pandas and, of course, also in my own book. So the figures are very similar between the two. Q. Now you testified yesterday that you coined the term irreducible complexity in Darwin's Black Box, which was published in 1996, is that correct? A. Yes. Q. So that book was published actually three years after Pandas was written, is that accurate? A. Yes, that's correct. Q. Is it accurate to say then that the concept of irreducible complexity was not fully developed when you had written that section in Pandas on blood clotting in 1993? A. Yes, that's right. I was still contemplating the idea. Q. Does Pandas, however, discuss the complexity of this system, the blood clotting system? A. Yes, it does. It elucidates all the parts of the system. Q. Is that discussion consistent with your discussion in Darwin's Black Box? A. Yes, it introduces the concept of the purposeful arrangement of parts and says that's how we perceive design. Q. That's introduced in the Pandas book? A. Yes, uh-huh. Q. When you talk about the purposeful arrangement of parts, that's similar to what you were discussing yesterday in your testimony, is that correct? A. Yes. Q. So is the scientific explanation of the blood clotting system similar to the -- the discussion in Pandas similar to the blood clotting cascade scientific explanation in Darwin's Black Box? A. That's right, they're essentially the same. I think it's more detailed in Darwin's Black Box. Q. In fact, you did use the similar diagrams? A. Yes, that's correct. Q. To explain the two? A. Yes, uh-huh. Q. I believe the next slide we have is, this is from your -- you discussed this and treated this as well in your book Debating Design, is that correct? A. That's right. When I wrote Darwin's Black Box, and when Darwin's Black Box was subsequently reviewed by people, some of them looked at the argument about the blood clotting cascade and argued against what I had written in Darwin's Black Box. And I thought that the counterarguments were themselves flawed, and so I answered some of those arguments in a variety of cites, but most recently in the chapter in that book, Debating Design, published by Cambridge University Press from the year 2004. I wrote The Blood Clotting Cascade. Having dealt with some common misconceptions about intelligent design, I will examine two systems that were proposed as serious counterexamples of my claim of irreducible complexity. One of them discussed in that article is the blood clotting cascade. Q. If you could then, explain to us how you refute the claims that are made that the blood clotting cascade is experimental evidence to refute irreducible complexity? A. Okay. In the next slide, I believe that shows an excerpt from an article written by a man named Russell Doolittle entitled A Delicate Balance, which appeared in a publication called the Boston Review in 1997. Now Russell Doolittle is a very eminent scientist, a professor of biochemistry at the University of California, San Diego. He's a member of the National Academy of Sciences, and has worked on the blood clotting system for the past 45 years or so. And this article was a part of the symposium organized by Boston Review, which again is published by MIT, and contained contributions from a number of academics, scientists discussing my book and discussing a book that had been recently published by Richard Dawkins of Oxford University. Participants included myself, Russell Doolittle, James Shapiro, who is a professor of microbiology at the University of Chicago, Alan Orr, who is a professor of evolutionary biology at the University of Rochester, Robert DiSilvestro, who is a professor of biochemistry at Ohio State, and a number of other people as well. And in his essay, Professor Doolittle argued that, in fact, there was experimental evidence showing that the blood clotting system was not irreducibly complex. And he said the following. Let me read the quote. Quote, Recently the gene for plaminogen (sic) -- and that's actually a typo. There should be an S there. The gene for plaminogen (sic) was knocked out of mice -- which means that it was destroyed by molecular biological methods -- and predictable, those mice had thrombotic complications because fibrin clots could not be cleared away. Let me stop a second and explain that plasminogen is a protein that acts as a chemical scissors which cuts up and removes blood clots once the clot has finished its job. Let me resume the quote from Russell Doolittle. Not long after that, the same workers knocked out the gene for fibrinogen in another line of mice. Again, predictably, these mice were ailing, although in this case, hemorrhage was the problem. Let me stop again and explain that fibrinogen, remind you, is the pre-cursor of the clot material itself, the pre-cursor of those fibers. And what do you think happened when these two lines of mice were crossed? For all practical purposes, the mice lacking both genes were normal. Contrary to claims about irreducible complexity, the entire ensemble of proteins is not needed. Music and harmony can arise from a smaller orchestra. So Professor Doolittle's point, if I just might briefly say, was that, if you knock out one component of the blood clotting cascade, yes, those mice have problems. If you knock out a different component in a different line of mice, yes, those mice have problems, too. But if you make a string of mice in which both of those components were missing, then the mice are normal and the blood clotting cascade is okay. And so presumably then, that shows that the blood clotting cascade is not irreducibly complex. Q. Was there a particular study that Professor Doolittle is referring to? A. Yes, it's shown on the next slide. This is the article that he was referencing in his own essay. It's entitled Loss of Fibrinogen Rescues Mice from the Pleiotropic Effects of Plasminogen Deficiency. Now if we could go to the next slide. Now because of the phrase, rescues mice, in the title, Professor Doolittle thought that the mice missing both components were normal. But it turns out, that was a misreading of the article. In the abstract of the article itself, the authors write, quote, Mice deficient in plasminogen and fibrinogen are phenotypically indistinguishable from fibrinogen deficient mice. Now translated that into English on the next slide. That means that mice missing both components have all the problems that mice missing fibrinogen only have. Their blood does not clot. They hemorrhage. Female mice die during pregnancy. They are not normal. They are not promising evolutionary intermediates. So if we look at this table of the symptoms of the various strings of mice, we can see what the authors meant by that phrase, rescues mice. Lacking plasminogen, mice can't remove blood clots once their job is done and their blood circulation gets interfered with and they develop problems such as thrombosis, ulcers, and so on. Lacking fibrinogen, they can't clot blood in the first place, and they have a different suite of symptoms. When they lack both, they have been rescued from the symptoms of plasminogen deficiency, but only to suffer the symptoms of fibrinogen deficiency. And if you think about it for just a minute, it's easy to understand what is going on. When an animal lacks plasminogen, it can't remove blood clots and its circulation becomes impeded and it suffers problems. Lacking fibrinogen, it can't make clots in the first place, and so hemorrhage is a problem. Lacking both, it doesn't matter that it's lacking plasminogen, because the plasminogen's job is to remove blood clots after the job is finished. But the mouse missing both components can't form clots in the first place. So there are no clots to remove. Q. Has subsequent work verified those results? A. Yes, here's a table of not only the work that was cited in this discussion here on plasminogen fibrinogen, but also subsequent work by the same group of scientists who knocked out other components of the blood clotting cascade, including something called prothrombin and something else called tissue factor. And if you look at the -- under the column labeled effect, in each case the blood clotting cascade is broken. They suffer hemorrhage. They cannot clot their blood. And that is exactly the result you would expect if, in fact, the blood clotting cascade were irreducibly complex, as I had written. Q. So Professor Doolittle's refutation of your claims was based on a misreading of the study, is that correct? A. That's right. He misread the original paper that he pointed to. And if I could make a couple of points based on this. As I said, this study, or this essay by Professor Doolittle and the one I discussed yesterday by Professor Miller were the two examples which offered experimental evidence that either irreducible complexity was not correct or that random mutation and natural selection could explain complex biochemical systems. But if you look at the exact studies that were offered as support for Darwinian evolution, and you look at them closely, in reality, they highlight the difficulties for Darwinian evolution. So I think this is an illustration of how a scientist's preconceptions about the truth of a theory or the validity of a theory can affect his reading of the evidence. And one more point is that, Professor Doolittle, of course, is a very eminent scientist. Professor Miller is, too. And they're quite capable of surveying the entire scientific literature for studies that they think are problems for my argument for intelligent design. And nonetheless, when they surveyed the whole literature, and they seemed to be motivated to look for counterexamples to intelligent design, when they do so, they offer studies such as this, which are, at best, very problematic and none of which, I would say, are arguments against intelligent design. So in my mind, I conclude that since highly motivated capable scientists who could advance arguments or who could point to studies that have created problems for intelligent design, that they have failed to do so, makes me confident that intelligent design is a good explanation. Q. Now these article findings, the actual findings in these articles, is that what you would expect to find for an irreducibly complex system? A. Yes, that's right. This is completely consistent with my expectations. Q. As far as you know, has Professor Doolittle ever acknowledged that he misread that paper? A. Yes, he has. Q. And if I could -- MR. ROTHSCHILD: Objection. Hearsay, Your Honor. I would move to strike. MR. MUISE: Your Honor, he just -- he has an understanding that Professor Doolittle has indicated he has misread this paper. MR. ROTHSCHILD: If he has a basis, I'd like to see it. THE COURT: Well, it's his understanding, and I'm take it for that. I won't take it as a matter of fact. His understanding is, he didn't quote something that Professor Doolittle said. It's simply, I'll take it as his understanding, and you're free to cross-examine him and present rebuttal evidence, if you see fit. So it's overruled. BY MR. MUISE: Q. Dr. Behe, I'd ask you to look at the exhibit binder that I had provided you yesterday. It's at your table in front of you. If you go to tab 17, please. A. Yes. Q. You'll see an exhibit marked Defendants' Exhibit 272. Is that the article by Russell Doolittle that you've been referring to here in your testimony? A. Yes, that's correct. This is a web version. MR. ROTHSCHILD: Objection, Your Honor. I want to make clear, I think that's not the acknowledgment of the mistake, it's just the article that's being referred to. I just want to clarify that. MR. MUISE: I think the question was pretty clear. BY MR. MUISE: Q. That's the article in the Boston Review that you're referring to? A. Yes, this is Russell Doolittle's article in the Boston Review. THE COURT: Does that resolve the objection? MR. ROTHSCHILD: Yes. I just want to clarify, this was not Dr. Doolittle's acknowledgment of a mistake. THE WITNESS: Yes. THE COURT: All right. BY MR. MUISE: Q. Dr. Behe, does anyone else know how the blood clotting cascade can be explained in Darwinian fashion and other proposed examples or explanations? A. No, that's one of the very nice things about science is that, if there is no explanation in the science library in scientific literature, and if leaders in the field do not know how something could have come about, and presumably they know the literature very, very well, then one can be confident that not only do they not know how something could have been done, but nobody else in the world knows how that could have been done as well. And that's important to keep in mind because some people claim that nonetheless. Q. And that's my next question. There have been individuals that nonetheless have made such claims, and do you have some slides to bring that up? A. Yes, that's correct. On the next slide is an excerpt from an article by a man named Michael Ruse. Michael Ruse is a professor of philosophy of science currently at Florida State University. And in particular, he's a philosopher interested in Darwinian thought. And he's written many books on Darwin, his ideas, the history around them, and so on. And several years after my book came out in 1998, Professor Ruse wrote an article entitled Answering the Creationists, Where They Go Wrong and What They're Afraid Of, and had it published in a magazine called Free Inquiry. And he said the following in the article. Quote, For example, Behe is a real scientist, but this case for the impossibility of a small-step natural origin of biological complexity has been trampled upon contemptuously by the scientists working in the field. They think his grasp of the pertinent science is weak and his knowledge of the literature curiously, although ventsly, outdated. For example, far from the evolution of clotting being a mystery, the past three decades of work by Russell Doolittle and others has thrown significant light on the ways in which clotting came into being. More than this, it can be shown that the clotting mechanism does not have to be a one-step phenomenon with everything already in place and functioning. One step in the cascade involves fibrinogen, required for clotting, and another, plaminogen -- there's that typo, missing the S -- required for clearing clots away. And he goes on in his article to quote that passage from Russell Doolittle's Boston Review essay that I showed on the slide a couple slides ago. So this excerpt, in my view, shows that Professor Ruse relies completely on Professor Doolittle's explanation for the blood clotting cascade and has no independent knowledge of his own. As a matter of fact, the fact that the same typo, the same misspelling of plasminogen occurs in Professor Ruse's essay makes me think that he relied on Professor Doolittle even for the spelling of the components of the cascade. So the point is that, even though Professor Ruse is a prominent academic concerned with Darwin and Darwinian thought, he has no knowledge that Professor Doolittle does not have concerning the blood clotting cascade. Q. Do you have another example, sir? A. Yes, another person has written on this, a man named Neil Greenspan, who is a professor of pathology at Case Western Reserve University, and he wrote an article in a magazine called The Scientist in the year 2002 entitled Not-so-intelligent Design. In the article, he writes the following. Quote, The Design advocates also ignore the accumulating examples of the reducibility of biological systems. As Russell Doolittle has noted in commenting on the writings of one ID advocate -- and perhaps I can be forgiven if I think he means me -- mice genetically altered so they lack either thrombin or fibrinogen have the expected abnormal hemostatic phenotypes. However, when the separate knockout mice are bred, the double knockouts apparently have normal hemostasis, reducible complexity after all, at least in the laboratory. So the reasoning here exactly mimics the reasoning of Russell Doolittle in his Boston Review article. And let me just point out here that he talks about thrombin or fibrinogen, but the study was actually on plasminogen and fibrinogen. So again, I think this illustrates that even a scientist has -- even a scientist writing publicly on this topic, even a scientist writing publicly on this topic in order to argue against intelligent design has no more knowledge of this than Professor Doolittle has. And once more, I think this speaks to the point of how firmly a theory can guide persons' thinking. I think the fact that Professor Ruse relied so heavily on Professor Doolittle, and Professor Greenspan did, too, and apparently they did not even go back and read the article on blood clotting that was being disputed, shows that they are so confident in Darwinian evolution that they don't think they have to, you know, check the facts. They can rely on the authority of a person like Professor Doolittle. So I think that shows the grip of a theory on many people's thinking. Q. Do you have an additional example? A. Yes, one other excerpt here. In 1999, the National Academy of Sciences issued a booklet called Science and Creationism. And in it, they write the following, quote, The evolution of complex molecular systems can occur in several ways. Natural selection can bring together parts of a system for one function at one time, and then at a later time, recombine those parts with other systems of components to produce a system that has a different function. Genes can be duplicated, altered, and then amplified through natural selection. The complex biochemical cascade resulting in blood clotting has been explained in this fashion. Let me make a comment on this. Professor Doolittle is a member of the National Academy of Sciences. There is no other member of the National Academy who knows anything more about blood clotting than Professor Doolittle. But if Professor Doolittle does not know how Darwinian processes could have produced the blood clotting cascade, as I think is evident from his pointing to an inappropriate paper in his attempt to refute a challenge to Darwinian evolution, then nobody in the National Academy knows either. I should also -- well, I'll -- Q. Do they cite any papers or experiments to support this claim, the National Academy of Sciences, in this particular booklet? A. No. That's a very interesting point. They simply assert this. They do not cite any paper in any journal to support this. And it's an interesting point, if I may say so. I've heard said earlier in this trial that not every utterance by a scientist is a scientific statement. And that's something that I entirely agree with. And it's also true that not every utterance by a scientist even on science is a scientific statement. And it's also true that not even, not every proclamation, or not every declaration by a group of scientists about science is a scientific statement. Scientific statements have to rely on physical evidence. They have to be backed up by studies. And simply saying that something is so does not make it so. In fact, this statement of the National Academy is simply an assertion. It is not a scientific statement. Q. Does the National Academy of Sciences, in this document that you referenced, give any other examples of complex biochemical systems that have been explained? A. This is the only example that they point to. Q. In his testimony, Dr. Miller has pointed to the work of, I believe, you pronounce is Jiang, J-i-a-n-g -- A. Yes. Q. -- and Doolittle and Davidson, et al, to argue against the irreducible complexity of the blood clotting system. Do you agree with his assessment of those studies? A. No, I do not. Q. And you have some diagrams to explain this further, sir? A. Yes, I do. This is a slide from Professor Miller's presentation showing work from Jiang and Doolittle. And he also shows a diagram of the blood clotting cascade. And notice again, it's a branched pathway with the intrinsic pathway and the extrinsic pathway. And Professor Miller makes the point that in DNA sequencing studies of something called a puffer fish, where the entire DNA of its genome was sequenced, and scientists looked for genes that might code for the first couple components of the intrinsic pathway, they were not found. And so Professor Miller demonstrated that by -- if you could push to start the animation -- Professor Miller demonstrated that by having those three components blanked out in white. Nonetheless, puffer fish have a functioning clotting system. And so Professor Miller argued that this is evidence against irreducible complexity. But I disagree. And the reason I disagree is that I made some careful distinctions in Darwin's Black Box. I was very careful to specify exactly what I was talking about, and Professor Miller was not as careful in interpreting it. In Darwin's Black Box, in the chapter on blood clotting cascade, I write that, a different difference is that the control pathway for blood clotting splits in two. Potentially then, there are two possible ways to trigger clotting. The relative importance of the two pathways in living organisms is still rather murky. Many experiments on blood clotting are hard to do. And I go on to explain why they must be murky. And then I continue on the next slide. Because of that uncertainty, I said, let's, leaving aside the system before the fork in the pathway, where some details are less well-known, the blood clotting system fits the definition of irreducible complexity. And I noted that the components of the system beyond the fork in the pathway are fibrinogen, prothrombin, Stuart factor, and proaccelerin. So I was focusing on a particular part of the pathway, as I tried to make clear in Darwin's Black Box. If we could go to the next slide. Those components that I was focusing on are down here at the lower parts of the pathway. And I also circled here, for illustration, the extrinsic pathway. It turns out that the pathway can be activated by either one of two directions. And so I concentrated on the parts that were close to the common point after the fork. So if you could, I think, advance one slide. If you concentrate on those components, a number of those components are ones which have been experimentally knocked out such as fibrinogen, prothrombin, and tissue factor. And if we go to the next slide, I have red arrows pointing to those components. And you see that they all fall in the area of the blood clotting cascade that I was specifically restricting my arguments to. And if you knock out those components, in fact, the blood clotting cascade is broken. So my discussion of irreducible complexity was, I tried to be precise, and my argument, my argument is experimentally supported. Q. Now just by way of analogy to maybe help explain further. Would this be similar to, for example, a light having two switches, and the blood clotting system that you focus on would be the light, and these extrinsic and intrinsic pathways would be two separate switches to turn on the system? A. That's right. You might have two switches. If one switch was broke, you could still use the other one. So, yes, that's a good analogy. Q. So Dr. Miller is focusing on the light switch, and you were focusing on the light? A. Pretty much, yes. Q. I believe we have another slide that Dr. Miller used, I guess, to support his claim, which you have some difficulties with, is that correct? A. Yes, that's right. Professor Miller showed these two figures from Davidson, et al, and from Jiang, et al, Jiang and Doolittle, and said that the suggestions can be tested by detailed analysis of the clotting pathway components. But what I want to point out is that whenever you see branching diagrams like this, especially that have little names that you can't recognize on them, one is talking about sequence comparisons, protein sequence comparisons, or DNA nucleotide sequence comparisons. As I indicated in my testimony yesterday, such sequence comparisons simply don't speak to the question of whether random mutation and natural selection can build a system. For example, as I said yesterday, the sequences of the proteins in the type III secretory system and the bacterial flagellum are all well-known, but people still can't figure out how such a thing could have been put together. The sequences of many components of the blood clotting cascade have been available for a while and were available to Russell Doolittle when he wrote his essay in the Boston Review. And they were still unhelpful in trying to figure out how Darwinian pathways could put together a complex system. And as we cited yesterday, in Professor Padian's expert statement, he indicates that molecular sequence data simply can't tell what an ancestral state was. He thinks fossil evidence is required. So my general point is that, while such data is interesting, and while such data to a non-expert in the field might look like it may explain something, if it's asserted to explain something, nonetheless, such data is irrelevant to the question of whether the Darwinian mechanism of random mutation and natural selection can explain complex systems. Q. So is it your opinion then, the blood clotting cascade is irreducibly complex? A. Yes, it is. Q. Now Professor Pennock had testified that he was co-author on a study pertaining to the evolution of complex features. Does this study refute the claim of irreducible complexity? A. No, it does not. Q. And I believe we put up a slide indicating the paper that was apparently by Lenski and Pennock, correct? A. That's right. Richard Lenski, and Professor Pennock was co-author, and several other co-authors as well. This is the first page of that article. Let me reemphasize that the last two systems that I talked about, the lac operon and the blood clotting cascade were ones in which experiments were done on real biological organisms to try to argue against intelligent design and irreducible complexity. This study of Lenski is a computer study, a theoretical study not using live organisms, one which is conducted by writing a computer program and looking at the results of the computer program. If I could have the next slide. This is an excerpt from the abstract of that paper. Let me read parts of it. It says, quote, A long-standing challenge to evolutionary theory has been whether it can explain the origin of complex organismal features, close quote. Let me just stop there to emphasize that these workers admit that this has been a long-standing problem of evolutionary theory. MR. ROTHSCHILD: Objection. This mischaracterizes the document. THE COURT: Elaborate on that objection. MR. ROTHSCHILD: I'm sorry? THE COURT: Elaborate on the objection. You say he's mischaracterizing -- MR. ROTHSCHILD: This is a long-standing challenge not a long-standing problem. THE COURT: Well, I think he's characterizing something and not necessarily reading from it. What are you objecting to? MR. ROTHSCHILD: I think he's mischaracterizing it. That's my objection. THE COURT: Again, you'll have him on cross. This is direct examination. I'll overrule the objection. You may proceed. BY MR. MUISE: Q. Dr. Behe, just for reference, the article you are referring to is published in 2003, is that correct? A. That's correct, yes. Q. Continue, please. A. So apparently, this had not been explained up until at least the publication of this paper. The authors continue, quote, We examined this issue using digital organisms, computer programs that self-replicate, mutate, compete and evolve. Let me close quotes there. You have to remember that the labeling of these things as organisms is just a word. These things are not flesh and blood. These things are little computer programs. There are strings of instructions. And a comparison of these to real organisms is kind of like comparing an animated character in some movie to a real organism. So the authors go on. And the next slide, please. And this is the first figure on the first page of their article. And I just want to emphasize, this is just an illustration emphasizing that these -- there are computer instructions. Each one of these are little computer instructions; swap, nand, nand, shift R. They have no similarity to biological features, biological processes. You see over here little strings of ones and zeroes. These are characters in a computer memory. These are not anything biological. Let me say that, theoretical studies of biology can oftentimes be very useful. And I'm certainly not denigrating the use of computer in studying biology. But one has to be careful, very careful that one's model, computer model mimics as closely as possible a real biological situation. Otherwise, the results one obtains really don't tell you anything about real biology. And I think that the Lenski paper, it does not mimic biology in the necessary way. And that's shown on the next slide. Q. Let me just, to clarify. So a crucial question is whether or not it's a good model for biological process, is that correct? A. Yes, that's right. Q. And you don't believe this is one? A. No, I think it misses the point and it assumes what should be proven instead. And let me try to explain that with an excerpt from the article itself. The authors write in their discussion, quote, Some readers might suggest that we stacked the deck by studying the evolution of a complex feature that could be built on simpler functions that were also useful, close quote. Let me stop there to comment that, yes, that is exactly what I would suggest, that they stacked the deck. They built a model in which there was a continuous pathway of functional Features very close together in probability, which is exactly the question that's under dispute in real biological organisms. Is there such a pathway in real biological organisms? So to assume that in your computer model is stacking the deck. Let me go back to the abstract. They continue, quote, However, that is precisely what evolutionary theory requires. Now I'll close quote there, and let me comment on that. Just because your theory requires something does not mean it exists in nature. James Clerk Maxwell's theory required ether. Ether does not exist. So just because a theory requires it is no justification for saying that building a model shows something about biology. Q. Dr. Behe, if you could, just so we're clear on the record, because I'm not sure if we have it that clear, can you identify the title and the specifics of this article, so we're clear on what specific article you're referring to? A. Yes, this is an article by Lenski, Ofria, Pennock, and Adami published in the year 2003. The title is The Evolutionary Origin of Complex Features published in the journal Nature, volume 423, pages 139 to 144. Q. Thank you. And the authors go on to say in their discussion, indeed, our experiments showed that the complex feature never evolved when simpler functions were not rewarded. This is not surprising to me. This shows the difficulty of irreducible complexity. If you do not have those closely stacked functional states, if you have to change a couple things at once before you get a selectable property, then I have been at pains to explain, that's when Darwinian theory starts to fail, not when you have things close together. And to build them into your model is, again, begging the question. The fact that when they do not build that into their model, they run into problems that complex features then don't evolve. That is exactly what I would expect. I would cite this as evidence supporting my own views. Q. Have other scientists made similar criticisms? A. Yes. A couple years ago, there was an article published by two scientists named Barton and Zuidema published in a journal called Current Biology. The title of the article is Evolution, The Erratic Path Towards Complexity. And much of the article is a commentary on the work by Lenski and co-workers. And if I could just read a couple excerpts from that article. They make a couple interesting points. The authors say, complex systems, systems whose function requires many interdependent parts, that is irreducible complexity systems in my view, are vanishingly unlikely to arise purely by chance. Darwin's explanation of their origin is that natural selection establishes a series of variants, each of which increases fitness. This is an efficient way of sifting through an enormous number of possibilities, provided there is a sequence of ever-increasing fitness that leads to the desired feature, close quote. So that's the exact -- that's the big question. Is there such a pathway, or is it, as it certainly appears, that one has to make large numbers of changes before one goes from a functional selectable state to a second functional selectable state? And Barton and Zuidema continue in their discussion. They say, in Lenski's artificial organisms, the mutation rate per site is quite high. So, in other words, if I might make my own comment, they are using -- they are using factors which are not common for biological organisms. Now picking up with the paper again. So that favorable pairs can be picked up by selection at an appreciable rate. This would be unlikely in most real organisms because, in these, mutation rates at each locus are low. In other words, again, they are building into the model exactly the features they need to get the result they want. But building it into your model does not show that that's what exists in nature. And Barton and Zuidema comment further, quote, Artificial life models such as Lenski, et al's, are perhaps interesting in themselves, but as biologists, we are concerned here with the question of what artificial life can tell us about real organisms. It's -- it can be productive and it can be interesting to do such studies as Lenski, et al, did. But the big question is, do they tell us anything about real organisms? And I am very skeptical that this study does so. Q. Now have you done some work yourself that's somewhat similar? A. Yes, indeed. A year ago, as I mentioned earlier in my testimony, David Snoke and myself published a paper in the journal Protein Science entitled Simulating Evolution by Gene Duplication of Protein Features that Require Multiple Amino Acid Residues. In this, we also -- it was essentially a theoretical study using computer programs to try to mimic what we thought would occur in biology. But we tried, as closely as possible, to mimic features of real proteins and real mutation rates that the professional literature led us to believe were the proper reasonable values. And when we used those values, the short, the gist of the matter is that, once -- if there is not a continuous pathway, if one has to make two or three or four amino acid changes, those little changes from that figure of two interacting proteins that I talked about yesterday, if one has to make several changes at once, then the likelihood of that occurring goes -- drops sharply in the length of time, and the number of organisms in a population that one would need to have that goes up sharply. Q. Would it be fair to say that your model is closer to biological reality? A. Well, I certainly think so. Q. Now Dr. Miller testified that the immune system is being explained by Darwinian theory. Do you agree with that? A. No, I do not. Q. And so I'd ask you if you could explain why not? A. Yes. On the next slide is a -- is the first slide of Professor Miller's discussion of this topic and his presentation simply showing a model of an immunoglobulin protein. And here is kind of a little cartoon version of the same thing, the immunoglobulin protein. He goes on the next slide to take an excerpt from my book where in a chapter where I discussed the immune system and argue that, in fact, it is not well-explained by Darwinian processes but, in fact, is better explained by design. Q. Can you explain that Sisyphus reference? A. Yeah, okay. Sisyphus. I said, Sisyphus himself would pity us. That was just a literary flourish there. Sisyphus is a figure from mythology who was doomed for eternity to have to roll a bolder up a hill, and whenever he got to the top of the hill, the bolder would roll back, and he would have to start all over again. This was meant to indicate frustration. And I argued that Darwinian attempts at explanations would be similarly frustrating. Q. I just want to make a point clear. You said there were two examples where those who claim that irreducible complexity does not work or is not a valid explanation, they use experimental evidence, and that was the blood clotting system and the lac operon. How does the immunity system, is that experimental evidence or is that a theoretical claim? A. No, this is mostly a theoretical claim. There is no experimental evidence to show that natural selection could have produced the immune system. And I think that's a good example of the different views that people with different theoretical frameworks bring to the table. If we could show the next slide. Professor Miller shows this slide from a reference that he cited by Kapitonov and Jurka, and he has titled Summary, Between 1996 and 2005, each element of the transposon hypothesis has been confirmed. He has this over this diagram. But again, as I mentioned previously, whenever you see diagrams like this, we're talking about sequence data, comparison of protein, sequences, or gene sequences between organisms. And such data simply can't speak to the question of whether random mutation and natural selection produced the complex systems that we're talking about. So Professor Miller -- so, in my view, this data does not even touch on the question. And yet Professor Miller offers as compelling evidence. And one more time, I view this as the difference between two people with two different expectations, two different theoretical frameworks, how they view the same data. And I'd like to take a little bit of time to explain why such studies do not impress me. And I'll do so by looking at one of the papers that Professor Doolittle -- I'm sorry, Professor Miller, that's his name, cited in his presentation, Kapitonov and Jurka, that was published this year. I just want to go through, and just kind of as a quick way to show why I am not persuaded by these types of studies. I want to excerpt some sentences from this study to show what I consider to be the speculative nature of such studies. For example, in this excerpt, the authors say, something indicates that they may be important. This may indicate. It may be encoded. It might have been added. If so, it might have been derived. Alternatively, it might have been derived from a separate unknown transposon. It was probably lost. And we have a lot more of those, one more slide at least. It says, we cannot exclude the possibility. In any case, the origin appears to be a culmination of earlier evolutionary processes. If so, this might have been altered. Again, without going into the detail of the article, I just wanted to emphasize those phrases to point out what I consider to be the very speculative nature of such papers. Here's what I view to be the problem. The sequence of the proteins are there. The sequence of the genes are experimentally determined. And the question is, what do we make of that information? People like Professor Miller and the authors of this paper working from a Darwinian framework simply fit that data into their framework. But to me, that data does not support their framework. It does not offer experimental evidence for that framework. They're simply assuming a background of Darwinian random mutation and natural selection and explaining it -- or fitting it into that framework, but they're not offering support for it. Q. Dr. Behe, is there another paper that scientists point to for the support that the immune system can be explained by this Darwinian process? A. Yes, there is. There is one more that I have to discuss. Here is a recent paper, again the year 2005, by Klein and Nikolaidis entitled The Descent of the Antibody-Based Immune System by Gradual Evolution. And on the next slide is an excerpt from the initial part of their discussion where they say, quote, According to a currently popular view, the Big Bang hypothesis, the adaptive immune system arose suddenly, within a relatively short time interval, in association with the postulated two rounds of genome-wide duplications. So these people, Klein and Nikolaidis, are going to argue against what is the currently popular view among immunologists and people who study the immune system on how that system arose. Q. And what is the Big Bang hypothesis that's referred to here? A. Well, that's kind of a label that they put on to kind of indicate the fact that the immune system appears in one branch of animals, the vertebrates, and any obvious pre-cursors or functional parts of such a system do not appear to be obvious in other branches of animals. So it seems like the immune system arose almost complete in conjunction with the branching of vertebrates from invertebrate. Q. Do scientists acknowledge that or treat that as a problem for Darwin's theory? A. Well, in my experience, no, nobody treats such a thing as a problem for Darwin's theory. Q. Do you consider it a problem? A. I certainly consider it a problem. But other scientists who think that Darwinian evolution simply is true don't consider much of anything to be a problem for their theory. Q. Why do you consider it a problem? A. Because the -- as Darwin insisted, he insisted that adaptations had to arise by numerous successive slight modifications in a very gradual fashion. And this seems to go against the very gradual nature of his view. Q. Now has this paper been held up by scientists as refuting claims against intelligent design? A. Yes, it has. As a matter of fact, Professor Miller cited it in his expert report, although he didn't refer to it in his testimony. Additionally, I attended a meeting on evolution at Penn State in the summer of 2004 where one of the authors, Juan Kline, spoke on his work, and he interpreted it in those terms. Q. Now we have some quotes, I believe, from this paper that you want to highlight? A. Yes. Again, I want to pull out some excerpts from that paper just to show you why I regard this as speculative and unpersuasive. For example, they start with, by saying, quote, Here, we sketch out some of the changes and speculate how they may have come about. We argue that the origin only appears to be sudden. They talk about something as probably genuine. It probably evolved. Probably would require a few substitutions. It might have the potential of signaling. It seems to possess. The motifs presumably needed. One can imagine that a limited number. It might have been relatively minor. Quote, The kind of experimental molecular evolution should nevertheless shed light on events that would otherwise remain hopelessly in the realm of mere speculation. They're talking about experiments that have yet to be done. Next slide, I have even more such quotations. These factors are probably genuine. Nonetheless. They might have postdated. Nevertheless. Albeit. It seems. This might have been. These might represent. They might have been needed. This might have functioned. This might have. And this might have contributed. So again, this is just a shorthand way of trying to convey that, when I read papers like this, I do not see any support for Darwin's theory. I read them as speculative and -- but nonetheless, people who already do believe in Darwin's theory fit them into their own framework. Q. Now Dr. Miller cited numerous papers in his testimony to support his claims on irreducible complexity, the type III secretory system, and so forth. Have you done a review of those papers and have some comments on them that you prepared slides for? A. Yes, I did. I went through many of the papers that Professor Miller cited, as many as I could, and simply, as a shorthand way of trying to indicate or trying to convey why I don't regard any of them as persuasive, I simply did a search for the phrases, random mutation, which is abbreviated here in this column, RM, and the phrase, natural selection. Random mutation, of course, and natural selection are the two elements of the Darwinian mechanism. That is what is at issue here. And so this is, you know, this is, of course, a crude and perhaps shorthand way, but nonetheless, I think this illustrates why I do not find any of these papers persuasive. When I go through the papers that Professor Miller cited on the blood clotting cascade, Semba, et al, Robinson, et al, Jiang and Doolittle, there are no references to those phrases, random mutation and natural selection. Q. Some of your indications on this slide, you have 0 with asterisks and some without. Is there a reason for that? A. Yes. The papers that have asterisks, I scanned by eye. I read through them visually. Ones that do not have an asterisk, I was able to do a computer search for those phrases because they are on the web or in computer readable form. I have a number of other such tables. On the next one are references that Professor Miller cited on the immune system. And again, none of these references contain either those phrases, random mutation and natural selection. There were a couple more references on the immune system that Professor Miller cited, and they didn't contain those phrases either. In references for the bacterial flagellum and the type III secretory system, there was one paper by Hauch, a review in 1998 that did use the phrase natural selection. However, that phrase did not occur in the body of the paper. It was in the title of one of the references that Hauck listed. And on the next slide, I think there are papers cited by Professor Miller on common descent of hemoglobin. And again, those phrases are not there. I think there's another slide or two, if I'm not mistaken. This is the one on what he described as molecular trees, Fitch and Margoliash, from 1967. And I didn't find the phrase there either. So again, this is a shorthand way of showing why I actually considered these off-the-point and unpersuasive. Q. So all these papers that are being used to provide evidence for Darwin's theory of evolution, in particular, the mechanism evolution of natural selection, yet they don't mention random mutation or natural selection in the body of the works? A. That's correct. Q. Could you summarize the point then, Dr. Behe, that you are making with, referring to these studies and the comments you made about the speculative nature of some of these studies? A. Yes. Again, much of these studies, in my view, are speculative. They assume a Darwinian framework. They do not demonstrate it. And certainly, you know, certainly scientists should be free to speculate whatever they want. You know, science usually starts with speculation, but it can't end with speculation. And a person or, and especially a student, should be able to recognize and differentiate between speculation and actual data that actually supports a theory. Q. So it would be beneficial to point this sort of feature that you just described, point that out to students? A. I very much think so. MR. MUISE: Your Honor, we're going to be moving again into another subject, and it appears to be close to the time for a break. THE COURT: Yeah, why don't we take a break at this point. I think that makes good sense. We'll break for 20 minutes at this juncture, and we'll return and pick up direct examination at that point. (Whereupon, a recess was taken at 10:11 a.m. and proceedings reconvened at 10:36 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 11 (October 18), AM Session, Part 2 THE COURT: All right. Mr. Muise, you may continue. MR. MUISE: Thank you, Your Honor. BY MR. MUISE: Q. Dr. Behe, Dr. Miller severely criticized Pandas for its treatment of the topic of protein sequence similarity. Do you agree with his assessment? A. No, I don't. Q. And I would ask you to explain why not? A. On the next slide, we see one of Professor Miller's slides, the first, I think, in his sequence where he very severely criticized the book Of Pandas and People for its treatment of the question of why similar proteins in separate organisms have the differences in their sequence that they do. And on the next slide, this is again a slide from Professor Miller. He reproduces a figure from Pandas which shows -- it's hard to read on here -- that the difference in the number of amino acids of a protein called cytochrome c, which is a small protein which is involved in energy metabolism and which has about 100 amino acids in it, the difference between that protein which occurs in fish is about 13 percent. About 13 amino acids differ between the fish cytochrome C and frog cytochrome C; and about 13 or so between bird and fish cytochrome C; and about 13 between mammalian cytochrome C and fish cytochrome C. So that remarkably, the proteins in these different organisms all seem to have roughly the same number of differences, although the differences are not the same differences, but they have the same number of differences from fish cytochrome C. And Pandas discusses this in their text. And Professor Miller -- Professor Miller takes Pandas to task because he says that, in fact, this is a well-studied and a problem that has been solved by evolutionary theory. For example, he says, in fact, these sequence differences confirm that each of these organisms is equi-distant from a common ancestor, which is the actual prediction of evolutionary theory. He has a little tree diagram there, too. But one has to realize that, in fact, Professor Miller is mistaken. Evolutionary theory does not predict that. Or one could say, evolutionary theory predicts that in the same sense that evolutionary theory predicted that the vertebrate embryos, as drawn by Haeckle, should be very, very similar to it; or the prediction of evolutionary theory after newer results came out, that vertebrate embryos could vary by quite a bit; or the prediction of evolutionary theory that the type III secretory system would be a good pre-cursor for the flagellum; or the prediction of evolutionary theory that the flagellum -- or that the type III secretory system might be derived easily from a flagellum. So, in fact, what we have, I will try to make clear, is an instance where experimental science comes up with data, and the data is attempted to be fit into a framework. But this data was not predicted by any evolutionary theory. Q. How was Pandas' treatment of this compared with what Dr. Miller found? A. In my view, Pandas' treatment of this topic is actually much more accurate than Professor Miller's discussion of the same topic in his testimony here. Professor Miller, in his discussion, where he says that, evolutionary theory predicts this remarkable amount of difference, is referring to something, although he does not call it such, something called the molecular clock hypothesis. And notice that, in fact, in Pandas, on the page opposite to the figure that Professor Miller used in his presentation, there is a section entitled A Molecular Clock where they go through and discuss some issues with it, which I will talk about later on. Q. Just to be clear for the record, the diagram, figure 9 that you've been referring to that Dr. Miller cited in his testimony, appears on page 38 of Pandas, is that correct? A. Yes. Q. And the discussion of the molecular clock appearing on the subsequent page appears on page 39 of Pandas, as indicated in this slide, is that correct? A. That's correct. Q. Do you have some slides and discussion as to how this molecular clock problem is treated in the science community? A. Yes, I do, and it will probably take about 10 minutes or so to go through it. So please be patient. But here is a cover of the Biochemistry textbook that I referred to frequently here by Voet and Voet, which is used in many universities and colleges across the country. And they have a section on the molecular clock hypothesis and on cytochrome C in which they discuss these issues. Let's imagine -- I'm going to try to explain a molecular clock. Let's imagine that these lengths of time -- these lines represent time. And down at the bottom of the screen is a time -- a distant time ago, and up at the top is modern time. And the branches here represent events in the course of life where a population of organisms split into two -- split into two, and one branch went off to form one group of organisms and another group went off to form a different type of organisms. Q. If I might just interrupt briefly. You're referring to a phylogenetic tree that has vertical lines that branch off to each other, and that's what you're referring to the vertical lines running, two at the top of the diagram, and then they branch off into different sections? A. That's correct. That's exactly right. Q. Could you continue, please? A. Yes. So, for example, at this branch, a population of organisms split off that went on to become plants, and at this branch, a population split off which went on to become animals. Now I suppose that before any split in the population, the pre-cursor population organisms had a cytochrome c with a certain sequence. We'll say there was a hundred letters. Just think of a string of a hundred letters; Z, Q, A, L, W. Now, however, when we get to this branch point, we have a group of organisms going off to form the animals, another going off to form the plants. They no longer interbreed, and so that string of a hundred letters representing cytochrome c can't accumulate mutations in it separately. So, for example, suppose once every year or so, the cytochrome c in the branch that is forming the plants suffered a mutation, so that one of those letters changed from what it had been. And similarly, in the branch going off to form the animals, once every hundred years or so, one of those letters changed into something. Not necessarily the same. Maybe a different one. So that after a while, those two sequences would be different. And suppose every hundred years, that happened, one change, one change, one change, and so on. After a while, you'd start to accumulate a number of changes. Now further suppose that along the line to animals, the population of animals split into two, one line leading to, say, insects, and another line leading to mammals. Now you could have the same thing with the cytochrome c sequence that had been mutating all along, but now they split into two populations, and now these two populations also begin to accumulate mutations independently. But notice here, they start right at the branch point with the same sequence. But after, say, a hundred years, this will have one difference with what it had at the beginning. This one will have one difference, too. And they don't necessarily have to be the same difference. So they'll start to accumulate differences with each other between, say, the branch leading to the insects and the branch leading to the mammals. Now here's the point. Any sequence along this branch should have accumulated the same number of sequences between any sequence on this branch. So that the number of differences between insects and plants should be roughly the same between, as that between mammals and plants. Any animal and any plants should have roughly the same number of differences. Whereas between subgroups of animals that have split off from each other earlier than animals did from plants, they will have had less time to accumulate differences in their amino acid sequences. And so they will have -- so they will have fewer differences. Q. You mean, if they split off later. You said, earlier. They were split off later, correct? A. Thank you. Yes, later. So Professor Miller has, I believe, this sort of model in mind, which is commonly -- which is a common way of thinking of these things in science. So the idea is that, since fish branched off from those other groups of vertebrates, mammals, birds, and so on, the fish, under this model, would be expected to have the same number of differences in their amino acid sequences between themselves and all those other vertebrate groups. Q. So here you have plants splitting off at the same time as the insects or you have the same -- you have the same connection between insects and plants as plants and mammals? A. That's right. So the critical point is that, the difference between animals, any animal group like mammals and plants and insects and plants, they should have the same difference between animals and plants, no matter what the subgroup of animals. But between animals which branch off -- groups of animals which branched off at an earlier -- or from each other earlier to the current time, they would have less time to accumulate differences. And I believe this is what Professor Miller had in mind. However, this model has some difficulties with it which are well recognized and have been discussed in the literature for over 40 years. For example, I said, suppose every hundred years or so, a mutation occurred. Okay. Well, suppose that in this branch, every hundred years or so, a mutation occurred. But in this branch, suppose a mutation occurred every 50 years. And suppose when these split, the mutation rate again changed somewhat. Now you would not expect this nice, neat pattern to occur. Now you would expect a jumble. It's not quite clear what one might expect. And it turns out, that's a real problem because it's thought that most mutations accumulate in a lineage when an organism reproduces. When an organism reproduces, the DNA in it has to be replicated, and that gives a chance for mutations to come into the DNA. But different organisms can reproduce at greatly differing rates. For example, a fruit fly might have a generation time of two weeks, and an elephant might have a generation time of 20 years. So if the number of mutations that a protein or gene underwent was proportional to the number of generations, you might expect a lineage with quickly reproducing organisms to accumulate mutations much more quickly, and the one with slowly reproducing organisms to accumulate more slowly. And I believe this is -- on the next slide, there shows discussion from the Biochemistry textbook explaining exactly that point. Let me quote from it. Quote, Amino acid substitutions in a protein mostly result from single base changes in the gene specifying the protein. If such point mutations mainly occur as a consequence of errors in the DNA duplication process, then the rate at which a given protein accumulates mutations would be constant with respect to numbers of cell generations. Not with time. With numbers of cell generations. If, however, the mutations process results from a random chemical degradation of DNA, then the mutation rate would be constant with absolute time. So here's this complication. If most mutations occur during replication, you wouldn't expect this difference that we see in cytochrome c. If, for some reason, mutations occurred constant with time, well, then you might expect that. But the problem is, we know of no reason why that necessarily -- that has to be so, why a mutations have to -- would have to occur constant in time. Q. Is there a problem in addition to this generational rate change? A. Yes, that's one complication, but there's another one as well. And that's that, this so-called molecular clock seems to tick at different rates in different proteins. And this is an illustration again from the Biochemistry textbook that applies to this point. On the bottom, the X axis, this is time. This is 200 million, 400 million, a billion years, and so on. This is number of -- or percent amino acid sequence difference. And the idea is that, here's the line for cytochrome c. Organisms which diverge about 200 million years ago have these many sequence differences; about 400 million years ago, have these many, and so on. Look at how nice and neat that is. However, for another protein, hemoglobin, the molecular clock seems to tick faster. For the same amount of time, hemoglobin has maybe twice as many mutations. Another region of a protein called a fibrinopeptide seems to accumulate mutations extremely rapidly. And a fourth protein, if you can look at the bottom of the figure, it's hard to see, for something called histone H4, barely accumulates any mutations at all. Organisms in very widely separated categories have virtually identical histone H4's. Now to resolve this problem, it was postulated that perhaps this has to do with the number of amino acid residues in a protein that are critical for its function. Perhaps in some proteins, you know, most of the amino acid residues cannot be changed or it destroys the function and would destroy the organism. And in others, maybe some can be changed, but not others. And so you can change those. And perhaps in another group, almost all of them can be changed without really affecting the function. And so that's an interesting idea. But there are also difficulties with that because, under that model, you would predict that if you changed the amino acid sequence of histone H4, then that should cause problems for an organism, because all of its, or most of its, or practically all of its amino acids are critical for function. But experimentally, that is not supported, as shown on the next slide. Q. Is this -- so you've done work in this area with the histone H4 and the molecular clock? A. Yes, uh-huh. I've written this commentary in 1990 in a journal called Trends in Biochemical Sciences, commenting on the work of somebody else who experimentally took an organism called yeast into the lab and altered its histone H4 and actually chopped off a couple amino acids at the beginning portion of that protein. And when he looked, it seems that it didn't make any difference to the organism. The organism grew just as well without those mutations, which is surprising, which is not what you would expect if all of those residues were critical for the function of that protein, histone H4. Later on, in the year 1996, I and a student of mine, Sema Agarwal, we were interested in this problem of histone H4 and molecular clock, and so we experimentally altered some amino acid residues into protein and changed them into different amino acids, with the expectation that these might destroy the function of the protein. But it turned out not to. These positions, these amino acids could be substituted just fine, which is unexpected, and which kind of complicates our interpretation of the molecular clock hypothesis. So there are two complications; complications upon complications. One, we would expect the number of mutations to accumulate with generation time, but it seems to accumulate, for some unknown reason, with absolute time. And the second is that, proteins accumulate mutations at different rates. We would expect that it would have to do with how vulnerable they are to mutations, and mutations might destroy the function of one protein that evolved slowly, but that is not experimentally supported. Q. Now has this problem been discussed in the scientific literature? A. Yes, this has been continuously discussed ever since the idea of the molecular clock hypothesis was first proposed in the early 1960's by two men named Emile Zuckerkandl and Linus Pauling. And here are a couple of papers which deal with the difficulties of the molecular clock hypothesis. Here's a recent one, Gillooly, et al, published in the Proceedings in the National Academy of Sciences, entitled The Rate of DNA Evolution, Effects of Body Size and Temperature on the Molecular Clock. In this publication, they say that, in fact, the size of an organism and temperature can affect how fast or how slow this clock might tick. Francisco Ayala has written on this frequently. Here's one from 1997. And I should say, Francisco Ayala is a very prominent evolutionary biologist. He wrote an article in 1997 entitled Vagaries of the Molecular Clock. And I think the title gets across the idea that there are questions with this hypothesis. And in 1993, a researcher named Tomoka Ohta published an article in the Proceedings of the National Academy of Sciences entitled An Examination of the Generation-time Effect on Molecular Evolution in which she considers exactly that complication that the textbook Voet and Voet pointed out, this generation-time effect. You know, why shouldn't organisms that reproduce more quickly accumulate more mutations. I have another slide just from one more recent paper. This paper by Drummond, et al, is entitled Why Highly Expressed Proteins Evolve Slowly. And it's referring to the sequence evolution that I've been discussing. It was published in the Proceedings of the National Academy of Sciences, and this was from an online version. This is so recent that I don't think it has yet appeared in print. The point I want to make with this is that, these people treat this question as a currently live question. They start off by saying, a central problem in molecular evolution is why proteins evolve at different rates. So that question I was trying to illustrate with histone H4, why does one protein tick faster and another one tick more slowly, that's still -- that is still unknown. And I think I will skip the rest of this slide and go to the next slide and just point out a couple words here. Drummond, et al, say, Surprisingly, the best indicator of a protein's relative evolutionary rate is the expression level of the encoding gene. The only point I want to make with this is that, they are reporting what is a surprise, what was not expected, which was not known, you know, 40 years ago, which has only been seen relatively recently. And they say, quote, We introduce a previously unexplored hypothesis, close quote. And the point I want to emphasize is that, here in this paper published, you know, weeks ago, that they are exploring new hypotheses to try to understand why proteins have the sequences that they do. Q. So in summary, this protein sequence, the fact that the equi-distant from a common ancestor is not what evolutionary theory would actually predict? A. That's right. Evolutionary theory makes no firm prediction about this anymore than it makes a firm prediction about the structure of vertebrate embryos. Q. It's a common understood problem that biologists are trying to resolve at this point? A. Yes, within the community of scientists who work on this. People have been working on it for decades. Q. Is this a problem that an American Biology teacher should be aware of? A. Yes, an American Biology teacher should be aware of it, because an article on this very topic was published in the magazine, American Biology Teacher, a couple years ago, which is put out by the National Association of Biology Teachers. And the article is entitled Current Status of the Molecular Clock Hypothesis. And one of the first -- this is a red arrow that I added to the figure. One of the first subsections of the article is entitled How Valid is the Molecular Clock Hypothesis? And if you'll advance to the next slide, let me just read the last line from the paper. The author says, The validity of a molecular clock, except in closely related species, still remains controversial. So the point is that, extrapolating across wide biological distances, such as from fish to other vertebrates, that is controversial. Maybe similar species, species of mice or some such thing, okay. But when you try to extrapolate further, the model is quite controversial. Q. How does Pandas then address this issue? A. Well, I have here the section from Pandas entitled The Molecular Clock where they discuss exactly all these things. They discuss the molecular clock, the standard molecular clock model, the naive molecular clock model, and then they discuss complications with it. Let me just read this section from Pandas on the molecular clock. They write, quote, Some scientists have suggested that the idea of a molecular clock solves the mystery. The explanation they advance is that there is a uniform rate of mutation over time, so quite naturally, species that branched off from a common ancestor at the same time in the past will now have the same degree of divergence in their molecular sequences. There are some serious shortcomings, however, with this explanation. First, mutation rates are thought to relate to generation times, with the mutation rates for various molecules being the same for each generation. The problem comes when one compares two species of the same taxon, say two mammals, with very different generation times. Mice, for instance, go through four to five reproductive cycles a year. The number of mutations, therefore, would be dramatically higher than, say, those of an elephant. Thus, they should not reflect similar percent sequence divergences for comparable proteins. Besides that, the rates of mutations are different for different proteins even of the same species. That means that, for the molecular clock idea to be correct, there must be not one molecular clock, but thousands. So let me point out here that, in this section, Pandas describes the simple molecular clock idea that was proposed 40 years ago by Zuckerkandl and Pauling, and then talks about the two complications for the model, which are common knowledge and are taught in basic science texts that deal with this issue, the generation time problem and the fact that different proteins accumulate mutations at different rates. And as I have shown from the literature I just cited, that continue to be live issues in the scientific community. Q. In that section you read from on the molecular clock from Pandas are found on page 39, is that correct? A. Yes, that's correct. Q. Again, returning to that slide that Dr. Miller presented in his testimony? A. Yes. I just wanted to go back to that slide where Dr. Miller says -- again, I should say that, in his testimony, which I attended, he, you know, excoriated Pandas on this point. And he says -- on his slide, he says, in fact, the information we have confirms that each of these organisms is equidistant from a common ancestor, which is the actual prediction of evolutionary theory. And that's simply is incorrect. And in my view, Pandas is treating problems that Professor Miller, treating real live problems that Professor Miller shows no signs of being aware of. So I think a student reading this section would actually get a better appreciation for this subject than otherwise. Q. Dr. Behe, in Dr. Miller's testimony, he also criticized another example found in Pandas that had a message such as, quote, John loves Mary, written on the beach, would be a sure sign of intelligence. He claimed that any philosopher, any logician would spot the mistake in logic, because we know a human made that message, and probably made it with a stick, because we have seen such things happen in our own experience. Do you agree with this reasoning? A. No, I disagree with Professor Miller's reasoning. Q. And if I can just say, the example that John loves Mary, and we have a slide up, that's on page 7 of Pandas, correct? A. Yes, that's right. Q. Again, could you explain why you disagree with this reasoning? A. Yes. The inference from the -- the inference from the existence of designed objects in the -- in our world of experience to the conclusion of design in life is an example of an inductive inference. And I think I explained earlier that, in an inductive inference, one always infers from examples of what we know to examples of what we don't know. And the strength of the inference depends on similarities between the, between the inference in relevant properties. For example, in the Big Bang hypothesis, scientists extrapolated, or used inductive reasoning of their knowledge of explosions from our everyday world from things like fireworks and canon balls and so on. They extrapolated from their experience that the motion of objects away from each other bespeaks an explosion. They extrapolated from our common everyday experience to something that nobody had ever seen before, an entirely new idea, that the universe itself began in something like a giant explosion. Nonetheless, they were confident that this was a good idea because they thought the relevant property, the parts moving rapidly away from each other, was what we understand from an explosion. And that's how science often reasons. In the same way, the purposeful arrangement of parts in our everyday experience bespeaks design. Pandas is exactly right, that if we saw such a message on the beach, we could conclude that it had been designed. And William Paley is exactly right, that if we stumbled across a watch in a field, that we would conclude that it was designed, because in each case there is this strong appearance of design from the purposeful arrangement of parts. Now we have found purposeful arrangement of parts in an area where we didn't expect to, in the very cellular and molecular foundation of life, in the cell. The cell again was not understood in Darwin's day. And it is much better understood now. And from the new information we have, again, we see this purposeful arrangement of parts, and it's -- by inductive reasoning, we can apply our knowledge of what we see in our everyday world to a different, completely different realm. And so that sort of inference has been done in science throughout the history of science, and it's a completely valid inference for Pandas to make. Q. Now we've heard some testimony throughout the course of this trial of a program called SETI, S-E-T-I, a project, I believe, that stands for the search for extraterrestrial intelligence? A. Yes. Q. Are you familiar with that project? A. Yes, I am. Q. Whose project is that? A. The search for extraterrestrial intelligence is a project that was, for a while, was sponsored by the federal government. It involved scientists scanning the skies with detectors to see if they could detect some electromagnetic signal that might point to intelligence. Q. Is there a comparison with that project to the discussion you had in here with the John loves Mary on the beach? A. Yes. Again, if they detected something that seemed to have a purposeful arrangement of parts, if they saw something that bespoke a message, then even though we have had no experience with other entities from off the Earth trying to send us a message, nonetheless, we could still be confident that an intelligent agent had designed such a message. And again, whenever we see John -- things like John loves Mary, we can be confident of that. And when we see the purposeful arrangement of parts in the cell, the argument is that, we can be confident of that, that that bespeaks design as well. Q. I want to bring this discussion somewhat down to the molecular level, and ask you whether or not new genetic information can be generated by Darwinian processes. And I want to be more specific and ask whether new genetic information can be generated by known processes such as gene duplication and exon shuffling? A. Well, that's a topic about which you have to be very careful and make distinctions. Q. Okay. Let's start with the gene duplication. If you could explain what that is in the context of generating new genetic information? A. Well, gene duplication is a process whereby a segment of DNA gets copied twice or gets duplicated and replicated so that where one gene was present before, a second copy of the exact same gene is now present in the genome of an organism. Or sometimes larger segments can be duplicated, so you can have multiple copies of multiple genes. Q. Are you saying, duplication, like photocopying, is just making another copy of the gene that was originally existing? A. Yeah, that's a good point. It's important to be aware that gene duplication means that you simply have a copy of the old gene. You have not done anything new. You've just taken the same gene and copied it twice. So it would be like, like photocopying a page. And now you have two pages, but it's just a copy of the first one, it's not something fundamentally new. It would be like saying, the example of Pandas here with John loves Mary. If you walked down the sand another five yards or something, and you came across another message that says, John loves Mary, well, that's interesting, but you don't have anything fundamentally new. Q. Can there be variations though in the duplication of those genes? A. Well, once a gene has duplicated, then the idea goes that, perhaps one of those two copies can continue to perform the function that the single copy gene performed before the duplication, and the other one is sort of a spare copy. Now it's available to perhaps undergo mutation, and mutation accumulate changes, and perhaps Darwinian theory postulates. Perhaps it can go on to develop brand new properties. Q. Does this generate new information? And if you use that John loves Mary example to help explain perhaps? A. Well, again, you have to be careful. Nobody disputes that random mutation and natural selection can do some things, can make some small changes in pre-existing systems. The dispute is over whether that explains large complex functional systems. And to leave the world of proteins for a second, to look at John loves Mary, suppose we're looking at the spare copy, and the first copy was continuing to fulfill the function of conveying that information. Well, you know, suppose you changed a letter. Suppose you changed the final n in the word John to some other, some other letter, like r. That would not spell a name in the English language. So that's kind of an analogy to saying that, you might lose the function of the message in the terms. In the terms of protein, the protein might no longer be functional. But you might get to closeby. You might get to closeby messages. For example, if you deleted the r and the y from the end of Mary, you might get to John loves Ma, or some such thing. But you're not going to get anything radically different from that. Q. So you are operating with the copy. The copy is operating with those same letters, the John loves Mary, or some variation or deletions of that subset? A. That's right. A copy is a copy. It's essentially the same thing. And now the big problem that Darwinian processes face is, now what do you do? How do you generate a new complex function? Q. And that's with gene duplication that we just talked about. Could you explain a little bit about exon shuffling in the context of generating new complex information? A. Yes, exon shuffling is a little bit more involved. It turns out that the gene for a protein can contain regions of DNA that actually code for regions of a protein interrupted by regions of DNA that don't code for regions of a protein. And the regions that code for the part of the protein are called exons. Now it turns out that, in cellular processes, similar to gene duplication and other processes, too, one can duplicate separate exons and sometimes transfer them to different places in the genome and other such processes. But to make it more understandable, we can go back to the analogy of John loves Mary. And in this sense, exon shuffling might be expected to generate something like, instead of John loves Mary, perhaps Mary loves John, or John Mary loves, or something like that. But again, it's kind of a mixture of pre-existing properties, and we're not generatesing something fundamentally new. Q. So, for example, you couldn't generate Brad loves Jen from exon shuffling using your beach example? A. No, I hope not. Q. Do these concepts, particularly gene duplication, exon shuffling, do they have any impact on the concept of irreducible complexity that you've been discussing quite a bit throughout your testimony? A. Yes. In fact, there is an important point to recognize here. Russell Doolittle knew all about the processes of gene duplication and exon shuffling. And as a matter of fact, in the blood clotting cascade, many proteins look similar to each other, and they're often times pointed to as examples of exon shuffling. But nonetheless, that knowledge did not allow him to explain how the blood clotting system might have arisen. Again, these are sequence comparisons. And such information simply does not speak to the question of random mutation and natural selection being able to build complex new biochemical structures. In the same way, the people who are investigating the type III secretory system and the bacterial flagellum know all about gene duplication and exon shuffling. And nonetheless, that information has not allowed them to explain the origin of either of those structures. So those are interesting processes. And people who are convinced of Darwinian theory include those processes in their theory, but they do not explain -- they do not explain where new complex systems come from. And it's an example of somebody accommodating this information to an existing theory rather than getting information that actually experimentally supports the theory. Q. So can random mutation and natural selection generate new information? A. Well, again, that's -- you have to be careful. You can make small changes in pre-existing systems. And that's clearly the case. One can clearly do that. But there has been no demonstration to show that such processes can give rise to new complex systems such as we've been suggesting. And there are many reasons to think that it would be extremely difficult to do so. Q. Have you prepared some slides with a couple -- several quotes that make this point? A. Yes, I do. This first one is an excerpt from a paper from John Maynard Smith, which I spoke about earlier, from 1970 entitled Natural Selection and the Concept of a Protein Space. Let me read the first excerpt. Quote, It follows that if evolution by natural selection is to occur, functional proteins must form a continuous network which can be traversed by unit mutational steps without passing through nonfunctional intermediates, close quote. Again, let me explain. If you can remember the figure of two proteins binding to each other that I showed in -- I showed yesterday, he is speaking of unit mutational steps in terms of one of those interactions, maybe a plus charge and a minus charge or a hydrophobic group and another hydrophobic group. And so to get two proteins to -- or proteins to start change into something new and different with different properties, each one of those changes would have to be a beneficial one, or at least not cause any difficulties for the problem. And actually, seeing how that could happen is extremely difficult. And continuing on this slide. I'm sorry. Could you back up one slide? Thank you. The bottom part of the quotation, he says, quote, An increase in the number of different genes in a single organism presumably occurs by the duplication of an already existing gene followed by divergency. So here, he's kind of describing the standard scenario which -- scenario, which is standard in Darwinian thinking, that one has gene duplication and then divergence of the sequence of a gene, and that gives a brand new interesting and complex protein. But notice that I, of course, underlined and bolded the word presumably. Well, presumably, you know, is a presumption. And it may be true, and it may not. But presumptions are not evidence. And so in order to support this idea, one needs more than the presumption that it occurs. Q. Do you have another citation to a science text? A. Yes, I do. Here's an excerpt from an article by a man named Alan Orr, who is an evolutionary biologist at the University of Rochester. And again, this speaks to the same consideration, that you have to be able to have a pathway that step by tiny step could lead from one functional protein to another. He says, quote, Given realistically low mutation rates, double mutants will be so rare that adaptation is essentially constrained to surveying, and substituting, one mutational step neighbors. Thus, if a double mutant sequence is favorable, but all single amino acid mutants are deleterious, adaptation will generally not proceed. Again, this makes the point that, if you only need to change one little step, Darwinian evolution works fine. But if you need to change two things before you get to an improved function, the probability of Darwinian processes drops off dramatically. If you need three things, it drops off, you know, even more dramatically. And nonetheless, as I showed in that figure of interacting proteins, even to get two proteins to stick together, multiple groups are involved. Q. Did you write about something similar in a paper? A. Yes. The paper that I published with David Snoke last year speaks exactly to this topic. It's entitled Simulating Evidence by Gene Duplication of Protein Features that Require Multiple Amino Acid Residues. And in this theoretical study, we showed that, again, if you need one change, that's certainly doable. If you need two amino acid changes before you get a selectable function, the likelihood of that drops considerably. Three or more, now you're really in the very, very improbably range. So again, gene duplication is not the answer that it's often touted to be. Q. Can you make an analogy here at all to -- you talked about Maxwell and the ether theory? A. Yes. When Darwinian -- adherence to Darwinian theory, when they view that there are similar genes in different -- in the same organism, and they infer a process of gene duplication, it is simply their theoretical framework, which is saying, such a process must be important in generating new and complex structures. That has not been demonstrated. Just like James Clerk Maxwell knew that light was a wave and inferred from his theory that there must be an ether, modern Darwinists infer from something we know, the existence of gene copies to an unproved role of such a process in generating complex biochemical systems. Q. Now Dr. Miller says that Pandas necessarily rejects common descent, and points to a figure -- I believe it was 4.4 on page 99 -- showing separate lines representing categories of animals rather than a branching tree. Do you regard that as ruling out common descent? A. No, I don't. And here's a figure that I made up in the upper right-hand corner. It's figure 4.4 from Pandas, which is the figure that Professor Miller showed, which shows straight lines instead of a branching tree, which is the traditional representation of how -- of the fossil record. Nonetheless, here I regard this as simply trying to describe the data without a theoretical framework, without the branched lines in between. One has to realize that these lines do not occur in the fossil record. These are theoretical constructs. And how one groups things together is theory building rather than data itself. I viewed this as Pandas trying to describe the data without the framework of the existing theory. And I might add that, this was figure 4.4. And earlier, a couple pages earlier, Pandas describes the traditional interpretation of the fossil record in terms of a branching tree. And in this section, section 96 through 100, the meaning of gaps in the fossil record, Pandas describes the traditional tree diagram for the fossil record, and then points to statements by biologists, saying that there seem to be difficulties in this sort of representation, and then goes on to discuss what interpretations, what ideas have been offered to try to account for the form of the fossil record. Pandas writes, Several interpretations have been offered to resolve this problem. That is, that the tree of life doesn't seem to be as continuous as one might expect. Number 1, they say, imperfect record. That is, maybe not all organisms left representative of fossilized specimens. Number 2, incomplete search. And that is, maybe we simply haven't looked in the right places or looked in all the places on the Earth, and maybe when we do, then we will find what we expect to be there. Number 3, what they call jerky process, or which has been called punctuated equilibrium, which was an idea advanced by Steven J. Gould and Niles Eldredge in the 1970's, whereby it said that the mode or the tempo of evolution is one in which a species or a branch of life stays pretty much constant for a long period of time, and then within a relatively short period of time, large changes occur. And then fourth, they say, well, perhaps -- they suggest something called the sudden appearance or face value interpretation, saying that, well, maybe if we see the sudden appearance of some feature or organism in the fossil record, then that, in fact, might be what happened. Nonetheless, as I say, they discuss all of these possibilities, including the standard interpretation. And at the end of the section, they write that, scientists should not accept the face value interpretation of the fossil record without also exploring the other possibilities, and even then, only if the evidence continues to support it. So as I read this, Pandas is telling students that they should follow the data where the data lead. And if the data lead from this model to another model, or from that model to a second model, then a scientific attitude toward the problem is to follow the data, where the data go. Q. Dr. Behe, does intelligent design necessarily rule out common descent? A. No, it certainly does not. Q. Now we've heard testimony from several witnesses claiming that the theory of evolution is no different than, say, the germ theory of disease, so there's no reason to pay any special attention to it. Do you agree with that? A. No, I disagree. Q. And why? A. Well, in a number of ways, evolutionary theory is unique. It's been my experience that students have a number of misconceptions about the theory. They confuse facts with theoretical interpretations. They do not make distinctions between the components of evolutionary theory. And perhaps, most strikingly, a number of people have made very strong extra-scientific claims for the implications of evolutionary theory. Q. Now I just want to return to something you had said about your experience with students. You testified that you teach a course called popular arguments on evolution, is that correct? A. Yes, that's right. Q. And you've been teaching that for 12 years? A. Roughly, yes. Q. Now are there some standard misconceptions that you can point to about the theory of evolution that you find your students bringing to the class? A. Yes. In my experience, a number of students come in thinking that, in fact, evolution is completely true; that is, they don't make a distinction between fact and theory, they don't think it will be falsified, or they don't think there's a possibility of it being falsified. They also confuse various components of evolutionary theory. For example, you can ask a student, you know, why they think Darwinian evolution is correct? And they'll say, you know, because, you know, because of the dinosaurs. And they're mistaking change over time with the question of natural selection. And they will assume that the existence of animals in the past necessarily means that animals in the present were derived from them by random mutation and natural selection. Oftentimes also, students think that utterly unsolved problems, such as the origin of life, have, in fact, been solved by science. I had students tell me that, gee, it's true, right, that science has shown genes being produced in origin of life experiments. So in my experience, students bring a number of misconceptions to this issue. Q. One of the first ones you indicated is that they believe that Darwin's theory of evolution is a fact as opposed to a scientific theory? A. That's right. Q. Does intelligent design seek to address some of these misconceptions? A. Yes. Yes, it does. One way is -- one way to address the problem of students not understanding that the distinction between fact and theory is to at least have at least one more theoretical framework in which to treat facts. If a student has only one theory and a group of facts to think of, it's extremely difficult to distinguish what is theory and what is fact. The little lines connecting various points on, say, a protein sequence comparison are theory, but students can often confuse them, confuse them to be facts. Q. Do you believe these students will be better prepared if they had learned that Darwin's theory of evolution was not a fact and that gaps and problems existed within this theory? A. Yes, I certainly do. They would see that, in fact, if you can look at the data in a couple ways, then they'll more easily distinguish data from interpretation or from theory. And if they are aware that there are problems in a theory, then perhaps they won't expect -- they won't, again, confuse it with a fact, they'll understand that there are some problems that are unresolved. Q. Now you made some indication previously in your answer to my question that there are claims made about the theory that go beyond biology, is that true? A. Yes, that's certainly true. Q. And do you have some slides to demonstrate some of those examples? A. Yes, I have a couple of slides, four slides over -- that point to this. For example, in the high school textbook Biology, which was written by Professor Kenneth Miller and his co-author, Joseph Levine, this is the 1995 version, I think, the third edition, in a section entitled The Significance of Evolutionary Theory, the authors write, quote, The influence of evolutionary thought extends far beyond biology. Philosopher J. Collins has written that, quote, there are no living sciences, human attitudes, or institutional powers that remain unaffected by the ideas released by Darwin's work, close quote. In another example of the implications, the profound implications beyond biology that some people see for Darwin's theory, there's a section in his book, Finding Darwin's God, A Scientist's Search for Common Ground Between God and Evolution, where Dr. Miller writes that, quote, God made the world today contingent upon the events of the past. He made our choices matter, our actions genuine, our lives important. In the final analysis, He used evolution as the tool to set us free. So here is a scientific theory which is being used to support the idea that we are free, we are free, in apparently some metaphysical sense, because of the work of Darwin. In another example -- it's just that -- for example, the expert, Professor John Hauck, the theologian from Georgetown University, has written a number of books, including God After Darwin, a Theology of Evolution. Further example, in -- the evolutionary biologist, Richard Dawkins, in his book, The Blind Watchmaker, writes, Darwin made it possible to be an intellectually-fulfilled atheist. If I could have the next slide. Thank you. The Darwinian philosopher, Daniel Dennett, who's at Tufts University, has described Darwinism as a universal acid that destroys our most cherished beliefs. And he says, quote, Darwin's idea had been born as an answer to questions in biology, but it threatened to leak out, offering answers, welcome or not, to questions in cosmology, going in one direction, and psychology, going in the other direction. If the cause of design in biology could be a mindless, algorithmic process of evolution, why couldn't that whole process itself be the whole product of evolution, and so forth, all the way down? And if mindless evolution could account for the breathtakingly clever artifacts of the biosphere, how could the products of our own real, quote, unquote, minds be exempt from an evolutionary explanation? Darwin's idea thus also threatened to spread all the way up, dissolving the illusion of our own authorship, our own divine spark of creativity and understanding. So again, Professor Dennett sees implications for Darwin's theory that are profound and that extend well beyond biology. Another philosopher by the name of Alex Rosenberg, who's at Duke University, published an article a few years ago in the journal Biology and Philosophy that, quote, No one has expressed the destructive power of Darwinian theory more effectively than Daniel Dennett. Others have recognized that the theory of evolution offers us a universal acid, but Dennett, bless his heart, coined the term. In short, it, that is Darwin's idea, has made Darwinians into metaphysical Nihilists denying that there is any meaning or purpose to the universe, close quote. So again, a number of philosophers, a number of scientists, and so on, see very, very profound implications in Darwin's theory. Two more quotations on this last slide on this topic. Larry Arnhart is a professor of political science at Northern Illinois University. He wrote a book entitled Darwinian Natural Right, The Biological Ethics of Human Nature. And in it, he writes -- and in it, he writes the following, that, quote, Darwinian biology sustains conservative social thought by showing how the human capacity for spontaneous order arises from social instincts and a moral sense shaped by natural selection in human evolutionary history. So let me emphasize that he sees implications for politics from Darwin's theory. And the same -- and a Princeton University philosopher by the name of Peter Singer has written a book entitled A Darwinian Left, Politics, Evolution, and Cooperation. And in it, he writes that we should try to incorporate a Darwinian ethic of cooperation into our political thought. So the gist of Professor Singer's book is that, Darwinian ideas support a liberal political outlook. And he argues for that. So, again, these -- all of these people see profound implications for Darwin's theory well far beyond biology. Q. These are non-scientific claims, correct? A. Yes, that's correct. Q. Have you come across any similar claims made about, say, the germ theory of disease? A. I have never seen the germ theory of disease argued to say how we should conduct our political life. Q. How about atomic theory? A. I have never seen atomic theory used in such profound senses either. So my point then is that, it is perfectly rationale to treat a scientific theory, which so many people have claimed such profound implications for, to treat it differently from other scientific theories for which such far-reaching implications have not been claimed. It might be very important, and I think a school district would be very justified to say that, since this particular theory seems to reach far beyond its providence, then we should take particular care in explaining to our students exactly what the data is for this theory, exactly what is the difference between theory and fact, exactly what is the difference between theory and interpretation. And so I think such an action would be justified. Q. Sir, I want to ask you some questions about creationism as it relates to intelligent design. First of all, let me ask you, does creationism have a popular meaning or is there a popular understanding of that term? A. Well, again, you have to be careful, because many words in these discussions can have multiple meanings. And if you're not very careful about your definitions, you'll easily become confused. Creationism -- creationist has sometimes been used, as John Maddox, the editor of Nature, used it, simply to mean somebody who thinks that nature was begun by a supernatural act, by God, and the laws of nature perhaps were made of God, and unfolded from there nonetheless. Q. That would be similar to Dr. Miller's view towards evolution that he had written in his book Finding Darwin's God? A. Yes, that seems to be consistent with what he wrote. But nonetheless, in the popular useage, creationism means -- creationist means somebody who adheres to the literal interpretation of the first several books -- or first several chapters of the Book of Genesis in the Bible, somebody who thinks that the Earth is relatively young, on the order of, say, 10,000 years, that the major groups of plants and animals and organisms were created ex-nihilo in a supernatural acts by a supernatural being, God, that there was a large worldwide flood which is responsible for major features of geology, and so on. Q. Now we've heard different terms; young-earth creationism, old-earth creationism, and special creationism. And you have familiarity with those terms, is that correct? A. Yes, that's right. Q. Is intelligent design creationism, whether you call it young-earth creationism, old-earth creationism, or special creationism? A. No, it is not. Q. And why not? A. Creation -- creationism is a theological concept, but intelligent design is a scientific theory which relies exclusively on the observable, physical, empirical evidence of nature plus logical inferences. It is a scientific idea. Q. Is it special creationism? A. No, it is not special creationism. Q. Again, why not? A. Again, for the same reason. Creation is a theological religious concept. And intelligent design is a scientific idea, which is based exclusively on the physical, observable evidence plus logical processes. Q. Dr. Miller has made a claim that if the bacterial flagellum, for example, was designed, then it had to be created, and is, therefore, special creationism. Is that accurate? A. No, that is inaccurate. The reason it's -- again, creation is a theological concept. It is a religious concept. But intelligent design is a completely scientific concept which supports itself by pointing to observable, physical, empirical facts about the world, about life, and makes logical inferences from them. Q. Does intelligent design require that the bacterial flagellum, for example, instantaneously appear from nothing? A. No, it does not. Q. Why not? A. Because intelligent design focuses exclusively on the deduction of design from the purposeful arrangement of parts. And it says nothing directly about how the design was effected, whether it was done quickly, or slowly, or whatever. So it has nothing to say about that. Q. Could the bacterial flagellum have been designed over time? A. Yes, it could. Q. Does intelligent design require ex-nihilo creation? A. No, it does not. Q. Why not? A. Because again, the term ex-nihilo creation is a theological concept, a religious concept. And intelligent design is a scientific idea that relies on observable facts about nature plus logical inferences. Q. Is there, again, an analogy you can make here to the Big Bang theory? A. Yes. Yes, there is. Again, many people, including many scientists, saw in the Big Bang theory something that had theological implications, maybe this, this Big Bang was ex-nihilo creation by a supernatural being. And many people who saw that didn't like that. Nonetheless, the Big Bang theory itself is an utterly scientific theory because it relies on observations, physical observations, empirical observations about nature, and reasons from those observations using logical processes. Q. Is intelligent design a religious belief? A. No, it isn't. Q. Why not? A. Intelligent design requires no tenet of any particular religion, no tenet of any general religion. It does not rely on religious texts. It does not rely on messages from religious leaders or any such thing. The exclusive concern of intelligent design is to examine the empirical and observable data of nature and reason from that using logical processes. Q. Now some claim that intelligent design advances a religious belief, that it is inherently religious and not science. Do you agree? A. No. Again, no more than the Big Bang theory is inherently religious. Although the Big Bang theory and intelligent design might be taken by some people to have theological or philosophical implications, both of them rely on observed evidence, empirical evidence, and logical reasoning. Neither the Big Bang nor intelligent design relies on any religious tenet, points to any religious books, or any such thing. Q. Do creationists in the sense that Plaintiffs and, I believe, their experts use in this case require physical evidence to draw their conclusions? A. No. Actually, it's interesting that one could be a creationist without any physical evidence. One could rely -- a creationist could rely for his belief in creation on, say, some religious text or in some private religious revelation or some other non-scientific source. So a creationist does not need any physical evidence of the kind that, for example, Richard Dawkins sees in life that leads him to think that life has the strong appearance of design or the kind that David DeRosier sees in the bacterial flagellum. A creationist can believe in creation without any such physical evidence. Q. Is that different than from a proponent of intelligent design? A. Yes, that's vastly 180 degrees different from intelligent design. Intelligent design focuses exclusively on the physical evidence. It relies totally on empirical observations about nature. It does not rely on any religious text. It does not rely on any other such religious information. It relies exclusively on physical evidence about nature and logical inferences. Q. Are intelligent design's conclusions or explanations based on any religious, theological, or philosophical commitment? A. No, they are not. Q. Again, can you draw any comparisons between intelligent design and the Big Bang theory in this regard? A. Yes. Again, the -- both the Big Bang theory and intelligent design may have philosophical or theological implications in the view of some people, but again, both are scientific theories. Both rely on observations about nature. Both make reasoned conclusions from those observations about nature. Q. Does intelligent design require adherence to the literal reading of the Book of Genesis? A. No, it does not. Q. Does intelligent design require adherence to the belief that the Earth is no more than 6 to 10,000 years old? A. No, it doesn't. Q. Does intelligent design require adherence to the flood geology point of view which is advanced by creationists? A. No, it doesn't. Q. Does intelligent design require the action of a supernatural creator acting outside of the laws of nature? A. No, it doesn't. Q. Could you explain? A. Yes. Making an analogy again to the Big Bang theory, the Big Bang theory is a theory which is advanced simply to explain the observations that we have of nature, and it does so by making observations and making inferences. It does not posit any supernatural act to explain the Big Bang. It leaves that event unexplained. Perhaps in the future, science will find an explanation for that event. Perhaps it won't. But nonetheless, the Big Bang is a completely scientific theory. Again, intelligent design is a scientific theory that starts from the data -- the physical, observable data of nature, and makes reasoned conclusions from that and concludes intelligent design. Scientific information does not say what is the cause of design. It may never say what is the cause of design. But nonetheless, it remains the best scientific explanation for the data that we have. Q. Can science then identify the source of design at this point? A. No, not at this point. Q. Does intelligent design rule out a natural explanation for the design found in nature? A. No, it does not rule it out. Q. Could you explain? A. Yes. Again, harkening back to the Big Bang theory, the Big Bang theory was proposed, and the cause of the Big Bang was utterly unknown. It's still utterly unknown. But nonetheless, the Big Bang theory is a scientific theory. The Big Bang theory does not postulate that the Big Bang was a supernatural act. Although, you know, it simply posits no explanation whatsoever. In the same sense, intelligent design is a scientific theory advanced to offer -- advanced to explain the physical, observable facts about nature. It cannot explain the source of the design and just leaves it as an open question. Q. We've heard testimony about methodological naturalism. Are you familiar with that term? A. Yes, I am. Q. I believe you indicated in your deposition that you thought it hobbles or even constrains intelligent design, is that correct? A. Yes, that's right. Q. How does it do so? A. Well, any constraint on what conclusion science can come to hobbles all of science. Science should be an open, no-holds-barred struggle to obtain the truth about nature. When you start putting constraints on science, science suffers. Yesterday, I discussed a man named Walter Nernst who said that the timelessness of nature, the infinity of time was a necessary constraint on a scientific theory. Science had to operate within that framework. If he had prevailed, progress, real progress in science would have been severely constrained. Another reason why methodological naturalism can be a constraint on science is because oftentimes people don't think -- don't separate neatly categories in their own minds. For example, I showed the -- I showed the quotation from John Maddox, the editor of Nature, who found the Big Bang theory philosophically unacceptable and was reluctant to embrace it because of that. There are other scientists in the past, one named Fred Hoyle, who rejected the Big Bang theory because he did not like its non-scientific, extra-scientific implications. So to the extent that people confuse a scientific theory with extra-scientific implications that some people might draw from it, then that might -- that might be a constraint upon the theory. Q. Despite these constraints, does intelligent design still fit within the framework of methodological naturalism? A. Yes. Despite the constraints, it certainly does, just as the Big Bang theory does. Q. Now we've heard some testimony about space aliens and time traveling biologists. And I believe you made some similar reference to that in your book, Darwin's Black Box, is that correct? A. Yes. Q. And why was that? A. Well, this was, you know, a tongue-in-cheek effort to show people that, you know, intelligent design does not exclude natural explanations, although some, you know, explanations we might wave our hands to think up right now might strike many people as implausible, they are not, you know, utterly illogical. And it was kind of a placemaker to say that maybe some explanation will occur to us or be found in the future which will, in fact, be a completely natural one. Q. Now the space alien claim in particular seems to fall hard on the ear of a lay person. But has that been a claim that has been advanced by a notable scientist to explain the natural phenomena? A. Yes, that's right. Surprisingly, in the year 1973, a man named Francis Crick, the eminent Nobel laureate who discovered the double helicle shape of DNA with James Watson, he published, with a co-author named Leslie Orgle, he published a paper entitled Directed Panspermia, which appeared in the science journal Icarus. And the gist of the paper was that the problems trying to think of an unintelligent origin of life on Earth were so severe that perhaps we should consider the possibility that space aliens in the distant past sent a rocket ship to the Earth filled with spores to seed life on the early Earth. Q. This was a claim advanced by a Nobel laureate? A. Yes, Francis Crick. Q. And the article in which his arguments appear, was this a peer reviewed science journal? A. Yes, the journal Icarus. Q. Was this just a tongue-in-cheek, so to speak, explanation on behalf of Francis Crick? A. No, it wasn't. He mentioned it first in that 1973 article, and he repeated the same claim in a book he published in '88 and interviews he gave later on. And from what I understand, he still thought it was a reasonable idea up until his death recently. Q. Sir, I'd ask you to direct your attention to the exhibit binder that I have provided for you, and if you could go to tab 14. There is an exhibit marked as Defendants' Exhibit 203-E as echo. Is that the article from Francis Crick that you've been testifying about? A. Yes, this is Francis Crick's article on Directed Panspermia. Q. Is the search for intelligence causes a scientific exploration? A. Yes, it is. Q. Again, do you have any examples that we could point to? A. Well, one good example is one that I mentioned earlier, which is this project called the SETI project, S-E-T-I, which stands for search for extraterrestrial intelligence, where scientists use instruments to scan space in the hope of finding transmissions or some signals that may have been sent by extraterrestrial sources. And they are confident that they could be able to distinguish those signals from the background noise, background radiation, electromagnetic phenomena of space. Q. Again, that's a scientific exploration? A. Yes, a number of scientists are involved in that. MR. MUISE: Your Honor, I'm just -- do you intend to go to 12:30? THE COURT: I was thinking more 12:15, unless you think that this is an appropriate break point. Your call. MR. MUISE: I certainly have more than 15 minutes. This next section might be divided in that 15, so my preference would be to take the lunch break and come back and then complete the direct during the first session after lunch. THE COURT: All right. We'll return then at, let's say, 1:25, this afternoon, after a suitable lunch break, and we'll pick up with your next topic on direct at that time. We'll be in recess. (Whereupon, a lunch recess was taken at 12:04 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 11 (October 18), PM Session, Part 1 (1:25 p.m., convene.) (Direct examination of Dr. Michael J. Behe continued.) THE COURT: Be seated, please. All right, back to you, Mr. Muise. MR. MUISE: Thank you, Your Honor. May I approach the witness? THE COURT: You may. BY MR. MUISE: Q. Dr. Behe, I've handed you what's been marked as defendant's exhibit 220, which is a copy Of Pandas and People, the second edition. Do you see that? A Yes, I do. Q. I would like to direct your attention to page 99, please. I would like to read to you and oft-quoted passage in this case thus far. If you'll look at the bottom on page 99, it's going to continue onto 100 as well. It says, quote, 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, et cetera. Some scientists have arrived at this view since fossil forms first appeared in the record with their distinctive features intact and apparently fully functional rather than gradual development. And I would like to get your reaction to that section? A Well, it says -- it says that some scientists have arrived at this view. I think that's a way of saying that this is a matter of disagreement and dispute. I certainly do not think that intelligent design means that a feature has to appear abruptly. And I -- I certainly would have written this differently if I had done so. Q. Now, you say you would have written it differently. Is there another reference or another section in Pandas that you could direct us to to emphasize that point? A Yes. I wrote the section at the end of Pandas which is discussing blood clotting. And on page 144 of the text there's a section entitled "A Characteristic of Intelligent Design." And it begins, "Why is the blood clotting system an example of intelligent design? The ordering of independent pieces into a coherent whole to accomplish a purpose which is beyond any single component of the system is characteristic of intelligence." Q. And why did you direct us to that particular section? A Because I think it more clearly conveys the central idea of intelligent design, which is the purposeful arrangement of parts. Q. Do you see that then as a, perhaps a better characterization, or more accurate characterization of intelligent design? A Yes, I like this a lot better. Q. Now I want to read you a couple of quotes regarding this notion of abrupt, or abrupt appearance. This one is from Ernst Mayr, from One Long Argument, which is one of the documents you had referenced in your testimony. It says, quote, Paleontologists have long been aware of a seeming contradiction between Darwin's partial of gradualism and the actual findings of paleontology. Following phyletic lines through time seem to reveal only minimal gradual changes but no clear evidence for any change of a species into a different genus or for the gradual origin of an evolutionary novelty. Anything truly novel always seem to appear quite abruptly in the fossil record, end quote. I want to read you one more quote, and this is from a writing by a gentleman whose last name is Valentine. Quote, It is this relatively abrupt appearance of living phyla that have been dubbed the Cambrian Explosion, end quote. Do you see those -- those references to abrupt that I just read to you comparable to the reference in Pandas? A Yes, they seem to be talking about the same things. Q. Well, Dr. Padian, if my recollection is correct, testified that the two were speaking of different things, the quotes that I read to you were speaking of abrupt in the sense of geological time whereas Pandas is not speaking so much to that effect. MR. ROTHSCHILD: Objection, it's mischaracterizing Dr. Padian's testimony. THE COURT: In what sense? MR. ROTHSCHILD: Dr. Padian is referring to the appearance of fossils in the record, not to the abrupt appearances of creatures for the first time. He's not talking about, in the sense of geological, he's talking about the fossils -- when we find fossils. THE COURT: Well, the precursor to your question assumed that you weren't sure if you had it right. If you're going to cite to Dr. Padian's testimony, you ought to be sure. MR. MUISE: Your Honor, I can ask a question, I think, which I think I have a pretty decent recollection of what it was. But I can ask the question where I don't have to refer to Dr. Padian but I think it will achieve the objective. THE COURT: That might resolve the problem. If you're going to try to paraphrase Dr. Padian without referring to a transcript I think you're going to get potentially some difficulty. So I'll sustain the objection on that basis. You can rephrase. BY MR. MUISE: Q. Dr. Behe, do you see -- well, those quotes that I -- that I read to you, and the quote out of Pandas which you read, you already testified that you see them similar in a sense. Do you see that they're similar in a sense that abrupt is speaking to this -- a concept in geological time? A Yes. Pandas is speaking of the fossil record, from what I read. So how else can we tell about the appearance except the appearance in the fossil record? So I think it's -- it's exactly the same. It's the appearance, the abrupt appearance, as Mayr and James Valentine said, of these things in the fossil record. Q. You indicated that intelligent design doesn't require abrupt appearance, is that correct? A Yes, that's right. Q. Does it say anything directly about the pace of change? A No. Again, intelligent design simply is the theory that designed features can be detected from the physical -- physical evidence of nature, it's seen in the purposeful arrangement of parts, but it does not say anything directly about how fast such a thing might go, how slow such a thing might go, or other interesting questions. Q. And if there's an abrupt appearance of fossils in the record, would that be consistent or inconsistent with intelligent design? A It's completely consistent with intelligent design. An abrupt appearance, a slow appearance; intelligent design does not speak to the pace of such things. Q. And I believe you testified previously you would have perhaps written that section differently. A Yes. The way I would have put it is the way I did put it in the section on blood clotting. Q. I d like to ask you to turn to page 100 of Pandas. I want to continue down on that same section. And it says, quote, This alternative suggests that a reasonable, natural cause explanation for origins may never be found, and then intelligent design best fits the data, end quote. And I d like to get your reaction to that sentence. A Well, it seems perfectly sensible to me. It seems quite correct. We currently don't have a natural cause explanation. We might never have one. But a natural cause explanation is not being ruled out. And the development of a natural cause explanation in the future is not being ruled out. And you know it s, again, it's likened to the Big Bang theory. The Big Bang theory did not postulate a natural cause explanation for the Big Bang. We don't currently have a natural cause explanation for the Big Bang. We may never have a natural cause explanation for the Big Bang. But nonetheless, the Big Bang theory is thought by physicists to best fit the data that we currently have. And right now I think intelligent design also best fits data that we currently have. Q. So Dr. Behe, do you think Pandas would be a good book, a good reference book for students to have access to? A Yes, I do. Q. And why is that? A Well, because in order to best discern the difference between facts and theories, it's extremely useful to be able to view facts from a couple of different theoretical perspectives. It would help a student separate theory from facts. It would help show a student that the strength of facts, the strength of support that facts lend to a theory can oftentimes depend on a theory -- excuse me, a theoretical perspective somebody committed to a theory might see the facts as more strongly fitting the theory than somebody else. It also might help the student see that difficulties with the theory -- the strengths of the difficulties are also relative to the viewpoints that people bring to the table, that somebody who views a theory as very strongly supported already like, for example, the ether theory of light, will view difficulties with the theory a lot differently and perhaps a lot more permissively than somebody who does not share the same theoretical perspective. So I think it would be very good for that purpose. Q. So you're aware that a statement is read to students at Dover High School? A Yes. Q. And I would like to read to you the statement, and I'll represent to you this is the statement that was prepared to be read in January of 2005: "The Pennsylvania academic standards requires students to learn about Darwin's theory of evolution, and eventually take a standardized test of which evolution is a part. Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. Theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book Of Pandas and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standard-based assessments." Is it your understanding that's the statement that is read to the students? A Yes. Q. Did I say anything in that short statement that in your expert opinion would cause any harm to a student's science education? A No, I can't see anything. Q. Now, the first paragraph says, "The Pennsylvania academic standards requires students to learn about Darwin's theory of evolution and eventually take a standardized test of which evolution is a part." What does that say to you? A If I were a student it would say that I was going to be tested on evolution, so if I wanted to do well that I should study hard. Q. The second paragraph, "Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. Theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations." Is that accurate? A Yes, all those sentences sound exactly accurate, and the students should understand those. Q. "Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book Of Pandas and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves." Do you have any problem with that paragraph? A That sounds like -- sounds fine as well. Q. And finally, "With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standard-based assessments." What does that say to you? A That sounds reasonable as well. Q. And do you think it's good advice to inform students that with respect to any theory they ought to be encouraged to keep an open mind? A I think it's very good advice to pass on. Q. Now, Dr. Alters, who testified in this case, reviewing that same one-minute statement that I read to you, said this: Quote, Now, what this policy is doing is saying there is this other scientific view that belongs, it belongs in the game of science, and it's the one that most students will perceive as God friendly. It has as intelligent designer; evolution doesn t. Now, students are going to be in there discussing out in the playground, discussing in their class, among themselves, or whatever, that the unit that they're now about to hear about, the evolution unit that's now coming up, is the one that's not God friendly, the one scientific theory that doesn't mention God; but this other so-called scientific theory, intelligent design, is God friendly, because there's a possibility that God has this other theory. What a terrible thing to do to kids. I mean, to make them have to think about defending their religion before learning a scientific concept. How ridiculous. This is probably the worst thing I ever heard of in science education." What is your reaction to that opinion? A It's strikes me as, what shall I say, histrionic even. It seems utterly unconnected to the text of the statement that you just read a minute ago. I can't see any connection between what Dr. Alters said and the statement that you read. You know, it makes me suspect that the reaction has more to do with Dr. Alters conceptions and misunderstandings and other things than it has to do with the statement itself. Q. Dr. Padian offered his opinion that this one-minute statement would cause confusion for students and have them wondering such things as what good is prayer and why is there suffering. What is your reaction to those claims? A It's hard to -- it's hard to know what to say to something like that. A couple things is -- again, you know, it strikes me as utterly unconnected to the text of the statement that was read, and I can't imagine where Professor Padian is getting this from. I doubt that it's from his paleontological expertise. And, again, it makes me think that -- that it says more about where he's coming from, more about where -- what he's thinking, his frame of mind, than it says about the statement itself. Q. Sir, you're aware that a newsletter was sent out by the district that discussed some of the biology curriculum? A Yes. Q. I want to ask you some section -- ask you some questions about some sections of this. Here is the first one. "Students are told of the theory of intelligent design, ID. Isn't ID simply religion in disguise? No, the theory of intelligent design involves science versus science, where scientists, looking at the same data, come to different conclusions. The theory does not mention or discuss God, Christianity, or the Bible in any way." Is that accurate? A That's exactly right. It's completely accurate. Q. And another one, "What is the theory of evolution? The word evolution has several meanings, and those supporting Darwin's theory of evolution use the confusion in definition to their advantage. Evolution can mean something as simple as change over time, which is not controversial, and is supported by most people. However, evolution in its biological sense means a process whereby life arose from non-living matter and subsequently developed by natural means, namely, natural selection acting on random variations." Is that accurate? A Yeah, and that sounds clear. I might have phrased things differently but, you know, it's been my experience that people confuse the different meanings of evolution and think that because there's such a thing as change over time, that Darwin's theory might not necessarily be correct. So yes, that seems perfectly fine. Q. Here's another one. Quote, What is the theory of intelligent design? The theory of intelligent design, ID, is a scientific theory that differs from Darwin's view, and is endorsed by a growing number of credible scientists. ID attempts to explain the complexity of the world by interpreting the scientific data now available to modern biologists. Its principal argument is that certain features of the universe are best explained by an intelligent cause rather than undirected causes such as Darwin's theory of natural selection. That's the first paragraph in the answer. Do you have any problem with that section? A That sounds reasonable. Q. And then the second paragraph. "In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts which cannot be explained by Darwin's theory. In fact, since the 1950s, advances in molecular biology and chemistry have shown us that living cells, the fundamental units of life processes, cannot be explained by chance." What's your reaction to that section? A Well, I think I would have phrased things somewhat differently, but I think for a newsletter, it's fine. It speaks about the purposeful arrangement of parts, which is exactly right, that's the heart of detecting design. So I think it does a good job at getting across the idea. Q. Now, if something is in a newsletter, would that necessarily be something that you would endorse to be part of a science class or in a science text? MR. ROTHSCHILD: Objection. He has no basis to testify about that. He's making a -- he's asking for a statement about whether this is or is not part of the Dover science curriculum. MR. MUISE: I don't believe that had anything to do with what my question was, Your Honor. I was asking him about the phrasing of these, whether they would be phrased similarly if he was going to provide similar explanations in a science class or in a science context, would he perhaps do it differently than he would in a newsletter. THE COURT: Well, he objected to the question as it was framed, because he wouldn't have any basis as an expert -- anybody, I suppose, could give an opinion the way you phrased your question. So I'll sustain the objection, but you might be able to get at it through a different question. You'll have to rephrase. MR. ROTHSCHILD: If the question is, you know, take that same language, is this what you d tell the student -- is this what you d tell the students, I have no objection to the question. MR. MUISE: That's not my question. THE COURT: Well, he tried. MR. MUISE: I'm sorry? THE COURT: He tried. MR. MUISE: He can ask that one on cross, Your Honor; this is my witness. THE COURT: Mr. Muise has the floor, he'll figure it out. BY MR. MUISE: Q. Again, Dr. Behe, that last section that I read to you, I believe you testified that you thought that would be fine for a newsletter, is that correct? A Yes. Q. Well, as a teacher of science, if you were going to express something similar to that in a science book or in a science text, would you perhaps word it differently? A Yeah, I would rewrite it more carefully, sure. Q. In terms for a newsletter you believe it's sufficient for the lay person? A It, as I said, it gets across that core idea of the purposeful arrangement of parts, which I argued about extensively here. So I -- I think that's the most important point, yes, I think that's good. Q. And one more, Dr. Behe. Quote, Are there religious implications to the theory of ID? And here's the answer. Quote, Not any more so than the religious implications of Darwinism. Some have said that before Darwin, quote, we thought the benevolent God had created us. Biology took away our status as made in the image of God, end quote, or, quote, Man is the result of a purposeless process that did not have him in mind, he was not planned, end quote, or, Darwinism made it possible to be an intellectually fulfilled atheist, end quote. Is that question and answer accurate? A Yeah, I probably would rewrite that one too. But it certainly is true that scientific theories oftentimes have what people think of as philosophical and theological implications. Philosophers, theologians all the time draw on scientific theories. I think that a number of the experts in this case have written books that impinge on the philosophical and theological aspects of Darwinism. So that's a perfectly -- perfectly correct statement. Q. Dr. Behe, should school districts such as the Dover Area School District make students aware of intelligent design as a scientific theory during their class instruction of Darwin's theory of evolution? A I'm sorry, I missed the question. Q. I'm sorry. Should school districts such as the Dover Area School District make students aware of intelligent design as a scientific theory during their class instruction of Darwin's theory of evolution? A Yes, I think that's a good idea. Q. And why? A Because in order for a student to properly appreciate the difference between fact and theory, one needs at least a couple of different theoretical perspectives to view facts from. If a student is only given one theoretical framework in which to view a theory, then the danger is that the theory will blend into the facts and students will not be able to distinguish the two. Indeed, grown up scientists and philosophers oftentimes have the difficulty. Additionally, the ability to view a set of facts from a different framework allows a student to judge whether some difficulties for one theory are either greater or lesser. It's been my experience that somebody who is convinced that a theory is true will view difficulties as minor annoyances, or maybe ignore them altogether. But somebody who is not convinced of that theoretical framework might see those difficulties as much more telling and weighty than the first person. And the third reason is that the strength of evidence supporting a theory, or even whether facts brought to bear have anything to do with a theory, oftentimes depends on a person's theoretical perspective that a person brings to the table in the first place. Sometimes a person who has a theoretical perspective will view data that is newly obtained as support for the theory, whereas somebody outside of that will think of it as either irrelevant or not -- or not supporting the theory as strongly as the first person. So I think it's very useful for a student to view data from a number of different perspectives. And so I think it would be good for that purpose. Q. Does Dover's policy at issue in this case support good science pedagogy? A Yes, I think so. MR. MUISE: Turn over the witness for cross, Your Honor. THE COURT: All right. Thank you, Mr. Muise. And Mr. Rothchild, you may commence cross examination. MR. ROTHSCHILD: If I could have one moment to get organized, Your Honor? THE COURT: Certainly. (Pause.) CROSS EXAMINATION BY MR. ROTHSCHILD: Q. Good afternoon. A Good afternoon, Mr. Rothschild. Q. How are you? A Fine, thanks. Q. Professor Behe, do you have a copy of your deposition and expert report up there with you? A No, I don t. Q. And I'm also going to give you a copy of what we ve marked as exhibit 718, which is your reply to critics which we'll be referring to throughout the afternoon. A Okay. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. And I saw that you had a copy of Pandas, but do you have a copy of Darwin's Black Box with you? A No, I don t. Q. I am surprised you're ever without one. A Hard copy. Q. I have the dog-eared paperback. Professor Behe, there are many many peer-reviewed articles regarding the Big Bang theory, correct? A Yes. Q. You commented on the newsletter, and I'm going to ask Matt to pull that up on our screen, it's exhibit 127. And if you would turn to the second page, which is where I would like you to be. And if you could highlight the first full paragraph under, What is the Theory of Intelligent Design. And it says in the last sentence, "Its principal argument is that certain features of the universe are best explained by intelligent cause rather than undirected causes, such as Darwin's theory of natural selection." Is that right? A Yes. Q. But you told us earlier today that intelligent design has nothing to do with cause, correct? A No, that's not -- that's not correct. In this sense I mean that it began in -- at some point intelligence was involved in the production of the designed feature. Q. Intelligence was the cause? A Intelligence is not the -- well, in order to produce something, one needs a number of different -- of different events. One needs not only intelligence, but then one needs a way to carry it out. For example, similarly, say with the Big Bang, we can see that the universe began in a large explosion, but we do not have a cause for it other than that. Q. But here Dover is telling its community, intelligent design is about intelligent causes, correct? A Yes. Q. Professor Behe, could you turn back to page 99 of Pandas. MR. ROTHSCHILD: And Matt, if you could highlight the text on 99 to 100 that we're all so familiar with. BY MR. ROTHSCHILD: Q. And that's the text that says, "Intelligent design means that various forms of life began abruptly through an intelligent agency." Correct? A Yes. Q. It talks about the life beginning abruptly, not just appearing abruptly, correct? A Well, that's certainly the word it used, but we can ask, how do we know it began abruptly? The only way that we know it began abruptly is through the fossil record. Q. But beginning is different than appearances in the fossil record, correct, Professor Behe? A I don't take it to mean that way, no. Q. Now, you said you wouldn't have described intelligent design this way, correct? A Yes. Q. But that's how it's being described to the students at Dover who go to look at the Pandas textbook. A Well, that's one of the places, yes. Q. And would you agree with me that if one substituted the word "creation" for "intelligent design" there, Creation 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, the statement would be equally apt? A Apt? Q. Would make just as much sense as the sentence that's up there? A Well, I think the sentence as it is drafted is somewhat problematic, as I said in my direct testimony, so I would not say that either one was apt. Q. That's not a good definition of creation or creationism? A I don't think so, no. Q. Would it be a good definition of special creation, Professor Behe? A I don't think so either. Q. You don't have a degree in education, do you? A No, I don t. I have a degree in biochemistry. Q. And you have not taught at the primary or secondary level? A No, I haven t. Q. And other than Pandas, you have not prepared a textbook for high school students other than Pandas? A That's correct. Q. Before we leave Pandas, you said this was not a statement you would have signed off on, correct? A Yes. Q. But you actually were a critical reviewer of Pandas, correct; that's what it says in the acknowledgments page of the book? A That's what it lists there, but that does not mean that I critically reviewed the whole book and commented on it in detail, yes. Q. What did you review and comment on, Professor Behe? A I reviewed the literature concerning blood clotting, and worked with the editor on the section that became the blood clotting system. So I was principally responsible for that section. Q. So you were reviewing your own work? A I was helping review or helping edit or helping write the section on blood clotting. Q. Which was your own contribution? A That's -- yes, that's correct. Q. That's not typically how the term "critical review" is used; would you agree with that? A Yeah, that's correct. Q. So when the publishers of Pandas indicate that you were a critical reviewer of Pandas, that's somewhat misleading, isn't it? MR. MUISE: Objection. Assumes that he understands what their purpose for listing him as a critical reviewer. THE COURT: He just answered the question that that's not a critical review, so the objection is overruled. You can ask that question. BY MR. ROTHSCHILD: Q. Advertising you as a critical reviewer of this book is misleading to the students, isn't it? MR. MUISE: Objection, that's argumentative. THE COURT: It's cross examination. It's appropriate cross. Overruled. THE WITNESS: I'm sorry, could you repeat the question? BY MR. ROTHSCHILD: Q. Telling the readers of Pandas that you were a critical reviewer of that book is misleading, isn't it? A I disagree. As I said, that's not the typical way that the term "critical reviewer" is used, but nonetheless, in my opinion I don't think it is misleading. Q. Professor Behe, are you aware that a new edition of Pandas is being developed called, The Design of Life? A Yes. Q. Are you an author of that book? A I am not an author of that book. Q. Are you aware that William Dembski is one of the authors of that book? A Yes, I ve heard such, yes. MR. ROTHSCHILD: Matt, could you pull up exhibit 621. And that's the expert report of William Dembski that was submitted in this case before he withdrew as an expert. Could you go to page ten, and highlight the first paragraph Of Pandas and People. BY MR. ROTHSCHILD: Q. And you see there he's discussing the new version Of Pandas and People, The Design of Life? A I'm sorry? Q. Do you understand him to be describing his work on a new book called, The Design of Life? A Give me a chance to read this please. Q. Absolutely. (Pause.) A Yes. Q. And Mr. Dembski, who is the author of Design of Life, described you as a co-author of the book, correct? A That's what he does, yes. Q. That's false, isn't it? A Again, I am not an author of the book, but William Dembski, several years ago, asked if I would contribute. And I explained to him that I did not have the time to do so. And he says well, perhaps, you know, in the future he could solicit material from me and then I would be one of the authors of the book. So, that's correct. Q. So that makes you a co-author right now, Professor Behe? A I certainly would not have listed myself now as a co-author, however, I think that he was anticipating my future participation in the project. Q. So that's a true statement, Professor Behe, that you're a co-author? A It is not now a true statement but it might be in the future. Q. Okay. MR. ROTHSCHILD: Matt, could you pull up the deposition of Jon Buell. BY MR. ROTHSCHILD: Q. Professor Behe, you know who Jon Buell is, correct? A Yes, I do. Q. He's the president of Foundation for Thought and Ethics? A Yes, that's right. Q. And they were the publisher of Pandas when you participated? A That's correct. Q. And you're familiar with who the Foundation for Thought and Ethics is? A Yes. Q. And you're familiar with their mission? A I can't say that I'm familiar with the mission. I know Jon Buell, I ve spoken with him a number of times and met with him and participated in activities with him, yes. Q. And this is a deposition that was taken in this case of Mr. Buell on July 8, 2005. MR. ROTHSCHILD: Matt, could you go to page 129, and highlight lines 11 to 13. Make it easy on you, may I approach the witness? THE COURT: You may. BY MR. ROTHSCHILD: Q. If you could turn to pages 129 -- to page 129 of the deposition. A Yes. Q. And look at line 11. And Mr. Buell is asked, "Who are the authors of Design of Life as you understand it?" And can you read his answer? A He says, "Kenyon, Davis, Dembski, Behe and Wells, Jonathan Wells." Q. So Mr. Buell thinks you're an author too? A That's correct. I think he's working under the same impression as Bill, that he wanted to get together people who were most involved with the intelligent design movement to have a book which would be authored by them. And again, I told them that right now I was too busy. I told them that a couple years ago. But I said that perhaps in the future I could be involved. Q. Mr. Behe, this statement is false, isn't it? A I'm sorry? Q. The statement is false, isn't it? A What statement is that? Q. The statement that you're an author, and Mr. Dembski's statement is false too, isn't it? A That's not what it says on the screen, sir. It says, "Who are the authors of Design of Life as you understand it?" And the way I read that is that he's seeing into the future and seeing when this actually will be published and anticipating that I will participate in the publication of the book at that point. Q. Seeing into the future is one of the powers of the intelligent design movement? A I think -- MR. MUISE: Objection, argumentative. MR. ROTHSCHILD: I'll withdraw it, Your Honor. BY MR. ROTHSCHILD: Q. Towards the end of your testimony today you said that it's good to teach students about intelligent design so that they can look at the facts from several theoretical perspectives, correct? A Yes, that's right. Q. Now, in the case of germ theory, you're not aware that students are taught some other theoretical perspective so that they can understand the facts and not confuse germ theory with germ fact, correct? A That's correct. Q. And not -- the same would be true for atomic theory, correct? A That's correct. Q. The theory of plate tectonics? A But evolutionary theory is in many ways very much more involved than some of the other ones that you mentioned. In particular, as I tried to make clear in my testimony, it has a number of parts which are -- which are together, under an aggregate, considered Darwin's theory of evolution. But again, as I tried to make clear in my testimony, not all of them are as well supported as other parts of the theory. So I think in this particular case, yes, it would make a great deal of sense for students to view the data from a number of theoretical perspectives. Q. You're not an expert in germ theory, are you? A No. Q. Or atomic theory? A I studied it but I wouldn't call myself an expert. Q. Take germ theory, you don't really know the nature of the controversies around germ theory, do you? A I think the nature of the controversies around germ theory are pretty much past. I think it was controversial in the 19 Century, but I don't think there is a controversy in it in the present time. Q. Okay. And you don't really know if a germ theory or atomic theory, where there are gaps or unexplained phenomena? A I don t, but I do know evolutionary theory, and I know there are gaps and unexplained problems in that. Q. Probably true of all scientific theories, right, Professor Behe? A It might be true of -- yes, it's certainly true of many scientific theories. Q. Now, you claim that intelligent design is a scientific theory. A Yes. Q. But when you call it a scientific theory, you're not defining that term the same way that the National Academy of Sciences does. A Yes, that's correct. Q. You don't always see eye to eye with the National Academy? A Sometimes not. Q. And the definition by the National Academy, as I think you testified is, a well-substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences and tested hypotheses, correct? A Yes. Q. Using that definition, you agree intelligent design is not a scientific theory, correct? A Well, as I think I made clear in my deposition, I'm a little bit of two minds of that. I, in fact, do think that intelligent design is well substantiated for some of the reasons that I made clear during my testimony. But again, when you say well substantiated, sometimes a person would think that there must be a large number of people then who would agree with that. And so, frankly, I, like I said, I am of two minds of that. Q. And actually you said at your deposition, I don't think intelligent design falls under this definition. Correct? A Yeah, and that's after I said -- if I may see where in my deposition that is? I'm sorry. Q. It's on pages 134 and 135. A And where are you -- where are you reading from? Q. I'll be happy to read the question and answer to you. I asked you whether intelligent design -- I asked actually on the top of 133, I asked you whether intelligent design qualifies as a scientific theory using the National Academy of Sciences definition. A What line is that, I'm sorry? Q. That's 133, line 18. A Is that going -- question beginning, "Going back to the National Academy of Science?" Q. Yes. And you first said, "I m going to say that I would argue that in fact it is." And that's 134, line ten. A Yes. Q. Okay. And I said, "Intelligent design does meet that?" And you said, "It's well substantiated, yes." And I said, "Let's be clear here, I'm asking -- looking at the definition of a scientific theory in its entirety, is it your position that intelligent design is a scientific theory?" And you said, going down to line 23, "I think one can argue these a variety of ways. For purposes of an answer to the -- relatively brief answer to the question, I will say that I don't think it falls under this." And I asked you, "What about this definition; what is it in this definition that ID can't satisfy to be called a scientific theory under these terms?" And you answer, "Well, implicit in this definition it seems to me that there would be an agreed upon way to decide something was well substantiated. And although I do think that intelligent design is well substantiated, I think there's not -- I can't point to external -- an external community that would agree that it was well substantiated." A Yes. Q. So for those reasons you said it's not -- doesn't meet the National Academy of Sciences definition. A I think this text makes clear what I just said a minute or two ago, that I'm of several minds on this question. I started off saying one thing and changing my mind and then I explicitly said, "I think one can argue these things a variety of ways. For purposes of a relatively brief answer to the question, I'll say this." But I think if I were going to give a more complete answer, I would go into a lot more issues about this. So I disagree that that's what I said -- or that's what I intended to say. Q. In any event, in your expert report, and in your testimony over the last two days, you used a looser definition of "theory," correct? A I think I used a broader definition, which is more reflective of how the word is actually used in the scientific community. Q. But the way you define scientific theory, you said it's just based on your own experience; it's not a dictionary definition, it's not one issued by a scientific organization. A It is based on my experience of how the word is used in the scientific community. Q. And as you said, your definition is a lot broader than the NAS definition? A That's right, intentionally broader to encompass the way that the word is used in the scientific community. Q. Sweeps in a lot more propositions. A It recognizes that the word is used a lot more broadly than the National Academy of Sciences defined it. Q. In fact, your definition of scientific theory is synonymous with hypothesis, correct? A Partly -- it can be synonymous with hypothesis, it can also include the National Academy's definition. But in fact, the scientific community uses the word "theory" in many times as synonymous with the word "hypothesis," other times it uses the word as a synonym for the definition reached by the National Academy, and at other times it uses it in other ways. Q. But the way you are using it is synonymous with the definition of hypothesis? A No, I would disagree. It can be used to cover hypotheses, but it can also include ideas that are in fact well substantiated and so on. So while it does include ideas that are synonymous or in fact are hypotheses, it also includes stronger senses of that term. Q. And using your definition, intelligent design is a scientific theory, correct? A Yes. Q. Under that same definition astrology is a scientific theory under your definition, correct? A Under my definition, a scientific theory is a proposed explanation which focuses or points to physical, observable data and logical inferences. There are many things throughout the history of science which we now think to be incorrect which nonetheless would fit that -- which would fit that definition. Yes, astrology is in fact one, and so is the ether theory of the propagation of light, and many other -- many other theories as well. Q. The ether theory of light has been discarded, correct? A That is correct. Q. But you are clear, under your definition, the definition that sweeps in intelligent design, astrology is also a scientific theory, correct? A Yes, that's correct. And let me explain under my definition of the word "theory," it is -- a sense of the word "theory" does not include the theory being true, it means a proposition based on physical evidence to explain some facts by logical inferences. There have been many theories throughout the history of science which looked good at the time which further progress has shown to be incorrect. Nonetheless, we can't go back and say that because they were incorrect they were not theories. So many many things that we now realized to be incorrect, incorrect theories, are nonetheless theories. Q. Has there ever been a time when astrology has been accepted as a correct or valid scientific theory, Professor Behe? A Well, I am not a historian of science. And certainly nobody -- well, not nobody, but certainly the educated community has not accepted astrology as a science for a long long time. But if you go back, you know, Middle Ages and before that, when people were struggling to describe the natural world, some people might indeed think that it is not a priori -- a priori ruled out that what we -- that motions in the earth could affect things on the earth, or motions in the sky could affect things on the earth. Q. And just to be clear, why don't we pull up the definition of astrology from Merriam-Webster. MR. ROTHSCHILD: If you would highlight that. BY MR. ROTHSCHILD: Q. And archaically it was astronomy; right, that's what it says there? A Yes. Q. And now the term is used, "The divination of the supposed influences of the stars and planets on human affairs and terrestrial events by their positions and aspects." That's the scientific theory of astrology? A That's what it says right there, but let me direct your attention to the archaic definition, because the archaic definition is the one which was in effect when astrology was actually thought to perhaps describe real events, at least by the educated community. Astrology -- I think astronomy began in, and things like astrology, and the history of science is replete with ideas that we now think to be wrong headed, nonetheless giving way to better ways or more accurate ways of describing the world. And simply because an idea is old, and simply because in our time we see it to be foolish, does not mean when it was being discussed as a live possibility, that it was not actually a real scientific theory. Q. I didn't take your deposition in the 1500s, correct? A I'm sorry? Q. I did not take your deposition in the 1500s, correct? A It seems like that. Q. Okay. It seems like that since we started yesterday. But could you turn to page 132 of your deposition? A Yes. Q. And if you could turn to the bottom of the page 132, to line 23. A I'm sorry, could you repeat that? Q. Page 132, line 23. A Yes. Q. And I asked you, "Is astrology a theory under that definition?" And you answered, "Is astrology? It could be, yes." Right? A That's correct. Q. Not, it used to be, right? A Well, that's what I was thinking. I was thinking of astrology when it was first proposed. I'm not thinking of tarot cards and little mind readers and so on that you might see along the highway. I was thinking of it in its historical sense. Q. I couldn't be a mind reader either. A I'm sorry? Q. I couldn't be a mind reader either, correct? A Yes, yes, but I'm sure it would be useful. Q. It would make this exchange go much more quickly. THE COURT: You d have to include me, though. BY MR. ROTHSCHILD: Q. Now, you gave examples of some theories that were discarded? A Yes. Q. One was the ether theory? A Yes. Q. And the other was the theory of geocentrism, right? A That's correct. Q. And what you said yesterday was that there was some pretty compelling evidence for observers of that time that that was good theory, right? A Yes, sure. Q. Look up in the sky, and it looked like the sun was going around us, correct? A That's right. Q. And we know now that those appearances were deceiving, right? A That's correct. Q. So what we thought we knew from just looking at the sky, that's not in fact what was happening, right? A That's right. Q. So the theory was discarded? A That's correct. Q. And intelligent design, also based on appearance, isn't it, Professor Behe? A All sciences is based on appearances. That's -- what else can one go with except on appearances? Appearances can be interpreted from a number of different frameworks, and you have to worry that the one that you're interpreting it from is going to turn out to be correct. But in fact since science is based on observation, now that's just another word for appearance. So intelligent design is science, and so intelligent design is based on observation; that is appearance. Big Bang theory is based on observation, based on appearance, so yes, it is. Q. The whole positive argument for intelligent design as you ve described it, Professor Behe, is look at this system, look at these parts, they appear designed, correct? A Well, I think I filled that out a little bit more. I said that intelligent design is perceived as the purposeful arrangement of parts, yes. So when we not only see different parts, but we also see that they are ordered to perform some function, yes, that is how we perceived design. Q. Now, getting back to Pandas. You ve said this is a good book for students, correct? A Yes. Q. And we know you wrote part of it, correct? A Yes. Q. And you certainly vouch for that part of it? A I do. Q. And we ve seen other parts of it that you're not as happy with, correct? A Right. Q. Now, one thing you can't vouch for, however, is whether Pandas represents the fossil record correctly, can you? A No, I can t, I'm not a paleontologist. Q. So, for example, when Dr. Padian testified on Friday that Pandas grossly misrepresents scientific knowledge on many issues including the evolution of birds, amphibians and various mammals in the fossil record about those animals, you have no way of responding to that, correct? A That's outside my expertise. Q. Now, during the course of your testimony you referred to the writings of a number of scientists to make your case for intelligent design, correct? A Yes. Q. You referred to Kirshner and Gearhart's article -- or book, I'm sorry? A That was not to make the case for intelligent design, that was to explain how scientific books fit into the scientific community. Q. Very well. Dr. DeRosier's article, correct? A Yes. Q. Bruce Albert's article? A That's correct. Q. Richard Dawkins book, The Blind Watchmaker? A That's correct. Q. Francis Crick, we heard a lot about him? A Yes. Q. Jerry Coyne? A I'm not sure. Did I refer to him as support for intelligent design? Q. You cited to his New Republic article on the issue of natural selection. A Yes. That wasn't quite the same thing. I was just trying to make the point that there is only one mechanism that is proposed to be able to mimic design. Q. Franklin Harold, you cited him for support? A I cited him to show that in fact Darwinian explanations have not yet been advanced for the complex molecular systems that have been discovered by science. Q. That's part of the argument for intelligent design, isn't it? A That's a part of the argument to show that there is no other plausible explanation for what we perceive to be as design. Q. Which is part of the argument for intelligent design, correct? A Yes. Q. And there actually was an article by Jerry Coyne in Nature you relied on? A Yes, it was a review of my book; is that what you're thinking of? Q. That's right. A Okay, yes. Q. And Andrew Pomiankowski? A Yes. Q. Now, none of these scientists that you referred to advocate for intelligent design in those articles or books, do they? A No, they don t. Q. Or in any other forum, correct? A That's correct. Q. In fact, many of them are vocal opponents of intelligent design? A Yes, indeed, just like, say, John Maddox is an opponent of the Big Bang theory and, for example, Walter Nernst was an opponent of the Big Bang theory and a vocal proponent of the infinity of the universe; yes, that's correct. Q. Professor Behe, I can't control your answers, but we're in biology class here, not physics, so let's talk about intelligent design. A Okay, I think these are relevant to an understanding of what I'm trying to do. Q. So in any event, all of the scientists that I named that you referred to during the course of your testimony over the past two days are certainly not supporters of intelligent design, most of them are pretty active opponents of it, correct? A That's correct. Q. And it's not just Ken Miller? A No, there are many scientists, yes. Q. There certainly are, in fact, almost all the major scientific organizations that have taken a position on intelligent design have opposed it, isn't that right? A Yes, a lot of scientific organizations have issued statements opposing intelligent design. Q. And, you know, you discussed yesterday that you ve attended many seminars, made presentations to various scientific departments and the like, correct? A That's correct. Q. So over the past nine, ten years since Darwin's Black Box, you ve certainly gotten a hearing in the scientific community, correct? A I -- I'm sorry, what do you mean by "hearing?" Q. Scientists have heard you out, heard your arguments, correct? A A number of scientists have, certainly. I ve presented perhaps maybe 20, 30 seminars. I would present seminars pretty much to whoever would invite me. But even 20 or 30 seminars times 100 people per seminar or so on average, that's still a fairly small fraction of the scientific community. Q. Not nearly as big as, for example, the scientific societies you belong to. A That's correct. Q. And you actually have also made numerous presentations on intelligent design in your book to churches and religious groups, correct? A Yes, I try to speak to whoever invites me. Q. You mentioned that there have been many scientific organizations who have taken a position, one of those is the National Academy of Sciences, correct? A Yes, that's correct. Q. And you testified yesterday that's the most prestigious scientific organization in the United States? A That's correct. MR. ROTHSCHILD: Matt, could you pull up exhibit 192. BY MR. ROTHSCHILD: Q. Go to page 20. That's the publication, Science and Creationism, A View from the National Academy of Sciences. A That's correct. MR. ROTHSCHILD: And if you could go to page 25, please, and highlight the third paragraph, first sentence. BY MR. ROTHSCHILD: Q. And it says, "Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science." That's the National Academy's position? A That's correct, that's exactly the position that I argued against in my article in Biology and Philosophy. I disagree with it, as a matter of fact I think it's the inverse of what is true. I think that in fact Darwinian theory is very difficult to falsify, but that intelligent design is easily falsify -- or easy to falsify. Q. And I do have some more questions to ask you about that, but before we do that let's go to page 21 of this exhibit. And if you could go to the bottom paragraph, first sentence. It says, "Molecular evolutionary data counter a recent proposition called intelligent design theory. Proponents of this idea argue that structural complexity is proof of the direct hand of God in specially creating organisms as they are today." More rebuttal to intelligent design, correct? A I -- I think that particular sentence is just a wonderful illustration of the massive misunderstanding and mischaracterization of intelligent design. They -- they have this sentence, "Proponents of this idea argue that structural complexity is proof of the direct hand of God in specially creating organisms as they are today." I advocate none of those ideas. None of those ideas are found in my books. None of those ideas are found in my writings. I take this to be a political statement unsupported by any references. If you look in that publication, you do not find any references to anybody in the intelligent design movement. In a number of sections here they certainly seem to have my ideas in mind, and they do not reference my book, they do not quote my book. In their list of readings for teachers, for teachers to understand this controversy, they do not even list a single book by an intelligent design proponent. How is a teacher supposed to understand this if they can't even read, you know, proponents of a theory making their own case in their own way, and they have to rely on mischaracterizations? Q. So you don't think that accurately characterizes your work? A No. Q. You're not -- you're not all of intelligent design, are you? A That's correct, yes. Q. Characterize some other intelligent design proponents writings? A I disagree, no. MR. ROTHSCHILD: And, Matt, if you could go to page 28 of the report, and highlight the paragraph, "Don't many famous scientists reject evolution." BY MR. ROTHSCHILD: Q. It says there, "The scientific consensus around evolution is overwhelming." And then it says, "Those opposed to the teaching of evolution sometimes use quotations from prominent scientists out of context to claim that scientists do not support evolution." Do you agree that that's a problem, Professor Behe? A Well, I have a couple things to say about that, those sentences that you just read. First of all, this is another wonderful illustration of the confusion of the different senses of the word "evolution." "The scientific consensus around evolution is overwhelming." What is evolution? Is it Darwin's mechanism of random mutation and natural selection? Do they cite any writings by, say, Stuart Kauffman or the complexity theorists who object to that? I don't see anything there. This is really -- well, let me just go on to the next statement. And it's clear, I think, that many people have written on the question of evolution for it and against it. And if you look at those broad writings, I'm sure you'll find things that might take quotes out of context. But reading this here right now, the phrase that comes to mind to me is the pot calling the kettle black. We just looked at a quotation from that same book in which the National Academy characterized intelligent design in a way that I would consider utterly misleading. Q. Mischaracterizes you? A It mischaracterizes intelligent design and certainly me and, like I said -- I hope I'm not being, you know, self centered here, but I think they had me in mind in a couple of these sections. And they don't even list a reference. You know, talk about scholarly malfeasance or some such thing, they don't even reference -- and even these quotations, where are the quotations? Suppose a teacher wanted to show her students an example of these quotations. Where would she find them? The National Academy doesn't say; it just asserts. This is one long assertion. Q. Why don't we go onto the next long assertion from the American Academy of Scientists -- American Association of Scientists. And you're familiar with this resolution? A Yes, I ve seen it. Q. Okay. And this is from the largest scientific organization in the United States, correct? A That is correct, yes. Q. And there goes the whole outline, we can stop now. And that statement also condemns the teaching of intelligent design, doesn't it? A I can't read it. Could you blow up the section? MR. ROTHSCHILD: Could you highlight the whereas clauses? THE WITNESS: I'm sorry, could you blow up the next paragraph or the next two paragraphs? Thank you. BY MR. ROTHSCHILD: Q. And in the second whereas clause it says, "The ID movement has failed to offer credible scientific evidence to support their claim that ID undermines the current scientifically accepted theory of evolution." And "The ID movement has not proposed a scientific means of testing its claims. Therefore be it resolved, that the lack of scientific warrant for so-called intelligent design theory makes it improper to include as a part of science education." That's the association's position, correct? A That's what it says. And if I might comment, this is a political document. What scientific paper do you know of that says whereas, whereas, whereas, therefore be it resolved? This is a political document. There are no citations here. There's no marshaling of evidence. As I ve tried to show in my testimony yesterday and today, if you actually look at these things, we have marshaled evidence, we have proposed means by way our claims can be tested. Like I said in my testimony earlier, not every statement by a scientist is a scientific statement. And that goes also for scientific organizations, not every statement issued by a scientific organization, even on science, is a scientific statement. This is not supported by evidence. This is not worth one paper in the literature. This is a political document. Q. In any event, in the ten or 15 or 20 years, or if we go to Paley more than 200 years, intelligent design has failed to make its case to the scientific community, correct? A I disagree. You're going into very, very big problems in the history of science, and one can't settle those in one-sentence answers or one-sentence questions. In the time of Paley, which you referred back to, a lot of people thought there was evidence for intelligent design, one of them was the young Charles Darwin, who remarked a number of times about his enjoyment of Paley's book. Since Darwin's theory was proposed as an explanation for apparent design, many people in the scientific community changed their minds and said, well, perhaps we have an explanation for this strong appearance of design. But science marches on and we have new data these days. And it's -- and observing the new data, we can ask again, is Darwin's explanation, does it continue to be a good explanation for this. And I think we can -- we can again reopen this question and ask -- ask whether -- ask whether it's a good explanation. Q. Ask the question, but you haven't convinced the contemporary science community that your idea has any merit, correct? A If you look at these political statements issued by the American Association for the Advancement of Science, if you look at such statements in booklets issued by the National Academy, they are certainly very hostile to the idea of intelligent design. But it's been my experience that a number of people are interested in the idea. Nonetheless, it's the nature of bureaucracy, I think, to issue statements like this. So I do not consider these representative of the scientific community. Q. You're not aware of any major scientific organization that has endorsed the science of intelligent design or the teaching of intelligent design, are you? A I'm unaware of any major scientific organization that goes into the business of endorsing scientific theories. When they get stirred up apparently they will oppose something. But, you know, no other scientific theory, you know, after a while is put on a list of the approved -- of approved sciences by any scientific organization that I'm aware of. Q. In fact, this isn't just a big scientific organization's bureaucracy that's taken this position, your own university department has taken a position about intelligent design, hasn't it? A Yes, they certainly have. MR. ROTHSCHILD: If you could pull up exhibit 742, Matt, and if you could highlight it. BY MR. ROTHSCHILD: Q. This is a statement that was issued by the Lehigh Department of Biological Sciences? A Yes, it is. Q. And what it says is, "The faculty in the Department of Biological Sciences is committed to the highest standards of scientific integrity and academic function. This commitment carries with it unwavering support for academic freedom and the free exchange of ideas. It also demands the utmost respect for the scientific method, integrity in the conduct of research, and the recognition that the validity of any scientific model comes only as a result of rational hypothesis testing, sound experimentation, and findings that can be replicated by others. "The department faculty, then, are unequivocal in their support of evolutionary theory, that has its roots in the seminal work of Charles Darwin and has been supported by findings accumulated over 140 years. The sole dissenter from this position" -- and I think they're just referring to your department at this point -- "Professor Michael Behe, is a well-known proponent of intelligent design. While we respect Professor Behe's right to express his views, they are his alone and are in no way endorsed by the department. It is our collective position that intelligent design has no basis in science, has not been tested experimentally, and should not be regarded as scientific." So you ve not even been able to convince your colleagues, any of them, Professor Behe? A They all endorse this statement, but I would like to point out, if you would, the entire first paragraph is something that I would completely agree with: Committed to the highest standards of scientific integrity and academic function; unwavering support for academic freedom; the utmost respect for the scientific method; integrity in the conduct of research, and so on. That's a wonderful statement. I agree with it completely. What does it have to do with the arguments that I make? The department faculty is unequivocal in their support of evolutionary theory. What does that mean? To commit one's self to a theory, to swear allegiance to a theory. That's not scientific. If they could point to a paper in the literature, something that, say, Russell Doolittle overlooked which explains how complex molecular systems could be put together by gradual means, by unintelligent means, then I would be happy to agree that Darwinian evolution could explain this. But one can't issue statements and say that a theory is correct if one does not have the papers to back it up. And you'll notice that even in this statement, you see no citations, no citations to explanations for these complex molecular systems. And in the absence of that, while that's fine for them to express their views, it doesn't mean -- it doesn't carry the weight of a single journal paper. Q. Journal papers are valuable. A They sure are. Q. And they're just referring to the findings accumulated over 140 years, correct? A Well, as I tried to make clear in my testimony, findings accumulated over 140 years that support the contention that Darwinian processes could explain complex molecular systems total a number of zero. And so they -- this is another example of confusing the various aspects of evolutionary theory. It's a very difficult problem, which is why I think students should have it clearly explained to them that evolution is a complex idea, and support for change over time, or support for common descent does not run into supporting natural selection and random mutation. Q. Zero papers, Professor Behe? A That's correct. Q. Let's turn to your understanding of intelligent design. MR. ROTHSCHILD: And, Matt, if you could return to -- or actually pull up Professor Behe's expert report please. And that's -- THE COURT: Mr. Rothchild, we'll go about five more minutes. MR. ROTHSCHILD: This would actually be a great time for a break. THE COURT: Why don't we do that. Let's recess here for about 20 minutes, and we'll return and we'll pick up the new line of cross examination after that. We'll be in recess. THE DEPUTY CLERK: All rise. (Whereupon, a recess was taken from 2:40 p.m. to 3:00 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 11 (October 18), PM Session, Part 2 THE COURT: Back to Mr. Rothschild on cross examination. BY MR. ROTHSCHILD: Q. Professor Behe, right before the break you said that the findings accumulated over 140 years that support the contention that Darwinian processes could explain complex molecular systems total a number of zero, correct? A I'll -- I think I did, yes. Q. Okay. And that's a proposition you stand by. A Well, again, you have to look at the papers. And what I meant by that is ones which fully explain how random mutation and natural selection could build a complex system; yes, there are no such explanations. Q. Zero papers. A I don't think I said zero papers, perhaps I did, but there are zero explanations. Q. And zero is the same number of articles in peer-reviewed scientific journals that argue for the intelligent design of complex molecular systems? A The number of peer-reviewed papers in scientific journals which show that life is composed of molecular machinery that exhibits the purposeful arrangement of parts in detail on term, you know, many many many thousands. There are -- I think there are just one or two that mention intelligent design by name. Q. That argue for the intelligent design of complex molecular systems in peer-reviewed scientific journals? A No, I don't think -- now that you mention it, I think that I was thinking of something else. Q. And there are zero articles in peer-reviewed scientific journals arguing for the irreducible complexity of complex molecular systems? A There are none that use that phrase, but as I indicated in my direct testimony, that I regard my paper with Professor David Snoke as to be arguing for the irreducible complexity of things such as complex protein binding sites. Q. So one, according to your count? A Could you repeat the question, I am afraid -- Q. I asked you, is it correct that there are zero articles in peer-reviewed scientific journals arguing for the irreducible complexity of complex molecular systems? A I would count some other papers as, as impinging on that, on that topic, but I don't -- they certainly don't use the term irreducible complexity. MR. ROTHSCHILD: Matt, could you pull up Professor Behe's expert report, exhibit 602, and go to pages nine and ten and highlight the five claims identified by Ernst Mayr. BY MR. ROTHSCHILD: Q. This is something you discussed in your direct testimony? A Yes, it looks like. Q. These are the five claims for evolution identified by Ernst Mayr? A That's right, evolution as such, common descent, multiplication of species, gradualism and natural selection. Q. If we could go to page 11 of your report and highlight the underscored text. You say, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." Correct? A That is correct, yes. Q. That's consistent with your testimony today. A Yes, it is. Q. Now, the claim that -- if we could go back to Ernst Mayr's list and highlight -- just focus on the common descent. You claim that intelligent design does not take a position on common descent, which is defined here as, "The theory that every group of organisms descended from a common ancestor and that all groups of organisms, including animals, plants, and microorganisms, ultimately go back to a single origin of life on earth." Correct? A I'm sorry, I lost track of the question. What was the question? Q. That's how common descent is described here, correct? A Yes, this is Ernst Mayr's definition of common descent, may I add. Q. And you're saying intelligent design doesn't make a claim about that proposition. A That's correct. Q. Now, if one were to argue for special creation of humans, that would be inconsistent with that proposition, correct? A I'm afraid I don't have a real good understanding of what you mean by the term "special creation." Q. Do you have an understanding -- you used the term "special creation" in response to Mr. Muise's question. When you answered those questions, what did you understand "special creation" to mean? A Well, from that I meant the -- I understood the ex nihilo, that is creation appearance from absolutely nothing of some organism. Q. So if that kind of creation occurred -- if one was arguing for special creation of humans, that would be inconsistent with the proposition of common descent described up there? A If one were arguing for the ex nihilo creation of humans, that would be inconsistent with common descent. Q. And when you say ex nihilo, you're using that synonymously with special creation? A That's the way I understand the term. Q. Okay. And then Dr. Mayr also has the claim of gradualism, which says, "According to this theory, evolutionary change takes place through the gradual change of populations and not by the sudden, saltational, production of new individuals that represent a new type." And it's your testimony that intelligent design does not properly make a claim about that proposition in the theory of evolution? A That's correct. It could either -- it could be consistent with a gradualistic or a nongradualistic fossil -- or nongradualistic history of life. It is not a claim that impinges on intelligent design, although it may in fact impinge on theories that purport to explain life without intelligence. Q. Let's go back to Pandas. If you could open up the book and go to page 98. This is just to prove we're not completely wed to pages 99 to 100, though we may return to them. If you could go down to the first column on page 98, under the heading "Sudden Appearance or Face Value Interpretation," it states: "The fossil record shows that most organisms remain essentially unchanged. The conclusion to be drawn is that major groups of plants and animals have co-existed on the earth independent of each other in their origins, which must be explained in some way other than Darwinian evolution." Independent of each other in their origins, that is the opposite of going back to a single origin of life on earth, isn't it? A That is -- in my view, that's an attempt to simply explain what we see in the fossil record, which I understand from the quotations that were read to me by Mr. Muise, that some well-known paleontologists have essentially agreed with, to my thinking. Also -- Q. Sorry. A I'm sorry. But so it -- so it seems to me that the text here is trying to draw a conclusion that is more consistent with the actual fossil record that -- well, the record that they perceive to be the fossil record, without imposing a theoretical construct on top of it. Q. It's drawing a conclusion from the fossil record, isn't it, Professor Behe, it's not just describing the fossil record? A That's right, it says conclusion to be drawn, yes. Q. And the conclusion is, separate origins of plants and animals, various types -- groups of plants and animals, correct? A Yes. But if I might point out, this is in a section of the book entitled "Meaning of Gaps in the Fossil Record," which actually begins on page 96, which I discussed in my direct testimony. And this is one of a number of different interpretations which attempt to explain what is described as a noncontinuous or apparently noncontinuous record. The first one is that there is an imperfect record, that is, we haven't got all the fossils, or all the fossils didn't fossilize -- or all organisms didn't fossilize. The second that Pandas mentions is incomplete search. The thirds that it mentions is jerky process, which is an inartful way of saying punctuated equillibrium. And the fourth one is the -- is the -- is what they're concluding that in fact the fossil record may indicate that these organisms did appear as they are. Q. And that last interpretation is inconsistent with the description of common descent in Ernst Mayr's description, correct? A Yes, that's right. Q. And it's called the Face Value Interpretation, correct? A That's correct. And let me just repeat just for context, that Pandas says -- if I could find the data that -- or the description, and I can't find it right here -- they say that scientists should not accept the face value interpretation of the fossil record, without also exploring the other possibilities, and even then only if the evidence continues to support it. So the way I read the textbook is that they're trying to tell students that this seems to be what the record shows, and we should look for other explanations, and we might draw this conclusion tentatively, but our tentative conclusion is always subject to revision if new data comes out. Q. Okay. Let's go on in the page that I pointed you to, page 98. Go to the second column, and the second full paragraph. And it says, "The intelligent design hypothesis is in agreement with the face value interpretation and accepts the gaps as a generally true reflection of biology and natural history." Nothing tentative about that, is there, Professor Behe? A No, I think it's quite tentative in the context of what I just read. It says the intelligent design hypothesis is in agreement with. The way I'm reading it is that it is not in conflict with the face value interpretation because intelligent design doesn't speak to common descent. It only says that we can detect design in some physical features of life. So it does not conflict with intelligent design -- to the intelligent design hypothesis, as it might with one of the tenants of Darwin s theory as written by Ernst Mayr, gradualism, and perhaps common descent as well. So the way I see that is in fact they're saying, well, there is no conflict between intelligent design and the face value -- or the face value interpretation. Q. It doesn't say no conflict, does it, Professor Behe, it says in agreement? A That's correct. But in agreement can mean that -- can mean no conflict. It means that there is no reason to rule out intelligent design because of this aspect of the fossil record, although other theories might have difficulty with it. Q. It doesn't say intelligent design is also in agreement with the jerky process or punctuated equilibrium as you describe it, does it? A I would have to read those sections again more closely. Q. Take a minute. A Well, from scanning them it does not look like it says that. But I do not draw any grand conclusions from that. I would just say that, you know, this is a correct statement that the intelligent design hypothesis is in agreement with the face value interpretation. I would also add that it's in agreement with all of the other -- all of the other topics listed under this section as well. Q. That's your interpretation. A Yes, it is. Q. Okay. Now having critically reviewed the book? A No, that was my understanding from, from the beginning. Q. Let's go back a little further. Let's go down a little further in that paragraph. It says, "A growing number of scientists who study the fossil record are concluding that the structural differences between the major types of organisms reflect life as it was for that era. "This view proposes that only the long-held expectations of Darwinian theory cause us to refer to the inbetween areas as gaps. If this is so, the major different groups of living organisms do not have a common ancestry. Such a conclusion is more consistent with currently known fossil data than any of the evolutionary models." It's taking a side, isn't it, Professor Behe? It's taking a side for the face value interpretation. A It certainly is not. I mean, it's certainly proposing something that a student normally doesn't read about in their biology textbook. But it says that this is what the data is consistent with, and it's -- in their opinion it's more consistent with this data than with other -- I'm sorry, with this model than with other models. And earlier, or perhaps later, I've lost the page, it advises students that we should hold our views tentatively, and if new data turn up which cause -- should cause us to revise our estimation of our views, then we should do so. So I see no inconsistency between this -- I do not see this as advocating, I see it as a description. Q. Professor Behe, you described earlier you have nine children? A I do, yes. Q. Some of them have been through the ninth grade? A Five boys, four girls. Q. Congratulations. A Thank you. Q. Some of them have been through the ninth grade, I'm assuming? A Yes, they have. Q. Okay. Honestly, any ninth grader reading this is going to understand this book to be taking the position that common ancestry, common descent is wrong, isn't that right? A I -- well, I disagree. I do not think so. I think they are careful to present the ordinary interpretation, or the common interpretation. They're careful to say that is the common interpretation. They're careful to say that there are multiple -- multiple explanations for the data within the common interpretation. Then they say that, well, there's this other interpretation that may be consistent with the data too; we should only hold this interpretation if it continues to be consistent with the data. I think a ninth grader reading this would say to themselves, wow, you know, look at the different ways we can look at the data. Huh, let's decide what the data is and what our interpretation is. I do not view this as, as something that would cause a ninth grader to jump up and say ah-hah, there must not have been common descent. I view it as something that would cause a ninth grader to sit down and say, let's think about this data, let's see if we can really -- if our views are as strongly supported as we thought. Q. Well, let's go back to page 99 and 100. Okay? "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." That's the definitional statement in this section of the book. That's not consistent with common ancestry, it's directly opposed to it, isn't it, Professor Behe? A Well, as I tried to make clear in my direct testimony, I don't think this was well written. I think it's tentatively phrased. It says "some scientists," and certainly I do not think that that is a definition of intelligent design. And what I see this paragraph trying to say is that we see these things in the fossil record as some eminent paleontologists apparently agreed, and that if we hold this view, this face value view, then we do not have to necessarily come up with some strained explanation, or some explanation which seems ad hoc, perhaps that's the way it happened, because intelligent design can accommodate a fossil record like this. Q. And the way it happened is inconsistent with common ancestry, birds, fish, separate, right? A Give me a second to read this, please. No, I disagree. It just means abruptly as seen in the fossil record. Even if one thinks it were through intelligent agency, that -- that event might have been through common descent, through some ancestors in the past giving rise to these things, but that it happened so rapidly that it did not leave traces in the fossil record. And might I add that that is oftentimes an interpretation given to the fossil record by paleontologists, such as, say, Stephen Jay Gould and Niles Eldredge. They said that apparently, and if you look at the fossil record -- from my nonexpert understanding -- that the theory of -- punctuated equillibrium says that things change and then suddenly -- or things stay the same and then suddenly change. And so that in the fossil record you just see rather large changes. But they certainly do not disagree with common ancestry, and I don't think this is arguing for it either. Q. Professor Behe, it's one thing to say fossils appeared abruptly, it's another to say life began abruptly, isn't it? A I disagree. In the context of this book, when it's talking about fossils, when it's talking about the fossil record, when it's talking about all the problems that one has in getting fossils, that fossils -- if I can find the correct page -- that there might be an imperfect record due to the fact that fossils form imperfectly, that there might be incomplete search and so on, that this conveys to me, and I think to any -- any ninth grader reading it, that this is the data we have from the fossil records. So that when we say these things began in the fossil -- abruptly, that means that we perceive them to begin in the fossil record. Q. That's a pretty charitable interpretation, Professor Behe, but let me ask you this question. Abrupt appearance, you would agree with me that's inconsistent with gradual? Gradual and abrupt, you're not going to tell me those are the same? A That's correct. But I d like to say that a number of scientists, in my understanding, challenge the gradual evolution and the gradual tenant of Darwin's theory. One person is a lady named Lynn Margulis, who is a professor of biology at the University of Massachusetts-Amherst, and a member in the National Academy of Sciences. Let me just briefly explain to make this point. I don't intend to take much time. She proposed that things that we call mitochondria, which occur in eukaryotic cells, which are cells with nucleus, which include us and everything except bacteria, they occurred when a pre-eukaryotic cell essentially enveloped a smaller bacterium, and the two essentially developed a symbiotic relationship. And her view of this, and other people's view of it, is that this is in fact a saltational event; nongradual development of an entirely new life form. So gradualism is not the -- or abruptness is not the opposite of common descent, and -- well, it's not the opposite of common descent. Q. Lynn Margulis is not being taught at Dover, but intelligent design is, and it's your assertion that intelligent design makes no claim about gradualism, but this passage we ve read here, it's completely inconsistent with the concept of gradualism. Abrupt appearance or -- life beginning abruptly. A Can I see where -- could you read the -- MR. MUISE: Objection, the question mischaracterized the evidence. He says intelligent design is being taught in the class. And I don't believe there's any evidence that that is the case. MR. ROTHSCHILD: I think that's an issue of dispute. THE COURT: Restate your objection. MR. MUISE: I believe he prefaced his question that intelligent design is being taught at the Dover -- in the Dover schools, and I don't believe there's evidence that intelligent design is being taught. THE COURT: Well, I understand. This is a bench trial. You say it's taught; you say it's not taught. I'll take that for what it's worth. The objection is overruled. You can answer the question. THE WITNESS: I'm sorry, could you restate the question? BY MR. ROTHSCHILD: Q. It says there, "Intelligent design means that various forms of life began abruptly." That's the opposite -- that is directly contrasting the claim of gradualism made by Ernst Mayr, correct? A The -- how shall I phrase this? The sentence there I read as saying that intelligent design can be consistent with; that the fact that the fossil records seems to have forms of life appearing abruptly, while it might cause problems for Darwinism, it does not cause problems for intelligent design, because intelligent design does not speak to how fast or how slow such things happen. And so I see that as saying essentially an intelligent design proponent can take this data at face value and does not necessarily have to have secondary hypotheses to try to explain it. Q. That's how you read the -- something that starts, "intelligent design means." A Well, again, as I said in my direct testimony, I don't think this was written very well, but I think the sense of that sentence is not hard to discern. Q. All right. Why don't we continue on the subject of common descent. Could you go to page Roman numeral, small Roman numeral ten. This is in the introduction. A I'm sorry, I don't have a small Roman numeral ten in my book. MR. ROTHSCHILD: May I approach the witness, Your Honor? THE COURT: You may. THE WITNESS: Thank you. BY MR. ROTHSCHILD: Q. In the last full paragraph of the page it says, "Of Pandas and People is not intended to be a balanced treatment by itself. We have given a favorable case for intelligent design and raised reasonable doubt about natural descent." Correct? A Yes, that's right. Q. And if you d go to page 33. MR. MUISE: Your Honor, may I just for purposes of the record, that was actually page nine and not page ten. MR. ROTHSCHILD: Did I say Roman numeral ten? I apologize. Roman numeral nine thank you. THE COURT: The record is corrected. MR. ROTHSCHILD: Thank you. BY MR. ROTHSCHILD: Q. And on page 33 under the heading, "A Living Mosaic," it says, "The theories of intelligent design and natural descent both have an explanation for why living things share common structures." A Yes, I see that. Q. So there it's actually saying intelligent design is a separate theory from natural descent, correct? A Well, the way I read that phrase is that they're contrasting intelligent design with unintelligent processes, which I think they, again, just use the phrase natural descent as trying to indicate that. But I do not read it as opposing the theory of common descent. Q. If you d go to page 127. A Yes. Q. And if you could go to the middle of the second column, the paragraph headed, "Among Organisms." A I'm sorry, where is that? Q. The second full paragraph. A Oh thank you, yes. Q. Starts "Among Organisms," and going to the second sentence it says, "Design proponents have a realistic and more cautious approach to the use of homologies. They regard organisms which show great structural differences, such as starfish and chimpanzees, as having no common ancestry." Correct. A Yes, that's what it says, but again, I read that as the fact that while other theories such as Darwinisms might make a commitment to common ancestry, a theory of intelligent design can live with what the data shows on that respect, because a theory of intelligent design does not speak to that; it just speaks to the effects of intelligence. So I see this as an accommodating sentence rather than as something that is required. Q. And if you could go to page 156. A Yes. Q. And if you could look at the first column, the -- under the second indented paragraph where it says, "This is precisely." A Yes. Q. "This is precisely why a book that questions the Darwinian notion of common descent is so necessary." A Yes, I see that. But -- Q. Okay, so -- A Again, if I can just comment that, again, I see this as telling students or presenting to students that it seems that much of the data in the fossil record, as the writers of Pandas perceive it, is being fit into a theoretical framework which is dictated by Darwinian theory. And that if you do not invoke that theory and you look at the data in a different way, then intelligent design can live with whatever the results of that different look shows. Q. In your view intelligent design doesn't have to take any position on common descent? A Yes. Q. Okay. But here you say, Behe says, intelligent design is making no claim about common descent; and this book says, intelligent design questions the Darwinian notion of common descent. Those are the same thing to you? A I'm sorry, could you just repeat that, please? Q. Behe says, intelligent design makes no claim about common descent. A Yes. Q. Pandas says, intelligent design questions the Darwinian notion of common descent. Those are the same thing to you? A I see this as part of an argument. The -- as I try to make clear in my testimony, intelligent design is seen in the purposeful arrangement of parts, and that is the positive argument for intelligent design. But also, a part of the task of somebody who holds that view is to try to answer other views which claim to -- which claim to explain what intelligent design purports to explain. And one of those is to show where the other theory has problems. And I view this as part of that kind of negative argument that, that while -- that while -- that while intelligent design can live with what data we have, this seems to be a problem for the current theory, as a number of paleontologists have said. And they ve tried to -- they ve tried to fix it up, and they propose these explanations, and perhaps they're right, but maybe that's not correct. And if it's not correct, well then this other theory, this rival theory is -- is -- has some difficulties, but that intelligent design does not. So I see it as part of a negative argument against a rival to intelligent design. Q. And it's a negative argument against the part of that argument called common descent, correct? A That's correct, just as my argument was an argument against natural selection. And when people make claims for natural selection, I have to show why that is a poor explanation for what we see. Q. So I think we're in agreement, in Pandas, intelligent design is making a claim about common descent in the same way you claim to be making a claim about natural selection? A No, I think that's incorrect. I think the claim of natural selection goes more directly to the question of the purposeful arrangement of parts. The idea of common descent does not go, in my view, so directly to the question of the purposeful arrangement of parts. But nonetheless, as a part of Darwinian theory, it's required much more for Darwinian theory. Nonetheless, that would make that idea less plausible, and therefore that's part of the negative argument. Q. Okay. So Pandas is making an argument against common descent, but you say intelligent design is not? A Pandas is making a negative argument against common descent to show the plausibility to greater -- more greatly enhance the plausibility of the alternative of intelligent design, that's correct? Q. Thank you. Now, can we go back to page 11 of the report and highlight again the underscored text. So this is back to the claim that you say intelligent design makes, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." Please describe the mechanism that intelligent design proposes for how complex biological structures arose. A Well, the word "mechanism" can be used in many ways. In this I was -- and when I was referring to intelligent design, I meant that we can perceive that in the process by which a complex biological structure arose, we can infer that intelligence was involved in it's origin. Much like if I might refer back to the Big Bang theory, the Big Bang theory proposes no mechanism for how the universe arose, but nonetheless it infers that, whatever the mechanism, it came by some sort of explosive process. So there are many other questions that these theories leave unaddressed, but they do posit some aspect of the cause which is very useful to have and which is supported by the data. Q. So intelligent design is about cause? A I'm sorry, could you say that again? Q. I just want to get it clear here, intelligent design is about cause? A Well, cause is a broad word, and when you re trying to explain how something came about, you can say it came about for a variety of reasons. But intelligent design is one reason or one aspect or one cause to explain how the purposeful arrangement of parts that we see did come about. Q. Back to my original question. What is the mechanism that intelligent design proposes? A And I wonder, could -- am I permitted to know what I replied to your question the first time? Q. I don't think I got a reply, so I'm asking you, you ve made this claim here, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." And I want to know what is the mechanism that intelligent design proposes for how complex biological structures arose? A Again, it does not propose a mechanism in the sense of a step-by-step description of how those structures arose. But it can infer that in the mechanism, in the process by which these structures arose, an intelligent cause was involved. Q. But it does not propose an actual mechanism? A Again, the word "mechanism" -- the word "mechanism" can be used broadly, but no, I would not say that there was a mechanism. I would say we have an aspect of the history of the structure. Q. So when you wrote in your report that "Intelligent design theory focuses exclusively on the proposed mechanism," you actually meant to say intelligent design says nothing about the mechanism of how complex biological structures arose. A No, I certainly didn't mean to say that. I meant to say what I said in response to that last question, that while we don't know a step-by-step description of how something arose, nonetheless we can infer some very important facts about what was involved in the process, namely, that intelligence was involved in the process. And let me go back one more time to the Big Bang theory. Again, we don't have a mechanism for the Big Bang, but we can infer some important events about what happened, and that was that it happened in some explosive manner, it happened a distinct time ago and so on. So additionally, I might say, that it also focuses on other proposed mechanisms that purport to explain the purposeful arrangement of parts. And so I think it is quite accurate to say that that's exactly where intelligent design focuses. Q. So it actually -- it focuses on other proposed mechanisms, by that you mean natural selection, don't you? A No, just a natural selection, complexity theory and so on. But certainly the most widely accepted, and then the one that you would have to convince most people -- or explain to most people is not well supported is the one which is the currently accepted explanation of natural selection. Q. Okay. And so in terms of mechanism, it's just a criticism of Darwinian evolution's mechanism and not a positive description of the mechanism? A No, I disagree. I say that while, again, while it does not give you a step-by-step description of how such things occurred, it does tell you something very important about the cause or the way in which these structures arose, and that was through the actions of an intelligent cause. Q. So, Professor Behe, why don't we go to your deposition and see how you answered the questions then, okay? A Okay. Q. Could you look at page 179 of your deposition. A Yes. Q. I asked you, "What is the proposed mechanism of how complex biological structures arose according to intelligent design theory?" A Yes. Q. And you answered, "Intelligent design does not propose a mechanism, it simply tries to support the conclusion that intelligent activity was involved in producing the structures." A Yes. And that language, I think, is completely consistent with what I was trying to say here today, that it does not tell you step by step how something was proposed -- or how something was produced, but nonetheless it says something very very important about the origin of the structure, and that is that intelligent activity was involved in producing it. Q. And then further down the page at line 24 I asked you, "In terms of the mechanism, it's just a criticism of Darwinian evolution's mechanism and not a positive description of a mechanism." And what did you answer, Professor Behe? A I said "that's correct." But again, I think this is completely consistent with what I just said. Again, it does not propose a step-by-step description, but it -- but it proposes or it accounts for some very important features of what was involved in it's origin, and that is intelligent activity. Q. You have, throughout your testimony over the past two days, criticized the concept of natural selection quite a bit, correct, or the claims made about natural selection? A Well, I think you have to be careful. I think natural selection is real, and certainly explains a lot of things. And what it's -- what it can explain, it explains well. And like I said, it does account for a number of features of life. So I would not say I'm criticizing natural selection. I think that many people infer that natural selection has -- can explain things that I don't think it can, and so I've criticized those arguments and those extrapolations. Q. But you obviously agree it is a valid phenomenon, it explains -- A Yes, of course. Yes, sure. Q. Including -- it explains things at the biological level, at the organism level? A Yes, it certainly does. Q. And it also explains things at the biochemical level? A That's correct too, yes. Q. For example, antifreeze proteins, that's an example of natural selection operating at the biochemical level, correct? A If by antifreeze protein you mean the particular antifreeze protein that was discovered in antarctic notothenioid fish a few years ago in which a gene for trypsinogen, the five prime region for that gene was found next to a coding region for a simpler one, yes, that's right, I do agree with that. Q. You can read my mind. And that -- that evolution through natural selection was demonstrated partly by experiment, partly by explanation, correct? A That's correct, yes. Q. And you gave us a nice illustration of hemoglobin yesterday.? A Yes, I showed a slide of hemoglobin. Q. Pretty complicated structure? A It certainly is, yes. Q. And that is another thing where -- another biochemical system that you acknowledge can be explained through natural processes? A No, you have to be very very careful there. In my book I discuss the example of hemoglobin, and I said -- I discussed it as an example of something that may be amenable to Darwinian explanation. And I was careful to say that if you start at the starting point of a protein similar to what's called myoglobin, which is a single chain protein, and you probably recall yesterday that hemoglobin has four chains stuck together; if you have this single chain protein, myoglobin, which essentially has the very similar structure to hemoglobin, if you start with that, the question is, what does it take to form an aggregate of that structure with the properties of hemoglobin. So I said, for that segment, starting with myoglobin, going to hemoglobin, that I did not see any impediment for natural selection to explain that. But I did not -- there certainly is no literature. There is no experiment. There is no detailed description of how that actually could happen. So I said that for purposes of argument I think that, you know, we can -- we can certainly say for now that perhaps Darwinian mechanisms can explain that. Q. Now, before we go in detail into your argument from irreducible complexity, I want to confirm some other aspects of how you understand intelligent design. It does not identify who the designer is, correct? A That's correct. Let me just clarify that. I'm talking about the scientific argument for intelligent design based on physical data and logic, yes. Q. You believe it's God, but it's not part of your scientific argument? A That's correct. Q. It does not describe how the design occurred. A I'm sorry? Q. Intelligent design does not describe how the design occurred. A That's correct, just like the Big Bang theory does not describe what caused the Big Bang. Q. Does not identify when the design occurred. A That is correct. Q. In fact, intelligent design takes no position on the age of the earth or when biological life began. A That's correct. Q. But think it was -- the earth as billions of years old or 10,000 years old. A That's correct. Q. It says nothing about what the designer s abilities are. A Other than saying that the designer had the ability to make the design that is under consideration, that's correct. Q. It sounds pretty tautological, Professor Behe. A No, I don't think so at all. When you see a structure, even in our everyday world, just think about archaeological structures such as a Sphinx or Easter Island or some such thing, one thing you can say is that these -- two things you can say, is that these things were designed, and that the intelligent agent or intelligent agents who designed them had the ability to design them. So I don't think that's tautological at all. Q. Archeology is a science that you find very similar to the design argument of biochemical systems? A Well, archeology is a science, and design argument is an argument. But I think in archeology some of the reasoning they employ -- I'm not an archeologist, of course, but I understand that in some of the reasoning they employ is similar to their reasoning that intelligent design proponents such as myself might employ. Q. But it is your position that we know the designer's abilities? A I'm sorry, could you say that again? Q. It is your position that we know the designer s abilities? A Well, as I think I said in response to the question, we know the designer had the ability to make the design. So, but beyond that, we would be extrapolating beyond the evidence, so we can't say more than that. Q. And we know nothing about the designer s limitations. A Well, we have to infer what we have from the data, and the data tell us that a designer can make a certain object. It does not say what the designer might not do. In our everyday world somebody who makes some simple object might be able to make a more complex one or so on. Q. Intelligent design says nothing about the intelligent designer's motivations? A The only statement it makes about that is that the designer had the motivation to make the structure that is designed. Q. How can intelligent design possibly make that statement, Professor Behe? A I don't understand your question. Q. How can it possibly say anything about the intelligent designer's motives without knowing anything about who the intelligent designer is? A Well, I think it's -- that's pretty easy. For example, let's go back to the SETI project, Search for Extraterrestrial Intelligence. Suppose that astronomers in that project one day discerned a signal coming in from outer space that they discerned to be of intelligent origin, maybe even it carried a message or something like that exotic. How would they know the motives of whatever sent that? They might not know them, but nonetheless, they could -- as a matter of fact, the whole project is based on the assumption that they would be able to detect the message without knowing the motives of whatever sent it, without knowing it's abilities beyond the ability to send the message, and so on. So I don't think that's a problem whatsoever. Q. Let me try and cut this short. It's fair to say that in the case of the intelligent designer and biological or biochemical life, we know nothing about it's ability or limitations except from what we conclude from the system that was designed? A Yes. A scientific theory makes -- draws it's conclusions from the physical evidence. So the fact that intelligent design draws conclusions from the physical evidence is completely consistent with what any good scientific theory could do. Q. Well, I mean, let's take your analogy of human design. I want a nice car, right? A I believe that. Q. And you could look at a car and say Eric made that because he wants a nice car, right? A I'm sorry? Q. Eric made the car because he wants a nice car, right? That would be an inference about my motives based just on seeing the car in my garage, or that I bought the car? A No, I disagree. What you would say from looking at the car in your garage is that this car was designed, and if it was in your garage and it turned out that somebody was staying at your house that was not you and that was their car, well, then that's consistent with the conclusion of intelligent design. The extrapolation to who the designer was or who purchased the car or anything like that is unjustified by the data. If it was, you know -- well, I could make other examples, but I think the point is clear. Q. And just to be -- just to wrap this point up, we know nothing about the intelligent designer's abilities or limitations except for what we can conclude from the specific system or object that we're observing? A Since intelligent design is a scientific theory, it has to draw it's conclusions from physical data. So yes, that's how we determine whatever we know about the design and whatever inferences we make to the cause of the design. Q. And similarly, we know nothing about the intelligent designer's motives or needs or desires except for what we can conclude from the specific system that we're observing? A Yes. Let me just reiterate that, that in fact a scientific theory depends on physical data. It can't depend on anything else. And so of course it has to draw whatever inferences it can from the physical data that it has available. Q. Okay, and in this case that's just the system we're look at, the bacterial flagellum? A Well, if you're considering the bacterial flagellum, then yes, that would be it, you could consider other things as well. Q. Now, you ve told this Court that intelligent design does not involve supernatural action, correct? A That's correct. I -- no, I said that it -- it's -- intelligent design is a scientific theory that focuses exclusively on physical data and logical inferences. And so since any scientific theory does not infer from beyond the data, then we cannot say anything about whether some structure was produced by supernatural means. Q. Could you open Darwin's Black Box, which is plaintiff's exhibit 647. A What page? Q. I'm sorry. Page 193. A 193, thank you. MR. ROTHSCHILD: Matt, could you highlight on page 193, the first paragraph. BY MR. ROTHSCHILD: Q. Could you read that paragraph, Professor Behe? A Can I read from the book here? Q. Yes, please. A Okay. "There is an elephant in the roomful of scientists who are trying to explain the development of life. The elephant is labeled intelligent design. To a person who does not feel obliged to restrict his search to unintelligent causes, the straightforward conclusion is that many biochemical systems were designed. They were designed not by the laws of nature, not by chance and necessity, rather, they were planned. The designer knew what the systems would look like when they were completed, then took steps to bring the systems about. Life on earth at it's most fundamental level, in it's most critical components, is the product of intelligent activity." Q. They were designed not by the laws of nature, correct, Professor Behe? A That is correct. Q. Professor Behe, if you could turn to exhibit 718, which is Reply to My Critics. MR. ROTHSCHILD: And, Your Honor, we'll have it up on the screen, but if it's easier to look at paper, I have a copy. THE COURT: No, if you're going to put it up, that's fine. BY MR. ROTHSCHILD: Q. And Professor Behe, it's fair to say that this is one of your most significant published works on the subject of intelligent design since Darwin's Black Box? A Well, this is where I, as the title implies, I try to address criticisms that have been raised against the intelligent design proposal. Q. One of your more important pieces of work on this subject? A I consider it to be, yes. Q. Could you turn to page 696 of that article. A Yes. MR. ROTHSCHILD: And, Matt, if you could go to the, I guess the first full paragraph, which begins "In such a view," and highlight the passage that begins "By intelligent design" midway through the page. BY MR. ROTHSCHILD: Q. And here you say, "By intelligent design I mean to imply design beyond the simple laws of nature. That is, taking the laws of nature as given, are there other reasons for concluding that life and it's component systems have been intentionally arranged." And going further down the page you say, "In my book, and in this article, whenever I refer to intelligent design, I mean this stronger sense of design-beyond-laws." And those are natural laws, correct, Professor Behe? A Yes. And if you read that sentence that you skipped over there, it says, By intelligent design I mean -- I'm sorry, let me see -- I kind of got lost here. I mean to design -- "I mean to imply design beyond the simple laws of nature. That is, taking the laws of nature as given, are there other reasons for concluding that life and it's component systems have been intentionally arranged, just as there are reasons beyond the laws of nature for concluding a mousetrap was designed." What I was intending by that passage was something much less grand than the design of the laws of nature, to which I was contrasting my position. I was likening it to the design that is involved in simple mechanical objects such as the mousetrap. And as I explained in my testimony, that is exactly the basis for how we detect design, when we perceive the purposeful arrangement of parts. So that is the sense of design in which I meant. It's actually a more modest sense of design than design of the laws of nature. Q. Mechanical design of a mousetrap is beyond the laws of nature, Professor Behe? A It requires intelligent activity. It's beyond unintelligent -- the operation of unintelligent laws. There is no law of nature that explains a mousetrap. Q. They are designed by natural actors, correct? A That's correct, but how they act is not described by any law that I know of, and I have -- I have never read any law that describes how a mousetrap comes about. Q. Well, why don't we go on to page 700. If you could highlight the question that Professor Behe is asking on this page. "Is it plausible that the designer is a natural entity?" in the first full paragraph. That is the question you ask. "Is it plausible that the designer is a natural entity?" MR. ROTHSCHILD: And then if, Matt, if you could actually go to the next two full paragraphs and highlight those. BY MR. ROTHSCHILD: Q. And you say, "The problem is the following. Currently we have knowledge of only one type of natural intelligent designer even remotely capable of conceiving such structures as are found in the cell, and that is a human. Our intelligence depends critically on physical structures in the brain which are irreducibly complex. Extrapolating from this sample of one. . . " -- that's humans, correct? A Yes, that's right. Q. ". . . it may be that all possible natural designers require irreducibly complex structures which themselves were designed. If so, then at some point a supernatural designer must get into the picture. "I myself find this line of reasoning persuasive. In my estimation, although possible in a broadly permissive sense, it is not plausible that the original intelligent agent is a natural entity. The chemistry and physics that we do know weigh heavily against it. If natural intelligence depends on physical organization, then the organization seems likely to have to be enormously complex and stable over reasonable periods of time. While simpler systems may perform the tasks that irreducibly complex systems perform a terrestrial life, they would likely perform them more slowly and less efficiently, so that the complexity required for intelligence would not ultimately be achieved. Thus, in my judgment it is implausible that the designer is a natural entity." You don't absolutely rule it out, but you're not taking it very seriously, are you? A Well, I've said that quite a number of times. I think I said that at the beginning of my testimony yesterday, that I think in fact from -- from other perspectives, that the designer is in fact God. But if you turn back to page 699, there's a section entitled, "Is it possible that the designer is a natural entity?" And I won't quote from it, but I come to the conclusion there that sure it's possible that it is, but I do not -- I myself do not find it plausible. Let me again liken this to the Big Bang theory. Is it possible that there was some event in nature that caused such a thing? Yes, it's possible. We know of no such event, we don't -- you know, we haven't known of such an event since the Big Bang theory was first proposed something like 75 years ago; but it's certainly possible. It's also possible that it wasn t. And the distinction that I was trying to make throughout my testimony is that when we use scientific reasoning, and when we constrict ourselves to physical evidence and logical reasoning, we can only go so far. We can say we don't have a natural -- we don't have an explanation for this event right now. We cannot -- and the history of science shows this time and time again, we cannot say that because we don't have a natural or an explanation for a certain event now, that we won't have one in the future. Intelligent design I think is in the same category as the Big Bang on that point. Q. And I know you're fond of the Big Bang, but let's be clear, you're not an expert in physics, correct? A That is correct. Q. And nor an expert in astrophysics? A That's right. Q. Okay. And you're making a pretty scientific argument here, physics, chemistry, they pretty much rule out a natural designer; that's what you're trying, right? A No -- Q. Not absolutely, but makes it pretty implausible? A That's what implausible means. Yes, but again, the conclusion from this evidence does not lead one to an explanation beyond nature. With this I was also relying on my other -- on considerations other than scientific ones, from philosophical, theological and historical beliefs. So again, arguing from scientific data only takes you so far. It takes you to the point of the fact that we do not have an explanation for this event right now. But to go beyond that requires a reasoning beyond just scientific reasoning. Q. So in Darwin's Black Box you said beyond nature, in this article you said beyond nature, but that's just your theological hat? A Well, as my discussion of John Maddox s editorial from yesterday Down with the Big Bang which occurred in Nature, and my discussion of Arthur Eddington's writings, and my discussion of Walter Nernst's comments, many people saw in the Big Bang implications for theology and philosophy and things beyond nature. So I think that -- that nonetheless we would all agree that the Big Bang is a scientific theory in the same way intelligent design, in my view, is a scientific theory, even if somebody like John Maddox sees for this theory that it has implications beyond science. Q. Now, you ve said in your testimony today and yesterday you personally believe the designer is God. A Yes. Q. And in this article in fact you say for purposes of the discussion I'm going to assume the supernatural entity is God, right? A Yes. MR. ROTHSCHILD: And, Matt, if you could turn to page 705 of the article. If you could highlight the top paragraph, until the sixth line. And you write here, "What if the existence of God is in dispute or is denied? So far I have assumed the existence of God. But what if the existence of God is denied at the outset, or is in dispute? Is the plausibility of the argument to design affected? As a matter of my own experience the answer is clearly yes, the argument is less plausible to those for whom God s existence is in question, and is much less plausible for those who deny God's existence." It's a God friendly theory, isn't it, Professor Behe? A Let me respond in a couple of ways to that. First, let me clarify for context that this is a journal called Biology and Philosophy. So not only am I speaking about scientific matters here, but I'm also talking about nonscientific matters here in an academic forum. Academics embraces more than just science. This is an academic forum which also embraces philosophy, and so I addressed philosophical issues as well. And again, my statement as written is certainly correct. And it's happened time -- many times in science, and, again, I'll just refer back to John Maddox's article Down With the Big Bang. He didn't like the Big Bang theory. And it wasn t because the data were inconsistent with it, it's because it was philosophically unacceptable. Walter Nernst hated the idea of a beginning to the universe. It was unscientific. So -- and other people have said similar things. So it's clearly true that people make decisions even about a scientific theory, based not only on the science itself, but what they perceive as other ramifications of the theory. But I argue, I've argued a number of places, that it's the proper role of a scientist to leave aside those other considerations as much as possible and focus simply on the scientific data. Q. That's what you try to do as a scientist? A Yes, I do. Q. The year you wrote Darwin's Black Box was also the year that the Center for the Renewal of Science and Culture at the Discovery Institute was founded, correct, 1996? A Is that -- I'm fuzzy on the date of the establishment of the Center for Renewal, yeah. Q. You were one of the Center's fellows from the beginning, correct? A Yes, that's correct. I was asked to join by Bruce Chapman, who was the president of the Discovery Institute. Q. And you ve remained a fellow since that time, correct? A Yes, I'm still a fellow. Q. And even before the Discovery Institute was founded, you participated in the Pajaro Dunes conference? A Yes, that was a private conference which was organized by a man named Phillip Johnson. Q. And in addition to Mr. Johnson, yourself, Stephen Meyer was there? A Yes, Steve Meyer was there too. Q. William Dembski? A He was there too. Q. Paul Nelson? A Yep. Q. Dean Kenyon? A Him too. Q. Okay, and you all discussed your ideas? A Yes, that was the purpose of the conference, to talk with each other and to bounce ideas off of each other and so on. Q. And all of the individuals I've mentioned, including yourself, became fellows or officers of the Discovery Institute's Center for Renewal of Science and Culture, correct? A I'm not sure. I'll take your word for it, though. Q. Okay. And you have no reason to doubt that? A I don t, no. Q. And you accept funding from the Center for Renewal of Science and Culture? A As -- over the past years, and there was a time about -- a period of three years, about eight years ago, up to about five years ago, where I was given a grant by the Discovery Institute -- well, actually I wasn't given a grant, the Discovery Institute gave a sum of approximately 8,000 to $10,000 per year to the university to release me from some teaching obligations so that I could write and think about intelligent design issues. Q. And that happened for about five or six years, is that right? A No, three years. Q. Three years, okay. And in fact the Discovery Institute's Center for Renewal of Science and Culture heralded your work in a document it prepared called The Wedge Strategy, didn't it? A I'll have to refresh my memory, but I think they did, yes. MR. ROTHSCHILD: Matt, if you could put up 140. May I approach the witness, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. This is a document that you ve been aware of for some time? A I heard about it. I wasn't aware about it until I heard about it being discussed on the Internet. Apparently somebody purloined this document, or took the document from the Discovery Center and posted it on the web, and there was a discussion of it then. That's when I became aware of it. Q. And you read it? A Yes, I think I did after it came out. Q. And if you could turn six pages in, and it actually has handwriting that says page four on it. And you see there's a section called the "Five Year Strategic Plan Summary." A Yes. MR. ROTHSCHILD: If you could highlight that first paragraph there, Matt. BY MR. ROTHSCHILD: Q. What it said here was, "The social consequences of materialism have been devastating. As symptoms, those consequences are certainly worth treating. However, we are convinced that in order to defeat materialism, we must cut it off at it's source. That source is scientific materialism. This is precisely our strategy. If we view the predominant materialist science as a giant tree, our strategy is intended to function as a wedge that, while relatively small, can split the trunk when applied at it's weakest points. The very beginning of this strategy, the thin edge of the wedge was Phillip Johnson s critique of Darwinism begun in 1991, in Darwinism on Trial, and continued in Reason in the Balance and Defeating Darwinism by Opening Minds. Michael Behe's highly successful Darwin's Black Box followed Johnson's work. We are building on this momentum, broadening the wedge with a positive scientific alternative to materialistic scientific theories, which has come to be called the theory of intelligent design. Design theory promises to reverse the stifling dominance of the materialist world view, and to replace it with a science consonant with Christian and theistic convictions." You were aware of this passage in the document when you read it? A I assume I did read it, yes, roughly at that point. Q. And you were aware that your work was described in this context? A Yeah, I saw it mentioned there, yes. Q. Okay. And you were a fellow at the time you became aware of this document? A That's correct. I did not -- I did not -- I was not aware of it before it was placed on the Internet. I don't know the source of the document, who wrote it, whether it was some -- somebody's draft of something, whether it was a fundraising letter, whether it was, you know, something else, but I did not know. Q. A strategy document? You don't know? A I don't know, no. You know, again, if one doesn't see who wrote it, I don't know what to make of this. If this was written by somebody who had no particular importance in the organization, or who had in mind something that would not, you know, be approved by people in charge or some such thing, then there was no particular reason to pay attention to it. Q. But you continued on as a fellow after seeing this? A You bet I did. I -- you know, I very much enjoy my association with the Discovery Institute. I think that people associated with it are very helpful in my -- developing my ideas. And yes, I'm -- I place much value on my contacts there. MR. ROTHSCHILD: Your Honor, I d just like to discuss one more exhibit with Professor Behe, and that might be a good time to break, and it will be brief. THE COURT: After that? MR. ROTHSCHILD: Yes. THE COURT: All right, I'll let it to your discretion. MR. ROTHSCHILD: Thank you. BY MR. ROTHSCHILD: Q. You testified that you had been invited to write articles about intelligent design several times for The New York Times? A I'm sorry? Q. You testified yesterday that you have been asked on several occasions to write articles for The New York Times. A I was invited several times to contribute op-ed pieces on various news items -- or on various topics in the news at that time for The New York Times, yes. Q. And let me show you exhibit 723. A Thank you. Q. This was an article you wrote in 1996? A That's right. The occasion was that Pope John Paul II, had issued a letter to the Pontifical Academy of Sciences concerning evolution, and it was very much in the news at that point. And The New York Times had just reviewed my book earlier in the summer, and so they knew that I was a Catholic scientist and that I might be an appropriate person to write commentary on that event. Q. And in the second full paragraph, beginning, "I grew up," you write, "I grew up in a Catholic family and have also believed in God. But beginning in parochial school I was taught that He could use natural processes to produce life. Contrary to conventional wisdom, religion has made room for science for a long time. But as biology uncovers startling complexity in life, the question becomes, can science make room for religion." That's what you wrote, correct? A Yes, that's right. Q. And then you went on to discuss your proposition of intelligent design as set forth in Darwin's Black Box, correct? A And if I could just say that by that phrase, "can science made room for religion," I had in mind reactions like that of John Maddox and that of Arthur Eddington and that of Walter Nernst, who were thinking that science necessarily had to rule out things whose philosophical or other implications did not disturb them. Q. And those names are nowhere in this article. A I had, I think, 900 words to talk about this. So there are many many other things that I could have included in writing on the topic like this, which I did not have the room to do. Q. Big Bang was between the lines here. A Actually, I mention the Big Bang as often as I can. I'm surprised I didn't have it in here. Q. Maybe we could take this as a precedent. And if you could go to the second page. And the second to the last paragraph, you write, "Intelligent design may mean that the ultimate explanation for life is beyond scientific explanation. That assessment is premature. But even if it is true, I would not be troubled. I don't want the best scientific explanation for the origins of life; I want the correct explanation." That's what you wrote, correct? A I certainly did write that, and I think it's a quite reasonable statement. The Big Bang might ultimately be beyond scientific explanation. We have no explanation for the Big Bang right now. Many people, including people who don't like it, see theological and philosophical implications in the Big Bang theory. I put intelligent design in the same category, as I've mentioned before in my testimony. We do not have any unintelligent explanation for life. We don't have any current explanation. We don't rule it out, but ultimately we might not have one. And ultimately it might not have -- might not receive a scientific explanation. And if that's the case, well then that's the case, we just have to follow the evidence where it leads. Q. Just so we're clear, the Big Bang has been accepted by significant portions of the scientific community? A That was about three decades or so after it was first discussed by George Lemaitre, a Belgium priest, who first proposed it based on observations of the red shift of the galaxies and apparent expansion of the universe. But for the first several decades it was extremely controversial and not well accepted. Q. But the answer is yes, it has been well accepted? A After three decades it became accepted. Q. And intelligent design, now after several decades of it's modern era, has not been accepted, in fact, it's regularly rejected? A Intelligent design certainly is not the dominant view of the scientific community, but I'm very pleased with the progress we're making. As I've tried to make clear in my testimony, although some -- many scientists do not like it, if you look at their statements, you do not see any scientific evidence which, when examined closely, is -- when examined closely, shows that intelligent design is incorrect. Q. Okay. It's not been well accepted or indeed accepted by anything but more than a small minority of scientists. A Well, again, I'm afraid I'm -- I think the situation is a whole lot more complex than perhaps you do. Statements of large scientific organizations do not represent the views of their members, other than -- much like statements of other organizations might represent all the views of all their members. And I think that if you actually surveyed a large number of scientists and you ask them carefully what they thought about how one could explain life, I think that a significant fraction would indeed say that something like intelligent design was plausible. Q. That's just speculation on your part? A Well, it's based on some experience that I've had talking with scientists in many of these discussions that I have. Many scientists have misimpressions of intelligent design, and when they I speak with them, they oftentimes see that it's more -- has a more compelling argument than is oftentimes presented in publications, magazines, and so on. So it's based on some experience. MR. ROTHSCHILD: This would be a good time to break, Your Honor. THE COURT: Are you going to pick up more cross tomorrow? MR. ROTHSCHILD: Yes. THE COURT: All right. We'll recess then for the day at this point, the hour being almost at 4:30, and we will reconvene at 9 a.m. tomorrow and continue with Mr. Rothschild's cross examination of the witness. We're in recess. Thank you. THE DEPUTY CLERK: All rise. (4:28 p.m., court adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 12 (October 19), AM Session, Part 1 (Whereupon, the following discussion was held in chambers:) THE COURT: All right. What are -- we have an issue? MR. SCHMIDT: Your Honor, we wanted to alert the Court before we used it in cross examination of a document that we plan to use that Your Honor may regard as covered by the confidentiality order having to do with the draft of the successor to Pandas. It's a page out of that draft. It's the page that's analogous to the old page 25 that dealt with sudden -- intelligent design as it holds the various forms of life began with distinctive features already intact. THE COURT: Is this the latest version -- MR. SCHMIDT: This is the -- THE COURT: As yet unpublished -- MR. SCHMIDT: Correct. THE COURT: -- of Pandas. And you'll have to refresh my recollection. I didn't have a chance, after Liz alerted me, to look in the file, but did we have a confidentiality order in the midst of determining FTE's motion. Is that what it was for? You'll have to help me out, because I don't recall. MR. SCHMIDT: It originally came up because we subpoenaed it from William Dembski -- THE COURT: I recall that. MR. SCHMIDT: -- who was the author. And FTE participated in that. THE COURT: I recall that it was subpoenaed. I recall that FTE moved to block -- MR. SCHMIDT: For a protective order. THE COURT: -- the subpoena. And, of course, I know that, we all know that Mr. Dembski is not testifying, and we all know that FTE was not permitted to intervene. What I don't remember is sequentially when the protective order came to being in exactly -- I understand why it came into play, but apparently it was not self-extinguishing as it related to the litigation. Is that a fair statement? MR. SCHMIDT: Yes. In fact, it had a provision in it that said it would continue past the trial even until publication of the text. THE COURT: So why do you think you're entitled to open it up? MR. SCHMIDT: Because nothing in the protective order says that we couldn't use it. It said, if we did use it, it would be under seal, preserving the confidentiality of it. So if there is reference to this, as there will be, I wanted the Court to know that we intended to do that, so that the courtroom could be cleared, and so that this part of the record could be under seal to the extent that it's quoting from it. MR. ROTHSCHILD: Your Honor, I would just add that, I would actually interpret the protective order a little more liberally. It certainly doesn't allow us to publish this widely, and it required any filings with briefs to be under seal, and any depositions that they used it as an exhibit to be under seal. I think this is why we're alerting to you, that it does not necessarily mean that once we're in public trial, that it would preclude its use in public, but we're also amenable to it being done with a closed courtroom, if that's -- THE COURT: Well, do we have -- was a protective order entered -- and again, you'll have to refresh my recollection -- pursuant to a stipulation? MR. SCHMIDT: Yes, it was. THE COURT: And the stipulation, who were the parties to the stipulation? Was FTE a party? MR. SCHMIDT: The Plaintiffs and FTE. MR. GILLEN: Well, actually, weren't we, Chuck, as well? MR. SCHMIDT: You were as well. MR. GILLEN: Yeah, we were as well. MR. WALCZAK: Your Honor, I think Eric's interpretation that this may not apply if it's being used in open court was largely validated when we had that hearing on FTE's intervention motion. THE COURT: Does somebody have the stipulation? LAW CLERK: I can get it. THE COURT: Why don't you pull it off. MR. WALCZAK: And while I don't believe we used design of life there, the other documents had been produced under seal including, I believe, and Chuck will correct me if I'm wrong, the FTE, some of the FTE statements and writings that they had. And some of those were introduced in court, put into the record. FTE was there, and they had no objection, and did not seem to differ from our understanding of the protective order as not extending to things that happened in open court. THE COURT: Are you seeking to actually admit a document in -- you're shaking your head no. You're going to simply question from the text of the manuscript? MR. SCHMIDT: And read it to them, yes. THE COURT: What's your position? MR. GILLEN: A couple things. Actually, I'm grateful to you guys for bringing it to my attention. My recollection is that, it did cover litigation, that there was some discussion of that. I think what they're suggesting though, a short passage, so it can be kept confidential, does what I thought you had in mind, Judge, which is to protect their property interests. And I can see that being a way to get rid of the problems, so to speak. THE COURT: Well, my recollection is that, FTE's concern was that they obviously had an intellectual property interest, and they were concerned that a wholesale release of the manuscript would subject it to pre-publication criticism, if I recall, that Mr. Buell was particularly, and justifiably, I thought, alarmed about. I really wonder, under the circumstances, if it's a short passage, how much that's going to interfere with the intellectual property rights. I suppose you could argue that, that would allow focus and criticism of that particular passage, but I'm not so sure that that's really what his concern was. I thought his concern was a wholesale release of the entire manuscript, which is really what was threatened when Mr. Dembski testified. MR. GILLEN: And, Judge, I don't represent FTE. THE COURT: I understand that. MR. GILLEN: So I can't speak. THE COURT: But as a signatory to the stipulation, I suppose you have Atillaed the hunt. MR. GILLEN: We had an expert at that time who asked me to move to protect the intellectual property right because of his fiduciary duty. I made that motion, and I want -- I do want to preserve what I can by way of protection of their work product rights. MR. SCHMIDT: As the draftsman of the stipulation, I must say that I had in mind the far broader text. The concern that was expressed was that this would give the NCSE's people, Scott and others, an opportunity to poison the well before publication. THE COURT: Let me see the passages. MR. SCHMIDT: It's the second paragraph. MR. ROTHSCHILD: We would probably use one other page to just correlate some other charts. MR. SCHMIDT: In my own mind, I see this as kind of analogous to the fair use exception and copyright law. You can take a snippet and use it without harming the copyright interests. MR. ROTHSCHILD: I do think there's one other consideration, Judge, for your -- THE COURT: Go ahead. MR. ROTHSCHILD: That it may -- the FTE has counsel in this area, and it may make sense, before using it, to alert them. I mean, we do intend to use it today for purposes of impeachment with Professor Behe. THE COURT: That's exactly what I was going to suggest. Who's counsel? MR. ROTHSCHILD: Leonard Brown, that group. THE COURT: Yeah. Why don't you do this. Why don't you take time now to, before we get started, you know, we've been moving at a pretty good pace, and we haven't had these things happen, and they do happen in trials. So why don't you take some time and contact FTE's counsel. I think you want to do it for your own protection. Obviously, once I rule, I suppose that you're protected, but you entered into a stipulation, and I would have some concern -- MR. ROTHSCHILD: I think it's just fair. THE COURT: -- about that, and I think you want to at least give them notice. If we have to reconvene and get them on at least a conference call and let them be heard, and that might be better than having you, you know -- MR. GILLEN: Me speak for them. THE COURT: Sure. That puts you in a difficult position. You're signatory as parties, but you really don't want to put yourself in the position to speaking for FTE. And then we can hear out FTE. I'm not sure, you know, given this brief passage, that it violates the sense of the stipulation to allow questioning, even in open court. I'm somewhat reluctant to clear the courtroom for these brief passages because, again, I'll read the stipulation and the order because they're not -- I don't recall them instantly. But I thought the thrust, and you seem to agree with this, is that the manuscript, as a whole, would be protected. And I understand. I think we all understood the purpose for that at the time. MR. ROTHSCHILD: Your Honor, should we suggest a time -- I mean, do you want to do that at a lunch break or find out -- THE COURT: How much more cross do you have? MR. ROTHSCHILD: It will be inversely proportional to mentions of the Big Bang, I think. THE COURT: So you're going to go all day. MR. ROTHSCHILD: It could be quite a while. THE COURT: All right. Well, why don't you get started. Take some time now. Why don't you contact them. Why don't you see what their availability is. I mean, I recognize we're catching them flatfooted. See if they've got somebody that they can get on the phone, you know, as soon as possible. I just as soon get started. If you give me a time later this morning, we'll just recess. If they say, you know, we're available at 11, or whatever the case may be, then we can at least get started; 10:30, 11. I'm not suggesting a time. Just find a time or we can do it as we break for lunch, if that is more convenient for them. Hard to believe they wouldn't have somebody that they could get at some point involved in a phone conversation. Then you can reserve your cross on this issue until we hear them out at that point. Now if they tell you they don't care, which I'd be surprised, but if they tell you that, then we'll take that up at that time. I suppose they're going to have to likely contact FTE and find out what. MR. GILLEN: That's what I can foresee. By the time they get in touch with FTE which, I think, is in Texas. You guys know better than I do. THE COURT: And there's a time delay. MR. SCHMIDT: One hour. MR. GILLEN: It's just one hour, but Mr. Buell is rather difficult to reach. MR. SCHMIDT: When he chooses. THE COURT: Well, you know, if they can't reach him, I'll rule, if I have to, in the absence of that. But I think at least fair notice to their counsel, if they can connect with the mothership, and we'll take it up at that time. (Whereupon, the discussion held in chambers concluded at 9:05 a.m. and proceedings reconvened in open court at 9:18 a.m.) THE COURT: All right. Good morning to all. I apologize for the somewhat late start. We had a slight issue that we had to handle in chambers with counsel. And that rapidly resolved, so that we can commence this morning's session. We will do so. We will continue cross examination of the witness by Mr. Rothschild. (Whereupon, MICHAEL BEHE, Ph.D., resumed the stand, and testimony continued.) CROSS EXAMINATION ( CONTINUED) BY MR. ROTHSCHILD: Q. Good morning, Professor Behe. A. Good morning, Mr. Rothschild. Q. How are you? A. Fine, thanks. Q. After the Court adjourned yesterday, did you talk to anybody about your testimony? A. I did not. Q. I'm going to see if we can reach an agreement on something here. You agree that this is a case about biology curriculum? A. Yes, I do. Q. Not about physics, a physics curriculum? A. It's not about a physics curriculum, but from my understanding, many issues that are being discussed here are particularly relevant to other issues that have come up in other disciplines of science. Q. This is a case about what's being taught in biology class not physics class? A. As I said, I agree that it is, but one more time, I think many things in the history of science are relevant to this, and they've happened in other disciplines as well. Q. You've already testified you're not an expert in physics or astrophysics? A. That's correct. Q. And you might not know this about me, but I'm not either. A. I'm surprised. Q. So I'm going to propose an agreement. I won't ask you any questions about the Big Bang, and you won't answer any questions about the Big Bang. Can we agree to that, Professor Behe? MR. MUISE: Objection, Your Honor. He's trying to limit the testimony of the witness by some sort of agreement. He's obviously testified and explained why the relationship of the Big Bang is so important. He just answered his questions to try to proffer some prior agreement to the witness that he can't reference factors of prior testimony in cross examination. That just seems inappropriate, Your Honor. THE COURT: What's your answer? THE WITNESS: No. , I think references to the Big Bang are extremely appropriate to making clear why I think these -- making clear my views on these issues. BY MR. ROTHSCHILD: Q. Fair to say, Professor -- THE COURT: There you go, Mr. Muise. BY MR. ROTHSCHILD: Q. Fair to say, Professor Behe, that over the last two days of testimony, you've told us everything you know about the Big Bang that's relevant to the issue of intelligent design and biology? A. Well, I'm not sure. I would have to reserve judgment. Q. You might have some more? A. Perhaps. Q. Let the record state, I tried. MR. ROTHSCHILD: May I approach the witness, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Professor Behe, I've showed you what we marked as Plaintiffs' Exhibit 726, and that's an article that was published in Christianity Today? A. That is correct, yes. Q. It's titled Tulips and Dandelions? A. Yes. Q. And it actually indicates that there was a debate, and there's actually a back and forth between you and another writer named Rebecca, I'm sure I'll butcher this, but Flietstra? A. Flietstra. She's a professor of biology (inaudible) College in California, yes, that's correct. Q. This is an article you wrote on or about September or October 1998? A. Yes, that's correct. Q. And if you could turn to the second -- this is an argument that discusses intelligent design? A. I think it does, but to be perfectly honest, I have not read this article since it was published seven years ago. So I am not entirely clear exactly what I said in here. But it certainly is likely to do so. Q. Do you need to review it for a moment to confirm that? A. That would be great. Thank you. THE COURT: Take all the time you need to read it. THE WITNESS: Thank you. Yes, thank you. Yes, that's correct. BY MR. ROTHSCHILD: Q. Matt, could you turn to the second page of this document? And Professor Behe, if you would flip to that page as well. It will be on your screen as well. And, Matt, if you could highlight the question on the bottom left-hand column, the last paragraph beginning with the word, what. And you asked the question in this article, what does this all mean for a Christian, correct? A. Yes. Q. And you said, On the one hand, not much, right? A. That's correct. Q. And, Matt, if you could go to the second column, and the second full paragraph, second full paragraph -- next paragraph. Thank you. Actually highlight those two. You say, On the other hand, scientific evidence of design means a lot for Christians for a couple of reasons. Correct? That's what you wrote? A. That's correct, yes. Q. Going down to the next paragraph, one of the reasons you give is, Christians live in the world with non-Christians. We want to share the Good News with those who have not yet grasped it and to defend the faith against attacks. Materialism is both a weapon that many antagonists use against Christianity and a stumbling block to some who would otherwise enter the church. To the extent that the credibility of materialism is blunted, the task of showing the reasonableness of the faith is made easier, although Christianity can live with a world where physical evidence of God's action is hard to discern, materialism has a tough time with a universe that reeks of design. That's what you wrote, correct? A. Yes, that's exactly what I wrote. Q. And that concept of materialism, that's actually also mentioned in the section on the Wedge strategy that we looked at yesterday, correct? A. I think so, yes. Q. And when you refer to the Good News there, that was not just the Yankees winning the world series around this time, correct? A. That's correct. No, that is intended to mean the Christian gospel. So here, I was explaining, and I was speaking as a Christian in a magazine that is a Christian publication. And assuming the assumptions that Christians have from non-scientific -- from non-scientific areas, that is historical, theological, and philosophical principles, why I think, how I think this impacts Christian concerns. And I emphasize that first paragraph that you read from, What does all this mean for a Christian? On the one hand, not much. The faith of Christians rests on the historical reality of events recorded in the gospels rather than on the next theory coming out of the laboratory. By definition, Christians already believe in design because they believe in a designer. So by that -- I'm sorry. But just let me make one more point. So by that paragraph, I was trying to say that, in fact, design, apparent design in the world is not necessary for Christian belief. Q. On one hand, it's not -- it doesn't mean a lot. On the other hand, it means quite a bit? A. On the one hand, it's not necessary. But on the other hand, it can offer support to a Christian world view. And if I might refer back to the Big Bang, the Big Bang was taken by a number of people as evidence for a theological world view, and Christians have used that to argue for the plausibility of Christian views. Nonetheless, simply because the Big Bang is compatible with Christianity, and because it makes some theistic views seem more plausible, that does not mean that the Big Bang itself is not a scientific theory. And in the same sense, just because intelligent design is compatible with Christian views, or because it makes such views or other theistic views seem more plausible does not mean that intelligent design itself is not a scientific theory. Q. I'd like to return to Darwin's Black Box. And that is where you're making your scientific argument, correct, Professor Behe? A. That's correct. Q. If you could turn to page 185 of that book. I'd actually like you to read -- we'll take turns here -- from the last paragraph on 185 beginning, molecular evolution, and go to the end of the chapter, which is one more paragraph. A. Molecular evolution is not based on scientific authority. There is no publication in the scientific literature, in prestigious journals, specialty journals, or books that describes how molecular evolution of any real, complex, biochemical system either did occur or even might have occurred. There are assertions that such evolution occurred, but absolutely none are supported by pertinent experiments or calculations. Since no one knows molecular evolution by direct experience, and since there is no authority on which to base claims of knowledge, it can truly be said that, like the contention that the Eagles will win the Super Bowl this year, the assertion of Darwinian molecular evolution is merely bluster. Publish or perish is a proverb that academicians take seriously. If you do not publish your work for the rest of the community to evaluate, then you have no business in academia. And if you don't already have tenure, you will be banished. But the saying can be applied to theories as well. If a theory claims to be able to explain some phenomenon, but does not generate even an attempt at an explanation, then it should be banished. Despite comparing sequences and mathematical modeling, molecular evolution has never addressed the question of how complex structures came to be. In effect, the theory of Darwinian molecular evolution, has not published, and so it should perish. Q. That was your view in 1996? A. Yes, that's correct. Q. That is still your view today? A. Yes, it is. And if I may elaborate on that? Q. Professor Behe, the answer was yes? A. Well, I want to tell you what my view was. Q. Professor Behe, you understand that your counsel will have an opportunity to ask follow-up questions after I'm done with my cross examination? A. Is that correct? Q. That is. Unless the judge rules otherwise, he will have that chance, so the answer to my question is yes? That's still your view today? MR. MUISE: Dr. Behe is trying to completely answer his question. And counsel is attempting to prevent him from doing so. THE COURT: Well, he's asking him a yes/no question. MR. MUISE: I don't think it's a question that can be answered yes no. He has built in assertions that can't just be answered yes or no. THE COURT: If he says he can't answer it yes or no, then Mr. Rothschild is stuck with that answer. So you can answer the question as you see fit. THE WITNESS: No, that's not a completely accurate view. BY MR. ROTHSCHILD: Q. What's changed, Professor Behe? A. That does not go into sufficient detail to describe my view. Q. I hesitate to ask whether this will involve the Big Bang, but give us a little more detail. A. The detail is actually simply this, that by these publications, I mean detailed rigorous accounts for complex molecular machines, not just either hypothetical accounts or sequence comparisons or such things. Q. And so with that qualification, that is your view? A. Yes. Q. Now you have never argued for intelligent design in a peer reviewed scientific journal, correct? A. No, I argued for it in my book. Q. Not in a peer reviewed scientific journal? A. That's correct. Q. And, in fact, there are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred, is that correct? A. That is correct, yes. Q. And it is, in fact, the case that in Darwin's Black Box, you didn't report any new data or original research? A. I did not do so, but I did generate an attempt at an explanation. Q. Now you have written for peer reviewed scientific journals on subjects other than intelligent design, correct? A. Yes. Q. And in those articles, you did report original research and data, at least in many of them, correct? A. Yes. Q. You would agree that there are some journals that are more difficult than others to get one's research published in? A. Yes, that's correct. Q. Proceedings of the National Academy of Science? A. Yes. Q. Nature? A. That's correct. Q. Science? A. Yes. Q. Journal of Molecular Biology? A. That's easier than the other ones, but, yes. Q. Still pretty good? A. Yeah. I would take it, sure. Q. In fact, you have taken that for some of these publications in your non-intelligent design work? A. That's correct. Q. And you've also served as a peer reviewer, correct? A. Yes. Q. And when you do that, you get a submission from a scientist, correct? You receive the submission from the editor? A. From the editor, yes. Q. And you review those submissions carefully? A. Yes, I do. Q. There are some sort of professional expectations about how peer reviewers do their task? A. Yes, you're supposed to read the manuscripts carefully and see if you can make suggestions and criticisms. Q. You look at the experimental results? A. Sure. Q. You look -- you try to make a determination whether the techniques were proper? A. That's correct. Q. Try to make an assessment about whether conclusions follow from the data? A. That's correct. Q. You analyze whether there are gaps and problems in the experiment? A. Yes, that's right. Q. And on occasions, you've communicated false in articles that you were peer reviewing, correct? A. That's correct. Q. That's happened to you as well? A. Sure. Q. All part of the scientific process, right? A. Yes, that's correct. Q. Okay. Now you stated on Monday that Darwin's Black Box was also peer reviewed, right? A. That's correct. Q. You would agree that peer review for a book published in the Trade Press is not as rigorous as the peer review process for the leading scientific journals, would you? A. No, I would not agree with that. The review process that the book went through is analogous to peer review in the literature, because the manuscript was sent out to scientists for their careful reading. Furthermore, the book was sent out to more scientists than typically review a manuscript. In the typical case, a manuscript that's going to -- that is submitted for a publication in a scientific journal is reviewed just by two reviewers. My book was sent out to five reviewers. Furthermore, they read it more carefully than most scientists read typical manuscripts that they get to review because they realized that this was a controversial topic. So I think, in fact, my book received much more scrutiny and much more review before publication than the great majority of scientific journal articles. Q. Now you selected some of your peer reviewers? A. No, I did not. I gave my editor at the Free Press suggested names, and he contacted them. Some of them agreed to review. Some did not. Q. And one of the peer reviewers you mentioned yesterday was a gentleman named Michael Atchison? A. Yes, I think that's correct. Q. I think you described him as a biochemist at the Veterinary School at the University of Pennsylvania? A. I believe so, yes. Q. He was not one of the names you suggested, correct? A. That is correct. Q. In fact, he was selected because he was an instructor of your editor's wife? A. That's correct. My editor knew one biochemistry professor, so he asked, through his wife, and so he asked him to take a look at it as well. Q. And you found out his name later, correct? A. That's right, yes. Q. From your editor? A. No. I think actually Professor Atchison himself contacted me later after the book came out. MR. ROTHSCHILD: May I approach the witness? THE COURT: You may. BY MR. ROTHSCHILD: Q. Professor Behe, I've shown you an exhibit marked P-754, and that's an article titled -- or a writing titled Mustard Seeds by Dr. Michael Atchison? A. Yes. Q. That is a picture of him, correct? A. I think so. I haven't seen him in a few years. Q. It certainly identifies him as the head of biochemistry in the department of animal biology at the University of Pennsylvania? A. Yes, he's the department chair in the vet school. Q. Professor Behe, I'd like you to look at the first -- I'm sorry, the last paragraph on the first page, and I'm going to read this for the record. This is what Professor Atchison wrote. While I was identifying myself as a Christian -- MR. MUISE: Objection, Your Honor. This is hearsay, and there's been no foundation he even knows this thing exists. He's reading into the record a document that he apparently got from somewhere that we don't have any foundation for. What he's reading into the record is absolutely hearsay. MR. ROTHSCHILD: I'm not proposing to introduce this into evidence at this point, although I'll reserve that right. But this is for purposes of impeachment. I think it's highly relevant. MR. MUISE: He hasn't even shown Dr. Behe even knows anything about this article or where it's from or any basis for it. MR. ROTHSCHILD: I'm going to ask him about the facts that are stated in this article. THE COURT: Why isn't it fair for impeachment purposes? MR. MUISE: It's -- again, Your Honor, I guess you have to see how this is going to go. I was objecting because he's going to read into the record a portion of this document that he hasn't even established that Dr. Behe has any knowledge about. THE COURT: Well, it's not a transcript. MR. MUISE: That's true. It's a document that was produced out of court. THE COURT: I understand. But to read it into the record, as you might not with a transcript, that's not reason alone to not permit it in the proceedings. I think, given the witness's answer, it's fair impeachment. Now -- MR. MUISE: I mean, impeachment in what regard? That he doesn't know this guy? He does know this guy? This guy is a biochemist. What's the impeachment? My looking at this, it appears that he's just try to make an attack against Professor Atchison because he apparently has some religious views, which apparently is a theme throughout this case. MR. ROTHSCHILD: That is absolutely not the case, Your Honor. And I think that will become clear as we go through the document. THE COURT: All right. Inasmuch as this is a bench trial, I'm going to give Mr. Rothschild some latitude. I'll overrule the objection. BY MR. ROTHSCHILD: Q. While I was identifying myself as a Christian in Philadelphia, a biochemist named Michael Behe at Lehigh University was writing a book on evolution. As a biochemist, Behe found the evidence far Darwinian evolution to be very thin. In fact, when he looked at the cell from a biochemical perspective, he believed there was evidence of intelligent design. Behe sent his completed manuscript to the Free Press publishers for consideration. That is your publisher of Darwin's Black Box, correct? A. That's right. Q. The editor was not certain that this manuscript was a good risk for publication. There were clearly theological issues at hand, and he was under the impression that these issues would be poorly received by the scientific community. If the tenets of Darwinian evolution were completely accepted by science, who would be interested in buying the book? The next paragraph says, The editor shared his concerns with his wife. His wife was a student in my class. Again, this is consistent with your understanding of Mr. Atchison's -- Dr. Atchison's involvement? A. Yes. As I said, I think the editor, his wife was in vet school and knew that she was taking biochemistry and so asked the professor in that class. Q. She advised her husband to give me a call. So unaware of all this, I received a phone call from the publisher in New York. We spent approximately ten minutes on the phone. After hearing a description of the work, I suggested that the editor should seriously consider publishing the manuscript. I told him that the origin of life issue was still up in the air. It sounded like this Behe fellow might have some good ideas, although I could not be certain since I had never seen the manuscript. We hung up, and I never thought about it again, at least until two years later. And then in the next session titled A Blessing Years Later, Dr. Atchison writes, After some time, Behe's book, Darwin's Black Box, the Free Press, 1996, was published. It became an instant best seller and was widely acclaimed in the news media. It is currently in its 15th printing and over 40,000 copies have been sold. I heard about it, but could not remember if this was the same book that I received the call about from the publisher. Could it be? In November 1998, I finally met Michael Behe when he visited Penn for a faculty outreach talk. He told me that, yes, indeed, it was his book that the publisher called me about. In fact, he said my comments were the deciding factor in convincing the publisher to go ahead with the book. Interesting, I thought. You did meet Dr. Atchison, correct? A. Yes, later, I did, yes. Q. And is this your understanding of the kind of peer review Dr. Atchison did of your book? A. No, it wasn't. I thought he had received a copy of the manuscript and went through it. So -- but -- so, yes, I was under a different impression. Q. So he didn't review your manuscript carefully, he didn't review it at all, correct, Dr. Behe? MR. MUISE: Objection, Your Honor. He has no personal knowledge. Again, he's using this document to assert the truth of the document, and Dr. Behe can only testify as to what his knowledge is. THE COURT: I think that's a fair objection. You'll have to rephrase. The objection is sustained. BY MR. ROTHSCHILD: Q. You have no basis by which to dispute this account in this document, correct, Professor Behe? A. My understanding is different from what is given in this account. Q. And you did see some comments from some of your other reviewers, is that right? A. That's correct. Q. And they confirmed that you hadn't made any errors in the biochemistry, correct? A. Yes. Q. You were describing the bacterial flagellum correctly, its function, its appearance? A. Yes. Q. But they were reluctant or disagreed about intelligent design, correct? A. Several were, yes, uh-huh. Q. You also explained that, why you don't expect intelligent design at scientific conferences, correct? A. Yes, that's because I consider it to be a poor forum for communicating such ideas. Q. That's because typically you would present in the sort of poster sessions? A. That's correct, yes. Q. That doesn't really provide the opportunity to discuss it in detail to the audience? A. That's correct, yes. Q. It's difficult to impart understanding to your fellow scientists in that abbreviated form? A. Yes. And not many come by. A few people wander by, yes. Q. It's not really an amenable way to present it? A. That's right. It's usually brief conversations. Q. You need to really present it in more detail for scientists to understand it? A. That's why I discuss it in seminars and so on before scientific audiences, yes. Q. Fair to say that, that rule probably makes even more sense with high school students, Professor Behe? A. I'm sorry, what rule is that? Q. The rule that you can't just present intelligent design in an abbreviated fashion? A. Well, you certainly will not get a full understanding of intelligent design in a brief session. However, I think, if we're talking about high school students, such as you mentioned, it certainly might be a good thing to mention topics to them that they might consider pursuing in-depth outside the classroom. Q. But an abbreviated statement is not going to give them a good understanding anymore than it would your fellow scientists, is that right? A. A brief statement of any complex subject certainly will not give a person a complete understanding of it. Q. Speaking of the students, you went through a number of statements regarding evolution that you described as philosophical and religious, correct? A. You mean, during my testimony yesterday? Q. I think it was Monday, or maybe it was yesterday. It's hard to keep track. But some statements by Professor Miller, by Dr. Dawkins, by Peter Singer? A. Yes, I did. Q. And you would characterize those as non-scientific statements, rather philosophical or religious or political statements? A. That's correct. Q. Should they be taught to students in a high school biology class? A. Well, that's an interesting idea. Since a high school biology class, in my opinion, is not, should not simply be focused on producing scientists for the next generation, since most students won't go on to become scientists, but rather it's for their liberal education, understanding science, and also understanding science's role in the world, I think, in fact, it might be appropriate not to teach this in a sense of saying, here are things that are true, but to discuss the comments that have been made about scientific theories that they are learning in their class to show the students that science is not something that is confined to the library, but the ideas generated by science have far reaching ramifications in the opinion of many learned people, and that, here are some of them. And I think that's actually an excellent idea for a science classroom. Q. In biology class? A. In biology class, in physics class, and other science classes as well. Q. And you definitely agree that students should be taught that some biochemical systems are intelligently designed, correct? A. I'm sorry. Could you restate -- Q. Your testimony over the last two days stands for the proposition that students should be told that biological life has been intelligently designed? A. I'm afraid I don't think I said that. And if I did, I'm not quite -- well, I'm not sure that I said that. I didn't say, students should be told that some biochemical systems are intelligently designed. If I said that -- it's a good idea to give students a couple different frameworks where some data has been interpreted, so that they can see the difference between fact and theory, fact and interpretation, and so on. I think intelligent design is, in fact, a good way to do that, yes. Q. Fair to say that, what you're saying is that, one valid scientific interpretation that should be taught to students, along with other theories, is that some aspects of biological life were intelligently designed? A. I'm saying that, in their discussion of these issues, students can be told that some scientists have proposed this idea, and here are the reasons that they propose. Here are the data that they point to. Here is what other scientists have proposed. They have proposed a different theory. Here is the data that they point to. Here are the explanations they give. Here are the responses that they gave to that first group. Here are the responses that the first group gave back. The point -- I'm sorry. The point is to -- is not to instruct students that this view is correct, as we've heard many times here. We know that theories can be wrong, that no theory is guaranteed to be true. So the point is to get them to discuss data from different points of view. Q. So students should be told that one scientific theory is that some aspects of biological life were intelligently designed? A. I think it would be good pedagogy to discuss the fact that some scientists do think that some aspects of life were intelligently designed, yes. Q. By an intelligent designer? A. Well, intelligently designed, yes, it implies a designer, yes. Q. So students should be told that there is a scientific theory or that scientists contend that some aspects of biological life were intelligently designed by an intelligent designer, good pedagogy? A. Again, I think you have to look at the context. There is a tendency for people to think that when you say, you're going to teach something in the classroom, that means you're going to present it to students and tell them that is true. Q. I'm not suggesting that, Professor Behe. My question was, you think it's good pedagogy -- MR. MUISE: Objection, Your Honor. He's attempting to answer the question. MR. ROTHSCHILD: He's attempting to evade the question, Your Honor. I'm being very clear. He helped me correct it, and I corrected it. THE COURT: Let's let him finish the answer. Finish the answer. THE WITNESS: It's just that -- I'm just saying that students should be presented different views for discussion, not in the sense of saying, this is either valid or not valid, this is true or not true, but just to give different points of view. BY MR. ROTHSCHILD: Q. I understand that. So what you're saying is, it's good pedagogy to tell students that one scientific theory about biological life is that some aspects of biological life were designed by an intelligent designer? A. I would phrase it differently. I would say, it's good pedagogy to tell some students that some people think that this is the case. Q. Fair enough. Is it also good pedagogy to tell students in biology class, some scientists argue that there is no intelligent designer? A. I think it would be good pedagogy to point out that, in fact, the majority view of science is that random mutation and natural selection without any apparent design is responsible for what we find in biology. Q. And included in that statement, it would be good pedagogy to tell students, those scientists contend there is no intelligent designer? Is that good pedagogy, to tell students that scientists think there is no intelligent designer? A. No, it would not be good pedagogy, because there are many different ideas tangled together in your statement. Many scientists who think that, for example, Darwinian processes are correct, nonetheless do think that there is a designer in a different sense. One is using the word designer here in several different senses; designer of laws of nature versus designer of specific aspects of nature, and so on. So I think your question is a bit ambiguous. Q. Fair to say that my statement, that telling students there is no intelligent designer, has religious and philosophical baggage as well as scientific? A. I'm sorry. Would you say that again? Q. Fair to say that the statement I propose, telling students there is no intelligent designer in science class, has religious and philosophical aspects? A. Yes. Like many theories, it does. Q. Are there gaps and problems with the theory of intelligent design? A. Yes. Q. Should students, high stool students being made aware of intelligent design be made aware that there are gaps and problems in the theory of intelligent design? A. Absolutely. Q. If they are being made aware of intelligent design, but are not being told there are gaps and problems in intelligent design, are they being misled, Professor Behe? A. Well, again, they're not receiving full instruction then in intelligent design. And so you could, if you had more time, you could certainly go into those, and I would certainly recommend that you do so. MR. ROTHSCHILD: May I approach the witness? THE COURT: You may. BY MR. ROTHSCHILD: Q. Professor Behe, what I've showed you is Plaintiffs' Exhibit 721. Do you recognize that as the article you wrote with David Snoke entitled Simulating Evolution by Gene Duplication of Protein Feature that Requires Multiple Amino Acid Residues? A. Yes. Q. And you discussed that over the last couple days? A. Yes. Q. Now in this, you described this as a theoretical paper? A. Yes. Q. You didn't culture organisms? A. No. Q. Or isolate proteins? A. No, this was a computer study. Q. Okay. Like what you criticized Dr. Pennock for doing? A. I didn't criticize him for doing computer studies. I criticized his particular model because I thought it was not -- it had dissimilarities or it had assumptions built into it that I thought were inappropriate. Q. It didn't represent what actually happens in biological life, that's your -- A. That's correct, yes. Q. It didn't represent what is actually understood to happen in the theory of evolution? A. Well, some aspects of it were sort of like what has happened in evolution, but it was -- it went a little bit too far afield, in my opinion, for it to be a useful model. Q. And this study, this computer simulation was based on gene sequences that were published by other laboratories or other researchers? A. No, not really, no. It was a -- based essentially on simply what we know about protein structure, was not a sequence study. Q. When you say, what we know about protein, that was based on the work of other researchers? A. Yes, uh-huh. Q. And you studied a particular type of mutation, a point mutation? A. That's correct. Q. And let me just ask you a few questions, and you tell me if I'm fairly summarizing the results of your computer simulation. What you're asking is, how long will it take to get -- and please follow with me, I'm trying to do this slowly and methodically -- two or more specific mutations, in specific locations, in a specific gene, in a specific population, if the function is not able to be acted on by natural selection until all the mutations are in place, if the only form of mutation is point mutation, and the population of organisms is asexual? A. I would have to look at that statement closely because there are so many different aspects to it that I don't trust myself to sit here and listen to you say that and form a correct judgment. Q. Anything I said about that sound incorrect? A. If you repeat it again, I'll try. Q. I'd be happy to. Two or more specific mutations? A. Actually, this dealt with one or more. Q. One or more mutations? A. Yes. If you notice, in figure -- if you notice in figure 3, you look at the x axis, you notice that there are data points there that start at one. So we considered models where there were one, two, and more mutations. Q. Fair enough. In specific locations? A. No, that's not correct. We assumed that there were several locations in the gene that could undergo these selectable mutations, but we did not designate where they were. Q. In the specific gene? A. We were considering one gene, yes. Q. In a specific population? A. Yes. Q. Okay. If the function is not able to be acted on by natural selection until all mutations are in place? A. Yes, that's what's meant by multiple amino acid residue, multi-residue feature, yes. Q. If the only form of mutation is point mutation? A. Yes, that's a very common type of mutation, which is probably half or more of the mutations that occur in an organism. Q. And if the population of organisms is asexual? A. Yes, we did not -- actually, we did not confine it just to asexuals, but we did not consider recombination. Q. Are prokaryotes an example of the kind of organism that you were studying there? A. Again, we weren't studying organisms, but, yeah, they're a good example of what such a model has in mind. Q. And to say this very colloquially, you conclude that it will take a large population a long time to evolve a particular function at disulfide bond, right? A. A multi-residue feature. That's correct, that's correct. Q. And specifically -- A. I'm sorry. Q. Go ahead. A. Let me just finish. Depending on -- as we emphasize in the paper, it depends on the population size. And, of course, prokaryotes can oftentimes grow to very large population sizes. Q. And here the conclusion, the calculations you concluded was that, if you had a population of 10 to the 9th power, that's a population of 1 billion? A. That's correct. Q. To produce a novel protein feature through the kind of multiple point mutations you're talking about, it would take 10 to the 8th generations, that's what it says in the abstract, correct? A. If, in fact, it was -- if, in fact, the intermediate states were not selectable. Q. Okay. A. And if this is by gene duplication as well. Q. Okay. So 10 to the 8th generation, that's 100 million generations? A. That's correct. Q. And yesterday, you explained about bacteria, that 10,000 generations would take about two years in the laboratory, correct? A. Yes. Q. So 100 million generations, that would take about 20,000 years? A. I'm sorry? Q. 100 million generations, which is what you calculated here, that would take about 20,000 years? A. Okay, yes. Q. And those are numbers based on your probability calculations in this model, correct? A. Yes. Q. Now it would be true that, if you waited a little longer, say, instead of 10 to 9th generations, 10 to the 10th generations, then it would mean that you wouldn't need as big a population to get the function that you are studying? A. That's right. The more chances you have, the more likely you are to develop a feature. And the chances are affected by the number of organisms. So if you have a smaller population time, and more generations, that could be essentially equal to a larger population size and fewer generations. Q. So, as you said, so if we get more time, we need less population to get to the same point, and if we had more population, less time? A. That's correct, yes. Q. Now would you agree that this model has some limitations? A. Sure. Q. And you, in fact, were quite candid in indicating that in the paper? A. That's correct. Q. And if we could turn to, what I believe is, page 8 of the document. And if you look in the paragraph that's actually continued from the previous page that says, we strongly emphasize. And if you could -- A. I'm sorry. What page number is that? Q. It's page 8 in the document. And it's up on the screen as well. A. Yes, okay. I've got it. Q. Could you read into the record the text to the end of the paragraph beginning with, we strongly emphasize? A. We strongly emphasize that results bearing on the efficiency of this one pathway as a conduit for Darwinian evolution say little or nothing about the efficiency of other possible pathways. Thus, for example, the present study that examines the evolution of MR protein features by point mutation in duplicate genes does not indicate whether evolution of such features by other processes, such as recombination or insertion/deletion mutations, would be more or less efficient. Q. So it doesn't include recombination, it doesn't include insertion/deletion of the mutations? A. That's correct. Q. And those are understood as pathways for Darwinian evolution? A. They are potential pathways, yes. Q. This study didn't involve transposition? A. No, this focuses on a single gene. Q. And transpositions are, they are a kind of mutation, is that right? A. Yes. They can be, yes. Q. And so that means, this simulation didn't examine a number of the mechanisms by which evolution actually operates? A. That is correct, yes. Q. And this paper, let's be clear here, doesn't say anything about intelligent design? A. Yes, that's correct. It does imply irreducible complexity but not intelligent design. Q. But it doesn't say it? A. That's correct. Q. And one last other question on your paper. You concluded, it would take a population size of 10 to the 9th, I think we said that was a billion, 10 to the 8th generations to evolve this new disulfide bond, that was your conclusion? A. That was the calculation based on the assumptions in the paper, yes. MR. ROTHSCHILD: May I approach the witness, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. What I've marked as Exhibit P-756 is an article in the journal Science called Exploring Micro-- A. Microbial. Q. Thank you -- Diversity, A Vast Below by T.P. Curtis and W.T. Sloan? A. Yes, that seems to be it. Q. In that first paragraph, he says, There are more than 10 to the 16 prokaryotes in a ton of soil. Is that correct, in that first paragraph? A. Yes, that's right. Q. In one ton of soil? A. That's correct. Q. And we have a lot more than one ton of soil on Earth, correct? A. Yes, we do. Q. And have for some time, correct? A. That's correct, yes. Q. And, in fact, he gives us a good way of comparing it. It says, as compared to a mere 10 to the 11th stars in our galaxy? A. Yes, that's what he writes, uh-huh. Q. And 10 to the 16th prokaryotes is 7 orders of magnitude higher than the population you included in your calculations, correct? A. No. We considered a wide range of populations, and we considered a wide range of number of substitutions that would be -- or point mutations that would be necessary. You're focusing on two, but perhaps I can direct your attention again to that figure from the paper -- excuse me. Let me find it. The best place I think to look is figure 6, which is on page 10 of the document. Up in the upper right-hand corner, that figure there. Q. Sure. A. If you look on the bottom, the x axis there, the bottom of the figure that's labeled lambda, it has the numbers 2, 4, 6, 8, 10, and so on, those are the number of point mutations that we consider perhaps some multi-residue feature might entail. As we said in the paper, forming a new disulfide bond might require as few as two point mutations. But forming other multi-residue features such as protein, protein binding sites might require more. And so the number on the X axis lambda 2, 4, 6, 8, those are the number of point mutations that we entertained or we calculated numbers for to see how long such things would be expected to take under our model. And if you look up at the top axis, the top x axis labeled N, at the top of the figure. N stands for population size. Okay. So if you look at the figures there on the left, it's slanted, and it's not enlarged yet, so it's hard to see. It says, 10 to the 6th. That's a million. And then skip a line. These are in every 10 to the 3rd increments of population size. That would be 10 to the 9th. The next label is 10 to the 12th, which is a trillion. The next label is 10 to the 18th, which is much more. The next label is 10 to the 24th, which is much, much, much more. The next label, 10 to the 30th, which, again, is very much more. So, in fact, we considered population sizes from 1000 all the way up to 10 to the 30th, and multi-residue features from 2, which might involve disulfide bonds, up to many more, which might be involved in protein, protein binding sites. Q. 10 to the 30th, that is quite a lot, right? A. Yes. That's roughly what is calculated to be the bacterial population of the Earth in any one year. And so over the course of the billion year, 4 billion year history of the Earth, there would probably be a total of roughly 10 to the 40th. Q. And so in the case of prokaryotes, which you said was a good example of what you were studying, 10 to the 16th in one ton of soil? A. Yes. Q. So a few tons of soil, and we've gone past that 10 to the 30th? A. Well, no. In the 10 to the 14th tons of soil. 10 to the 30th is the number that's in the entire world, according to the best estimates, including the ocean as well as soil. So -- but I agree with your point, that there's a lot of bacteria around and certainly more than 10 to the 9th. Q. So just with the prokaryotes, 10 to the 16th, 7 orders of magnitude higher than what you were calculating here? A. That's certainly true, but in our paper, we had our eye not only on prokaryotes, but also on eukaryotes as well, which, if you leave out recombination, one can -- they certainly undergo point mutations. They certainly have genes and so on. So much of this is also applicable to eukaryotes. And the populations of eukaryotes and certainly larger plants and animals are much, much smaller than populations of bacteria. So we view our results not just as supplying that, but to giving us some feel for what can happen in more complex organisms as well. Q. Well, you're not talking about more complex organisms here, are you? A. I think we do. I think at the end, if I'm not mistaken, if I remember correctly -- okay, yes. On page 11, the second full paragraph, on page 11. It begins on the right-hand column, the second full paragraph. It says, The lack of recombination in our model means it is most directly applicable to haploid, asexual organisms. Nonetheless, the results also impinge on the evolution of diploid sexual organisms. The fact that very large population sizes, 10 to 9th or greater, are required to build even a minimal MR feature requiring two nucleotide alterations within 10 to the 8th generations by the processes described in our model, and that enormous population sizes are required for more complex features or shorter times, seems to indicate that the mechanism of gene duplication and point mutation alone would be ineffective, at least for multicellular diploid species, because few multicellular species reach the required population sizes. Thus, mechanisms in addition to gene duplication and point mutation may be necessary to explain the development of MR features in multicellular organisms. So here we were trying to point out that, because of the results of the calculation, it seems that, when we're trying to explain MR features in multicelled organisms, then we're going to have to look to other processes for that. Q. Okay. So if we exclude some of the processes by which we understand evolution to occur, it's hard to get there for multicellular organisms? A. I'm sorry. Q. If we exclude some of the mechanisms by which we understand evolution to occur, like recombination, it's hard to get there? A. Yes. Q. And bringing it back to the prokaryotes. We're in agreement here, the number of prokaryotes in 1 ton of soil are 7 orders of magnitude higher than the population, you said it would take 10 to the 8th generations to produce the disulfide bond? A. Yeah, certainly. Yeah, the bacteria are -- can grow to very large population sizes. Q. So the time would be? A. Much shorter. Q. Much shorter? A. Absolutely. MR. ROTHSCHILD: Your Honor, this would be a good time to take a break. THE COURT: All right. Why don't we take our morning recess now, and we will return in about 20 minutes. Thank you. (Whereupon, a recess was taken at 10:16 a.m. and proceedings reconvened at 10:40 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 12 (October 19), AM Session, Part 2 THE COURT: All right. We resume with Mr. Rothschild. MR. ROTHSCHILD: Thank you. CROSS EXAMINATION ( CONTINUED) BY MR. ROTHSCHILD: Q. Professor Behe, I'd like to turn our attention now to Darwin's Black Box. What you explain in Darwin's Black Box is that, modern science has been able to explore life at the molecular level in a way that was not possible with Darwin, is that right? A. That's right. Q. Or actually for sometime after? A. That's correct. Q. And it's that life at the molecular level that you are referring to when you call it Darwin's Black Box, something he couldn't look into? A. That's correct. Q. In fact, in the book, you call it the last black box? A. Is that right? Could you show me where I do that? Q. Sure. A. I'm sorry. Q. If you could turn to page 13. A. Yes. Q. Okay. And if you look at the paragraph, you quote from a ditty from Jonathan Swift? A. Yes. Q. And then you say, in the late 20th century, we are in the flood tide of research on life, and the end is in sight. The last remaining black box was the cell, which was opened to reveal molecules, the bedrock of nature, the last black box, correct? A. I'm sorry. Yes. Okay, the last remaining black box was the cell, yes. Q. Okay. And then you conclude at the end of that paragraph, that black box now stands open? A. Yes. Q. And I think you've testified, and I think it's apparent in your book that, science has discovered a level of complexity that prior generations of scientists never predicted? A. That's correct. Q. And your conclusion is that, that complexity provides an insurmountable obstacle to Darwinian evolution? A. Well, you always try to avoid words like insurmountable, but it certainly points to severe problems for it, yes. Q. And you reached the conclusion that certain biochemical systems could not be produced by natural selection because they are irreducibly complex? A. Again, you've got to be careful about using absolutes like could not, but it certainly seems like they could not. Q. And these systems also have what you describe as a purposeful arrangement of parts? A. Yes. Q. And, therefore, you concluded they were intelligently designed? A. Yes. Q. And in terms of the structure of the systems, you base your conclusions on work on the structure and function of those molecular systems done by other scientists? A. That's correct. Q. Many other scientists? A. That's correct. Q. And you read a lot of papers that published in peer review journals describing the structure and function of the systems that you discuss in the book? A. That's correct. Q. And those scientists in those papers don't argue that their work supports irreducible complexity as you define it? A. That's correct. Q. Or intelligent design? A. That's correct. Q. And, in fact, a good number of them would have actively opposed that? A. And still do. Q. And the -- Matt, if you could pull up page 39, please, and highlight the bottom paragraph there at the bottom. This is the place in Darwin's Black Box where you explain what you mean by irreducibly complex? A. Yes. Q. And as you testified, I believe, on Monday, a scientist named Alan Orr noted an ambiguity in your definition? A. Yes. Q. And you responded to that? A. Yes. Q. And you tweaked that definition? A. Right. Q. Matt, could you pull up the tweaked definition that he created? And I have inserted the words which is necessarily composed to make this paragraph consistent with the tweaking you described you did in response to Alan Orr. And I'm going to read that. And I've called it here the modified definition of irreducible complexity from Darwin's Black Box. What it says is, By irreducibly complex, I mean a single system which is necessarily composed of several well-matched, interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system to effectively cease functioning. An irreducibly complex system cannot be produced directly, that is by continuously improving the initial function which continues to work the same mechanisms by slight successive modifications of a pre-cursor system, because any pre-cursor to an irreducibly complex system that is missing a part is, by definition, non-functional. An irreducibly complex biological system, if there is such a thing, would be a powerful challenge to Darwinian evolution. Since natural selection can only choose systems that are already working, then if a biological system cannot be produced gradually, it would have to arise as an integrated unit in one fell swoop for natural selection to have anything to act on. So that's the last paragraph on page 39 adding the words that you did in response to Dr. Orr? A. Yes. Q. And when you say, it would have to arise as an integrated unit in one fell swoop for natural selection to have anything to act on, what you're saying is, whatever the proposed pre-cursor was, would die because it doesn't have all of its parts? A. No, that's not correct. Die is not -- the function of a system is not to live, it's to do something particular. You say that the system did not work, it did not do its function. For example, the bacterial flagellum would not work without the necessary parts. Q. And, therefore, there would be no successive generation because that flagellum would not move on to the next generation? A. No, that's not right. A bacterium that is missing a flagellum would certainly go on and continue to grow. It can reproduce and so on. But the flagellum doesn't work. And this is from my article, I believe, in Biology and Philosophy, where I responded to Professor Orr. And in that article, I specifically said that he had a misconception that irreducible complexity meant that an organism could not live without this, without the system that we were talking about. And that's not what I meant by it. Q. So the organism with half a flagellum or parts of a flagellum could continue to live in that circumstance, it just wouldn't have an operating flagellum? A. Sure, yes. Q. Now could you turn again to Exhibit 718, which is that article, Reply to my Critics, that you just discussed? A. Yes. Q. Okay. On -- could you turn to page 695? A. Yes. Q. And in the first full paragraph, you repeat some of the text that we just saw from Darwin's Black Box about why irreducible complex systems are obstacles for Darwinian explanations? A. Yes. Q. And then you write, However, commentary by Robert Pennock and others has made me realize that there is a weakness in that view of irreducible complexity. The current definition puts the focus on removing a part from an already functioning system. And then continuing on after footnote 5, you say, The difficult task facing Darwinian evolution, however, would not be to remove parts from sophisticated pre-existing systems, it would be to bring together components to make a new system in the first place. Thus, there is an asymmetry between my current definition of irreducible complexity and the task facing natural selection. I hope to repair this defect in future work. That's what you wrote, correct? A. Yes. Q. You haven't repaired that defect, have you, Professor Behe? A. No, I did not judge it serious enough to do so yet. Q. So the defect you identified was, you were starting with the function and working backwards, removing parts, correct? A. That's correct, yes. Q. And natural selection is actually operating in the opposite direction, you start with the pre-cursors and then develop until you get to the system you're studying? A. Yes, that would be a more difficult task. Q. That's the asymmetry? A. Yes. Q. And that asymmetry has not been repaired? A. That asymmetry is not really relevant to biological circumstances. In the sentence that you skipped over in that paragraph, I talk about what Professor Pennock discussed in his book in making this point. If I could just quote from that. He says, Thus, seeking a counterexample to irreducible complexity entower a battle. Pennock writes about a part in a sophisticated chronometer whose origin is simply assumed which breaks to give a system that he posits can nonetheless work in a simpler watch in a less demanding environment. So I viewed Professor Pennock's objection -- of course, Professor Pennock is a philosopher, and that was an interesting philosophical turn on my discussion, I thought, but that is not -- that is not -- I did not consider that to be relevant to biology. Q. Okay. The task facing natural selection, that's not relevant to biology? A. No, the particular pathway that Professor Pennock had in mind where one assumes that one has a very sophisticated pre-existing system whose origin has been left unexplained and has just postulated, which then goes on to breakdown and give less sophisticated parts, that is the part that I don't think is really relevant to biology. Q. If you start with the system and then break it down removing parts, that's not relevant to biology? A. Well, that's not the difficult task facing evolution. Q. Right. And you're not testing the natural -- the difficult task facing evolution, which starts from the pre-cursors and moves forward to the system you're studying. You're going backwards. Isn't that what irreducible complexity proposes? A. It does not propose that anything goes backwards. It asks, how do we identify this problem for Darwinian evolution? And if you can remove a part, and a system no longer works, then the system needs those parts to work. And so the problem, how you put that together by numerous successive slight modifications, as Charles Darwin thought one had to do, is, I think, illustrated by that. Q. In any event, you have not repaired this asymmetry? A. That's correct. Q. And that article was written four years ago, correct? A. Yes. Q. Now you've used the expression, produced directly. I think that's in the definition. Matt, if you could pull that back up. And if I understand what you mean by directly, it means, for example, in the case of the flagellum, that it has to be steps in which there's a rotary motor that continues to become the rotary motor, that is the flagellum? A. Yes. By direct, I mean that it essentially worked, as the definition says, it works by the same mechanism, has the same number of parts; essentially, it's the same thing. Q. Same thing. And then if you could turn to page 40 of Darwin's Black Box. Matt, if you could highlight the first paragraph. You acknowledge another possibility? A. That's correct. Q. You say, Even if a system is irreducibly complex and thus could not have been produced directly, however, one cannot definitively rule out the possibility of an indirect, circuitous route, right? A. Yes. Q. And by indirect, you mean evolution from a pre-cursor with a different function than the system being studied? A. Yes, different function, perhaps different number of parts, and so on. Q. And one example of that is what's discussed in, among evolutionary biologists, as the concept of exaptation, correct? A. Yeah -- well, before I say, yes, I'd just like to say, the word exaptation is oftentimes used in loose sense, but, yes, that's generally correct. Q. And that is a concept that people in the field of evolutionary biology consider to be a valid concept, a valid description of the way more and more complex systems get developed? A. Let me say -- Q. I'm not asking you to agree with it. I'm asking you, is that what an evolutionary biologist proposes? A. Again, let me make clear what we're talking about here. Some evolutionary biologists certainly think that exaptation is real and that it's important and so on. But simply saying that this part over here was exapted from that part over here does not give an explanation of how random mutation and natural selection could have gotten it from one state to the other. Q. But it is certainly, exaptation -- for example, a bird wing developing from some kind of feathered structure on a dinosaur that didn't necessarily allow flight, that's what evolutionary biologists propose, and they call it exaptation? A. That's entirely possible, and that's consistent with intelligent design, because intelligent design only focuses on the mechanism of how such a thing would happen. So the critical point for my argument is, how such things could develop by random mutation and natural selection. Q. And again, intelligent design doesn't describe how it happened? A. That's correct, only to say that intelligence was involved somewhere in the process. Q. Okay. Now you go on in this passage and say, As the complexity of an interacting system increases, though, the likelihood of such an indirect route drops precipitously, and as the number of unexplained irreducibly complex biological systems increases, our confidence that Darwinian's criterion of failure has been met and skyrockets toward the maximum that science allows? What you're saying there is, you know, it could happen, I'm not ruling it out, but it's really improbable? A. Yes, it's improbable. Q. Okay. And you haven't -- and based on that, you conclude that intelligent design is a much more probable explanation? A. Not just based on that, based on the purposeful arrangement of parts. Q. Fair enough. And you haven't actually quantified this, have you? A. Not explicitly, but as a biochemist who understands what it takes to, for example, for a protein to function, for two proteins to bind specifically to each other, and so on, I rely on my experience of that in arriving at this conclusion. Q. And you've seen how long it takes for the prokaryotes to bind? A. 10 to the 16th in one ton of soil, yes, uh-huh. Q. Now just to be clear -- in this passage, you say, irreducibly complex biological systems, right? A. I'm sorry? Q. In this passage, you say, As the number of unexplained irreducibly complex biological systems increases, right, that's what it says there? A. Yes. Yes, I do, uh-huh. Q. But you took pains on Monday to communicate to the Court that when you're talking about irreducible complexity, you're just talking about it at the molecular level? A. Yes, that should be biochemical instead of biological. Q. Fair enough. You don't make claims about irreducible complexity at the organ level? A. That's correct. Q. Or at the organism level? A. That's correct. Q. In fact, you don't have any expertise or training in the organ or organism level? A. That's correct, yes. Q. You also have no expertise in paleontology? A. That's correct. Q. Or physics? A. That's correct, too. Q. Sorry. Couldn't resist. We've gone a long time. But you agree that intelligent design, as opposed to just Michael Behe, is making an argument for intelligent design far beyond the cellular level, correct? A. I'm sorry? Q. Intelligent design, as a scientific proposition and the individuals who advocate for it, are arguing for intelligent design beyond the cellular level? A. Some people certainly do, based not on my argument but other arguments. Q. So it's not based on your argument? A. Yes. Q. And, for example, in Pandas, that's certainly in play intelligent design of not just biochemical structures but higher level forms? A. Well, let me just correct myself. They're not basing it on my argument in regard to irreducible complexity, but they are basing it on the purposeful arrangement of parts, which is certainly what I discuss in Darwin's Black Box. Q. In Darwin's Black Box, you talk about a purposeful arrangement of parts, and you actually say, you know, using that standard, almost anything looks design, right? A. I don't think I said that. Q. We'll return to that. In any event, in Pandas, there are arguments for intelligent design of higher level biological life? A. Yes, there are. Q. And we're clear, that's not based on your work? A. It's not based on any concept of irreducible complexity. It is based on a concept that I discuss in Darwin's Black Box, the purposeful arrangements of parts. Q. That purposeful arrangement of parts, that's not -- you didn't originate that? A. No, I didn't. Q. At least, it goes back to Reverend Paley? A. Yes, it does. Further back than that. Q. Now let's start with the bacterial flagellum. You've made a point about how complicated and intricate it is? A. Yes. Q. And it really is. I mean, it looks remarkable. But a lot of biological life is pretty remarkable? A. That makes me very suspicious. Q. You're suspicious about how remarkable biological life is? A. No, it makes me suspicious, you know -- that was a joking way to say that I think much of biological life may bespeak design. Q. Plants and photosynthesis, that's very complicated, right? A. Sure is, yes. Q. Just the physical beauty of a flower is amazing? A. Amazing in a different sense. Of course, when you're talking about physical beauty, now you're thinking more of an aesthetic and philosophical concept, yes. Q. The features seem to be arranged in a way that gives it great attractiveness? A. Well, okay, but you're now speaking of something that I was not speaking of. When I talked about the purposeful arrangement of parts, it was for some function of the system, not necessarily to be perceived as pretty. Q. Fair enough. The entire human body, that's an amazing biological structure? A. I'm thinking of examples. Q. Hopefully, not mine. A. Rest assured. Sure. Yes. Q. We're stipulated here. Because we can make an agreement about that. The human body, in its entirety, is an amazing biological system? A. Yes, it's amazing, yes, uh-huh. Q. And just my hand? A. Yes. Q. Muscles and joints and bones and nerves. I can grab things with it. I can point. A. Yes, that is certainly a very impressive biological system. Q. Is that a purposeful arrangement of parts? A. Is it a purposeful arrangement of parts? Yes, I think it is. Q. And the physical world, too, the stars and planets and gravity, also amazing? A. They are certainly amazing, yes. Q. And they function in conjunction with each other to do things, create gravity, light, things like that, that are pretty remarkable? A. Gravity is remarkable. Light is remarkable. But you're going to have to be very careful about the sorts of conclusions you draw from these things, because -- and simply because you don't want to just become overenthused about the beauty of nature and try to turn that into an argument. Q. But it actually -- I mean, it functions. Light, I mean, it functions. And gravity, it functions? A. Yes. Q. And interaction of different elements on the periodic table combine to make substances in the chemical world, things we rely upon for our life and all of biological life actually relies on, right? A. Yes, that's certainly true. Q. And we don't rule out natural explanation for all of these amazing phenomena, do we? A. Well, you're going -- I don't rule out natural explanations for anything, including intelligent design. Intelligent design does not rule out natural explanations. However, you're going to have to make some distinctions between how phenomena work and what phenomena strike many people as somehow ordered to, or is necessary for specific purposes such as the existence of life. Q. It's really a definitional issue? A. I'm sorry. What is a definitional issue? Q. You just described it. I mean, you got to be careful about how we're talking about how everything has different functions when we're making assessments about whether the natural explanations are valid? A. I couldn't -- Q. I'll withdraw that, Professor Behe. You made the claim that scientists who discuss cellular systems are calling them machines, correct? A. Yes. Q. And you said, they're not comparing them to machines, they're calling them machines? A. Right. Q. One of the scientists you referred to was Dr. DeRosier? A. Yes. Q. And what you said, what you quoted from his article was, More so than other motors, the flagellum resembles a machine designed by a human? A. Yes. Q. So he's not saying, the flagellum is a machine, he's saying, it resembles a machine? A. No, he's saying, it resembles a machine designed by a human. There are other machines in the cell that may not resemble machines designed by humans, but I think, as many people can see when looking at an illustration of the bacterial flagellum, this is a machine that looks like something that a human might have designed. Q. It looks like it? A. That's what science has to go on; what we can see, what we can measure, and so on. Q. It resembles it? A. Exactly. Q. Okay. And when you quoted to -- and he's also saying, you know, other cellular systems don't resemble machines so much, right? More so than other motors, the flagellum resembles a machine designed by a human? A. He's saying that more other machines in the cell don't so much resemble machines designed by humans, but he is certainly not saying that they are not machines, at least in my reading. And in that issue -- not -- in a previous issue of Cell, the one that I pointed to earlier, a number of scientists were discussing molecular machines that do not resemble things that do not visually resemble machines that we have in our world. Q. But here he is saying, resembles a machine designed by a human. That's your point, right? A. That's what' he said. Q. It looks like a machine a human would design? A. It resembles a machine designed by a human, yes. Q. Now the intelligent designer, when he was forming a bacterial flagellum millions or billions of years ago, you're not suggesting he was actually modeling his design after a manmade rotary motor which didn't exist until the last century? A. I'm sorry. Could you say that again? Q. Yeah. You're talking about things that resemble machines designed by humans. You're not suggesting that the intelligent designer, when the -- when he or she or they designed the first bacterial flagellum millions or billions of years ago, was modeling its design after manmade rotary motors which didn't exist until the last century? A. I'm not quite sure how exactly to address this question. When you're inferring design, you do not ask yourself whether a designer had some particular, you know, look in mind. You're asking whether, in the structure of this system, you see a purposeful arrangement of parts. And I think, in the case of the bacteria flagellum, the fact that it does resemble something from our everyday world is due to the fact that its function is similar to some things that we find in our everyday world such as propulsive motors, like outboard motors on boats, and, therefore, the functional engineering requirements would be similar for such a machine in the cell as well as in our everyday world. Q. Another example you gave was, and just to be clear, Dr. DeRosier is in no way suggesting that his article has anything to do with intelligent design? A. Not that I know of. Q. Or irreducible complexity? A. Not that I know of. Q. And then you also cited to Bruce Alberts? A. Yes. Q. And I think he is or was the head of AAAS? A. No, he was the head of the National Academy of Sciences. Q. Better yet. And what you quoted from him was, Why do we call the large protein assembles that underlie cell function protein machines? Precisely because, like machines invented by humans, these protein assemblies contain highly coordinated living parts. He used the expression, like a machine? A. Yes, he did. Q. And I think what we all learned in grade schools, when you make a comparison, use like, that's called a simile? A. It may be, but I think the point that he was trying to convey is that these things work like the machines that we have in our everyday world. And so, in fact, they are. Q. Do you watch football, Professor Behe? A. I do on occasion, yes. Q. I watched the Notre Dame/USC game last weekend. It was quite a game? MR. MUISE: I might have to interpose an objection here, Your Honor. MR. ROTHSCHILD: I told Mr. Muise his alma mater did themselves proud, despite the final result. BY MR. ROTHSCHILD: Q. And one of the things the announcer said was about one of the USC offensive linemen is, he's like a mountain? A. Yes. Q. Now you don't understand it to say, he was made like a mountain was, not by wind or erosion or physical processes on land mass? A. No, of course not. People use words like that in loose senses all the time. But in this particular case, Dr. Alberts was making a specific comparison to the physical functioning of these things and liking it to the physical functioning of machines in our everyday world. They require a precise arrangement of parts. They act by transducing energy in order to accomplish some function and so on. Q. So when the same announcer said, the running back is like a bulldozer, that was closer? A. No, I think that's silly. Q. I think it is, too, Professor Behe. And you have never talked to Bruce Alberts about what exactly he meant when he used the expression, like a machine? A. No, I didn't. Q. That's your interpretation? A. Yes, it is. Q. And that's true for the other articles you cited about whether biochemical systems are machines as opposed to being like machines? A. Well, again, I think we're getting into a semantical distinction -- or just into semantics. If something acts like a machine, and something has a function, and so on, then it is a machine. Q. Now you talked at some length on Monday about the issue of whether the type III secretory system might be a pre-cursor to the bacterial flagellum, or the reverse, that it is a descendent of the bacterial flagellum, or they might have been a common ancestor, right? You looked at some articles on that subject? A. Yes. Q. The papers that were discussing that, they were all discussing this complicated issue within the framework of evolution, correct? A. Sure. Evolution understood as common descent, yes. Q. None were suggesting intelligent design? A. No, they did not. Q. They were just scientists trying to figure out whether it was A that evolved into B, or B that evolved into A, or A and B evolving from C? A. That's right. They were taking the mechanism of natural selection and random mutation for granted. They were not demonstrating it. They were not making arguments for it. They were taking it as an assumption. Q. And in terms of what the order is, they have -- they haven't nailed it down yet, right? A. Not only haven't they nailed it down, but they have proposed completely opposite scenarios whereby one can't tell which arose first or second or even if they arose from each other at all. Q. And you don't expect the dialogue to stop there, do you? A. I don't expect it to, but it may. Q. Okay. But scientists, as they do with many subjects on which there's disagreement, may continue to be making arguments and writing papers and submitting them to peer review journals and doing experiments to see if they can come up with a consensus answer on the subject? A. Sure. And they may write books to try to come up with an answer, too, as well. Q. That's how you get the royalties, right? A. (No response.) Q. You recently visited the University of Minnesota, didn't you? A. Yes. Q. You spoke with a University Professor named James Kurzinger? A. Yes, I did. Q. He actually asked you whether the type III secretory system is a subset of the bacterial flagellum, is that right? A. I don't think he said exactly that, but I'm not -- we did talk about the flagellum and the type III secretory system, but I'm not prepared to say exactly how the conversation went. MR. ROTHSCHILD: May I approach the witness, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. And James Kurzinger is a scientist? A. He identified himself as such. Q. And this is -- this Exhibit 724 is an article in the Minnesota Daily. It's an opinion piece. And it says, Intelligent Design 101, Short on Science, Long on Snake Oil. And it goes on to describe -- MR. MUISE: I'm objecting that his use of this document again is hearsay. He doesn't have recollection of this, of this conversation. I'm not sure if he's going to be using this to try to refresh his recollection. MR. ROTHSCHILD: It recounts a conversation, and I am going to ask Professor Behe whether that conversation occurred. MR. MUISE: He's going to ask him the conversation, Your Honor, he can't just read -- THE COURT: Well, to the extent that you're going to try to characterize the -- I think you've appropriately characterized what the exhibit is, Mr. Rothschild. So why don't you move on to your question. MR. ROTHSCHILD: Okay. He has expressed a vague recollection of what happened, so I'm going to read him the passages in here. THE COURT: I understand. MR. ROTHSCHILD: Okay. THE COURT: I understand. I think the objection went to the fact that you were beginning to read or extensively characterize -- MR. ROTHSCHILD: Fair enough. THE COURT: -- the exhibit. BY MR. ROTHSCHILD: Q. Just for some more foundation. In the first paragraph, it says, Intelligent design's leading scientist, Dr. Behe, a professor of biochemistry, visited the U, which I understand to be the University of Minnesota, last week as a guest of the McLauren Institute, and that, in fact, did occur? A. Yes, I visited Minnesota as a guest of the McLauren Institute. Q. And if you could turn to the third page of the document. And there's some discussion on that third page about the bacterial flagellum and the type III secretory system? A. Yes. Q. And Mr. Kurzinger makes his own observation about the type III secretory system being a subset of the bacterial flagellum? A. I'm sorry. Could you say that again? Q. In the paragraph that begins, much to Dr. Behe's distress -- MR. MUISE: Objection, Your Honor, that's hearsay. He's pointing to a paragraph for the truth of what's in the statement. THE COURT: Well, it's sustained to the extent that you're going to read it. He can read it and put it into context. BY MR. ROTHSCHILD: Q. Could you read the paragraph that says, much to Dr. Behe's distress? A. Out loud, or -- Q. Please. A. Okay. This paragraph says, Much to Dr. Behe's distress, the TTSS is a subset of the bacterial flagellum. That's right, a part of the supposedly irreducible bacterial outboard motor has a biological function. Q. And I'm not going to ask you about whether you were distressed or not. But the next paragraph then says that he asked you about this at lunch, correct? A. That's what it says, yes. Q. And you did have lunch that day? A. We had lunch, and I recall a conversation about this, but again, I don't recall many details. Q. Okay. And according to Dr. Kurzinger, you acknowledged that the claim that -- MR. MUISE: Objection, Your Honor. He's referring to an editorial, and he's trying to recount this as an exact conversation. Dr. Behe doesn't have recollection of what occurred. This article has no relevance. THE COURT: The next paragraph starting with, when I asked Dr. Behe, I think, is where you're going. MR. ROTHSCHILD: Yes. THE COURT: Why don't you go right to that, as it's expressed there, instead of trying to paraphrase it. BY MR. ROTHSCHILD: Q. It says, When I asked Dr. Behe about this at lunch, he got a bit testy, but acknowledged that the claim is correct. Paren, I have witnesses. He added that the bacterial flagellum is still irreducibly complex in the sense that the subset does not function as a flagellum. My question here is, is Mr. -- Dr. Kurzinger's account that you agreed that the claim that the TTSS is a subset of the bacterial flagellum, did you agree to that? A. I don't recall, but I would, if I was going to answer it very carefully, I would make a lot of distinctions before saying so. Q. Okay. But you don't recall whether you said that or not? A. No, I don't. Q. Okay. And then you go on to say that you still think -- well, I'll leave that. Your argument is that, even if the type III secretory system is a pre-cursor to the bacterial flagellum, is a subset, the bacterial flagellum is still irreducibly complex because that subset does not function as a flagellum? A. That's correct, yes. Q. And, therefore, the bacterial flagellum must have been intelligently designed? A. Well, again, the argument is that, there is -- that when you see a purposeful arrangement of parts, that bespeaks design, so, yes. Q. And yesterday, you testified that, that doesn't mean the bacterial flagellum was necessarily designed, appeared abruptly in one fell swoop, correct? A. That's correct. Q. Could have been designed slowly? A. That's correct. Q. So under this scenario, at some period of time, the bacterial flagellum wouldn't have had all of its parts until the design was completed? A. Could you say that one more time? Q. Yeah. Under this scenario of slow design -- which was what I experienced with my kitchen -- at some period of time, the bacterial flagellum wouldn't have had all its parts until the design was completed? A. That's right. Q. And so without all its parts, it wouldn't be functional? A. That's right. Not as a flagellum, yes. Q. So that is a phenomenon in both intelligent design and natural selection? A. I'm not quite sure what you mean. Q. In slow design, the bacterial flagellum has some prior existence, it doesn't have all its parts, right? A. Well, if -- until it has all its parts and it starts functioning, I guess it's problematic to call it a flagellum. Q. It has some subset? A. I guess things that will eventually be part of the flagellum would begin to appear, yes. Q. Just not function like a flagellum? A. Yes, the system would not yet function as a flagellum. Q. Just like has been suggested for natural selection? A. I'm sorry. Q. Just like has been suggested for natural selection? A. I'm not quite sure what you mean. Q. Natural selection also suggests that there was a subset of parts that would eventually comprise the bacterial flagellum, but didn't work as the bacterial flagellum? A. No. Natural selection, if I remember your question correctly, natural selection does not suggest that. People see that there is a subset of proteins in the flagellum which share a lot of sequencology with proteins that act as a type III secretory system. Nobody, nobody has said how natural selection could get you the type III secretory system, the flagellum could get you from the -- even if you had the type III secretory system, nobody has said how you could get from that to the flagellum. Nobody has said how you could get from the flagellum to the type III secretory system. So this is an example again of conflating different levels of evolution. We see evidence for common descent, evidence for relationship, but we see nothing, nothing that bears on the question of random mutation and natural selection. Q. Let me see if I've got this right. In natural selection, the argument is that, there was a subset of parts, right, like the type III secretory system, that eventually evolved to become the bacterial flagellum, right? That's the argument? A. I would want more detail. Are you saying that in -- Q. I'm not asking you to agree with the argument, Professor Behe. I'm just trying to walk us through this. The argument for the evolution of something like the bacterial flagellum, just to use that as an example, is that, at sometime it had a subset of proteins, maybe looking something like the type III secretory system, and eventually it evolved to become the bacterial flagellum? That's the argument, right? A. I would have to see the argument written down. As you characterize it, I'm not quite sure what it is. Q. Okay. But you're not disputing that the theory of evolution says, at some point we had a subset of proteins, then we had eventually all the proteins that make up whatever system we're discussing? A. That sounds okay. Q. Good. In slow design, same thing. At some point, we had a subset of the proteins, and eventually, we got to the whole thing? A. That's right. The crucial question -- the only question is the mechanism. Q. Okay. So in the case of evolution, there is a mechanism that's been proposed, natural selection? A. Yes. Q. And you've agreed that natural selection certainly is a phenomena that operates in the natural world? A. That is correct. Q. Including at the biochemical level? A. That's right. Q. Then we've got slow design, and there we have no mechanism at all, no description of a mechanism? A. We have no description of a mechanism. We do infer design though from the purposeful arrangement of parts. Q. Now yesterday, I asked you some questions about the designer's abilities. And you said, all we know about its abilities is that it was capable of making whatever we have determined is design. That's the only statement we can make about the designer's abilities? A. Yes. Q. And in terms of the designer's -- as a scientific statement? A. That's correct. Q. And the only thing we know scientifically about the designer's motives or desires or needs is that, according to your argument, the only thing we would know scientifically about that is that it must have wanted to make what we have concluded as design? A. Yes, that's right. Q. In fact, the only way we can make the statement scientifically that a designer exists is that it made whatever we conclude was design? A. Yes, that's right. Q. I want to ask you exactly, and this question is particularly about how -- about the flagellum design. Was the design limited to the original blueprint for the first bacterial flagellum? A. I'm not sure what you mean by the blueprint for the flagellum. Q. The plan? A. The plan? Did the plan cause the flagellum to occur? Q. Is that all of intelligent design? The designer planned the bacterial flagellum? A. Well, no. The designer would also have to somehow cause the plan to, you know, go into effect. Q. It would have to make the thing? A. No, it had to -- well, it would have to have processes by which it would be made. Q. I mean, it's got to actually be constructed. We're not talking about a bacterial flagellum in the mind's eye of the designer. It's actually something we now know physically exists? A. That's right. Q. Had to be created? A. Well, you're using -- in what sense are you using the word created? Created can mean -- can have several different senses. Q. You're uncomfortable about that word? A. Yes, because it's a loaded word in these circumstances. Q. Okay. Created can mean the same thing as made, right? A. We use the word create when we refer to things that are made by artists and engineers and so on, yes. Q. Okay. In that sense, the designer created the bacterial flagellum? A. I might say that, it might be a very indirect process by which such a thing was made. So when you say that the designer made the flagellum, it is not necessary to think that somehow the protein parts of this were somehow immediately brought together. It might have been a long process. Q. Did the intelligent designer design each and every protein of the flagellum? A. That is a difficult question to address, and there's lots and lots of distinctions to make. When you ask whether the parts of the flagellum themselves require design, you have to then focus in on those parts. As I tried to emphasize earlier in my testimony when we talk about parts, some people have a simple view, picture in their minds something simple, but each of the parts is itself a very complicated molecular entity. And as my work with David Snoke shows, that even getting small changes in pre-existing proteins, that is parts, is no easy task. So the question -- Q. Unless you have a whole ton of soil? A. I'm sorry? Q. Unless you have a whole ton of soil? A. So that's actually an excellent question. Did those parts themselves also have to be designed? And I think right now, the question is open. Q. Did the intelligent designer identify -- design every individual flagellum in every bacteria or just the first lucky one? A. Well, since organisms, biological organisms can reproduce, of course, then if one has the genes and the proteins and information for a flagellum, then by the normal processes of biological reproduction, more copies of the -- of that structure can occur. Q. So the answer is, just the first one? A. That's all that would be needed. That's all we can infer, yes. Q. Now you have this first flagellum, first bacteria that has a flagellum. And that has -- those -- that bacteria with flagellums have had mutations in their flagellums? A. Sure. Genes undergo mutations, yes. Q. And did the designer also design every mutation of the flagellum since its inception? A. No, you can't -- you certainly can't say that. There is certainly random processes that go on in our world, or for processes, that for all we can tell, certainly appear to be random. So there's no -- nothing that requires us to think that any mutation, any change that subsequently occurs to this structure either was intended or -- was intended. Q. Is that a no or an I don't know? A. Can you restate the question? Q. I asked you the question, did the designer design every mutation of the flagellum since the first one? And I'm asking you whether the answer is no or, better phrase, we don't know? A. Well, that's -- that's a very tricky question. But the proper answer is that, we don't know. Q. Is the information necessary to answer that question observable? A. The question of whether the designer designed every single mutation? Q. Since that first lucky flagellum? A. Is it observable? Hum. We can certainly observe mutations, but unless the mutations and changes and so on further go on to form a purposeful arrangement of parts, then we cannot deduce simply from their occurrence that they were designed. Q. There could be multiple designers, correct? A. Yes, I wrote that in Darwin's Black Box. Q. Could even be competing designers? A. That's correct. Q. Are you aware of any irreducibly complex systems that have just come into existence in the last five years? A. Biological systems or mechanical systems or in our everyday world or other ones? Q. No, Professor Behe, biological systems? A. The last five years? You mean, brand new irreducibly complex systems? Q. Yes. A. I'm sorry. Brand new ones, not ones that are just -- Q. That are still around, that's right? A. -- reproduced? Not that I'm aware of, no. Q. Last 10 years? A. No. Q. 50 years? A. Not that I know of, no. Q. A hundred years? A. All of the structures that I wrote about in Darwin's Black Box and have considered are much older than that. Q. So scientifically, we can't even make -- we can't even state right now that an intelligent designer still exists, correct? A. That's correct, yes. Q. Is that what you want taught to high school students? A. What are you referring to by that? Q. That scientific -- after teaching them about intelligent design, sign -- and telling them that, that is a scientific proposition, that right now, scientifically, we can't even tell you that an intelligent designer exists? Is that what you want taught to high school students? A. Well, let's make a couple distinctions. First of all, when I say, when you use the word taught, again, a lot of people have in mind instructing students that this is correct. Q. That's not what I mean, Professor Behe. A. Well, I'm sorry. I was unable to figure out exactly what you meant. If you're asking -- Q. Tell them about it, Professor Behe. Make them aware. Give them information. A. Make them aware that some people say that, from the purposeful arrangement of parts, we can conclude that something was designed, but many other questions we can't determine, including whether there were multiple designers, whether the designer is natural or not, whether the designer still exist? Yes, I think that would be a terrific thing to point out to students. It shows the limitations of theories. It shows that some evidence bears on one topic, but does not bear on others. I think that would be terrific pedagogy. Q. Right. Okay. You've taken the position in this courtroom that intelligent design is open to direct experimental rebuttal, correct? A. Yes. Q. And you stated that very clearly in your article Reply to my Critics? A. Yes. Q. And the way you said this could be done, and why don't we turn to that document, which is Exhibit 718. If you could turn to page 697. Matt, if you could highlight in the second paragraph the passage that starts, To falsify such a claim, and go to the bottom of the paragraph. And you're asking the question here, or stating, intelligent design is open to direct experimental rebuttal, correct? A. Yes. Q. And you said, To falsify such a claim, a scientist could go into the laboratory, place a bacterial species lacking a flagellum under some selective pressure, for mobility, say, grow it for 10,000 generations, and see if a flagellum, or any equally complex system, was produced. If that happened, my claims would be neatly disproven. Now the test you've described, that would falsify the claim, your claim that the bacterial flagellum is irreducibly complex in the way you've described it, and could, in fact, evolve from pre-cursors, right, if that was successful? A. That would show that my claim that it required design -- required intelligent design was incorrect. Q. Let's break that down. You have this concept of irreducible complexity, right? A. Yes. Q. And you stated that the bacterial flagellum is irreducibly complex, right? A. That's correct. Q. And this test would, if it was successful, demonstrate that the bacterial flagellum is not irreducibly complex. We can, in fact, put a bacterial species lacking a flagellum under some selective pressure, and eventually it's going to get that flagellum, right? A. Well, just a distinction. It wouldn't demonstrate that it wasn't irreducibly complex. It would demonstrate though that random mutation and natural selection could produce irreducibly complex systems. Q. Fair enough. It could evolve, and that would falsify your claim that an irreducibly complex system, like a bacterial flagellum, could not evolve through random mutation and natural selection? A. That's right, yes. Q. But that claim that an irreducibly complex system cannot evolve through random mutation and natural selection, that's not your whole case for intelligent design, correct? A. That's right, it's the purposeful arrangement of parts. Q. And we saw that bacterial flagellum, right? It's -- I say, it looks like a machine. You say, it is a machine. Right? A. Yes. Q. And it sure works like one? A. Yes. Q. So it's got a purposeful arrangement of parts whether it's irreducibly complex or not? A. It is irreducibly complex. The question is whether an irreducibly complex system can be put together by random mutation and natural selection. Q. Okay. So my question is, how would you falsify the claim that a biological system, like the bacterial flagellum, which is clearly a purposeful arrangement of parts, is not intelligently designed? A. Well, since it's an inductive argument, since the purposeful arrangement of parts is an inductive argument, then in order to falsify an induction, you have to find an exception to the inductive argument. So if somebody said that, when you see this purposeful arrangement of parts -- and again, the -- as I stress, the argument is quantitative, when there is a certain degree of complexity and so on. If it was shown that that did not always, did not always bespeak design, then the induction would not be reliable, and we would -- so -- and the argument would be, would be defeated. Q. Now you, in fact, have stated that intelligent design can never be ruled out, correct? A. Yes, that's right. Q. Now let's turn to your test here of whether bacterial flagellum could evolve through random mutation and natural selection. 10,000 generations, that's your proposal, correct? A. Right. Q. And it sounds like a lot, but you actually testified that, that would just take a couple of years, right? A. Right. Q. And, you know, based on your understanding of normal laboratory procedures, even the best laboratories, how much bacteria would be made a part of that test? A. Oh, probably at the best, 10 to the 10th, 10 to the 12th, at the outside. Q. Now you haven't tested intelligent design yourself this way, have you? A. No, I have not. Q. And nobody in the intelligent design movement has? A. That's correct. Q. And nobody else has? A. I'm sorry? Q. And nobody else has, outside the intelligent design movement? A. Well, I'm not sure -- I don't think I would agree with that. I think the experiments described by Barry Hall were actually in an attempt to do exactly that. He wanted to see if he could, in his laboratory, re-evolve a lac operon. His first step in that process in the mid 1970's were the experiments that I discussed here yesterday, knocking out the beta galactosidase gene. His intention was, from things he has written later, was to see how that would evolve and then knock out two steps at a time, and eventually see how he could get really the whole functioning system. But he had such trouble with just getting that one step to go, and since he could not knock out anything else, and get it to re-evolve, he gave up. And so I would count his efforts as a test of that, and say that the test, you know, that it was, it did not falsify intelligent design thinking. Q. And I had actually made a blood pact with my co-counsel not to ask you about the lac operon, but now I had to violate it. A. Too late. Q. How many years has he done this experiment? A. I think he was working on it for 20 years or so. Q. In any event, that's the lac operon. But for bacterial flagellum, you're not aware of that test being done? A. No. Q. Certainly not by anybody in the intelligent design movement? A. No. Q. Okay. So you can't claim that the proposition that the bacterial flagellum was intelligently designed is a well-tested proposition? A. Yes, you can, I'm afraid. It's well-tested from the inductive argument. We can, from our inductive understanding of whenever we see something that has a large number of parts, which interacts to fulfill some function, when we see a purposeful arrangement of parts, we have always found that to be design. And so, an inductive argument relies on the validity of the previous instances of what you're inducing. So I would say that, that is tested. Q. Professor Behe, you say right here, here is the test, here is the test that science should do, grow the bacterial flagellum in the laboratory. And that hasn't been done, correct? A. That has not been done. I was advising people who are skeptical of the induction that, if they want to essentially come up with persuasive evidence that, in fact, an alternative process to an intelligent one could produce the flagellum, then that's what they should do. Q. So all those other scientists should do that, but you're not going to? A. Well, I think I'm persuaded by the evidence that I cite in my book, that this is a good explanation and that spending a lot of effort in trying to show how random mutation and natural selection could produce complex systems, like Barry Hall tried to do, is likely to result -- is not real likely to be fruitful, as his results were not fruitful. So, no, I don't do that in order to spend my time on other things. Q. Waste of time for Barry Hall? A. I'm sorry? Q. Waste of time for Barrie Hall? A. No, certainly not a waste of time. It was very interesting. He thought that he would learn things. And he did learn things. But they weren't the things that he started out to learn. He thought that he would be able to see the evolution of a complex system. And he learned how difficult that was. Q. In any event, you have not undertaken the kind of test you describe here for any of the irreducibly complex systems you have identified? A. I have not. Q. And neither has anybody else in the intelligent design movement? A. That's -- well, actually, I think some people are testing, not the bacterial flagellum, but are testing other things on protein structure, which I would probably count under that. Q. Count as irreducibly complex systems? A. Well, I wouldn't really call them irreducibly complex in that sense, but I think bear on the question. Q. Okay. So in terms of irreducibly complex structures, you haven't done any tests, right? A. That's right. Q. You're not planning on any tests -- A. That's right. Q. -- of the type you described here? A. Well, I'm doing my theoretical work with David Snoke and hope to continue that, so I think that bears on this question. Q. Bears on it, but it's not testing an irreducibly complex system in the way you described in this article? A. That's right. Q. And nobody else, you're not aware of anybody else in the intelligent design movement doing a test of the type you described here of an irreducibly complex system? A. No, not yet. Q. Now you talked about how, you know, your proposal here would take approximately two years, right? A. Yes, yes. Q. I'm sorry. I'm pointing to down here, and that's -- you're not that good a mind reader. Now bacteria had been on the Earth for billions of years, correct? A. That's right. Q. And the bacterial population that exists in the world and has ever existed in the world is orders and orders of magnitude greater than ever could be in one laboratory experiment? A. That's right. It should be about 10 to the 40th or so, I would estimate. Q. And I think you said, 10 to the -- what was your proposal for the laboratory, 10 to the -- you had said that you had a suggestion for how much we would study in one laboratory? A. 10 to the 10th and 10 to the 12th, that's correct. Q. And you talked about selective pressures that the bacterial flagellum could be exposed to, but a laboratory could never recreate all the selective pressures that have existed in the environment for the last three and a half billion years? A. Well, that's certainly true. But a scientist -- scientists nonetheless try to understand parts of nature, even though nature is very much bigger than a laboratory. And in many other instances, such as people investigating origin of life and so on, they nonetheless try to understand what the proper environment would be to study, and so they can kind of focus their efforts on what would be the most promising type of environment, and so make it more likely to discover something that was there than just focusing on the whole world. Q. But it's entirely possible that something that couldn't be produced in the laboratory in two years, or a hundred years, or even in the laboratory that was in operation through all of human existence, could be produced over three and a half billion years? You have to agree with that, Professor Behe? A. It's entirely possible, but we can only know if that is the case if we have, if we have experiments to back it up or calculations to back it up. Q. Experiments and inferences, right? A. That's right. Q. And so you agree, something we couldn't -- that couldn't happen in two years, much better chance over three and a half billion years? A. Absolutely. Q. Okay. And that's why the age of the earth is so important to a scientific theory about biological life, isn't it, Professor Behe? A. It's very important. Q. But intelligent design, that's a who cares, right? It could be -- the universe could be -- or the Earth could be billions of years old or 10,000 years old, and it doesn't matter to intelligent design? A. Intelligent design is not a person, so it doesn't have feelings like you are describing. Q. It's a movement, right? A. Intelligent design is a scientific theory that focuses on a particular question. There are many scientific theories that focus on particular questions that do not have anything to do with other interesting questions. The scientific theory of intelligent design focuses on discerning design, and that's it. Q. Okay. So it doesn't take a position on the age of the Earth? A. Theories don't take positions. Q. Okay. The intelligent design -- you described intelligent design as not making any claims about the age of the Earth, correct? A. That's correct. Q. And, of course, the prospects for evolution of a function or a system are also greater if the subject population is greater? A. That's correct. Q. And no human laboratory can duplicate the entire population of any kind of organism, correct? A. That's correct. Q. Okay. And no human laboratory can duplicate all of the selective pressures that have existed in the billions of years that bacteria have been around? A. That's correct. So we can't rule out all explanations. We have to investigate to see what are likely. Q. Professor Behe, the tests you proposed here regarding the bacterial flagellum is like asking Dr. Padian to grow a bird wing in a laboratory, isn't it? A. The test that is sufficient for a theory is proportional to what the theory claims. I'm no physicist, but in physics, there have been claims, many claims that required enormous amounts of effort by the entire physical community to build large structures, took many years to do so. And nonetheless, they thought that this effort was worth it, because they wanted to be sure of the answer. In biology, the claim that random mutation and natural selection can produce systems like the flagellum or other molecular machines is a very large claim. And one can't simply say that because it would be hard to test it, we will just assume it's true. So if somebody wants to be sure or somebody wants to -- wants to -- wants to respond to a skeptic with evidence that would convince somebody that was not already convinced of the theory, then there is no escaping the fact that you have to show that your theory can do what you claim for it. Q. And so to do that, what scientists advocating for the theory of evolution, including natural selection, have to do is create a laboratory that repeats human life -- that contains all of human life in deep time? A. I'm sorry. One more time. Q. In order to validate this big claim that the theory of evolution makes, what you're really saying is, they've got to create a laboratory that includes all of biological life and operates over deep time? A. No, I didn't say that at all. I said, if it can be demonstrated that random mutation and natural selection can produce complex systems, then intelligent design would be falsified. One doesn't have to, you know, re -- show that something of the complexity of a flagellum would be made. But if one saw that something somewhat less complex might be made in a reasonable time, then one might be able to extrapolate. You'd have to pay attention to the details of the system. So it's not, you know -- you don't need a worldwide laboratory and a billion years to test this. You can do things like Barry Hall tried to do. Q. That can't recreate the opportunities that were there for biological organisms throughout time? A. There are always opportunities for biological organisms. Biological organisms compete with each other. If one manages to compete more successfully, it will -- it will out grow others. And so there is no reason we can't expect something, like in Barry Hall's experiments, to show us some new interesting structure. And if that occurred, that would be a real feather in the cap of people who think Darwinian theory is correct. Q. Let's move onto the blood clotting cascade. Now you showed us some slides yesterday, or the day before, that show that certain organisms maintain a blood clotting function with less than all the parts that mammals have, correct? A. That's correct. Q. Okay. But that's not what you said in the blood clotting section in Pandas. You said, all the parts have to be, correct? A. No, I didn't. Q. Let's turn to pages 145 -- page 145 in Pandas, P-11. And this is the section on blood clotting? A. Page 145? Q. Right. A. This is part of it. Q. Right. And if you could turn to page 146. A. Yes. Q. And, Matt, if you could highlight that top paragraph, that one that continues over. You say, All of the proteins had to be present simultaneously for the blood clotting system to function, right? A. That's right, all the proteins I was talking about. Q. Okay. And then I understand, on Monday, you were distinguishing that there are different parts of the pathway, there are different parts of the pathway? A. Yes. Q. And what you said in -- on Monday is that, some of those parts, we have a harder time understanding than other parts? A. Right. Q. Okay. And, therefore, you just focus on a subset of the parts, right? A. Right. Q. Now you've got this whole cascade. You've got a diagram in Pandas. You got a diagram in your book, Darwin's Black Box. And you show it as a multi-protein system that includes that -- I think you said, intrinsic part of the pathway? A. Yes, uh-huh. Q. So that's the whole blood clotting cascade, correct? A. That's as it's presented in textbooks, yes. Q. And you presented it that way in Darwin's Black Box? A. Yes, I did. I used that figure, yes. Q. Okay. And you used it that way in Pandas, correct? A. I used it -- a very similar figure, yes. Q. And one whole system, one whole blood clotting cascade? A. These are all the proteins that have been determined to affect blood clotting, yes. Q. Okay. So -- but your claim in court is that, eh, let's ignore parts of it, some of those parts don't matter, we're just looking at a subset, right? A. I made proper distinctions about what is required and about what we don't have sufficient information to make claims about that, yes. Q. But those other parts never suggested are not part of the blood clotting cascade, right, the intrinsic pathway? A. Well, I'm afraid I did. I -- well, I quoted a section of my book showing that I was confining my argument to the proteins at the end of the pathway. Q. Matt, could you go to page 143 in Pandas so that we can have the picture of the system. I understand what you're saying, Professor Behe. You did indeed, in Darwin's Black Box, define the blood clotting system in a particular way, right, meaning -- A. Yes. Q. And what you called irreducible complex didn't include, I guess, what's sort of in that top left-hand corner of the cascade? A. That's correct. Q. But that's not the entire cascade? A. Well, there are many more proteins that affect blood clotting. But when I was talking about the concept of irreducible complexity, I wanted to make sure that we were talking about ones whose function was as clear as possible, so I limited it to that. Q. You defined the system down more narrowly? A. I'm sorry? Q. You defined the system more narrowly? A. That's right, yes. Q. And so I guess what you're saying is, part of the system -- part of the blood clotting system that works in all of our bodies is irreducibly complex, but as it gets more complicated, it's not irreducibly complex? A. No, I didn't say that. I said that the portion of the blood clotting system that I was focusing on was irreducibly complex. There might be components which affect blood clotting which can or can't be removed and help or not help but not break the system. But I was focusing my argument on irreducible complexity on the proteins I cited in my testimony. Q. You define the system in whatever way is convenient to the argument? A. I define the system very carefully to make sure that people understand what I'm talking about. I use the standard figure of the blood clotting cascade from a biochemistry textbook, because that's what is understood as the protein system that affects blood clotting. Q. Now let me just make sure I understand the argument. What I think you said was, when I looked at -- the subset of the blood clotting cascade included fibrinogen, prothrombin, proaccelerin, and activated Stuart factor. Those are the things you say in Darwin's Black Box constitute the irreducibly complex system? A. Okay. Q. Is that correct? A. Yes. Q. And could you look on page 145 of Pandas? A. Yes. Q. Okay. And, Matt, could you highlight in the middle of the first column where it starts, We may try many smaller sets. You say here, We may try many smaller sets of components to get started; fibrinogen, prothrombin, activate the Stuart factor, and proaccelerin. And then you give some other alternatives. But then you say, death is nearly always the certain result, right? A. Yes, I did. Q. Okay. So that's actually saying, those four parts of the system, if that's all you got, not good enough? A. Excuse me a second. Let me read this, please. Yeah, with those four, the system would not work. Q. With those four, the system would not work? A. Yes. Q. Those are the four you just agreed were enough to make your irreducibly complex system? A. Well, those are the four that I said that, if you knock them out of the current system, the system would not function. Q. So here you're saying, just having those four -- you're saying, that's the irreducibly complex system, and the rest of it we can forget, and now we look at that irreducibly complex system, and death would be the certain result? A. I'm -- I'm not -- I'm not -- I'm not understanding the distinction you're making, sir. Q. Well, we looked at the puffer fish, right? A. Yes. Q. And it was missing some parts of the blood clotting cascade. But you said, from my argument, that doesn't matter, because that's not what I'm talking about, right? A. Yes. Q. You said, what I am talking about is these four factors here, right? I won't say them again because I'll just butcher them. Stuart factor and its friends. You said in your testimony on Monday, those four, those you need? A. Yes. Q. That's enough. That's irreducibly complex. A. I didn't say, that's enough. I said that we certainly need those. Q. And now you're saying here, those four, not enough, they're just -- they're just dead? A. Well, again, I said that they were necessary. I don't think I said they were sufficient. Q. You didn't identify any other systems? A. Again, I was trying to identify parts which were certainly necessary, but I don't think I said that I was describing a minimal system. Q. Could you turn to page 86 in Darwin's Black Box, and the first continuing paragraph? A. Yes. Q. Okay. And this is the chapter where you're talking about how the blood clotting cascade is irreducibly complex? A. Right. Q. And you say, The function of the blood clotting system is to form a solid barrier at the right time and place that is able to stop blood flow out of an injured vessel. The components of the system beyond the fork in the pathway -- that's the part we don't know so much about? A. Yes. Q. -- are fibrinogen, prothrombin, Stuart factor, and proaccelerin, factors that, by themselves, you die from, right? A. I'm sorry? The factors -- Q. The factors that -- it says, The components of the system beyond the fork in the pathway are fibrinogen, prothrombin, Stuart factor, and proaccelerin. And those are the factors that, in Pandas, you say, if that's all you got, you're dead? A. I -- I -- these are the factors which, if you break them, will cause the clotting system to stop working. Q. That's the system, right? That's what it says in Darwin's Black Box? Those four components, that's the system? A. The total system? Does it say that? Q. It says, the system. A. I'm sorry. Where are you reading from now? Q. Page 86, Professor Behe. We know it's not the total system. There's a whole lot that we don't know about, right, and that the puffer fish can do without. But the system you're talking about, the single system that's irreducibly complex, that's those four components, correct? A. No. Again, I said that we should focus our attention on those, because a lot more is known about them, and if you remove them, the system will certainly be broken. Q. Right above what we just read, it says, The blood clotting system fits the definition of irreducible complexity? A. I'm sorry. Can you tell me exactly where you are? Q. Yes, the first full sentence on this page. A. That begins, Leaving aside the system before the fork in the pathway? Q. Yes. Leaving aside the system before the fork in the pathway, where some details are less well-known, the blood clotting system fits the definition of irreducible complexity. So we're leaving aside that stuff before the fork? A. Okay. Q. We're leaving the stuff aside that we know the puffer fish can do without. And you're saying, The blood clotting system fits the definition of irreducible complexity. That is, it is a single system composed of several interacting parts that contribute to the basic function, and where the removal of any one of the parts causing the system effectively to cease functioning. It talks more about the function. It says, The components of the system beyond the fork in the pathway are fibrinogen, prothrombin, Stuart factor, and proaccelerin. That's your irreducibly complex system, isn't it, Professor Behe? A. No, it's not. Again, I was confining my discussion to the point after the fork in the pathway because, as I said in the book, much more is known about that. But the fork in the pathway is essentially two different ways to activate the pathway. And while you can do without one way to activate the pathway, you can't do without both ways to activate the pathway. Something has to activate it. Q. So you have to have those four, right? A. Yes, those four are needed for the system to work. But -- and I confined my discussion to them. But they're not sufficient for a functioning system. Q. You need the stuff before the pathway, too? A. You need some of the stuff, yes. Q. Except for the puffer fish? A. Well, again, like I said, some of the stuff. The puffer fish itself has the extrinsic pathway, which is one way to trigger the remaining steps. It's missing the intrinsic pathway. But nonetheless, it still has one way to turn the pathway on. Q. It has those four things? A. It does, yes. Q. Which we know, by themselves, cause death? A. By themselves, they would cause the system to start stop functioning. Q. Sounds like a bigger mistake than Dr. Doolittle made, Professor Behe? A. I'm not sure what you are referring to. Q. Well, you spent a lot of time trashing Dr. Doolittle and his work, his article in the Boston Review. Your mistake here is quite a bit more substantial than misinterpreting a mice study, isn't it? A. I'm not even quite sure what you are referring to as my mistake. Q. I'll withdraw that question, Professor Behe. It's surely not your contention that the mistake you understand Dr. Doolittle to have made basically invalidates the possibility that the blood clotting system could have evolved? A. No, of course not. The only point I was making with that discussion was that he did not know how Darwinian processes produced it. It was not an argument saying that -- or it was not -- did not go to the point of whether or not that could happen. Q. Okay. And that was an article, whether right or wrong, that was not in a peer reviewed scientific journal? A. That's correct. Q. Dr. Doolittle, as you showed us, has actually written quite a bit on the subject of the blood clotting cascade in peer reviewed scientific journals? A. He certainly has. Q. Including what we saw about the puffer fish? A. That's correct. Q. And by contrast, how many peer reviewed articles are there explaining the blood clotting -- why the blood clotting cascade cannot evolve because it is irreducibly complex in the way you describe? A. Well, I'm going to say that the articles which elucidate the structure of the blood clotting pathway are the ones which demonstrate that. I will agree that there certainly are no arguments or directly to that point. But as I tried to show in my book, Darwin's Black Box, that's an implication that can easily be drawn from those studies. Q. So these are all those other articles based on the research of other scientists that you interpret differently than those scientists do? A. That's right. I was proposing a newer idea. Q. Okay. And how many peer reviewed articles are there in scientific journals discussing the intelligent design of the blood clotting cascade? A. Well, again, since we infer design by the purposeful arrangement of parts, then the peer reviewed articles in science journals that demonstrate that the blood clotting system is indeed a purposeful arrangement of parts of great complexity and sophistication, there are probably a large number of those. Q. Again, those are those articles by other scientists based on experimental research, right? A. They are certainly by other scientists, not by myself, and they are certainly based on experiments. Q. And none of those articles are arguing that the blood clotting cascade are intelligently designed -- is intelligently designed? A. That's correct. Q. And there are no peer reviewed articles arguing that the blood clotting cascade is intelligently designed, right, in scientific journals? A. I wrote my argument in a book, so, yes, that's correct. Q. And before we leave the blood clotting system, can you just remind the Court the mechanism by which intelligent design creates the blood clotting system? A. Well, as I mentioned before, intelligent design does not say, a mechanism, but what it does say is, one important factor in the production of systems, and that is that, at some point in the pathway, intelligence was involved. MR. ROTHSCHILD: This would be a good time for a break, Your Honor. THE COURT: All right. Why don't we take our lunch break at this point, and we will be in recess until 1:35 this afternoon. We'll resume cross examination at that time. Thank you. (Whereupon, a lunch recess was taken at 12:10 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 12 (October 19), PM Session, Part 1 THE COURT: Be seated, please. All right, good afternoon to all. We continue with Mr. Rothschild's cross examination. CONTINUED CROSS EXAMINATION BY MR. ROTHSCHILD: Q. Good afternoon, Professor Behe. A. Good afternoon, Mr. Rothschild. Q. Let's go on to immune system. That's another biochemical system that you argued in Darwin's Black Box and you argue in your testimony is irreducibly complex, is that correct? A. Yes. Q. And I'm correct in understanding that you have not written any peer reviewed articles in scientific journals arguing that the immune system is in fact irreducibly complex? A. No. My argument is in my book, that's right. Q. And nobody else has written any articles in peer reviewed scientific journals arguing that the immune system is irreducibly complex? A. Nobody has used those terms, but there are articles which speak of the requirement for multiple parts. Q. They discuss what the immune system is comprised of? A. Yes, in terms of it needing different several different parts. Q. But those are not articles that argue for the irreducible complexity of or do not argue that the immune system can't evolve because it is irreducibly complex? A. No, they don't argue that. Q. Similarly you have not written any articles in peer reviewed scientific journals arguing that the immune system is intelligently designed? A. Yes. Similarly that argument is in my book, so no, I didn't do it in peer reviewed articles. Q. And nobody else has either? A. That's correct. Q. Is it the case that the AIDS virus is irreducibly complex? A. I think that's something that would have to be argued on the basis of the evidence. Q. You don't have a position on that? A. No, I don't. Q. What about anthrax? A. I don't on that either. Q. What about the Type 3 secretory system? Is that an irreducibly complex system? A. I would have to, I do not right now have a position on that. So, no, I do not argue that. Q. Okay. I mean, are there some pathogens that are irreducibly complex? A. Well, I can't think of any right now, but there certainly may be. I don't rule it out. Q. Isn't it the case, Professor Behe, that we only have about four irreducibly complex systems and the rest are not? I mean, you've got the cilium, the bacterial flagellum, the immune system, the blood clotting cascade, is that it? A. No, I disagree. I think probably many other systems are, but I always want to be careful in my claims and so I stick to examples that I think are the best examples. Q. But you don't know about any others besides the four written in your book? A. I don't -- well, I certainly have my thoughts on the matter. Q. Okay. A. And I certainly that that irreducible complexity is a much, much better problem than, and it's not just confined to the examples in Darwin's Black Box. But in order to be as careful as I can I just talk about the best examples that I know of. Q. And so the examples that I asked you about, which are harmful systems like the AIDS virus or harm up to us anyway, AIDS virus, Type 3 secretory system, anthrax, those are the kinds of systems that may very well be irreducibly complex? A. They may well be, yes. Q. And if they are and the immune system is also irreducibly complex, they're in sort of mortal opposition to each other? A. Well, the phrase mortal opposition is not a scientific term. One can have a philosophical position on that I suppose, but I do not think that, I certainly wouldn't use that phraseology in describing it. Q. But they are in opposition to each other, one's purpose is to destroy the other? A. Now you're using the word purpose in a non-scientific sense. I think you're using it more in terms of what, more a philosophical sense. Certainly the AIDS virus -- pardon? Q. I'm not. I'm asking purpose in the sense of its function. The immune system's function is to combat these pathogens' function, correct? A. The purpose of the immune system, yes, is to defend an organism against pathogens. I would not say that the purpose of the AIDS virus is to destroy the immune system. I think its purpose, if anything one could say that its purpose is to replicate. But even that I would be a little uncomfortable with. Q. So acquired immune deficiency disease is not combatting the immune system? A. You're asking if I thought that was the purpose of the AIDS virus. Q. Its function. A. I do not think that is its function, no. Q. But in any event you do agree that the immune system, its function is to combat these kind of viruses? A. Yes. Among other things, yes. Q. Can you explain why would the intelligent designer design one irreducibly complex system and then another one to combat it or fight it? A. The question of the intentions of the designer is a question that is separate from and beyond the question of whether there is design. We can know something that is designed without knowing what the designer intended for it. If I might just give an example from our everyday world, we can look at something like a gun or some such thing, realize immediately that it was designed, and not know what the purpose of it is for. Q. But we do know a lot about the intentions, desires, motives, needs of the intelligent actors who designed those guns, correct? A. I'm going to say I don't think so. Certainly we know that if a gun were made by a human being and we know, we have other information from other sources about that, so from that other information we can certainly deduce, make good arguments about what those might be, but the case remains that that is separate information, separate from the structure of the gun, and we decide that the gun is designed by looking at the structure of it, or get away from guns, just any mechanical complex object. Q. We'll return to that in a little while. Let's turn back to Darwin's Black Box and continue discussing the immune system. If you could turn to page 138? Matt, if you could highlight the second full paragraph on page 138? What you say is, "We can look high or we can look low in books or in journals, but the result is the same. The scientific literature has no answers to the question of the origin of the immune system." That's what you wrote, correct? A. And in the context that means that the scientific literature has no detailed testable answers to the question of how the immune system could have arisen by random mutation and natural selection. Q. Now, you were here when Professor Miller testified? A. Yes. Q. And he discussed a number of articles on the immune system, correct? A. Yes, he did. Q. May I approach, Your Honor? THE COURT: You may. Q. I'm just going to quickly identify what these articles are. Exhibit P-256, "Transposition of HAT elements, links transposable elements, and VDJ recombination," that's an article in Nature by Zau, et al. P-279, an article in Science, "Similarities between initiation of VDJ recombination and retroviral integration," Gent, et al. "VDJ recombination and RAG mediated transposition in yeast," P-280, that's in Molecular Cell by Platworthy, et al. P-281 in the EMBO Journal, "En vivo transposition mediated VDJ recombinates in human T lymphocytes," Messier, et al, spelled like the hockey player. P-283, it says PLOS Biology, do you recognize that journal title? A. Yes. It stands for Public Library of Science. Q. And that's an article by Kapitnov and Gerka, RAG 1-4 and VDJ recombination, signal sequences were derived from transposons." P-747, an article in Nature, "Implications of transposition mediated by VDJ recombination proteins, RAG 1 and RAG 2, for origins of antigen specific immunities," Eglewall, et al. P-748 in The Proceedings of the National Academy of Science, "Molecular evolution of vertebrate immune system," Bartle, et al., and now finally Exhibit P-755 in Blood , "VDJ recombinates mediated transposition with the BCL 2 gene to the IGH locus and follicular lymphoma." Those were the articles in peer reviewed scientific journals that were discussed by Mr. Miller which you listened in on, correct? A. I recognize most of them. Some of them I don't recall, but that's fine. Q. They discuss the transposing hypothesis? A. Yes, they do. Q. And the kind of mutation being discussed in here is a transposition in most of these? A. You have to -- it depends on how you look at it. In many of them they're not actually discussing mutation. They're discussing similarities and sequences between parts of the immune system in vertebrates and some elements of transposons. Q. But it does discuss the transpositions, correct? A. It does, yes. Q. In many of the articles, maybe all of them? A. That's correct. Q. You indicated earlier when we were discussing your paper with Dr. Snoke that transpositions are a kind of mutation, correct? A. Yes, they are. Q. Now, you on Monday showed the court, or maybe it was Tuesday you showed the court that you had done a literature search of articles on the immune system looking for the words "random mutation," correct? A. Yes. Q. But you didn't search for transpositions, is that correct? A. That's correct. Q. And that word appears in a number of the titles here? A. It does, but the critical difference is the word random. There's lots of mutations, and it's entirely possible that intelligent design or some process of the development of life can occur by changes in DNA, but the critical factor is are such changes random, are they not random, so just there are also many occurrences of the word mutation, but it was not just mutation that is the critical element of Darwinian theory. It is random mutation. Q. But in modern Darwinian theory transposition is one of the kind of mutations that natural selection acts upon, correct? A. It is a mutation, and natural selection can act upon it. Q. So the word mutation didn't show up, or random mutation, but a form of mutation that natural selection can act upon appears throughout these articles, correct? A. Yes, that is right. Q. And you also noted that natural selection does not appear in these articles? A. That's correct. Q. The selectability of the immune function, that's not really a controversial proposition, is it? A. I'm sorry? What do you mean? Q. The selectability of the immune system that that is a selectable function, I mean that's not very controversial, is it? It's a good thing, right? A. If you mean is it beneficial for an organism to have one, I'm going to have to say that it's general, it's good for systems that, for organisms that depend on it to have one. But when you're thinking about evolution, one of the things you have to think about to have a rigorous understanding of it is what it is changing from and what is it changing to. The question is is a particular mutation that happens going to have a net beneficial effect or a net detrimental effect is an open question, and in any step one can look at, that question arises very pointedly, is this going to help or is it going to hurt. Q. But these articles do discuss immune systems that are different from the vertebrate immune system, correct? A. Which one is that, sir? Q. The articles about the transposon hypothesis. A. I think most of them are trying to look at connections between vertebrate immune systems and precursor elements. Q. And those precursors have some form of immune system, though not as robust as the vertebrate immune systems? A. I'm not sure what you're referring to, sir. Q. You said they're referring to precursors, those precursors are precursors that have immune systems, correct? Just not the kind we have? A. Well, I don't think so. Transposons are thought to have arisen from I think bacterial-like elements which do not have immune systems, and so I'm not quite sure how to take your question. Q. We'll get back to that. Now, these articles rebut your assertion that scientific literature has no answers on the origin of the vertebrate immune system? A. No, they certainly do not. My answer, or my argument is that the literature has no detailed rigorous explanations for how complex biochemical systems could arise by a random mutation and natural selection and these articles do not address that. Q. So these are not good enough? A. They're wonderful articles. They're very interesting. They simply just don't address the question that I pose. Q. And these are not the only articles on the evolution of vertebrate immune system? A. There are many articles. Q. May I approach? THE COURT: You may. Q. Professor Behe, what I have given you has been marked Plaintiff's Exhibit 743. It actually has a title, "Behe immune system articles," but I think we can agree you didn't write these? Other Links: "Immunology in the spotlight at the Dover 'Intelligent Design' trial" The cross-examination of Behe's claims about the immune system was written up in a May 2005 article in the journal Nature Immunology. List of publications presented to Behe This is a simple list, without commentary, of the article, books, and book chapters presented to Dr. Behe during his cross-examination. Annotated Bibliography on the Evolutionary Origin of the Vertebrate Immune SystemTitle of web site This page by Nick Matzke contains annotations and quotes for each publication in the Behe cross-examination list, as well as a description of how the list was assembled, an introduction to the science, and a summary of significant discoveries in evolutionary immunology. Longer, Unannotated Bibliography on the Evolutionary Origin of the Immune System This longer bibliography shows that the literature in the Annotated Bibliography is just a small sample of the available literature. Contains a quantitative analysis by Matzke. Press accounts of the event Several journalists have recounted this episode as a key moment in the trial. A. I'll have to look through. No, I did not. Q. And there are fifty-eight articles in here on the evolution of the immune system? A. Yes. That's what it seems to say. Q. So in addition to the, some of these I believe overlap with the eight that I previously identified that Dr. Miller had talked about, so at a minimum fifty new articles? A. Not all of them look to be new. This one here is from 1991 that I opened to, I think it's under tab number 3, it's entitled "Evidence suggesting an evolutionary relationship between transposable elements and immune system recombination sequences." I haven't seen this article, but I assume that it's similar to the ones I presented and discussed in my testimony yesterday. Q. And when I say new, I just meant different from the eight that I identified with Dr. Miller. A. Yes, that's right. Q. A minimum of fifty, and you're right they're not all new. Some go back as early as 1971, and they go right through 2005, and in fact there's a few that are dated 2006, which I guess would indicate a forthcoming publication. A. I assume so. Q. Okay. So there's at least fifty more articles discussing the evolution of the immune system? A. And midpoint I am, I certainly haven't had time to look through these fifty articles, but I still am unaware of any that address my point that the immune system could arise or that present in a detailed rigorous fashion a scenario for the evolution by random mutation and natural selection of the immune system. Q. I think you said in your deposition you would need a step-by-step description? A. Where in my deposition did I say that? Q. Do you remember saying that? A. I probably said something like that, but I would like to see it. Q. Is that your position today that these articles aren't good enough, you need to see a step-by-step description? A. These articles are excellent articles I assume. However, they do not address the question that I am posing. So it's not that they aren't good enough. It's simply that they are addressed to a different subject. Q. And I'm correct when I asked you, you would need to see a step-by-step description of how the immune system, vertebrate immune system developed? A. Not only would I need a step-by-step, mutation by mutation analysis, I would also want to see relevant information such as what is the population size of the organism in which these mutations are occurring, what is the selective value for the mutation, are there any detrimental effects of the mutation, and many other such questions. Q. And you haven't undertaken to try and figure out those? A. I am not confident that the immune system arose through Darwinian processes, and so I do not think that such a study would be fruitful. Q. It would be a waste of time? A. It would not be fruitful. Q. And in addition to articles there's also books written on the immune system? A lot of books, yes. Q. And not just the immune system generally, but actually the evolution of the immune system, right? A. And there are books on that topic as well, yes. Q. I'm going to read some titles here. We have Evolution of Immune Reactions by Sima and Vetvicka, are you familiar with that? A. No, I'm not. Q. Origin and Evolution of the Vertebrate Immune System, by Pasquier. Evolution and Vertebrate Immunity, by Kelso. The Primordial Vrm System and the Evolution of Vertebrate Immunity, by Stewart. The Phylogenesis of Immune Functions, by Warr. The Evolutionary Mechanisms of Defense Reactions, by Vetvicka. Immunity and Evolution, Marchalonias. Immunology of Animals, by Vetvicka. You need some room here. Can you confirm these are books about the evolution of the immune system? A. Most of them have evolution or related words in the title, so I can confirm that, but what I strongly doubt is that any of these address the question in a rigorous detailed fashion of how the immune system or irreducibly complex components of it could have arisen by random mutation and natural selection. Q. Or transposition and natural selection? A. Or transposition is a form of mutation, so when I say random mutation, that includes that, yes. Q. Okay. Even though we have all these articles we have seen discussing the transpositions and the transposon hypothesis? A. Well, again as I have tried to make clear in my testimony yesterday, often times people when they're working under the aegis of a theory simply assume some component of it, and my example of that was the ether theory of the propagation of light. All of the physicists of the relevant era, the late 19th century, including the most eminent ones, thought that that happened and they thought that ether was absolutely required by their theory, but it had turned out later not to exist. And so as somebody who's not working within a Darwinian framework, I do not see any evidence for the occurrence of random mutation and natural selection. Q. Let me give you some space there. A. Thank you. (Brief pause.) Q. There's also books on the immune system that have chapters on the evolution of the immune system? A. Yes, and my same comment would apply to those. Q. I'm just going to read these titles, it sounds like you don't even need to look at them? A. Please do go ahead and read them. Q. You've got Immune System Accessory Cells, Fornusek and Vetvicka, and that's got a chapter called "Evolution of Immune Sensory Functions." You've got a book called The Natural History of the Major Histocompatability Complex, that's part of the immune system, correct? A. Yes. Q. And here we've got chapter called "Evolution." Then we've got Fundamental Immunology, a chapter on the evolution of the immune system. A lot of writing, huh? A. Well, these books do seem to have the titles that you said, and I'm sure they have the chapters in them that you mentioned as well, but again I am quite skeptical, although I haven't read them, that in fact they present detailed rigorous models for the evolution of the immune system by random mutation and natural selection. Q. You haven't read those chapters? A. No, I haven't. Q. You haven't read the books that I gave you? A. No, I haven't. I have read those papers that I presented though yesterday on the immune system. Q. And the fifty-eight articles, some yes, some no? A. Well, the nice thing about science is that often times when you read the latest articles, or a sampling of the latest articles, they certainly include earlier results. So you get up to speed pretty quickly. You don't have to go back and read every article on a particular topic for the last fifty years or so. Q. And all of these materials I gave you and, you know, those, including those you've read, none of them in your view meet the standard you set for literature on the evolution of the immune system? No scientific literature has no answers to the question of the origin of the immune system? A. Again in the context of that chapter, I meant no answers, no detailed rigorous answers to the question of how the immune system could arise by random mutation and natural selection, and yes, in my, in the reading I have done I have not found any such studies. Q. Let me see if I can summarize the intelligent design project. You've studied peer reviewed articles about the structure and function of the cell, correct? A. Yes. Q. And you conclude from them that certain structures are irreducibly complex that could not have evolved through natural selection, and therefore are intelligently designed? A. I conclude from them that we see very detailed molecular machinery in the cell, that it strongly looks like a purposeful arrangement of parts, that in fact a purposeful arrangement of parts is a hallmark of intelligent design. I surveyed the literature and I see no Darwinian explanations for such things. And when one applies one's own reasoning to see how such things would be addressed within a Darwinian framework it's very difficult to see how they would, and so one concludes that one explanation, Darwinian processes, doesn't seem to have a good answer, but that another explanation, intelligent design, does seem to fit better. Q. And that conclusion tells you design is not one that's being asserted by the people who wrote the articles about the structure and function of the cell? A. That's correct. Q. And as we discussed before, one, a conclusion that many have actively disagreed with? A. That's correct, too. Q. And you stated that if the natural mechanism is to be accepted, its proponents must publish or perish? A. I'm sorry. Q. And then you stated in the Darwin's Black Box that, "If the natural mechanism is to be accepted, its proponents must publish or perish." A. I'm sorry, can I see that phrase? Q. Yes, could you go to page 185 and 186 in the chapter "Publish or Perish"? A. Yes. Okay, and what are you referring to here, sir? Q. You stated in this book that on the subject of molecular evolution the advocates of the natural mechanism, the Darwinian mechanism, must publish or perish, correct? A. I'm hanging up on the word natural mechanism. Where does that occur? I don't see that. Q. The Darwinian mechanism? A. Okay, Darwinian mechanism. Okay, yes, that's correct. Q. You conclude the chapter called "Publish or Perish" by saying, "In effect, the theory of Darwinian molecular evolution has not published, and so it should perish," right? A. That's correct, yes. Q. And then all these hard working scientists publish article after article over years and years, chapters and books, full books, addressing the question of how the vertebrate immune system evolved, but none of them are satisfactory to you for an answer to that question? A. Well, see, that again is an example of confusing the different meanings of evolution. As we have seen before, evolution means a number of things, such as change over time, common descent, gradualism and so on. And when I say Darwinian evolution, that is focusing exactly on the mechanism of natural selection. And none of these articles address that. Q. Again at the same time you don't publish any peer reviewed articles advocating for the alternative, intelligent design? A. I have published a book, or -- I have published a book discussing my ideas. Q. That's Darwin's Black Box, correct? A. That's the one, yes. Q. And you also propose tests such as the one we saw in "Reply to My Critics" about how those Darwinians can test your proposition? A. Yes. Q. But you don't do those tests? A. Well, I think someone who thought an idea was incorrect such as intelligent design would be motivated to try to falsify that, and certainly there have been several people who have tried to do exactly that, and I myself would prefer to spend time in what I would consider to be more fruitful endeavors. Q. Professor Behe, isn't it the case that scientists often propose hypotheses, and then set out to test them themselves rather than trusting the people who don't agree with their hypothesis? A. That's true, but hypothesis of design is tested in a way that is different from a Darwinian hypotheses. The test has to be specific to the hypothesis itself, and as I have argued, an inductive hypothesis is argued or is supported by induction, by example after example of things we see that fit this induction. Q. We'll return to the induction in a few minutes. A. Yes, sir. Mr. Rothschild, would you like your books back? They're heavy. Q. Help me get to sleep tonight. A. Thank you. (Brief pause.) Q. Now, you raised a couple of other areas where the theory of evolution or science generally doesn't have complete answers, correct? I'll give one example, that's the evolution of the phenomenon of sexual reproduction. A. Yes. Q. And you don't claim to be an expert on the issue of sexual reproduction, or the evolution of sexual reproduction, and we're trying to afford all puns here. A. No, I do not. Q. And you have no explanation for how or why the phenomenon of sexual reproduction was intelligently designed? A. No, I don't have an explanation for that either, no. Q. Then you also brought up the subject of origins of life, and I think we can agree that there are many, many, many unanswered questions on that subject, correct? A. Yes, I certainly can agree to that, and it makes a person who is not presuming an unintelligent framework to look at that with great suspicion. Q. Intelligent design has not explained how the first biological life arose on earth, has it? A. In the sense that it has not proposed a step-by-step pathway whereby that happens, but I think an excellent case can be made, although I did not do so myself in my book, that in fact the origin of the first life, since from what we know is a cell is the smallest free living organism that we know of and is a very complex object and has purposeful arrangement of parts, I think has, a strong argument could be made that in fact intelligence was needed in the origin of life. Q. But you haven't argued that? A. I have not. Q. You have not written any peer reviewed articles on it? A. No. Q. And nobody has written any peer reviewed articles on the, in the scientific journals on the intelligent design of the origin of life, correct? A. Well, actually that's not quite right. There's that article "Directed Panspermia" that was discussed earlier by Francis Crick and Leslie Orgel. They in fact explicitly argue that one hypothesis one might advance is that the origin of life on earth is the result of intelligent activity, in their case they envisioned space aliens sending a rocket ship to earth. So I don't think your statement is quite true. Q. So we'll just have to go back to the question of origin of life in the universe, which that wouldn't answer? A. Well, as they explained in their article, nonetheless the question of the origin of life on earth is a historical question of great interest, and they speculated that conditions wherever life arose first might have been quite different from conditions on the earth, so that perhaps life could have arisen more easily there. And so they did not, though I certainly share your concern, they, Francis Crick and Leslie Orgel did not think that that particular question was particularly, that it ultimately couldn't be answered. Q. And those arenas where life, where the origination of life might be easier to accomplish, they were still talking about natural product, is that correct? A. They were, yes, they had in mind a natural process, and I could take this opportunity to remind, to reiterate that intelligent design does not rule out natural processes. Q. So per your article considers that highly implausible. A. I certainly do consider it implausible. Q. Professor Behe, you discussed a while yesterday the concept of the molecular clock. A. Yes. Q. That was in response to a point Ken Miller had made in his testimony? A. That's correct. Q. May I approach? THE COURT: You may. Q. Can you pull up the biochemical similarity slide? Now, these are, you can flip through them, these are slides that Dr. Miller used when discussing the issue that you then responded to with the molecular clock? A. Yes. Q. And let's look at the first page of that slide, Dr. Miller's, and he's discussing a problem he has with Pandas, correct? A. Yes, that's right. Q. And looking at the first page, what he wrote on the slide, or actually quoted from Pandas is, "When measurements of the similarities between proteins were put side by side, the pattern that emerges contradicts the expectations based on Darwinism," and he goes on, in Pandas on page 37, "Notice that the cytochrome C of this insect exhibits the same degree of difference from organisms as diverse as humans, penguin, snapping turtle, tuna, and lamprey, and the reason this finding is so surprising is that it contradicts the Darwinian expectation." And then on the next page it states, next page of his slide, I'm still quoting from page 37, it states that, "Darwinism would predict a greater molecular distance from the insect to the amphibian and to the living fish, greater distance still as to reptiles, and greater than that to the mammal. Yet this pattern is not found." And then go on to the next slide, still quoting from Pandas on page 36, it says, "To use the classic Darwinian scenario, amphibians are intermediate between fish and other land dwelling vertebras." And turning to the next slide, quoting from page 140, it talks about corresponding to the expected transitions from fish to amphibian to reptile to mammal. And if you go to the last page of the slide, Dr. Miller's illustrations in an illustration of his own what the problem is, right? "Pandas misleads students as to the actual prediction of evolutionary theory by pretending that evolution predicts a linear sequence, tuna, frog, turtle, chicken, horse. Amphibians are intermediate between fish and birds and mammal," right? A. Yes. Q. And that's not what the Darwinian theory suggests, correct? It does not project that the sequence is in that order, linear, tuna, frog, turtle, chicken, horse, correct? That's not what Darwinian evolution states, correct? A. You'll have to help me and tell me what Darwinian evolution does state. Q. You understand Darwinian evolution to propose a tree in which animals of this kind are on a tree with a common ancestor, not linear in this sequence, and if you could go to the page two prior, Matt? And just focusing on that tree, that's what evolutionary biologists who are working from the evolutionary theory, that's what they believe is the correct way to describe the phylogeny, correct? A. I'm afraid this is using an extremely simplified diagram to make points which do not follow from it. Q. Dr. Behe, I'm not asking about the timing. I just want to talk about the sequence, okay? And you would agree that what evolutionary theory predicts, forgetting about the timing and how the molecular clock works, is that the phylogeny is in that tree form and not tunas becoming frogs becoming chickens becoming horses, right? Instead it's common ancestry, right? A. Certainly Darwinian theory predicts common, or posits common ancestry. The question that Pandas existing, is addressing however, is not that. It's why these proteins have the particular sequences they do. Q. But when Pandas says to use the classic Darwinian scenario amphibians are intermediate between fish and the other land dwelling vertebrates, that's not a correct characterization of the theory of evolution, is it? A. No, that isn't, no. Q. It isn't. And whatever the right answer is about the molecular clock, it has nothing to do with that statement, correct? It doesn't make that statement correct? A. The molecular clock does not say that. That statement is not accurate. Q. Matt, could you pull up pages 99 to 100 and highlight our favorite passage? That was the passage we spent some time on yesterday, " 5intelligent 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." You said a few things about this passage. One is you don't like it so much. A. I certainly would have written it differently. Q. You don't think it's an accurate representation of intelligent design? A. I think intelligent design is described better elsewhere in the book. Q. Okay, and you also testified that intelligent design has advanced beyond where it was with Pandas? A. That's correct. Q. And you also said -- Matt, if you could pull down highlighted text and highlight page 99, or you can just look in your book Professor Behe, there we go, that you didn't read the graphic up here, Figure 4.4, to have anything to do with the issue of common descent, correct? A. Yes, that's right. The way I read it, it was trying to describe what they perceived as the fossil record. Q. Now, yesterday I asked you about the book Design of Life. A. I had forgotten. Q. The book the new version of Pandas to use a very colloquial term that Dr. Dembski is working on? A. Yes. Q. And that was the one where he said you were an author, but at least right now you're not, right? A. That's right. Q. Professor Behe, what I have given you is what we have marked as P-775, which is a chapter from the draft manuscript of Design of Life. This was produced to plaintiffs in this litigation, and you see it's got, this chapter is headed "The Fossil Record." A. Yes. Q. And if you flip to page 22 of that chapter? A. I'm sorry, page 52 did you say? Q. 22. A. 22? Q. The subchapter is headed "Sudden Emergence." A. Yes, I see that. Q. Is that a term that you have heard used in the intelligent design community? A. Is it in Pandas? Q. I'm asking you just based on your own experience. A. It's not that familiar, no. Q. Some familiarity? A. I may have heard of it, but I can't, you know, say for sure. Q. Okay. And what it says here, if we go to, it says right under that heading, " 5there's a fourth option for explaining the gaps in the fossil record besides imperfection of the record, insufficient search, and punctuated equilibrium. There is also sudden emergence." And do you recall from our discussion yesterday there was a similar breakdown in Pandas on pages and 97? A. Yes, I think they also gave four possibilities. Q. Okay, and it says, "Explain the gaps in the fossil record by means of sudden emergence is to say that the gaps are real, that the discontinuities in the fossil record represent discontinuities in the history of life. Sudden emergence isn't just saying the transitional links containing major groups of organisms are absent from the fossil record. It's saying that the transitional links are absent, period. They never existed." That's what it says? A. That's correct, that's what it says. Q. And we had some back and forth yesterday about abrupt appearance of fossils as opposed to abrupt beginning of life or appearance of life, and this is pretty clear to take pains to distinguish the two, isn't it? A. Yes, it seems that that's exactly what they're trying to say. Q. Okay. If you could turn to page 28 of the manuscript? MR. MUISE: Your Honor, I'm going to object insofar as this document is being offered for the truth of the matter asserted. As his testimony already previously identified, he's not an author, he has no part in it. If he's going to be asking him to I guess to try to impeach something that may have been said, I'm not sure what the purpose is. It appears right now he's trying to offer it for the truth of the matter asserted inside, in this document, which is a draft that Dr. Behe has no part in taking. MR. ROTHSCHILD: Dr. Padian would kill me if I introduced this for the truth of the matter asserted. I'm not suggesting that at all, Your Honor. It's for impeachment. He has made statements about the contents of Pandas and what it means and the development of intelligent design, and its for purposes of impeachment and that only. MR. MUISE: Again, Your Honor, you've got a draft document that has, he's had no part in it. How does that impeach what's the development of intelligent design? He's certainly had no part to contribute in this, to fix errors and corrections that may have been made, it's not used to establish anything other than he's trying to offer it to assert the truth that's in the document. THE COURT: Well, I don't think he is offering it for the truth. I don't see that. So I can discard that as a reason. Certainly -- MR. ROTHSCHILD: May I offer one more? THE COURT: Certainly -- go ahead. MR. ROTHSCHILD: Dr. Behe, has made some pretty stark claims about what intelligent design is and isn't about. He made it about Pandas. He's just made it about intelligence design generally. It makes certain claims, it doesn't make other claims, and this document goes to that issue. THE COURT: Well, you don't doubt the authenticity of the document, do you? MR. MUISE: My understanding is it's a draft document. That's -- THE COURT: Well, it's more than a draft document. It's a draft document of a -- well, it's a draft document to be sure, but it is a draft document of a succeeding volume, is it not, Of Pandas and People? We know that, don't we? MR. MUISE: You know what, Your Honor? I'm not exactly sure if that's the case. I believe there was some discussion this may not even be for a high school level. I'm not sure, I mean, it's not Volume 3 of Pandas and people. I believe it has a different name. It's certainly a book that in develop Dr. Behe's had no part in the development of this particular book. THE COURT: However, he said he might in the future. MR. MUISE: He might in the future, but not right now. So what's in it right now has not relevant to what's right now. THE COURT: Oh, I think it's highly relevant. No, I think that unless you can come up with something that calls into question the authenticity of it, and I don't think you can, I think what your argument there goes to exactly what it is, whether it in fact is a Volume 3 or not, the court is familiar enough with what it is, having had meanderings on this in the course of the litigation that we're certainly familiar. I don't think there's any issue about what it is. There may be an issue as to its intended audience. I think to the extent that it is hearsay, it has a high degree of reliability. I think it meets the test under Rule 807. I think it's proper for questioning. I don't take it for the truth. I'm not accepting it for the truth. Again this is a bench trial. I don't, I think it's not inappropriate for him to question. I will guard the record insofar as I will not allow Mr. Rothschild to simply read passages that are not related to questions, and I'll take your timely objections as I did with the other material in that regard. Do you want to say something else? MR. MUISE: No. MR. ROTHSCHILD: Your Honor, just for the record, this was produced through defendant's counsel while Dr. Dembski was still their expert. THE COURT: Well, I'm well aware with how it emerged, so we don't need to discourse about that. MR. ROTHSCHILD: Matt, could you highlight the bottom paragraph through the Figure 6.8? BY MR. ROTHSCHILD: Q. This passage of the draft manuscript reads, "Sudden emergence holds that various forms of life began with their distinctive feature already intact, fish with fins and scales, birds with feathers and wings, animals with fur and mammary glands. Sudden emergence is the face value interpretation of the fossil record. It interprets the structural differences separating the major types of organisms in the fossil record as a generally true reflection of biological diversity and natural history." First of all, the use of the word "true" in science is somewhat problematic I think you have told us? A. I don't think I have ever mentioned anything on that topic. Q. And if we could look to the top part of this, sudden emergence through up to the mammary glands, I'm going to ask Matt to pull up a comparison we made between Pandas and this document, and what we see is intelligent design means has been removed and we've got, "sudden emergence holds," taken out the words intelligent agency, and it's not just fish and birds that came out already intact but also mammals. But it's a pretty similar statement, isn't it, Professor Behe? A. The writing is similar. I think this is an improvement to tell you the truth, because now it doesn't say intelligent design means that. Intelligent design does not mean that. Q. Sudden emergence means that? A. Yes. That's a separate idea. It is not intelligent design. Q. I thought you weren't familiar with that idea. A. I'm sorry? Q. I thought you weren't familiar with that idea that relates to the intelligent design movement. A. Well, I'm reading the text there, so that's how I became familiar. Q. In your own mind it's a different concept? A. It most certainly is. Like in saying intelligent design, the core claim is that intelligence was involved in the process of producing something. But if you want to make other claims about it, like how it was done, when it was done and so on, then you need further evidence, and it seems here, it looks like from my brief reading of the text that they are making a further claim beyond the claim of intelligent design, and properly they're calling it something else here. It was incorrect in the first edition to call it intelligent design, but here they call it by some other name. And so I see no difficulty in saying that sudden emergence means this. I just point out that it does not say that intelligent design means that. Q. Hopefully we won't be back in a couple of years for the sudden emergence trial. But this clearly does as the passage we read -- THE COURT: Not on my docket, let me tell you. Q. Related cases, Your Honor? Going back to the full text that we were looking at before we did the comparison, this surely is a direct challenge to the proposition of common descent, isn't it? A. Yes. It's a direct challenge, yes, that's correct. Q. And it says, "In making that challenge accordingly, the history of life is properly to be represented as shown in Figure 6-8." Do you see that? A. Yes, I do. Q. Matt, if you could turn to the next page and highlight that first indication there? It says here Figure 6-8, insert Figure 4-4 on page 99 of Pandas and that's the figure that we looked at before in Pandas on which, with the bars? A. Okay. Q. Right? Okay, that's the figure, the same figure 4.4 which they're saying is 6.8? A. Yes, it looks to be the same. Q. They're relying on that figure in support of their challenge to common descent, correct? A. It seems that they're using a similar figure, perhaps even identical now, to support this claim. MR. ROTHSCHILD: Your Honor, I have one last set of questions. I can proceed or -- THE COURT: We've been out about an hour. How long is the line of questioning? MR. ROTHSCHILD: I think it's in the half an hour -- THE COURT: All right, why don't we take a break at this point, I think that's probably appropriate, and we'll break for about twenty minutes, and then we'll pick it up with your last line of questioning at that point. All right? We'll be in recess. (Recess taken at 2:36 p.m. Proceedings resumed at 3:03 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 12 (October 19), PM Session, Part 2 THE COURT: Be seated, please. All right, Mr. Rothschild. Your next area? CONTINUED CROSS BY MR. ROTHSCHILD: Q. Thank you. Professor Behe, you've described your argument for intelligent design as having a positive argument that you call a logical inference or inductive reasoning, is that correct? A. Yes, that's right. Q. And inductive reasoning you testified is a form of scientific reasoning? A. Yes. Q. And you described that in your testimony as reasoning from what we do know to what we don't know, correct? A. Yes. Q. You would agree that inductive reasoning as science doesn't allow us to reason from what we do know to what we can't know, correct? A. Nothing can allow us to reason to what we can't know by definition. Q. And the inference or the inductive reasoning that you're arguing for is that when we see a system which is complex and functional, we have in our experience always found that such a thing was designed, correct? That's part of it? A. Yes, that's part of it, and you have to remember that there is this quantitative aspect of the argument as well. Q. And I'll get to that, but when we're talking about those things in our experience, you've used the examples of a mouse trap or Mt. Rushmore? A. Yes. Q. So those are things, systems we see, and in our experience have found are designed? A. Yes. Q. And from that inference, from that fact we can infer that when we see systems in the cell that are complex and functional, we can infer that they were designed? A. Yes. That's the argument. Q. Okay. And you said again that the strength of the inference is quantitative, but again you haven't quantified it. A. I have not put numbers on it, but one can kind of do intuitive judgments about these things. Q. And when you say it's intuitive, you're sort of talking about just sort of intuitive probability? A. Just looking at it and seeing how, looking and seeing how intricately the parts are, how intricate the parts are and how they fit together, so yes. Q. And either yesterday or the day before I think you testified that the strength of an inference is the similarities from what we do know to what we're making inference to what we don't know, right? A. Well, the similarities in the sense of the particular properties that the things share. For example, the motion of particles away from an explosion on earth such as a cannon ball and motions away from each other in the Big Bang, yes. Q. You've been doing so well, which I appreciate. So we can recognize that my keys, they look designed right? A. Yes, they do. Q. And therefore we can infer that my hand that's holding them is designed? A. I'm sorry? Q. Therefore we can infer that my hand, which is holding them, is also designed? A. I'm not quite sure why you say therefore. Q. Well, you said the inference, the inductive reasoning is that we see systems in our everyday experience we recognize as designed, and I think you agreed the key is an example of that. A. Yes. Q. And so from that we can infer to biological life that my hand, also pretty intricate, is also designed? A. Well, a purposeful arrangement of parts, yes. Q. And my watch, that's designed? A. Yes. Q. Therefore my eye is designed, sort of the same, we can reason that my eye is designed? A. That's not quite the way I would say it. I would say I would look at all those mechanical things like the watch, like even the keys and so on, and say that all those in our experience required intelligence in their production, and therefore when we come to biological objects we can use similar reasoning for those. Q. And reason that my eye is designed? A. I'm sorry? Q. And reason, if I can reason that my watch is designed, I can also reason that my eye is designed? A. Well, you can certainly reason that aspects of it are, yes. Q. And that was basically the argument that Reverend Paley was making? A. Yes, that's correct. Q. You considered Reverend Paley to be making a scientific argument? A. Yes, I do. I'm sorry, let me just qualify this. In his book Natural Theology William Paley made a number of arguments and a number of examples. Some of them were what I would consider to be good scientific arguments, some of them I would consider to be bad scientific arguments. Some are good theological arguments, some are bad theological arguments. So he made quite a different number of claims in his book. Q. And just so we can be clear on what Reverend Paley did argue in those respects, I've printed off the internet a copy of Natural Theology. A. Oh, really? Thank you. Q. It's Exhibit P-751. And Your Honor, we don't have that on our system, so if you'd like to take a copy? THE COURT: Thank you. Q. You're welcome. And Professor Behe, if you could turn to page 141 out of the, on the printed version, which you can see in the right-hand corner? A. Yes. Q. And if you go down about halfway down the page he's talking about the senses of the animals, correct? A. Yes. Q. And I don't want to read everything into the record, but we can if you feel it's necessary. He's suggesting those must have been designed, the eye for example? A. Let me read that so I can -- Q. Sure. (Brief pause.) A. He's making a sort of argument there, yes, but I'm not sure exactly how to characterize it. Q. Okay, but he's saying, he's talking about the sense of the animals and how difficult that would be to come together, correct? A. Yes. Q. And then he goes on and he says, "The senses are the hardest, but other aspects of the animals, joints and muscles and the prickles on a porcupine or a hedge hog, sheeps' fleece," not quite as hard to explain as the senses, but still no good explanation for how they came together, right? A. That's his argument, yes. Q. And you also relate to that to plants correct? He says, "I can't really distinguish plants from animals in this respect," correct? A. I haven't read it in a while, but I assume that's correct. Q. I mean, if you look on, going on to the top of page 142, that's basically what he says, right? "No less acceptable organization is found in plants than what came in animals." A. Yes, that's correct. Q. And then he concludes, and I think actually the way the printout here breaks up the chapter, or the chapter is actually -- no, I take that back. That is how it reads. It says, "Upon the whole, after all the schemes and struggles of a reluctant philosophy, the necessary resort is to a deity. The marks of design are too strong to be gotten over. Design must have had a designer. That designer must have been a person. That person is God." That's Reverend Paley's explanation for the formation of the senses of the animals, its physical attributes, and plant life as well, correct? A. Yes. Reverend Paley is here making a theological argument, probably not much dissimilar to what Professor Kenneth Miller makes in his book Finding Darwin's God, referring from nature to something beyond nature, and certainly I think that's a valid form of reasoning, but it's not scientific reasoning. Q. And when Dr. Miller did that in his book Finding Darwin's God, he's quite careful to state that these are his personal and religious beliefs and nothing to do with science, correct? A. I think that's what he says, and if he had said he was making a scientific argument, then he would not have inferred that the designer was God. He would have said that we see a purposeful arrangement of parts. However, we do not have the information necessary to conclude who the designer was. Q. We're talking about Dr. Miller still? A. Yes. Q. And Reverend Paley doesn't make that kind of distinction, does he? A. No, he does not. And I add that in my own testimony here I relied exclusively on his passage about the watch, which I do regard to be a very good example of inductive reasoning and one that I don't think anybody would disagree with, and -- well, I shouldn't say anybody, but most people would agree with, and that I think not even Reverend Paley would say that one would have to conclude upon stumbling across the watch that the designer was God. He would simply say that it had a designer. Q. That is truly speculating, isn't it? A. It is, but I think it's informed speculation. Q. From talking to Dr. Paley? A. No, from reading his work. Q. Reverend Paley? Reading that book, that Natural Theology? A. Yes. The early passages of it. Q. But you're speculating about what he would have been thinking and how he would have broken up his arguments? A. I am. Q. Now, one big difference between the mousetrap, Mt. Rushmore, my keys, and my watch, and all the biological systems being described in this trial is that none of those objects or structures is alive. A. That's correct. Q. The term you used when talking about Robert Pennock's computer organisms, they're not flesh and blood, correct? A. Yes. Q. And unlike those biological systems, the keys and the watch and Mt. Rushmore, they don't reproduce or replicate, correct? A. Yes. You have to take that into account when you're doing your reasoning about this. Q. Okay. And actually Professor Pennock's organisms, they do replicate, correct? A. Well, that's a metaphor. I do not think that they replicate in the sense of a biological organism. Q. And you don't dispute that biological systems and organisms that replicate and reproduce exhibit changes from generation to generation? A. They certainly do. Q. We see it in our own children, correct? A. Yes, we do. Q. And as we discussed in the bacterial flagellum, they often have millions or in some cases billions of years to go through this process of replication of reproduction and have changes occur, correct? A. Yes, that's correct. Q. So when we try to figure out from the appearance of design in, how the appearance of design arises in biological systems, they have some opportunities to develop that don't exist for my keys or my watch, correct? A. They certainly have properties of their own which would, you have to take into consideration. You have to take into consideration. They also have other things that you have to worry about because they can die and so on, which watches and so on don't do. Q. But no longer, no matter how long my keys exist, they're not going to reproduce or replicate, correct? A. That's right. Q. And that really impairs the analogy, doesn't it? A. I don't think so. I don't think so at all. As a matter of fact, I explicitly addressed that in Darwin's Black Box. I explicitly addressed it in other places. It certainly makes it, you certainly have to take that into consideration, but if you do and if you don't think that particular property affects the situation too much, then the reasoning continues to be the same. Q. And that's your view about the phenomenon of reproduction and replication over hundreds of thousands, millions, or billions of years, depending on the organism? A. In my paper with David Snoke one can try to calculate how those great time spans and great populations would affect the situation. Q. And we've seen earlier today how that works out? A. Yes. Q. And you remember I asked you at your deposition about whether there was any specialized scientific discipline that goes into reasoning that objects we're familiar with in the world are intelligently designed. Do you remember me asking you that? A. I think so, yes. Q. And the first answer you gave me is yes, there's archaeology, right? A. I believe I did, yes. Q. And the argument that intelligent design proponents make is, you know, if the science archaeology can draw these kind of inferences about the design of objects, what's the big problem with intelligent design doing that? A. Well, I think that the characterization would go that we see that we can infer design from physical objects. So we can argue that we can extend the induction to physical living objects. Q. Now, you're not an expert in archaeology? A. No. Q. In fact, you're not particularly familiar with what archaeologists do? A. That's right. Q. Matt, could you pull up the definition of archaeology that we got from Miriam Webster on-line and highlight that, please? And there's two definitions there. The scientific study of material remains, fossil relics, artifacts, and monuments, of past human life and activity. And second, remains of the culture of a people, and it makes sense to work with that first definition because we're talking about the scientific study, okay? A. Yes, I see that. Q. Okay, and before we delve into that definition it's obviously the case that the objects that archaeologists study don't replicate and reproduce the way biological life does? A. Yes, that's right. Q. So that's one difference, right? A. That's correct. Q. And in that definition about what the scientific study of archaeology is, and you don't dispute that as a good definition of archaeology, do you? A. I would -- I don't dispute it, no. Q. And it says the scientific study of material remains of past human life and activity. So archaeology is the science of studying a very particular designer, that's what that indicates, correct? A. No, I think the definition is probably trying to distinguish it from the scientific study of remains of past perhaps animal life and plant life and so on. Q. But the definition is very specific about the actors who it's studying? A. Yes. Q. Humans. Humans, right? A. That's right, but of course archaeology is not the only scientific endeavor to look for science of intelligent activity. Q. We're going to work with the comparison from archaeology to intelligent design. That was the first specialized science you described for me, right, Professor Behe? A. Yes. Q. Okay, so let's work with that. And so that's another distinction. Archaeology basically assumes the designer. Intelligent design says we don't know anything about who the designer is? A. Archaeology assumes that whatever designed object they find, whatever object they can distinguish from non-designed objects, had a human designer. Q. Okay, and intelligent design says nothing about who the designer is? A. That's correct. It could be a human, it could be whatever. Q. As we have discussed before, intelligent design of biological life by a human is you said implausible? A. Well, let's make one distinction. I certainly think it's implausible that that accounts for the origin of biological features, but certainly scientists these days design lots of features by standard molecular biological methods and so forth. Q. That's not what we're talking about with the bacterial flagellum, right? A. That's correct. Q. Let's discuss archaeology a little bit more. Matt, if you could pull up Exhibit 722? May I approach, Your Honor? THE COURT: You may. Q. And Professor Behe, this is a chapter from a book called Why Intelligent Design Failed: A Scientific Critique of the New Creationism. Do you see that? A. Yes, I do. Q. We're going to look at chapter 8 of that book, if you could pull up the chapter heading there? And it's titled The Explanatory Filter, Archaeology and Forensics, and it's written by somebody named Gary S. Hurd. Are you familiar with Dr. Hurd? A. No, I am not. Q. And I'm going to read to you from the contributors section, which is not part of the chapter, and if you'd like to inspect it please let me know, but it says, "Gary S. Hurd received his doctorate in anthropology from the University of California Irvine in 1976. Initially involved in medical..." -- MR. MUISE: Objection, Your Honor. It's hearsay. I'm not sure what, again he's obviously trying to offer this for the truth. This isn't even going into any question about, he's reading about the, apparently the background of the individual who wrote this book. MR. ROTHSCHILD: The purpose of the background is to simply identify who Mr. Hurd is, if he is someone with a background in archaeology then we're going to look at some of the propositions he asserts about archaeology and see how that squares with the inductive reasoning from what we do in archaeology to intelligent design. MR. MUISE: As he just stated, he's reading that for the truth what's in there, that this man apparently has some expertise in archaeology. THE COURT: Do you object to the, any mention to the, of the substance of the book? MR. MUISE: That he -- I'm sorry, Your Honor? THE COURT: He gets into the substance, if he gets into the, setting aside an objection to the author's credentials -- MR. MUISE: I think in a sense where we've discussed some of these other articles with similar problems, if he has specific sections he wants to go to to try to use for impeachment purposes, then I don't have an objection to that. But again it's not offered for the substance of what's in here. It's just to apparently test whatever claims that Dr. Behe has made. THE COURT: If you're using the book not for the truth, which I suspect you're not, but for the purpose of cross examination, why should I hear the qualifications of the author? MR. ROTHSCHILD: I think this is just background. You know, we're reading some passages from this section about archaeology and just simply putting on the record that the person who wrote this has a background in archaeology. I think this is something that Your Honor could take judicial notice of after inspection. THE COURT: Well, but the only reason I need to do that is if it goes to the truth. You're using it as I think an appropriate mechanism for cross examination, but I don't think it's relevant or necessary for me to hear the qualifications of the author. So I'll sustain the objection as it relates to the qualifications of the author. However, you can use the text itself consistent with my prior rulings for the purpose of cross examination. BY MR. ROTHSCHILD: Q. Professor Behe, if you could turn to page of the chapter? A. Yes. Q. And going down to the second full paragraph, just highlight the first sentence or first two sentences, it say, "Archaeologists know precisely the identity of our designers," and I think that's consistent with the definition we just read, humans are the designers, correct? A. Yes. Q. And that's as we already went over one difference between archaeology and the argument for intelligent design for biological life? A. I'm sorry, say that again? Q. That's one difference between archaeology and the argument for intelligent design? A. Yes, that's the difference. Q. Then it says, "The archaeologists know their fundamental needs, "meaning the fundamental needs of humans, and that's another difference between archaeology and the study of biological, the argument for intelligent design for biological life? A. And by that do you mean food, shelter, and water and stuff like that? Q. Among other things, yes. We know quite a bit about what humans need, correct? A. Yes, we have a lot of information on humans. Q. In the case of this unnamed intelligent designer we don't know these things, correct? A. That's correct. Q. There are variable materials, that would be another example of the difference between archaeology and the argument for intelligent design of biological life? A. That would be one difference, yes. Q. And their range of means to manipulate those materials, that would be another difference, wouldn't it? A. Again yes, that would be a difference. Q. And we know what humans can physically do and also we know something about technological methods of different periods of time, correct? A. We certainly do, yes. Q. Okay, and all that we don't know about this intelligent designer, correct? A. That's correct. Q. And just go on, it say, "Our close kin and we ourselves are the designers, and physics, chemistry, geology, and engineering provide our knowledge of their materials and means." So we have all this information from other scientific disciplines that tell us what we can and can't do, correct? A. We have that information, yes. Q. And not so for the intelligent designer, correct? A. That's correct. But it is certainly if I might just clarify, if an archaeologist had gone to the moon and found an object there with which was familiar, he would realize it was designed and he would have much less certainty about who the designer was. Q. But archaeologists are involved in human design, so -- A. So he would have to conclude it was a human, is that correct? Q. Not necessarily, Professor Behe. MR. MUISE: Object. I believe counsel just testified. Q. It seemed like so much fun I wanted to. THE COURT: We will strike that comment, stating the objection. Q. If we go to page 114, and if you can highlight the first sentence in the second full paragraph, the full paragraph? It says, "The second difficulty is that unlike ID, archaeology draws upon a vast literature of direct observational studies called ethnography, and what that means is that we have actually seen humans make many of the objects that archaeologists look at, correct? A. Yes, that's certainly true, and in induction there's always some similarities and some differences, and in some cases it's less and in some cases it's more. Q. And I take it you're considering this is another difference, we never saw God make the bacterial flagellum or any other intelligent designer, correct? A. We have not observed the design of the flagellum. Q. And then it says and we have an established base of replication, experimental archaeologists can understand that to mean we can actually look at an object we find out in the field and we can see, we can try it ourselves, could we make it with what we understand the material implements to be at the time that this appears to be from. We can do that, right? A. All of those are useful things to know, but they're not necessary. Q. Okay, but that's a way you can actually test your conclusion that the object you're looking at, for example a dug out stone that, you know, could be used as a bowl but it's not obvious, you can actually try it out, could a human make that bowl, could he make it with bronze, maybe with bronze or steel, we could try that, right? A. We could try that, and if you found that the human could not, then you would -- at least a human of that period or that civilization, then you would look on to a different designer. You would not conclude that that object was designed then. Q. Now that's another thing that the intelligent designer, the little dug out bowl, that's another thing we then attribute to the designer? A. I'm sorry? Q. If you ruled out humans, you're saying this little dug out bowl is, you would then attribute it to the -- A. No, I'm saying if an archaeologist ruled out the most likely designers around the object that he was examining or she was examining, and if it was sufficiently complex that he was confident that it was designed, then he would look to other designer, perhaps some other civilization, some nomadic people coming through or some such thing. If it was complex enough what he would not do is conclude that since the subjects, the human subjects in the area could not do that, that it was not designed. Q. But in any event this is another difference, we can test whether humans could make these archaeological objects, but even with modern technology most biological systems we cannot recreate in a lab, right? A. Yes. They are beyond our ability to design. Q. So if the strength of an inference depends on the similarities, this is a pretty weak inference, isn't it, Dr. Behe? A. No, I disagree completely. Again if something showed strong marks of design, and even if a human designer could not have made it, then we nonetheless would think that something else had made it. Lots of science fiction movies are based on scenarios like that, and again the, I think the similarities between what we find in designed objects in our everyday world and the complex molecular machinery of the cell have actually a lot more in common than do explosions we see on earth such as cannon balls and so forth and the explosion of an entire universe, and that induction seems to have been fairly successful in trying to explain some features of the world. So I think it's not at all uncalled for to make a similar induction in this case. Q. Science fiction movies are not science, are they, Professor Behe? A. That's correct, they are not. But they certainly try to base themselves on what their audience would consider plausible within the genre, so they can offer useful illustrations at some points, for some points. MR. ROTHSCHILD: I have no further questions, Your Honor. THE COURT: All right. We'll go back to redirect. REDIRECT BY MR. MUISE: Q. Good afternoon, Dr. Behe. A. Good afternoon, Mr. Muise. Q. I want to start off here with a bang, a big bang. If we could draw your attention back to Plaintiff's Exhibit 722, P-722, Why Intelligent Design Fails, I just want to revisit that was described as the second difficulty, comparing archaeology with intelligent design. And it says -- A. I'm sorry, what page is that? Q. I'm sorry, page 114. A. 114? Yes. Q. It say, "Archaeology draws upon a vast literature of direct observational studies, ethnography, and established space replications, experimental archaeology," again drawing of the analogy of the Big Bang. Dr. Behe, is it your understanding that those who theorize on the Big Bang drew on direct observational studies and established base of replications of universes exploding? A. No, I think there were no examples of that previously. Q. Do they in fact rely on and reason to explain a natural phenomenon occurrences that were actually created by humans such as explosions by fire crackers and cannon balls and that sort of thing? A. Yes, that's my understanding they extrapolated from things of our common experience to things well beyond our common experience. Q. And that was to explain a phenomenon in nature? A. Yes. Q. Sir, you testified on direct and again here on cross that you take issue with some of the aspect of Pandas, the Pandas book correct? A. Yes. Q. And Pandas was written in 1993? A. That's correct. Q. A relatively old textbook I believe you would acknowledge for a biology, correct? A. Yes. Q. We heard testimony in this trial from Dr. Miller that he took issue with a portion of his 1995 biology text that was written by his co-author and which he personally edited. You weren't a co-author on Pandas, is that correct? A. No, I wasn't. Q. Were you asked to review the entire book? A. No. Just the section that I wrote. Q. And that was the section on blood clotting? A. Yes, that's right. Q. And is that within your expertise as a biochemist? A. Yes, it is. Q. Now, on your direct you referred several times to a biochemistry book by Voet and Voet. Do you recall that? A. Yes. Q. And are you familiar with this book? A. Yes. I use it in my biochemistry course. Q. And I believe on direct you testified that it's a widely used book by biochemists, is that correct? A. Yes, it's considered perhaps the leading text in the field. Q. Does it contain sections that you take issue with? A. A couple, yes. Q. Yet you still use it, you believe it has value for your biochemistry class? A. Yes. Yes, I do. Q. Now, despite these issues you have with Pandas, then what is the value of making Pandas available for students for their review? A. I think while it's certainly not a perfect book, it gives students a different perspective on viewing the data. It allows them to separate the data from the interpretation of the data. It gives them an opportunity to view whether the data are the strong support for a particular theory that theory's adherents might claim against the claims of another group which might view the strength of the evidence differently. It also gives them the opportunity to view the weaknesses of a particular explanation, the strength of those weaknesses if you might say that, or the seriousness of those weaknesses versus as seen by the supporters of the theory and as seen by another group. Q. Sir, does intelligent design require a common descent be shown to be, incorrect? A. No, it does not, as I argued in my book Darwin's Black Box. Q. Is there a unanimity amongst biologists regarding all aspects of Darwin's theory of evolution? A. No, there aren't. Q. Is intelligent design any different in that respect? A. No. Everybody has his own opinion. Q. Does intelligent design continue to develop? A. Yes, it does. Q. It's developed since 1993? A. Yes, it has. Q. Sir, are you still presently being invited to academic institutions to present to them your scientific arguments on intelligent design? A. Yes, I still get lots of invitations. Q. In fact, did you have to decline one such invitation on account of this trial? A. Yes, I did. Q. What was that? A. Well, I was going to go over to the Frije University, which is spelled F-R-I-J-E, Frije University in Amsterdam, to participate in a discussion and debate on the topic of intelligent design with a Dutch biochemist. Q. Does this Dutch biochemist have any prominence in that area? A. Yes. I am told, although I don't know him myself, I am told that he's a member of their national science academy and a very well regarded person, a person who is convinced of a Darwinian point of view. Q. I don't know if you still have in front of you, sir, an exhibit marked P-726, it was the tulip and dandelions article? A. Yes, I have it. Q. And what book did this article appear in or magazine of some sort? A. This appeared in a magazine called "Books and Culture," which is a publication which is put out by an organization called Christianity Today which publishes a magazine by that name. Q. So you're writing for a Christian audience in this case? A. That's correct. Q. Were you seeking just to present scientific arguments in this article? A. No, because this was a magazine directed towards a religious group with which I share many common ideas. I took those common ideas as background for writing this material. Q. Matt, can I ask you to bring up P-718? If you go to page 696, can you highlight the indented passage which begins with "many religious persons"? Can you bring that up for us, please? Dr. Behe, do you have a copy of P-718? A. I'm trying to find it. (Brief pause.) A. Lot of stuff up here. Q. Let me, can you read the screen? Why don't we work it that way. A. Yes, I can do that. Q. This is a section from your article Reply To My Critics, is that correct? A. Yes, I found it here. What page is that now? Q. 696. A. Yes. Q. Would you please read the section that I have highlighted? A. It says, "Many religious persons, including many scientists, hold that God created the universe and the various processes driving physical and biological evolution, and that these processes then resulted in the creation of galaxies, our solar system, and life on Earth. This belief, which sometimes is termed 'theistic evolution,' is not in disagreement with scientific explanations of evolution. The National Academy of Sciences, 1999, Citation 7." Q. Do you know if that was published in some sort of a theological or religious journal, this statement by the National Academy of Sciences? A. No, this was in their publication dealing with this issue entitled Science and Creationism where in my opinion they offer their view that theistic evolution is a good religious stance if one wishes to disagree or if one wishes to avoid conflicts with evolution. Q. So the national Academy of Sciences is taking a position or making a statement with regard to religion? A. The way I interpret it is this is that the National Academy of Sciences is making this view known to teachers to which the publication is directed, that this, the way I read it that this is a good religious stance to avoid conflicts with evolution. Q. Matt, if you could close that down and keep that page though, please? If you could highlight that section I believe you were directed to, it starts with "by intelligent design I mean to imply," if you could find where that section is, "beyond the simple laws of nature"? Dr. Behe, you were asked about the section, the sentence says, "By intelligent design I mean to imply design beyond the simple laws of nature." By stating that, are you claiming that intelligent design requires the actions of a supernatural creator? A. No, not at all. As a matter of fact I'm claiming quite less than what the National Academy says is consistent with scientific explanations of evolution, that is that God created, the universe, and the various processes driving physical and biological evolution. In this section I'm actually contrasting my view to those who argue for design saying that they think that the universe and its laws were designed. I'm saying that in fact a design that I'm proposing actually is a, is something that would require perhaps less of an ability of a designer. Q. Now, you were asked about publications of intelligent design articles in peer reviewed journals, and I believe you testified on direct that you considered that article that you wrote with David Snoke as being an article that is about or reference with regard to intelligent design in a published peer reviewed, or how would you describe that article? A. Well, I would describe it as an article that certainly speaks to the question of intelligent design and the limits of unintelligent processes. Q. Did you submit an article with scientific research advancing the argument for intelligent design to a peer reviewed science journal? A. I'm sorry? Q. Have you submitted an article with scientific research making the argument for intelligent design to a peer reviewed journal, science journal? A. I was invited to submit such an article by the Quarterly Review of Biology. Q. Let me -- was there an article that you sought to submit to the Journal of Molecular Evolution? A. Yes. That was an article which was essentially a condensed version or a truncated version of the one which eventually became the article which was published in Biology and Philosophy where I essentially had the section deals with Russell Doolittle's claims on the blood clotting system. Q. Did the Journal of Molecular Evolution accept the article that you submitted to them? A. No, it was not accepted. Q. What was your understanding as to why they didn't accept it? MR. ROTHSCHILD: Objection. Calls for hearsay. MR. MUISE: Your Honor, I'm asking for his understanding. MR. ROTHSCHILD: If it's going to be based on communications he received from -- THE COURT: You can't say what someone told you. It can be what your understanding of the reason is. So to that extent I'll overrule the objection. Do not quote or repeat what someone told you, only what your understanding of why it was rejected, consistent with Mr. Muise's question. THE WITNESS: My understanding is that it was rejected because it was being judged on the non-scientific implications of what I have published in Darwin's Black Box rather than in the scientific argument I was making in the text of the manuscript itself. BY MR. MUISE: Q. So your understanding was that it was rejected not based on the science that you were arguing in the paper itself? A. That's right. MR. ROTHSCHILD: Your Honor, I'm going to move to strike. I think that calls for speculation, or is speculation. THE COURT: Well, I take it as such. You know,I understand, that's more argument than it is an objection. It's his understanding, and his understanding I think necessarily calls for some conjecture or speculation, so I'll not strike it. I understand your argument. MR. MUISE: And Your Honor, without getting into the hearsay of it, I want to ask him what he bases that understanding on, not go into whatever the content of it is, but for example he received letters back from the editors, maybe had conversations with the editors, we won't go into the details of that, but what is the basis for is understanding. It's not mere speculation. THE COURT: If you want to walk it right up to the line you can try, but if he's going to refer to a hearsay document and a hearsay statement, then it's going to be objectionable and stricken. MR. MUISE: I understand, Your Honor. THE COURT: If you want to walk the line, walk the line, but we'll see what happens. Proceed. BY MR. MUISE: Q. Dr. Behe, what is the basis of your understanding of the, as you described the reasons for rejecting that article? A. The basis for my understanding is impressions I formed from communications with the people running the journal. Q. Now, you've been asked questions again about reasons why you don't present what you describe as sort of your more complex argument on intelligent design to some of the professional society meetings, that's the professional side that you belong to, correct? A. Yes. Q. Did you ever attempt to present your scientific arguments for intelligent design at these, at at least one of these society meetings? A. Yes, I did once. Q. How was it that you attempted to do so? A. I sent a letter co-written with Professor Miller to our respective scientific societies proposing that a symposium be held at the national meetings on the topic of evolution and intelligent design. Q. Did the society accept that proposal? A. We received an acknowledgment that the letter had arrived, but that we never, or I never heard any further communication. Q. Now, the article that we have been talking about, this one you wrote with David Snoke, and it's marked as P-721, and if you have it in front of you, sir, if you look up on the screen? A. Yes. Q. That's in fact the article you wrote? A. Yes, that's it. Q. Now, Mr. Rothschild asked you a question indicating that this article itself implies irreducible complexity, but in fact it doesn't use the term irreducible complexity, correct? A. That's correct. MR. ROTHSCHILD: Mischaracterizes the question. I was clear that, I asked whether it argues clear irreducible complexity, he answered that, "I think it does, but it doesn't use the word." I wasn't talking about implying. THE COURT: Is this a semantical problem? MR. ROTHSCHILD: Well, I think it may be, Your Honor, unless we're about to go right back to some hearsay that was attempted on Monday or Tuesday. THE COURT: In what way? MR. ROTHSCHILD: That there was going to be testimony about what Professor Behe was told about use of the term irreducible complexity. You ruled that was hearsay, and I'm concerned that's right where we're going again. MR. MUISE: Your Honor, I'm not going to ask him about any of the statements. I'm asking him why it was that he took it out and what his understanding was why it had to be taken out, and again he brought this up again on cross examination. That's why I'm going back to revisit it, because the implication of the question is that look, he's not writing anything with this term irreducible complexity and there's a reason for that, and I think we should be able to have an opportunity to go back and explore the reason why the term irreducible complexity is not in there. MR. ROTHSCHILD: Your Honor, I think the answer his understanding is going to bring in is hearsay. I think also Professor Behe has made it clear during cross examination that he used this paper as arguing for irreducibly complexity without the words, so I think that's already in the record. THE COURT: Wes, read that question that you have back. (The record was read by the reporter.) THE COURT: I'll take the answer that's correct, and I won't strike it on the record. I really think you're imposing a preventative objection with respect to what may come hereafter, so I'll overrule the objection or a motion to strike as relates to, "That's correct," the answer to the question is on the record is on the record, and I heard it and I can't unring that bell. At this point it goes to weight and the argument you have. You can proceed, with the understanding that again if you get into a hearsay area, in an area you think it's hearsay, then you -- MR. ROTHSCHILD: And, Your Honor, I think the way the question was formulated and the answer he received characterized my question as opening the door. I understand, I'm not concerned so much with striking the answer as that the characterization that my question has opened the door, and so to that extent I object to that characterization for the purposes of argument. THE COURT: All right. I understand your argument. You can proceed. MR. MUISE: I'm going to try to walk up that line again, Your Honor. BY MR. MUISE: Q. Dr. Behe, why is it that you did not include that term irreducible complexity in that paper? *** REPORTER NOTE: ANSWER STRICKEN AT THE DIRECTION OF THE COURT *** MR. ROTHSCHILD: Move to strike, Your Honor. I think this is back-door hearsay. MR. MUISE: Same as before, Your Honor. It's his understanding and I'm going to ask him what is the basis for it. It's not going to be speculation. THE COURT: You didn't ask him that, and that's not the answer he gave. He talked about specific communications. I think it is back-door hearsay under those circumstance. I don't want to put too fine a point on this, but that answer did involve what I would consider to be back-door hearsay. His understanding is one thing. He just referred specifically to a communication he received. What's the difference between that and reading the communication? MR. MUISE: There's a big difference. If you ask somebody why did you do something, because I was told not to do it, that doesn't mean that you were told not to do it comes in as the basis. It explains why he does it. For example, I'm in a theatre, somebody yells, "Fire!" I run out. I get asked why did you run out of the theatre, somebody yelled fire. Is that being shown to prove that a fire occurred? No. It's being used to explain why he did something. You can't fully explain, he can't fully explain why it was he didn't include that term unless he gets to the point that I submitted it, I got a reply back, and I was told to take it out, so I took it out. That was the reason why I took it out. THE COURT: You can say that his impression from the communication he received is that he shouldn't include it, and I'll take it at that, but if he says that, well, we're not going to -- MR. MUISE: Your Honor, we can move on. THE COURT: I'll sustain the objection as it relates to what I consider to be back-door hearsay in his answer, and I'll strike that answer as it involves the contents or an attempt to get the contents of the communication in. BY MR. MUISE: Q. Dr. Behe, you were asked a question about a, I guess a criticism of your claims that were advanced by Dr. Robert Pennock. Do you recall that? A. I'm not quite sure which one you're referring to. Q. I believe it was a claim in your article Reply to my Critics, it was a discussion about some asymmetry and Dr. Robert Pennock -- A. Yes. Q. -- had made some claims? A. Yes. Q. We can't be talking over each other. If we could get this right, I know you've been on a long time and I understand that. Sir, why was it that you haven't gone back to address that issue? A. Because I did not regard it as very important. I regarded it more as a philosopher's objection, which did not really consider the biological situation, and therefore while it was interesting from one point of view, it was really not all that important to the argument. Q. Sir, did you make a mistake on your argument with regard to the blood clotting system? A. Not that I'm aware of, no. Q. You were asked some questions about the immunity system, and Mr. Rothschild gave you some books and articles and piled some papers on top of you. Do you remember that? A. I do remember that, yes. Q. And you claim that you didn't find these examples all that persuasive, correct? A. That's right. Q. And you stated because you didn't believe they provided the detailed rigorous answers to how the immunity system can arise by random mutation and natural selection, is that a fair characterization? A. Yes, that's right, and that's the issue that directly involves intelligent design, the issue that I focus on. Q. Do you see that at all as a problem with a singular focus on natural selection as a mechanism? A. Well, I certainly do. As I have tried to make clear, I think often times people who assume the truth of a theory often times overlook missing elements of it, even very important missing elements, and I could refer back of course to the ether theory of light. So in my view much of the, much of the misunderstanding is that many people assume that natural selection must have caused these changes somehow, and so they take evidence which does not directly impinge on that as evidence for the mechanism of natural selection itself, wherein my view it does not support the mechanism. Q. Sir, you were asked a question about a statement in Pandas regarding what evolution predicts regarding the molecular clock, and you said that was not accurate, correct? A. That's right. MR. ROTHSCHILD: Objection, Your Honor. It's mischaracterizing the question. He did, Professor Behe did concede that something in Pandas was not correct, but it wasn't on the point of the molecular clock. Mischaracterizing the question and the answers. THE COURT: Yes, I don't remember that to be. I don't remember that to be a point that was testified to by the witness. Q. Dr. Behe, do you remember questions, it was you addressing some slides that Dr. Miller had regarding biochemical similarities, and perhaps I was imprecise in describing it as the molecular clock. But I was referring to I believe the molecular distances or protein sequencing, is that correct? A. The protein sequence differences I think one can say. Q. And there was a statement about what evolution would predict that Pandas had made that you just described as being not accurate, is that correct? A. I think so, yes. Q. Do you recall that? A. To tell you the truth, I'm not exactly sure exactly what I said. Q. Was there a section, there's a statement in Pandas regarding the protein sequences and an argument as to what evolution should predict or should show, and I believe you had said that that wasn't an accurate statement in Pandas, correct? A. Yes. Q. And why do you believe it's not an accurate statement? A. It's not accurate in Pandas because it's my view that Darwinian evolution does not regard or does not predict anything strongly whatsoever regarding protein sequences, that much like predictions of embryo structures and other things that it rather accommodates itself post hoc to what has been discovered by experimental science, but does not strongly predict anything. Q. Leaving aside that error that you identified, is the section on biochemical similarities that you testified to yesterday, and I believe you talked about protein sequencing and the molecular clock, is that aspect of Pandas accurate? MR. ROTHSCHILD: Objection. Outside the cross, Your Honor. He's already testified to it on direct. I didn't ask him on cross about whether the molecular clock section was correct or not. MR. MUISE: That's fine, Your Honor. THE COURT: I don't think he got into the molecular clock on cross. MR. MUISE: That was just in that same section, Your Honor. THE COURT: He's called you on it. I'll sustain the objection. It is outside the area of cross. BY MR. MUISE: Q. Matt, could I ask you to please do one more exhibit for me? Exhibit 718, page 697. Can you highlight the paragraph which begins "in fact"? Dr. Behe, my understanding is this is an experiment that you proposed to be able to falsify your claims or your ideas, is that correct? A. Yes, that's right. Q. I believe as we have gone through in your direct testimony, it's one that could readily be conducted in the laboratories that we have today? A. Well, it would take effort, but it could be conducted, yes. Q. And Mr. Rothschild had asked you whether any intelligent design proponent has actually tried to do this experiment, is that correct? A. That's right. Q. Sir, has anyone from the National Academy of Sciences ventured to take up this challenge to refute your claim through experimental evidence? A. Not to my knowledge, no. Q. Has anyone from the AAAS taken up your challenge to refute your claim through experimental evidence? A. No, not to my knowledge. MR. MUISE: No further questions, Your Honor. THE COURT: All right. Recross? RECROSS BY MR. ROTHSCHILD: Q. A couple of questions. Professor Behe, Mr. Muise asked you whether you had submitted any articles of scientific research supporting intelligent design to peer reviewed journals, and I think the answer you gave was that subset of Reply To My Critics, correct? A. I don't think I replied to that question when he phrased it that way. I think I asked him to repeat or something, and I think he rephrased it another way. Q. And that's exactly what I want to clarify. That submission which discussed Dr. Doolittle's work, that didn't have any scientific research? A. It had scientific research. It was not my research, but it was indeed scientific re search. Q. Discussing for example Bugge's research and the like and Dr. Doolittle? A. Bugge. Q. My helpers have said "buggy" to me, and now I'm going buggy. One more set of questions, you're familiar with Henry Morris and Duane Gish? A. Yes. Q. They are creationists? They would acknowledge, that correct? A. Sure. Q. And Dr. Ken Miller, you heard him testify the first couple of days of trial? A. Yes -- no, just the first day. I wasn't -- Q. And on that first day he testified that he had in fact debated Duane Gish and Henry Morris, correct? A. Both of them? I don't remember. MR. MUISE: Your Honor, this is outside the scope of redirect. MR. ROTHSCHILD: I can lay a foundation if you'd like, Your Honor. I'm about ready to wrap up. THE COURT: Well, he's called you now, so I'll allow you to lay a foundation. BY MR. ROTHSCHILD: Q. Professor Behe, Mr. Muise asked you on redirect about the fact that you're still presenting to scientific conferences -- or not conferences, but to scientific departments and the like? A. Yes. Q. And continuing to debate intelligent design? A. Yes. Q. Okay. And you heard Dr. Miller testify about debating at least one of the two creationists we just identified? A. That's correct. Q. And the fact that Dr. Miller has debated them, that doesn't make creationism a science, does it? A. That's correct. MR. ROTHSCHILD: No further questions, Your Honor. THE COURT: All right. That will conclude the testimony of Dr. Behe. You may step down, sir. We thank you. MR. ROTHSCHILD: Your Honor, I see you're looking at the list of exhibits. I'm going to make a suggestion that we pause and maybe pick them up tomorrow or another day. THE COURT: Yes, I think if we could get, because of the number of exhibits, why don't you see if you can reach an agreement, and I'll let you recite that, I think that would be a good idea because it would be a long process indeed to go through this. And what I'll do is I'll defer to you to, I'll defer to Mr. Muise, to his witness, to start the process with respect to the introduction of the defense exhibits, and then we'll go from there. So maybe as we start the day tomorrow we can do that, and you can tell me what exhibits, what I'm interested in obviously is what exhibits can go in by stipulation without objection and what exhibits we have to argue over, if that works for everybody. MR. MUISE: I'm not going to be in court tomorrow, Your Honor, myself, but we have a pretty fair list, and I'm sure co-counsel can handle it. THE COURT: I'll bet Mr. Gillen can handle that. MR. MUISE: He can handle anything. MR. GILLEN: I'll try to. MR. ROTHSCHILD: And I have no objection if it waits until a later day, Friday morning or whatever, Friday afternoon. THE COURT: Yeah, I think we've gotten behind a little bit, so we'll just have to -- let's get it in this week, but if we don't have to lead off with it tomorrow, we have a shortened session as we all know tomorrow, and if we want to devote time to witnesses rather than arguing over exhibits, that's certainly fine with me. MR. MUISE: Your Honor, may we have a moment? THE COURT: Certainly. (Brief pause.) MR. GILLEN: Your Honor, there's one other hatter which may or may not be a concern. I suggest we talk about it with the other side before we bring it to your attention. Okay? THE COURT: Why don't you approach. (Side bar at 4:10 p.m.) THE COURT: Let me ask you a question, let me ask you first, who do you have for tomorrow? MR. GILLEN: That's the nature of Mr. Muise's concern. We intended to start Rich Nilsen the way I told Eric I would. However, we do have an expert coming in, that was in now for Friday. That would cause us to break up the direct of Nilsen, which I think we can. THE COURT: The expert is not going to get here until Friday? MR. MUISE: No, he's been here since last night, Your Honor. MR. GILLEN: So we want to get him in and get him out of town. MR. ROTHSCHILD: I have absolutely no objection. MR. GILLEN: So we just wanted to alert you to the fact that we don't want to waste time. So we'll start Nilsen tomorrow, but then Dick Carpenter, we'll try to get him on. THE COURT: But I don't understand, why don't you start with -- you want to start with Nilsen and then stop him? MR. GILLEN: Yes. THE COURT: You don't want to start with the expert? MR. GILLEN: Right. We'll start him on Friday and get him done and then get him out of town, because he needs to get -- THE COURT: You're going to get him done on Friday though? MR. MUISE: He's a short expert from our perspective. THE COURT: All right. Well, so I'm just wondering why you don't want to start him tomorrow. MR. GILLEN: He just got in town and he needs to catch up. MR. MUISE: I've been here all day today. THE COURT: I was confused. MR. ROTHSCHILD: We've spent a week here. MR. MUISE: He's been scheduled for Friday all along, but because Dr. Behe went longer than -- THE COURT: It's been big fun for me, too. Let me ask you this. I have another issue, and the reason I wanted to do a side bar, I don't want to get into this too deeply in front of everybody, I got an amicus brief from the Discovery Institute. Now, it's been objected to by the plaintiffs. There's a problem here that I've created. They've contacted my chambers, and we sort of tacitly if not directly opened the gate for the filing of the brief. Not that we would accept it, you know, I have too many balls up in the air, and didn't look at my own rules when I did that. Now, having looked at the brief briefly, it contains an expert report which is highly problematic, and I'm trying to figure out how to deal with that, because my intention is to strike it. I'm not going to take an expert report in a brief. MR. MUISE: Well, Your Honor, I mean, amicus is often times, in many of the cases with amicus briefs that courts accept are ones that are sent by professional organizations or medical organizations and are in fact really expert reports. I mean, they may not be as -- THE COURT: Well, we all know the problem that we had in this case with Mr. Dembski, and you know -- MR. GILLEN: He's not here to circle around back to you. THE COURT: That's the problem. MR. MUISE: I understand, but I mean it's the weight that you're going to apply to it, Your Honor, the point of making -- THE COURT: But I am distressed by the fact that there is an expert report attached to the amicus brief. You know, if I open the gate and I tell him I want an expert report, that's one thing. So I guess, you know, before we all start a plethora of filings, I'm telling you that to give it some thought, we can talk about it tomorrow, I could accept some argument on it if everybody wants to argue, and I can haul in counsel for the Discovery Institute. They have local counsel, in fact I think it's Mr. Boyle's firm who's local counsel, and we can go through that, have Mr. Boyle have another unhappy day in this court and have his head handed to him, or I can just summarily strike it. I'm not going to take an expert report. Now, there's yet another one that you have objected to, I can do that on the submissions and that's not a problem, but I'm interested, do you want to put a dog in that hunt? MR. GILLEN: You know what, judge? Amicus at the trial court level, as rare as it is, you're going to have a full record, that's been our position from the beginning. The only thing I would suggest is like you say, you open the door now and who knows who's going to show up with a brief, and I don't -- THE COURT: No, I didn't, I opened the door I think only to them. MR. GILLEN: Right. THE COURT: And I've corrected the error now and they're going to have to follow the rule to the extent that there are future submissions. I didn't open the door for anybody. MR. GILLEN: Exactly. No way. THE COURT: But I take the blame, but in this particular case this large missive which I received in as much as it has an expert report on it, I don't want to denigrate the Discovery Institute to the masses here. MR. GILLEN: Right. THE COURT: But I'm just not going to receive it. I understand what you're saying, Mr. Muise, sometimes you do, but not having had the dispute about Mr. Dembski -- MR. GILLEN: Yes, I want nothing to do with that. I want nothing to do with not showing up here when he was an expert, and then trying to sneak something? THE COURT: All right. MR. ROTHSCHILD: Your Honor, just to make it clear, I mean it's not just any expert report. It's actually the expert report filed as rebuttal by Dr. Meyer in this case. THE COURT: Oh, I understand. MR. ROTHSCHILD: It sounds to me like, you know, it sounds like there's a basis to strike that doesn't need to deal with the opportunity you gave them. THE COURT: There's no question about that. You know, it's no harm, no foul. But the fact that I was too charitable and they gained without a motion doesn't mean that I can't summarily strike it. I might have done it sua sponte even absent your motion. Think about it. If you change your position, let me know at the outset tomorrow. Otherwise I think that what I'll do is, I don't know what I'll do as to the first submission. That does not contain any expert report. I think -- is that the 85 scientists -- MR. ROTHSCHILD: Yes, Your Honor. THE COURT: -- submission? You may have other grounds, we'll let that be briefed and we'll go from there, I'm not going to pre-judge that, but I'm vexed by the fact that I've got, you know, another massive submission, and in the meantime their counsel has been e-mailing Liz, and as a judge told me and co-counsel years ago, "We're not running a law school here," and the substance of the question is how do we do this, and you know, we're not going to get into that. MR. GILLEN: It's plain from the first brief they don't know. THE COURT: Yes. I had Liz e-mail back and say get a copy of the local rules and we got a non sequitur e-mail back which basically said again how do we do this. MR. MUISE: Your Honor, I just want to be clear. We've had nothing to do with the filing of these. THE COURT: Oh, I'm not -- MR. MUISE: We're not trying to back-door anything. Understand, I just want to make it clear. THE COURT: I'm not saying you did, and that's why I don't want to blow this around the courtroom and imply that you did. I don't believe that you did, I certainly understand that, but at the same time, you know, I'm not going to have, you know, some rogue cavalry come riding in here at the last instant. We're not going to have that. MR. GILLEN: Agreed, Your Honor. THE COURT: All right. So we will start then with Dr. Nilsen tomorrow, and I want to say that before we break that everybody understands, we'll take the expert, interrupt his testimony by bringing in counsel for -- MR. MUISE: 2:00 tomorrow, Your Honor? THE COURT: Yes. MR. GILLEN: Thank you, judge. (Discussion held off the record.) (Side bar concluded at 4:18 p.m.) THE COURT: All right, the purpose of the discussion at the side bar so that everybody understands was to talk about scheduling, because we've gotten ourselves, perhaps behind would be the wrong word, but we're a little bit out of order. We will have as you all know a shortened day because of some matters that I must attend to tomorrow in the morning and through lunch hour. So we'll start at 2:00 p.m. tomorrow, and so that everybody is clear we will start with superintendent Nilsen's testimony at 2:00 p.m. tomorrow, and by agreement of counsel it is possible that that testimony will be interrupted by a defense expert at some point on Friday, assuming that the testimony may not conclude tomorrow. We will have a full trial day on Friday. Anything else we need to put on the record before we adjourn for today? Hearing nothing, I thank you for your cooperation. We'll see you tomorrow, we'll see you at 2:00 p.m. tomorrow. (Court was adjourned at 4:19 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 13 (October 20), PM Session, Part 1 THE COURT: Good afternoon to all of you. We are here for our somewhat abbreviated, half-day afternoon session of this trial. Now, I have the exhibits from Professor Behe's testimony, but if you'd like -- and this is certainly fine with me -- we could just proceed to have the testimony and we could save this for a later point in time. That's perfectly all right with me. I see nods. MR. GILLEN: Yes. THE COURT: No shakes of the head. So with that, why don't we get right into the testimony, and you may call your next witness. MR. GILLEN: Thank you, Judge. The defense calls Dr. Richard Nilsen. DR. RICHARD NILSEN, called as a witness, having been duly sworn or affirmed, testified as follows: THE CLERK: State your name and spell your name for the record. THE WITNESS: Richard Dean Nilsen. Richard, R-i-c-h-a-r-d, Dean, D-e-a-n, Nilsen, N-i-l-s-e-n. DIRECT EXAMINATION BY MR. GILLEN: Q. Good afternoon, Dr. Nilsen. A. Good afternoon. Q. You're here to give your testimony in this case. Let me ask you, are you currently employed? A. Yes. Q. Where at? A. Dover Area School District. Q. Would you give us just an idea who you are as a person, your family status. Are you married? A. Yes. Q. And you have children? A. One child 21 years old. Q. How about your educational background, would you briefly describe that for us, please? A. I have an undergraduate degree, BA in history at Gordon College, received my master's at Shippensburg University in education administration, and I have a doctorate in education administration from Temple University. Q. And if you would, please sketch your employment background before coming to Dover. A. I began my career at Dover -- I'm sorry, Derry Township School District as a social studies teacher. My first administrative position was at Big Spring School District as assistant principal/athletic director. I was then elevated to principal at the high school at Big Spring. I also was a middle school principal at Northern York School District, then director of curriculum instruction at Big Spring, and assistant superintendent at Dover, and then eventually my current position, superintendent of Dover. Q. And when did you come to Dover Area School District? A. School year 1998-99. Q. And what was the first capacity in which you were employed? A. Assistant superintendent. Q. And your current position is? A. Superintendent. Q. Okay. Give us an idea for the general range of your duties as superintendent. A. My primary responsibility is implementation of board actions, developing the agenda, personnel, budget development, and overseeing the student and faculty procedures. Q. All right. Well, with that said, I think there's no mystery as to why you're here. We may as well begin that story from your perspective. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Rich, I'd ask that you open that binder I've just provided to you and direct your attention to Defendants' Exhibit 288. A. I have that. Q. We've seen this document before in the trial, and I'd like you to say, do you recognize this document? A. Yes, I do. Q. What is it? A. It's the minutes I authored from the Dover Area School District board administrative retreat for January 29th, 2002. Q. You just called it "minutes." Are they minutes, Rich? A. They're more my notes. Q. Okay. I want to get a sense for how this document was generated. But before I do that, I want to describe briefly how this document came to our attention in this litigation. Tell the Court how you found this document and turned it over to me. A. This past summer, after coming back from vacation, with the summer being somewhat slow, it gives an opportunity for administrators to go through and clean out their files and update items, and in my cleaning out of files, I came across these two or three documents I submitted. Q. And one of those is Defendants' Exhibit 288? A. That is correct. Q. If you look at 288, there are three pages. I just want to make sure those are the three pages you turned over to me. Four pages, it looks like. A. Yes. Q. Prior to finding this document, did you have any recollection of Alan Bonsell ever mentioning the term "creationism" to you? A. No. Q. Let me ask you this. What did you do as soon as you found this document? A. Contacted you, counsel. Q. Okay. Now, I want to give the Court a sense for how the document was generated. It has a date, January 9th, 2002. Can you tell us if this document was generated in connection with the meeting? A. Yes. Q. Describe that meeting. A. My first week as superintendent we decided to have a dinner where we invited all the new board members and current board members and administrators where we ended up having a dinner for about an hour, where the administrators and board got together socially. And then we ended up having a -- kind of a this-is-what-the-school-is-doing presentation of where each administrator had an opportunity to talk about what tasks they were involved in. And then at the very end, we ended up having a quick go-round for the board. Q. Let me ask you just about the general purpose of the meeting. Did you give the meeting a name? A. Board administrative retreat. Q. And was this in place when you came to Dover, or did you put this meeting in place? A. I put it in place. Q. And what was your purpose in doing so? A. I think two or three reasons. The first reason was get acquainted. One of the strategic plan initiatives was team-building, and we knew that with a new school board coming on, that we needed to develop a team concept between administrators and the board. Secondly, we were looking, quite honestly, to boast about what the administrators were doing throughout the district and also to take a look at what future tasks we were planning on doing. Q. As you sit here today, do you have a sense for how long this meeting on January 9th, 2002 took? A. Most people would say too long, but I would say about three and a half hours. Q. Okay. You look at Exhibit 288 here, this document that has the Bates Stamp Number 3968 at the foot of the page, the lower right-hand corner, and I want to get a sense for specifically how this list was generated. Would you describe how the information that's reflected in this document was communicated to you? A. After the administrators were done, the board then had an opportunity to state anything that they wanted to, and we went around the table, and each board member had about a minute or two. Q. And what did they do with that minute or two? A. They ended up stating comments or issues. Q. And I take it you took notes based on what they mentioned? A. Yes. Q. I'd ask you to turn to the next page of Exhibit 288 with the Bates Stamp Number 3969 in the lower right-hand corner. Look at that. Do you recognize that document? A. Yes, I do. Q. What is it, Rich? A. It's the agenda for the subsequent board administrative retreat on March 26th, 2003. Q. Now, you've mentioned that this agenda is for a meeting on March 26th, 2003. Would an agenda similar to this have been prepared for the 2002 meeting? A. Yes. Q. Do you have that document, Rich, the agenda for the 2002 meeting? A. Do I have it with me? Q. Yes. Do you have it? A. No. Q. Okay. Let me ask you this. If you look at the page that's stamped 3969, you'll see it has an Item Roman VI. Would you look at that? A. Yes. Q. What's the heading for that section of the meeting on March 26th, 2003? A. Roman Numeral VI is Board Feedback and Items of Interest. Q. Is that the section of the retreat that produced the listing we have as Page 3968 for the meeting in January of 2002? A. No. Q. I understand, but was that the same portion of the meeting, Board Feedback and Items of Interest? A. Yes. Q. Okay. Now, if we turn our attention back to Exhibit 288, at the page marked 3968, I want you to take a look at each of the board members. Just get a sense for what their items of interest were and, you know, what importance they took on in this 2002 year or thereafter. If you look at the first letter, it's letter A, and that's Mrs. Brown. Is that Carol known as Casey Brown? A. Yes. Q. And there's -- THE COURT: Mr. Gillen, you're on your 288. Is that right? MR. GILLEN: That's correct, Your Honor, at Page 3968, the first page of that exhibit. THE COURT: Liz, where is -- I'm up to 281, Volume 7. MR. GILLEN: Your Honor, you correctly note, these were late additions. THE COURT: Should that be in the 281 book? MR. GILLEN: It should. It should be in Volume 7, Liz, and should be properly tabbed. THE COURT: If you're not going to put it on the screen, let me make sure I have it in front of me. MR. GILLEN: Sure. THE COURT: You can proceed. MR. GILLEN: Thank you. BY MR. GILLEN: Q. If you look under Mrs. Brown, there are a number of items there, Rich. Would you read them for the record? A. Mrs. Brown? Q. Yes. A. Full-day kindergarten, block schedule, intermediate school, board reps, three-year policy review, discipline policy, pathways, PE credit for sports. Q. As we sit here today, do you have a recollection of at least some of those topics that are listed under Mrs. Brown's name? A. Yes. Q. Tell me what you can about the full-day kindergarten option. A. One of the options and one of the reasons we instituted this was to actually develop partnerships administratively in things that we wanted to do. And one of the things administratively we wanted to do was begin research and implementation of a full-day kindergarten. So under Mrs. Brown, she has listed full-day kindergarten, so I remember very specifically the conversations subsequent to this that I had with her on that. Q. And did that issue that she raised produce action in the coming year? A. Yes. In fact, within months, she was involved with us in researching and eventually developing and currently implementing full-day kindergarten throughout the district. Q. How about the second item under her name, block schedule? A. Yes. Her concern was the intermediate school had block scheduling, and subsequent to this conversation, we eliminated it. Q. What about the third item, board reps? A. I cannot tell you what that refers to. I don't remember. Q. How about the three-year policy review? A. Her biggest issue when she came on the board was the fact that she had gone to a weekend seminar that stated that we ought to have policies update -- updated every three years. And it was one of my initiatives as a new superintendent because our policies were 20, if not 25 years old. So one of the challenges she gave us is to make sure that all our policies were current, and that was one of the things that I wanted to do, as well. Q. How about the discipline policy, do you remember anything that Casey Brown said in 2002 about that? A. Not specifically, no. Q. How about pathways? A. Yes. She was not in favor of pathways. Q. How about the PE credit for sports? A. At this time period I can't remember anything specifically she said, although I've had conversations with Mrs. Brown about PE and credit. Q. Okay. Let's just take a quick look at Noel Wenrich. There are some items listed under his name there. The first one, alternative ed, do you remember anything specific about that? A. No. Q. How about discipline policy? A. Yes. Q. Tell me briefly what you remember about that item. A. Mr. Wenrich wanted consistent discipline policies for all students. Q. How about the drug policy, Item 3? A. I don't remember anything about the drug policy. I do remember him talking about and requesting that we research the drug dog initiative. Q. Did that ever issue an action? A. Yes. Q. How about the three-year policy review? A. I believe he was echoing Mrs. Brown's comment that we ought to upgrade and update all of our policies. Q. Let's look at Alan Bonsell. You'll see there that it's already been highlighted in this trial. Under his name, the first item is creationism. As you sit here today, do you remember Mr. Bonsell saying anything to you about creationism at this retreat meeting on January 9th, 2002? A. No. Q. How about prayer? A. No. Q. Do you remember anything he said about the need for administration to work as a team? A. No. Q. How about curriculum? A. No. Q. How about uniforms? A. No. Q. Well, you know, let me ask you this, Rich, because I think it's a fair question. You've been asked and will be asked again, you know, tell the Judge why it is that you remember some of these things but you don't remember others. A. Well, I'll state it in a number of fashions, but first of all, each of these had a relative emphasis, meaning when we began the school year, there was an emphasis on certain things that needed to be completed. Mr. Bonsell had specifically been elected to the board -- at least his campaign was dealing with the high school project. The prior board had developed, gone out on bids, and had actually ended up with all but bid acceptance. The new board came in, and Mr. Bonsell's main responsibility was the building project. And almost to exclusiveness, Mr. Bonsell and I, along with Mr. Wenrich, worked very closely on the building project. So our conversations were almost totally exclusive to the building project. Q. And let me ask you about that, Rich. This is the January, 2002 period. Were there specific projects that loomed large for you as a superintendent in Dover at this time? A. Yes. This meeting on the 4th was my first week on the job, as well as the prior superintendent had retired and the board took six months to hire a replacement. So in the spring, I was basically without an assistant in a new position with a building project and two or three priorities that I had chosen, along with the building project, to concentrate on. Q. Let's flip the page here, still on Exhibit 288, but go to 3969, which is the agenda for the March 26th, 2003 meeting. And I just want you to, again, briefly describe how this document was generated. A. Bates Stamp 3969? Q. Correct. A. Similar fashion as the 2002 agenda. It would have been where we had -- that would be the second board administrative retreat where we ended up bringing in board members, as well as administrators, for dinner. You can see where we had the welcome and then the dinner. And then we ended up having an administrative go-round on accomplishments. As I alluded to before, it ran later than expected. We asked each of the administrators to have three minutes, and I think most of them took seven minutes because they were so proud of what they were doing. And then, again, at the end of the evening we asked the board to, once again, as in the previous year, to go around and give a one- or two-minute quick comment. Q. Okay. If we look at the first document I showed you, these issues from 2002, and then we look at the agenda for 2003, do you see points of contact, points of continuity, between these two documents which, to you, reflect the priorities of board business at that time? A. Yes. Q. Just give us an idea for what some of those are based on your recollection of what was looming large at this meeting on March 26th, 2003. A. Once again, I think boards are consistent in their thoughts of discipline and budget and finance, and you'll note that there are issues that board members had brought up in the prior year that continue in the subsequent year. Q. And give us just a quick idea for what some of those are. A. You'll note that Mrs. Brown had an issue with intermediate school block scheduling in 2002. In 2003, she had an issue this year with the high school block scheduling, still had an issue with pathways, as well as most of the board continually talked about supporting the middle school or middle level students. Q. All right. If you look down on -- at that document to the items that are N and O, you'll see some reference to curriculum there. Can you recall, Rich, what was the subject of discussion about curriculum at this March 26th, 2003 meeting? A. I'm sorry, could you be more specific? Q. Sure, Items N and O. A. Which Bates? Q. 3969. A. Yes. If you remember, we had talked before about initiatives. We were talking about the extended kindergarten you'll see in D. But it's also at this time period that the science curriculum, the state mandates were coming up and we ended up having individuals, Mrs. Hoppe and Mr. Hufnagel, start reviewing the science standards. Q. Okay. Let's flip to the next page of Exhibit 288. It's got the Bates Stamp Number 3970 on it. And, again, I want to ask you just to give us an idea of how this document was generated, Rich. Do you recognize this document? A. Yes, I do. Q. What is it? A. It's my notes on what the board members had said as we went around on the administrative retreat. Q. And, again, what sort of procedure produced these comments that are reflected in this document? A. Similarly in 2002 where they had a minute or two where they could make quick comments. Q. And you took notes based on those comments. Correct? A. Yes, I did. Q. Well, again, for the sake of just trying to place this document in its context, I'm going to ask you to look at some of the items that are listed under the board members' names and see if, as you sit here today, you remember specific comments that they made at this meeting on March 26th, 2003. How about Mr. Wenrich -- the first item for him is K through 12 discipline -- do you have any specific recollection of something he said? A. Yes. Q. What did he say? A. He was very concerned about double standards that we ended up having with students and wanted to make sure that we had -- again, were consistent with our discipline. Q. Look at the rest of the items under his name, 2 through 4. Any of those that you have a specific recollection about? A. Yes, the alignment of technology and curriculum. He was very interested in technology. We had numerous conversations. In fact, he's employed as a technology individual, so he had a background with that, so we had long conversations. I remember very specifically his comments. Q. Apart from that item, do you have any specific recollection of statements he made about the other items listed under his name on this document? A. No, I do not. Q. Let's look at -- the second person listed is Mrs. Callahan. She's got two items there. Do you have a specific recollection of anything that she said relating to those points listed under her name at this meeting on March 26th, 2003? A. No, I do not. Q. Beneath her is Mr. Brown. He's got two items listed under his name. Do you have any specific recollection? A. No. Q. All right. We get Mr. Bonsell again. He's got a number of items listed under there. Let's look at the first one, mandatory EdLine. Do you have a specific recollection about any comments Mr. Bonsell made about that item at this meeting on March 26th, 2003? A. Yes. Q. Tell us -- just give us an idea of what you recall. A. He was encouraging -- in fact, I think his specific comment was, as stated there, he wanted more information placed on the EdLine. Q. Item 2 is continue to stress manners, dress, and good behavior, help support parents. Do you remember anything you said along those lines? A. Yes. Q. Give us an idea real quick. A. His emphasis was the frustration parents were telling him that there was a mixed standard at school of where the -- some kids would come to school inappropriately dressed and then tell their parents that everybody else is dressed like that, and he wanted us to be consistent in our dress codes throughout the district. Q. All right. For the moment, let's skip to Item 4 underneath Mr. Bonsell's name, and that's a reference to emphasize American history. Do you recall any comments that Mr. Bonsell made at this March 26th, 2003 meeting? A. Yes. Q. Tell us what you remember. A. Mr. Bonsell and I have had, over the three or four years, extended conversations about American history and the founding fathers. That's why we brought it up. It didn't surprise me because we had had conversations in that area. And specifically his interest is American history, and since my professional background is American history, we had talked about the founding fathers and the emphasis of making sure that's in our curriculum and the Constitution. So when he brought this up, it fit in with the conversations that I had had with him before. I don't remember events more than dates. That actually may have been my editorializing based on the fact that I firmly believe that. Q. Well, you know, let's go back up to Item 3, and there again, as the plaintiffs have highlighted, there's a notation "creationism." As you sit here today, do you remember Mr. Bonsell saying anything to you about creationism during this two-minute go-round session? A. No, I do not. Q. Prior to finding this document, did you ever remember Mr. Bonsell saying anything about creationism to you? A. No. In fact, even finding it in this document, I don't remember those conversations. Q. What do you mean by that? A. Meaning even now, reviewing these, I don't remember either of those conversations or statements. Q. Well, again, I want to ask -- I think it's a fair question. You've been asked before. Why is it, Rich, that there are some of these things that you can remember and others you can't? A. I think it goes back to what I said earlier. There are specific areas of relative interest and emphasis that were going on during this time period. And I was more interested in the building project and how to make sure Mr. Bonsell supported certain aspects of the building project, as well as the budget. Q. Do you know if Mr. Buckingham attended this meeting? A. I know he did not. Q. And do you have an understanding as to why he did not? A. Yes. It was this time we started getting a little bit of feedback that Mr. Buckingham had significant physical issues. I think he's had three or four operations on his knees, as well as I believe at this time period was his first or second time he was hospitalized for substance issues, Oxycontin addiction. Q. Let me ask you, this is the 2003 year, were there any projects that loomed especially large for you as superintendent during this year? A. Without question the building project. Q. Did the building project have any impact on the makeup of the board? A. I would easily estimate that the building project was the major electoral issue that changed the board. In fact, two of the board members, very good board members, ended up resigning over the building project's direction. Q. And why is that? A. Because they didn't like the way the project was headed. Q. How about if you look at the board as -- in the 2003 period in terms of people who were aligned with each other, can you tell me which members resigned? A. The individuals that resigned at this time period were Mr. Larry Snoke and Lonnie Langione. Q. Were there other board members that remained who had been frequent -- should I say board members who shared the convictions of Mr. Langione and Snoke? A. Yes. Q. And who would that be? A. Mrs. Callahan. Q. I'd ask you, Rich, to turn your attention to Exhibit 283. A. I have it. Q. You recognize that document? A. Yes, I do. Q. What is it? A. It's a letter directed to me from Messiah College. Q. And what does the letter relate to? A. It's relating to a Pennsylvania School Board Association's meeting entitled, Creationism and the Law. Q. You said there was a meeting, but look at the letter a little more closely just for the sake of being precise. Was it a meeting or something else? A. My apologies, seminar. Q. Okay. There's a handwritten note in the upper right-hand corner there. Would you read that for the record, Rich? A. Amy, please register me for this seminar and order this book. Rich wants me to attend. Thanks. Q. Is that your handwritten notation? A. No, it is not. Q. Does it reflect something that you did? A. It reflected me directing Mr. Baksa -- or recommending Mr. Baksa to attend. Q. And why did you do that? A. We were looking at the science curriculum, and I knew Mr. Baksa's background was language arts, and I knew he had to develop an understanding of science. And in one of my prior experiences as a director of curriculum instruction during a science implementation, there were a lot of questions that were raised to me concerning evolution and science, and I thought it appropriate that Mr. Baksa gain an understanding of the issues. Q. Well, let me ask you, Rich, did you send Mr. Baksa to this seminar because you thought Alan Bonsell wanted to teach creationism? A. No. Q. Did you ever have any discussion with Mike Baksa about the seminar? A. Yes. Q. Tell us what you recall about that discussion. A. Mr. Baksa returned and communicated to me in a very general sense he had thought it was a very productive seminar. Q. Did he say anything else? A. No. Q. This relates to an item of curriculum. In your capacity as superintendent, do you have a lot of dealings with curriculum? A. No. In fact, I've always benefited from my former superiors. When I was a director of curriculum instruction and assistant superintendent, my superintendents didn't micromanage me and tell me what to do, and I've attempted to do the same with Mr. Baksa. So even though I have a supervisal piece, I've always tried to -- and he has done a good job with that, so I've tried to keep my fingers away from his activities. Q. Let's look next at Defendants' Exhibit 1. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's a memo to Mr. Baksa, Mr. Larry Redding, Mrs. Bert Spahr from Dr. Trudy Peterman, who was the principal at this time, carbon-copied to me. Q. Do you remember receiving this? A. Yes. Q. Did this memo give you cause for concern? A. Yes. Q. And what was that concern? A. My concern was a process that Dr. Peterman had been involved with in generating this memo. Q. And explain that, Rich. A. We had difficulty with Dr. Peterman to the extent of where she continued to write memos directed to individuals and codifying information, that she did not work with the individual that she had noted in the memo. This was done about administrators, as well as teachers, as well as various department chairs. Q. Rich, I'd ask that you direct your attention to the first paragraph of the memo. First of all, tell us, what's the "re" line on the memo? What does it relate to? A. Creationism as it relates to the approved school board Biology I curriculum. Q. Okay. And then I'd ask you to direct your attention to that first paragraph to the portion of it that begins, Mrs. Spahr explained, and read it through the end of that paragraph. A. Mrs. Spahr explained to Mr. Baksa that in Biology I, one theory of evolution taught is Darwinism. She explained to Mr. Baksa that all biology teachers state that another theory of evolution is creationism, but creationism, per se, is not taught since it is not addressed by the standards. Mr. Baksa further stated to Mrs. Spahr on March 31st, 2003, that this board member wanted 50 percent of the topic of evolution to involve the teaching of creationism. Q. Let me ask you a few questions about that, Rich. When you got this memo, did you read it? A. Yes. Q. Were you concerned when you read what Dr. Peterman said about the teacher's practice in biology class mentioning creationism? A. No. Q. Why not? A. Because they weren't teaching creationism. Q. Let me ask you, did you ever discuss with Mr. Baksa the assertion made in the last sentence of that memo, that paragraph? A. Yes. Q. And what did you learn? A. I learned that he did not say that. Q. Let me ask you, did you have -- did Dr. Peterman have a habit of taking things out of proportion? A. Yes. Q. Had that produced any impact on her job performance reviews? A. Yes, it did. Q. At the same time let me ask you this. Did you punish Dr. Peterman for the content of this memo? A. No. Q. You say, Rich, that you learned that creationism, per se, is not taught. When you say you're not concerned that the teacher was violating the law, what's the basis for that position? A. Teaching is a very specific art that generally has four components. The first component is very specific behavioral objectives. The second component is very specific student actions. The third would end up entailing materials. And the fourth would be a very specific assessment relationship to the behavioral objectives. Q. When you read this memo, Rich, did it ever occur to you that the teachers were delivering a mini-lecture on creationism? A. No. Q. Let's look at the remainder of 2003. This memo is dated April 1st, 2003. Let me ask you, do you recall any developments touching on proposed changes to the biology curriculum in the remainder of 2003? A. No, I do not. Q. Do you recall any developments touching on the biology text in 2003? A. Yes. Q. What do you recall? A. I recall that the board was looking at fiscal issues. They had been elected to have a fiscally conservative budget, and one of the areas that they looked at was purchasing of the textbooks, science and family consumer science. Q. Looking at this period in 2003, let's focus your attention in the fall, and let me ask you, do you remember hearing comments that students didn't have books during this period? A. Yes, I do. Q. And one of the books was a biology book? A. Yes. Q. Did that concern you? A. No. Q. Why? A. We ended up in -- because of the state standards -- originally our biology was in tenth grade, and we wanted to, because of the test being in tenth grade, move the biology to ninth grade. So we had one year of where we had both our ninth grade and our tenth grade taking biology. And our teachers were very supportive and understood that we couldn't buy a whole class set or a whole grade set just for one year. So what the teachers graciously did was coordinated a classroom set for each of the teachers and then used the textbooks whenever they needed to in the respective classes. So the students did not take home a text because we didn't have enough texts for two grades, but they did use the texts in class. Q. Well, looking, again, at this fall, 2003 period, do you recall any comments made about the books not being used? A. Yes. There was a specific board member, Mrs. Harkins, that ended up communicating that she had heard that the teachers didn't like the text and therefore were not using the text. Q. Did she give more detail on the nature of her concern? A. Her concern was, why would we buy texts if they didn't want the texts, as well as, we should wait to make sure that when we do buy a text, it is aligned with the current and new state standards. Q. You've mentioned the curriculum cycle. I just want to get an idea for what that is. Tell us, Rich, what is the curriculum cycle? A. When I came to Dover, the curriculum was reviewed and textbooks were purchased in a haphazard way, so I ended up developing a seven-year cycle of where every year designated a curriculum review and corresponding purchase of textbooks. That way we would not have one year of three or four different adoptions of textbooks and/or miss a review of a textbook adoption. Q. You've indicated that the science texts were up in 2003. Did they come up for review in the ordinary course of the curriculum cycle you've described? A. Yes. Q. Now, does the curriculum cycle relate to text purchase? A. Yes. Q. Tell us how. A. The curriculum is developed, and then the teachers take a look at what companion material -- in most cases it would be a textbook -- would support the updated curriculum. And that would be the time we would purchase the textbooks and materials. Q. Let me ask you this, Rich. If you'd turn your attention back to Defendants' Exhibit 1, I want you to look and see if Dr. Peterman took any action in response to the conversation that you sought to reflect in this memorandum. A. I'm sorry, could you ask that question again? Q. Sure. Look at the memo again and see if you can -- it refreshes your recollection as to anything that Dr. Peterman told the science faculty to do. A. Well, if you look at the bottom half of the memo, she gives very specific curriculum directions. Q. And what are they? Please read them. A. Number 1, if we are a standards-driven school district, can creationism be taught if it isn't addressed by either the state standards or by the approved school board Biology 1 curriculum? Q. Hold on, Rich. Before you begin there, let me just ask you to jump up to the title paragraph, the second paragraph, the heading where she says -- she's asking for direction and read the second sentence of that for the record. A. I advised them to continue to mention that creationism is another alternative theory of evolution. Q. Now, I've got two questions for you there, Rich. First is, again, upon reading that, did you have a concern that your teachers were engaged in unlawful activity? A. No. Q. And why is that? A. Once again, they are mentioning creationism and not teaching creationism. Q. Well, and let me ask you, did you have a concern when you read that statement? A. I had a concern of the process, meaning Dr. Peterman was taking the responsibility of a curriculum director, but as far as the actions of the individual teachers, no. Q. Again, Dr. Peterman is providing directions to the teachers. Was that within her area of responsibility as principal to speak to curriculum? A. No. Q. That brings us to 2004, Rich, and I'd ask you to look at Defendants' Exhibit 2. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's the budget submission for textbooks. Q. And what's the document dated? A. January 5th, 2004. Q. And do you have an idea or can you tell us why you would receive this document? A. The high school is resubmitting requests for biology textbooks. Q. In 2003, the text was put off. Do you recall any concern on the part of the science faculty relating to when their texts would be purchased? A. Yes, they were concerned on two levels. One, they were concerned that if they were not purchased that year, that we would move on to the next cycle and totally skip them and that it would be another seven years before they ended up getting their texts. And, secondly, they were also concerned on getting current and standards-driven texts. Q. Did the board delay the purchase of the text for another cycle? A. No, they did not. Q. And is that why you were receiving this document in January, 2004? A. Yes. The high school principal was directed to resubmit the biology and science and family consumer science text requisitions. Q. Did the expressed concern that students not have biology textbooks, which you've mentioned in 2003, carry over into the 2004 year? A. I'm sorry, could you ask that question again? Q. You've mentioned that some people were saying the students don't have texts. Was that concern expressed also in 2004? A. Yes. Q. How about the notion that the students weren't using the books, the teachers weren't using the books, was that concern also expressed in 2004? A. Yes. Q. Why are you receiving this document in January of 2004? A. That would be the budget time period. Q. Rich, I'd ask you to look at Defendants' Exhibit 3. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's the curriculum advisory council minutes. Q. What is the curriculum advisory council? A. It's a council chaired by the assistant superintendent for curriculum that has, as members, faculty, community members, and administrators. Q. Does the curriculum advisory council have to be consulted prior to curriculum changes pursuant to Dover Area School District policy? A. No. Q. Does the curriculum advisory council have to be consulted prior to text purchases pursuant to Dover Area School District policy? A. No. Q. Did you seek the input of the curriculum advisory council concerning the curriculum change at issue in this case? A. Yes. Q. Were all of Dover's policies regarding curriculum development followed with respect to the curriculum change at issue in this case? A. Yes. Q. If you look at Exhibit 3, Rich, there is an item Roman Numeral IV. A. Yes. Q. If you look at that, there's a reference to the board curriculum committee. Describe what that is. A. The board curriculum committee is a subcommittee of the full board that has three board members on it that review all curriculum prior to submission to the full board, curriculum and textbooks. Q. Okay. And if you look at Item 4, Roman IV, would you look that over, Rich, briefly. There's a reference there to science and family consumer science textbooks. Do you recall an issue about the family and consumer science textbooks at this time? A. Yes, I do. Q. Tell us what you recall about that. A. Specific board members had concerns that the teachers were recommending books that literally were the same as the prior books with the exception of a cover and maybe two or three words through the whole text, basically requesting purchase of a book that was very similar to the book that they currently had. Q. And if you can, in your capacity as superintendent, describe how the board approached text purchases during this period. A. Very frugally. Q. And did they have a series of concerns that they looked at fairly regularly? A. Yes. They ended up, with any purchase of a book, requesting a number of items of information. First of all, they would want to know how long the books had been used, the condition of the books, how many students would be accessing the books, how many books we ended up having, and, in relationship to that, any recommended books, the copyright date of those books, as well as the relationship to the standards. Q. There's a reference in that Item 4 on Exhibit 3 to the science textbooks. Did the board ask the same questions with respect to the science textbooks? A. Yes, they did. Q. This document is dated April 15th, 2004. If we focus your attention on the spring period, did there come a time when a board member provided you with materials that related to the biology curriculum? A. Yes. Q. And who was that? A. Mr. Bill Buckingham. Q. And what did he give you? A. He dropped off to my office two CDs and a book. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Rich, I've handed you two DVDs. I'd ask you to identify them for the record. A. One is Icons of Evolution, and the other one is Unlocking the Mystery of Life. Q. Do you recognize these? A. Yes, I do. Q. What are they? A. They're two DVDs and are reflective of what Mr. Buckingham gave me. Q. You've also referenced a book. Do you remember its title? A. No, I do not. Q. That's unfortunate, because I don't have it here right now. Hopefully we'll find it before your testimony is done. Did Mr. Buckingham say anything to you when he handed you these materials? A. Yes. He recommended that I take a look at them. Q. Did you do that? A. No. Q. Did you do anything with them? A. Yes. Q. What did you do? A. I gave them to Mr. Baksa, who is in charge of curriculum. It's his area of responsibility. Q. Did you say anything to Mike when you handed those materials to him? A. I said a board member dropped these off and he probably ought to take a look at them. Q. Rich, I'd ask you to direct your attention to Defendants' Exhibits 6 and 14. Do you recognize those documents? A. Yes. Q. What are they? A. Those are the -- it's a memo from Dr. Peterman to myself and Mr. Baksa reviewing the textbook summary report dealing with the biology, chemistry, and family consumer science textbooks. Q. Okay. Now, if you compare Defendants' Exhibit 6 with Defendants' Exhibit 14, you'll note, I believe, that they're the same document in terms of typewritten text. Is that correct? A. Yes. Q. But Defendants' Exhibit 14 has some handwritten notations on it. Correct? A. Yes. Q. Do you know what those handwritten notations reflect? A. Yeah. Those are the copyright dates of those books. Q. Do you know why that information would have been added to the document which is Defendants' Exhibit 14? A. Yes. As stated earlier, the board would have wanted to know the copyright dates of the books. Q. I'd ask you to direct your attention to Defendants' Exhibit 15. And with that in mind, I'd ask you a few things. First of all, did Bill Buckingham ever speak with you personally about the materials that he had handed to you in the period up through June, 2004? A. No. Q. Did he ever express specific concerns to you as superintendent about the biology text? A. Not to me, no. Q. Do you recognize Defendants' Exhibit 15? A. Yes. Q. What is it? A. It's a list of concerns that Mr. Buckingham gave Mr. Baksa concerning the 2002 Miller and Levine textbook. Q. Did you have any discussions with Mike Baksa about that? A. Beyond the fact of him telling me that he would review those concerns, no. Q. Did Mr. Baksa mention creationism to you when he showed you Defendants' Exhibit 15? A. No. Q. Well, in terms of our increasingly narrow focus on the biology curriculum and biology text, do you recall any other developments in the spring of 2004 which touch on that text? A. Yes. Q. Tell me what you remember. A. At the first board meeting -- I believe it was June 7th -- a constituent came to the mic and asked what the status of the biology books were. Q. Who would that be? A. Mrs. Callahan. Q. And what concern did she express? A. She wanted to know what the status of the biology books were and why they were not purchased. Q. Do you remember anything that Bill Buckingham said in response to her inquiry? A. Yes. Q. Tell us what you remember. A. Mr. Buckingham told her that he had concerns with the book because it was laced with Darwinism. Q. Well, prior to this board meeting -- let me ask you first, is this the first board meeting in June? A. Yes. Q. Prior to that board meeting, had you ever heard Bill Buckingham talk about Darwinism? A. Directly, no. Q. How about when he made this comment that the text was laced with Darwinism, did you know what he was getting at? A. No, based on the fact that all biology books are going to be full of Darwinian theory. And I didn't really understand his point based upon the fact that laced with Darwinism, I'm not sure about the word "laced," but all biology books are going to have Darwin in them. Q. Do you remember anything else Mr. Buckingham said at that meeting? A. No. Q. Do you remember anything that any other board member said at this meeting in June? A. No. Q. Up until this time now, this is June -- the first week in June, 2004, did any board member come to you and discuss a desire to teach creationism? A. No. Q. Up until this period, had any board member come to you and expressed a concern that the biology text was laced with Darwinism? A. To me directly, beyond the June 7th comment, no. Q. Well, indirectly, Rich, had any board member come to you and discussed a concern about being laced with Darwinism? A. No, not me. Q. Were you aware of them going to anybody? A. I was aware that Mr. Baksa was in receipt of Mr. Buckingham's Defense Exhibit 5, and apparently that references Darwinism. Q. Okay. But does it reference it being laced with Darwinism? A. No. Q. I'd like you to look at Defendants' Exhibit 6 and 14. And I just want to note the date of those documents again for the record. When are they dated, Rich? A. June 8th, 2004. Q. And looking at that period in time and looking at the text purchase cycle that you've described, where in the process does this memo fit? A. It would be about the time for final budget approval and purchase after July 1. Q. Okay. Let me ask you, what do you remember next touching on this dispute about the biology text and curriculum? We've gone through the first board meeting. A. The only thing I could remember would be the next board meeting, which would be July 14th. Q. Okay. Tell us what you recall about that meeting. A. I remember the July 14th meeting had a large attendance. The board, at that time, was contemplating eliminating a high school English position, and Dr. Peterman had encouraged her staff to attend that meeting to support the position. And there were a lot of individuals there in attendance to support the English position. Q. Well, you've linked the attendance at the meeting to a faculty or personnel decision. Was there anything in the makeup of the crowd that led you to draw that inference? A. I would say close to 80 percent faculty members. Q. Now, as the meeting unfolded, tell us what you recall. A. I recall that at public comment period, Mrs. Buckingham came to the podium. Q. And do you remember anything about what she said? A. In a general sense, yes, I remember her reading from the Bible. And her point I never understood. In fact, I felt somewhat sympathetic with the board president because she rambled on. There was no point. And I think he kept waiting for a point so he could gavel her down, and she would pause and then continue. And to this day I have no idea what she was trying to present. Q. Well, let me ask you this. We've said Charlotte Buckingham. Was she the wife of Mr. Buckingham? A. Yes. Q. And was Mr. Buckingham a board member? A. Yes. I think probably the board president was sympathetic to the fact of a spouse of a board member on the podium. Q. As you sat there during this discussion, what was your personal impression with respect to what she was saying and whether it was appropriate? A. On two levels, I never got what her point was, and I'm not sure I would state a reading from the Bible and reflecting on Genesis was appropriate. Q. Let me ask you, was it kind of embarrassing? A. Yes. Q. Do you remember anything else that happened at this June, 2004 meeting? A. A student by the name of Max Pell came and had some comments. He and Mr. Buckingham had an interchange. Q. Do you remember anything about that exchange? A. Not specific comments, no. Q. Looking at the second board meeting in June, do you have any recollection of Mr. Buckingham saying the country was founded on Christianity? A. No. My recollection on all of Mr. Buckingham's religious comments were in the fall. The fall of 2003, we had a former board member come and request the board take a stand on the federal case on the under God pledge. And during that time period, a number of board members had made some comments, and my recollection, that Mr. Buckingham had made some significant religious comments. In fact, subsequent to that, he actually came and apologized for some of the comments he had made publicly. Q. When the second board meeting occurred in June, there was large attendance, did you connect that attendance to the comments that Mr. Buckingham had made at the prior board meeting? A. No. Q. Why not? A. Again, the population, and I knew the majority of the individuals were there based on the position. And I knew historically attendance at board meetings was not reflective on comments, more items on agendas. Q. When you say "population," do you mean attendance at the meeting? A. Yes. Q. Are you referencing the attendance by a large number of faculty? A. Yes. Q. Okay. Do you recall a discussion at this meeting about the need for balance? A. Yes. It was at this time the board started discussing its efforts on the biology curriculum, and a number of board members had discussed their interest in looking at the biology curriculum and making sure that the biology curriculum reflected a balanced view, as well as talking about gaps and problems in the Darwin theory. Q. While they're talking about balance, do you remember any discussion of creationism at this meeting? A. No. Q. Do you recall any specific statements relating to the nature of the balance that was discussed at this meeting? A. I think they were -- there was a discussion of wanting other theories being presented. What specific other theories, I cannot remember. Q. Let me ask you, Rich, to direct your attention to Defendants' Exhibit twenty -- well, let's start with 8. I just want to get that in. Look at 8, if you would, Rich. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's a cost analysis of what the board had put in the budget balance, meaning when they did not purchase the textbooks the prior year, they directed me and the business manager to put the unexpended funds in a fund balance for the subsequent year. And it gives the total cost of the request at 34,000, which meant we had a shortfall of 9,000, which meant that's the amount of money we needed to budget to purchase all books. Q. Did this document come to your attention in your capacity as superintendent? A. Yes. Q. And why was that? A. That would be the amount of money we needed to budget for the textbook that year, textbooks that year. Q. If we look at this period here between the second board meeting in June and the first board meeting in July, did any other information come to your attention relating to the biology text on the part of Mr. Buckingham, for example? A. Yes. Q. Tell me what you recall. A. Mr. Buckingham, with Mr. Baksa, had dropped off a document requesting Of Pandas and People. Q. Well, before we get there, let me ask you to look at Defendants' Exhibit 22. And if you would, Rich, I'd ask you to direct your attention to the page of Exhibit 22 with the Bates Stamp Number 101 in the lower right-hand corner. There's an item there, Item 13. What does that relate to? A. That's curriculum. Q. And if you would, read for the record what you see beneath that. A. 13A, approve the following textbooks for the 2004-2004 school year: Prentice Hall Biology by Miller and Levine, copyright 2002. Q. Okay. Did Mr. Baksa ever discuss with you Mr. Buckingham's objections to the text prior to putting the purchase of the text on the agenda? A. Yes. Q. And what did he tell you? A. He had told me at that time he thought, in conversations with Mr. Buckingham, that all the items had been addressed. Q. I'd ask you then, Rich, to turn your attention to Defendants' Exhibit 23 and direct your attention to that page of Exhibit 23 with the Bates Number 110 in the lower right-hand corner. If you look under the item for curriculum, do you see approval of the text? A. No, I do not. Q. Do you know why? A. Yes. Q. Tell us. A. The department chairperson, Mrs. Spahr, contacted Mr. Baksa and said that she had received over the summer an updated copyright date of the book for 2004. Q. What was the result of that information on the text approval process? A. We recommended that the board table that action and not purchase a book because we had an updated book. Q. And was that consistent with the board's general focus on the copyright and the currency of the new text? A. Yes. If they could get an updated book by two years, they would be very pleased. Q. So there's a delay in purchasing the text at this period. Is the reason you just stated the reason for that delay? A. Yes. The teachers recommended, with administrative support, and the board agreed on delaying the book, a purchase of the 2002 book for the 2004. Q. Okay. You referenced earlier some additional review of this text, the biology text. Tell us about that. A. Yes. At that time period Mr. Baksa decided to bring in our senior biology teacher, Mrs. Miller, as well as Bert Spahr, to review the 2004 and 2002 textbooks, along with the original concerns that Mr. Buckingham had as testified prior here. The meeting was in my office. Q. Now, you've mentioned his concerns. Did you as superintendent know the specific nature of his concerns? A. No, not specifically. Q. You've mentioned a meeting with Mr. Baksa and some of the science teachers. Did you participate in that meeting? A. It was held in my office, and I was in and out. But as far as line by line, no. Q. How about the general nature of Mr. Buckingham's concerns, did you have any understanding about the general nature of his concerns? A. No. Q. Do you recall anything about this meeting that was held in your office? A. Yes, I do. Q. Tell us what you recall. A. I recall that the biology teachers, as well as Mr. Baksa, were ecstatic. In fact, I remember one comment they made that they believed that Mr. Miller or Dr. Miller and Mr. Levine must have been reading Mr. Buckingham's mind because every one of his concerns seemed to have been addressed in the 2004 edition. Q. Did you have a discussion later with Mr. Baksa about approval of the 2004 edition? A. Yes. In fact, he felt significantly more comfortable in recommending this textbook. Q. And tell us, you know, what happened next from your perspective relating to the text purchase. A. The textbook was placed on the August 2nd agenda. Q. With that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 28. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's the Dover Area School District board planning meeting agenda for Monday, August 2nd, 2004. Q. And I'd ask you to direct your attention to that portion of Defendants' Exhibit 28 with the Bates Number 116 in the lower right-hand corner and further direct your attention to Item D under Roman XII relating to curriculum. What do you see there? A. D, approval to order the following textbooks for the 2004-2004 school year: Prentice Hall Biology. Q. At the time that this agenda was printed, did you have an understanding concerning whether the biology text recommended by the science faculty would, in fact, be approved by the board at this meeting? A. Yes, I did. Q. And what was that understanding? A. The understanding was it was going to be purchased. Q. Did you attend that meeting? A. Yes. Q. Do you recall developments that touched on the approval of the biology text? A. Yes. Q. Tell us what you remember about that. A. Mr. Baksa received a memo or at least a document from Mr. Buckingham stating that he also wanted the Pandas book approved. Q. And with that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 26. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's the aforementioned memo from Mr. Buckingham requesting that the following book be added to the school board meeting agenda, Of Pandas and People. Q. And if you look at that first paragraph, did Mr. Buckingham make another request with respect to the placement of the item on the agenda? A. Yes. He requested that be placed prior to the purchasing of the Miller and Levine Biology book. Q. Did you do anything in response to this document? A. Yes. Q. What did you do? A. I contacted Mr. Buckingham and requested he come to my office and meet with myself and Mr. Baksa. Q. Did you have a purpose when you asked Mr. Buckingham to meet with you? A. Yes. Q. What was that purpose? A. My purpose was to personally tell him that he would not get my approval of purchasing the Pandas book and that my purpose would be to work with him a compromise concerning his specific request. He told me he understood. He did not have the six votes needed to override my recommendation. And subsequently, at the end of the meeting, we developed a compromise where he told me he would support the text. Q. Okay. Let's go back a little, because you've said that he realized he didn't have votes based on your objections. What do you mean by that, Rich? A. Pennsylvania School Board's -- actually, my apologies, Pennsylvania code states that a board needs six votes to override a superintendent's recommendation. Q. Did you -- we're at the meeting now. Did Mr. Buckingham state his desires with respect to the text Of Pandas at that meeting with you? A. Yes. He wanted the Pandas book purchased at the August 2nd meeting. Q. Did he express any desire with respect to the use of the text? A. Yes. He wanted the text as a companion text. Q. Did you approve that request? A. No, I did not. Q. Did you discuss with him any possible way of working with the text? A. My recommendation was that I would subsequently discuss with him and the science teachers the possibility of having and using it as a reference. Q. Did you agree to delay approval of the text recommended by the science faculty until Of Pandas was approved? A. No, I did not. Q. We've already seen that approval of the text recommended by the faculty was on the agenda for the August 2nd meeting. What was the result of this meeting you've just described with Mr. Buckingham? A. The result was I told him that we would continue to put the Miller and Levine textbook on the agenda, but I promised him that after the textbook, Miller and Levine, was purchased, that I would sit down or at least have Mr. Baksa sit down with the science teachers and review the option of using the Pandas book as a reference. Q. Did you have an understanding of what Mr. Buckingham's position was with respect to approval of the text recommended by the science faculty at the end of this meeting? A. Yes. Q. And what was that? A. He was going to support the purchase of the textbook. Q. Did you communicate with any other board member about this meeting with Mr. Buckingham? A. Yes, I did. Q. Tell us who you communicated with. A. I communicated with the board president at the time, who was Alan Bonsell, and he ended up -- as board president would need to be aware of all of the items on the agenda, and he subsequently also talked to Mr. Buckingham. MR. ROTHSCHILD: Objection, Your Honor. Calls for hearsay. MR. GILLEN: That's fine, Your Honor. I'll cut him off right there. THE COURT: The objection is sustained to the extent that he started to get into hearsay. MR. GILLEN: Sure. THE COURT: And I'll tell you, Mr. Gillen, when you get through this area of inquiry, wherever you think it's an appropriate time, from now on we can hit your mark and we'll take a break at that point. MR. GILLEN: Two questions, Your Honor. THE COURT: Okay. BY MR. GILLEN: Q. You say that you communicated with Mr. Bonsell about the meeting. Did you have a belief concerning whether he was pleased or displeased as a result of that communication? A. He was very pleased. Q. Well, let me ask you. There's a back and forth here. Let's just -- I want to first get to, did you communicate to Mr. Bonsell what Mr. Buckingham had told you? A. Yes. Q. Did you have a belief concerning Mr. Bonsell's position with respect to that information you communicated? A. Yes. Q. And what was that? A. He was supportive of purchasing the textbook. Q. Okay. Was he supportive of Mr. Buckingham's desire to have Of Pandas approved at this meeting so far as you believed? A. He was not supportive of that, no. MR. GILLEN: Let's take a time out, Judge. THE COURT: Let's take a break, about 15 minutes, since we're going to have a shortened session this afternoon, and we'll pick it up at that point. We'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 13 (October 20), PM Session, Part 2 THE COURT: All right, Mr. Gillen, you may continue. MR. GILLEN: Thank you very much, Your Honor. BY MR. GILLEN: Q. Dr. Nilsen, before we broke, we had a discussion about your communicating Mr. Buckingham's request with respect to Mr. Bonsell, with respect to Of Pandas to Mr. Bonsell, and I want to just make sure that the record is clear on what you derived from that discussion. There are two things that are at issue there. First, Mr. Buckingham has brought up his desire that the text Of Pandas be put on for approval by the board in August. Did you convey that to Mr. Bonsell? A. Yes. Q. Did you have an understanding concerning Mr. Bonsell's disposition of that request? A. At that time period he did not want it on the agenda. Q. Okay. Let me ask you about Mr. Buckingham's posture at the end of the meeting you've described with respect to the text recommended by the science faculty. As a result of your communication with Mr. Bonsell, did you have an understanding concerning his disposition about Mr. Buckingham's position on the purchase or approval of the text recommended by the science faculty? A. Yes. Q. And what was that? A. Mr. Bonsell understood from me that Mr. Buckingham supported the textbook being on the agenda and being approved at the August 2nd board meeting. Q. And did you have an understanding concerning whether that was good news or bad news to Mr. Bonsell? A. It was good news. Q. Okay. I'd ask you again to direct your attention to Defendants' Exhibit 28 and ask you, in case I haven't, do you recognize that document? A. Yes, I do. Q. What is it? A. It's the Dover Area School District school board planning meeting agenda for Monday the 2nd, 2004. Q. And I'd ask you to direct your attention to the page of Exhibit 28 which has the Bates Stamp Number 116 in the lower right-hand corner. You've already indicated that the 2004 edition of Miller and Levine is listed for approval. Is that correct? A. That's correct. Q. Is Of Pandas on that agenda for approval? A. No, it's not. Q. Why not? A. I didn't put it there. Q. And why didn't you put it there? A. Because I did not recommend it. Q. As you sit here today, do you have any recollection of the events at the August 2nd, 2004 board meeting? A. Yes, I do. Q. And if we focus your attention on recollection that bears on the approval of the biology text, tell us what you recall. A. I recall that it ended up in a four-four tie for approval. Q. Be a little more specific for the record. A four-four tie with respect to approval of what? A. Approval of the textbook. Four people voted in favor of purchasing the textbook and four voted against approval. Q. Well, do you recall any discussion prior to that tie vote? A. No. Q. Did you do anything in response to the tie vote? A. Yes. Q. Tell us what you did. A. I directed my comments to the individuals that had voted against the vote and communicated them my displeasure on the vote that they had taken and the fact that if we did not purchase the book at that time period, we would begin the school year without a current book. And if we had purchased the book subsequent to that, it would amount to the fact that our teachers would have two different textbooks during the school year, as well as our students would have two different textbooks during the school year, as well as we would have a book that would not reflect the state standards. Our teachers were, at that time, teaching very specifically the state standards. Q. Well, did your observation produce a reaction on the part of any board member? A. Yes, it did. Q. Tell us what reaction. A. Angie Yingling made the comment, Well, in that case, let's give the teachers and the students what they need, and she requested a re-vote. Q. What happened next? A. She got a re-vote, and the board adopted five-three for approval and purchase of the book. Q. Now, when this vote took place, was there any discussion of creationism? A. No. Q. When Angie Yingling decided to switch her vote, did she mention creationism? A. No. Q. Did any board member have a discussion about the curriculum and creationism at that time? A. No. Q. I'd ask you to look at Defendants' Exhibit 30. Do you recognize that document, Rich? A. Yes. Q. What is it? A. It's a document I requested the assistant superintendent's secretary to author. The assistant superintendent at this time period was on vacation, and I asked her to send a -- the exhibit memo to the board curriculum subcommittee, including the president and the high school principal, the senior biology teacher, and the department chairperson. Q. Okay. And you're referring now to the Defendants' Exhibit 30, which is a memo from you to certain board members and faculty? A. That is correct. Q. And let me ask you, was curriculum ordinarily within the area of your responsibility? A. No, it was not. Q. Well, then why did you do this? A. As stated earlier, Mr. Baksa was on vacation. Q. Okay. And given that Mr. Baksa was on vacation, still, why did you send this specific memo? Did it have any connection to your discussions with Mr. Buckingham? A. Yes. In my discussion with Mr. Buckingham in July, when I told him that I would not support the purchase of Of Pandas and People as a textbook, the understanding I had with him when we left that July meeting is the fact that we would purchase the Miller and Levine book and then hold a conversation and a discussion with the science teachers on what we would do with the Of Pandas and People book. Q. Well, the memorandum calls for a meeting on August 27th, 2004. Did that meeting take place? A. Yes, it did. Q. Who was there? A. The individuals listed, the board members, Mrs. Brown, Mr. Buckingham, Mrs. Harkins, Mr. Bonsell, Mrs. Miller -- I do not remember whether Mr. Riedel was there or not -- Mrs. Spahr, Mr. Baksa, and myself. Q. Do you recall any discussions with the teachers about Of Pandas at this meeting? A. Yes. Q. Tell us what you recall. A. The teachers, in a compromise, accepted the fact that they would use the -- and agreed that they would use the Pandas book as a reference in their classroom. Q. Did they have some concerns they expressed at this meeting about Of Pandas? A. They had voiced concerns that the textbook was dated. The textbook had some faulty science included in it. Q. How about anything else? Did they express any concern for their personal -- what should I say, any personal consequences of the use of this text? A. They had voiced a concern with liability with the book. Q. Did you do anything to try and allay that concern? A. Yes. I brought to the meeting a memo from our solicitor that had researched if there was any case law on the usage of the book. Q. Did you give that to Jen Miller? A. I gave it to everybody in the meeting. Q. Do you remember anything else about this August 27th meeting in terms of consequences that were looked forward to? A. Yes. The other issue that came out of that meeting is the fact that Mr. Baksa would begin work on updating the biology curriculum. Q. How about Mr. Buckingham? You said there was a discussion of using Of Pandas as a reference. Was Mr. Buckingham satisfied with that? A. No, he was not. Q. What did he want? A. He wanted the book used as a textbook, companion book, to be right next to the Miller and Levine book. Q. Okay. We're looking now at a meeting on August 27, 2004. Was there any discussion about using public money to purchase this book? A. There was a general conversation about Mr. Buckingham wanting to use budget money. But as far as a specific directive on using that, I don't think there was any specific outcome on that. Q. Okay. Did you come away from this meeting with an understanding concerning whether other board members supported the use of public funds to purchase this book? A. There were board members that did not support using public funds, and there were some that did. Q. Okay. Let me ask you this. Did you later on have a conversation about a way to incorporate Of Pandas as a reference text that wouldn't entail the use of public funds? A. Yes. Q. And tell us what happened there. A. The board president at the time, Mr. Alan Bonsell, communicated to me that he had been contacted about individuals that were willing to donate the finances to purchase 60 copies of Of Pandas and People. Q. Did he tell you who was donating the books at that time? A. No. Q. Did you ask? A. No. Q. Why not? A. Dover is much like many schools, financially strapped, and anytime anybody wants to provide free educational and appropriate materials, we'll accept them. Q. Has there come a time after this particular incident where other books have been donated to the Dover Area School District? A. Yes. Q. Did you accept those books? A. Yes. Q. Did you ask who sent them? A. No. Q. Why not? A. Similar reasons. Q. As you leave this August 27, 2004 meeting, are there any developments that bear on the curriculum? A. At the time period Mr. Baksa is working with the individuals in the board curriculum subcommittee and teachers on a revised biology curriculum. Q. Did you have detailed discussions with Mike Baksa about that? A. Not detailed, but general updates. Q. Did there come a time when Mr. Baksa communicated to you some input he had received from board members with respect to a proposed curriculum change? A. Yes. Q. With that in mind, Rich, I'd ask you to look at Defendants' Exhibit 45. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's a memo to Mr. Baksa from Mrs. Brown entitled, Curriculum Committee Member. Q. Were you shown this document? A. Yes. Q. Did you derive any impression from the document with respect to the position of Casey Brown on the proposed curriculum change? A. Yes. Mrs. Brown, while she was on the board, was one of our better wordsmiths and had a good opportunity and a good ability to combine concerns and thoughts in a very positive way, and it appeared in either one of her recommendations here that she had addressed all the concerns that the board had had concerning the biology curriculum. Q. Okay. And you've referenced those concerns, and I want to ask you, Rich, as you look at this document, did you have an impression concerning whether it related to anything that you had heard at board meetings in this June, July, and August period? A. Yes. Q. What sort of impression did you have? A. The board was specifically concerned about making sure in the biology curriculum that it had stated that students were made aware of gaps in Darwin's theory, as well as that there were other explanations of the origins of life on earth. Q. And in terms of the language that Mrs. Brown used to express those gaps, did you have any -- or those goals, did you have any understanding concerning whether this language might address the board's concerns? A. Yes. I had the feeling that it had addressed all their concerns. Q. In terms of your goal leaving that August 27th meeting, did you have an impression concerning whether Mr. Baksa was making progress? A. Yes. I thought that these two sentences actually should have addressed all the issues and we had completion. Q. Okay. And let me ask you, look at those issues. Just look at the first version that she proposed. How did you see the issues at this time? A. Again, the issues dealing with gaps and recommending other explanations for origins of life. Q. Did you do anything in response to this document? A. No. Q. Did you ask Mr. Baksa to do anything in response to this document? A. No. Q. Did you have an understanding concerning what Mr. Baksa's continued activity would be in this area? A. Yes. Q. What was that? A. He would continue as the curriculum coordinator, director, to continue to fine-tune and get consensus on the statements. Q. With that in mind, Rich, if you'd look at Defendants' Exhibit 48. And, again, I'd ask you to direct your attention to the page of Exhibit 48 that has the Bates Number 135 stamped in the lower right-hand corner. If you look at the Item 13 there under Curriculum, you'll see an FYI. What's that? A. It reads, FYI, the superintendent has approved the donation of two classroom sets, 25 each, of Pandas and People. Classroom sets will be used as references and will be made available to all students. Q. Okay. Now, the document describes the text as a reference. Was there anything from the August 27th, 2004 meeting with the board curriculum committee and science faculty that justified that description? A. Yes. The faculty had agreed that they would use it as a reference. Q. I note that this has you in the position of approving the donation of the text. Can you approve the purchase of texts? A. I cannot approve purchase of texts. Q. Likewise, the biology text had to be approved by the board in August. My question to you is, how did you have the authority to accept this book? A. I'm allowed, under state code, to accept reference materials. Q. At the time that you accepted this text, Of Pandas, did you have any understanding about what the text contained? A. No. Q. Well, let me ask you, had there been discussion of the text at the August 27th meeting? A. Yes. Q. Had any board member made objections to the text as such? A. No. Q. How about the science faculty, did they voice specific criticisms? A. Again, there was the criticism about dated science. But beyond that and the readability level, no. Q. What do you mean by "readability level"? A. They had concerns that the text read at a freshman college level. Q. Okay. In terms of the approval of the donation, did you see that as having any implications for the curriculum? A. Yes. Q. Tell us what you understood at that time. A. It would end up being a reference that the teachers would make mention of. Q. Okay. Did you -- looking at the approval of the text now and looking forward to the next meeting in October, did you get any communications from Mr. Buckingham relating to the curriculum? A. Yes. Q. Tell us what they were. A. Mr. Baksa communicated to me that Mr. Buckingham wanted to place on the October 18th agenda the board subcommittee curriculum recommendation for the biology. Q. Did you talk to Mr. Baksa about Mr. Buckingham's request? A. Yes. Q. And what did you say? A. At that time I reviewed the recommendation and then contacted Mr. Buckingham. Q. Okay. We've been talking about consensus-building, or trying to, at least, and now Mr. Buckingham has given you this call. Did you have any concerns? A. Yes. Q. What were they? A. My concern, first of all, was the fact that the final recommendation did not have the full support of either the curriculum committee or the teachers. Q. And did you talk to Mr. Baksa about that? A. Yes. Q. Did you learn anything about other proposed changes to the curriculum? A. Yes. He had an additional recommendation coming from the faculty. Q. When Mr. Buckingham called and asked you to put the board curriculum committee version on the agenda for the August 18th -- October 18th meeting, did you voice any objections? A. Yes. Q. What were they? A. My first objection was that any final recommendation going to the board, I would recommend going through the community advisory council for one last review. I also objected to it being on the last board meeting in October as an action item because historically what we've done is had an item on the planning session or at least one meeting and then the final action on a curriculum at the second meeting. Q. Did Mr. Buckingham respond to the concern you've just referenced for, you know, usually putting things on two board -- having things as items in two board meetings? A. Yes. Q. And what did he say? A. He, first of all, said that he had already received and the board had already received enough input over the past six months that they had -- that this had actually begun with dropping off the DVDs to me in the fall, and we have had numerous board meetings, conversations and input from many different board members and community members and the fact that he was interested in acting upon it. He also voiced a concern that two of the board members that had been involved in the six months of conversation, Mr. Noel Wenrich and Jane Cleaver, were moving out of the area and would not be part of the vote if we delayed. Q. Well, did he say anything further about that, the possibility of two board members resigning? A. Yes. His concern was the fact that if two board members resigned, two new board members, when they would come on the board, would not know what was going on and would either not vote or would not have the capacity to vote and therefore would request delaying the vote. Q. Did you get an impression for whether Mr. Buckingham was seeking some closure here? A. Yes. Q. And what was that? A. I think Mr. Buckingham was looking for finalizing the work that had been done over the past six months. Q. You said also that you mentioned the curriculum advisory committee to Mr. Buckingham. Does the Dover Area School District policy require review by the curriculum advisory committee prior to a curriculum change? A. No. Q. Did Mr. Buckingham respond to your suggestion that you let them have input? A. Yes, he responded. Q. What did he say? A. He said he did not need to have them meet anymore. Q. Well, let's look at -- what did you do in response to that? Did you send the board curriculum version to the curriculum advisory committee? A. What I did was, I contacted Mr. Baksa, who is the chairperson of the committee, and communicated to him that we would still send that information to that committee for them to review it, that even though they would not be meeting, they would at least have an understanding of what was happening. Mr. Buckingham is one board member and not the whole board. And the board acts in general in total, so I took it upon myself to reflect what the board would be interested in, and that would be specifically as much input as possible. So I directed Mr. Baksa to send, I believe, both copies to the committee to review. Q. Did you put the board curriculum committee version on the agenda for the October 18th meeting? A. Yes, I did. Q. Was that the only version you put on the agenda? A. No, I did not. Q. Did Mr. Buckingham tell you to put the other version on the -- A. No, he did not. Q. Why did you do it? A. Again, I thought the board needed to know everything that was going on, and I thought it important for the board to know Mr. Baksa and my stance, that we administratively did not recommend Mr. Buckingham's recommendation, that we actually supported the teachers. Q. Do you know if there was any feedback provided by the curriculum advisory council in response to your directive? A. Yes. Q. All right. With that in mind, I'd ask you to look at Defendants' Exhibit 67. Do you recognize that document? A. Yes, I do. Q. Before we get to that, I skipped one, it looks like. Would you go back to 51. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's a memorandum from Mr. Baksa to the curriculum advisory council dealing with the biology curriculum recommendation. Q. And now go back to 67. That describes comments on proposed biology curriculum changes. There are two items there. Did you discuss those with Mr. Baksa? A. Yes. Q. What was the nature of your discussion? A. The first one states, According to policy, the curriculum advisory committee should review changes first before going to the board. That was a red flag to us, so we ended up researching whether that was true or not. Q. And -- THE COURT: Who is this from, just so I understand? MR. GILLEN: Yes. THE COURT: Who is the author of 67? MR. GILLEN: 67 was authored by Mr. Baksa in response to Dr. Nilsen's -- THE COURT: All right. I just wanted that clarification. If you said it, I didn't get it. MR. GILLEN: No problem, Judge. BY MR. GILLEN: Q. Go ahead, Rich, please tell us. I mean, that first item suggested there's been a departure from policy. Did you look into that? A. Yes, we did. Tom Schaffer, who is the assistant principal in charge of policy, researched our current policy and all prior policies in relationship to that comment. Q. Did you gain an understanding concerning whether the district policy required review by the advisory committee? A. Yes, we did. Q. And what was that? A. It did not. Q. Okay. I'd ask you to look at Exhibit 71. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's the August 2nd, 2004 curriculum development policy. Q. Is that the policy you looked at in response to this concern? A. One of, yes. Q. Okay. I'd ask you -- skip through these. Excuse me a second. As we get to this meeting, I want to ask you one question again. Did you put one or two versions of the curriculum change on the agenda for October 18th? A. I put two. Q. And as we approach that meeting, I want to get a few documents identified here, and I'd ask you to go to Exhibit 60. A. I'm sorry, again, please? Q. Exhibit 60. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's the enclosure 11A for the board agenda. It's the recommendation from the -- dealing with the biology curriculum from the board. Q. And when you say "from the board," do you mean the board curriculum committee, to be more precise? A. That is correct. Q. And if you look at the first page of Exhibit 60, if you look in the lower right-hand corner, there's a reference to an enclosure, Roman XI-A. Correct? A. That's correct. Q. And I'd ask you to flip to the next page of Exhibit 60. There's an attached page with a Bates Stamp Number 18, and I'd ask you to look at that. Do you recognize that? A. Yes, I do. Q. What is it? A. That is the board subcommittee recommendation for the biology curriculum change. Q. I'd ask you next, Rich, to look at Exhibit 61. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's the board curriculum recommendation from the administration and staff. Q. Okay. And if you look at that document, you'll see on the page Bates stamped Number 19 a reference to an enclosure, Roman XI-B. Correct? A. Correct. Q. I'd ask you to flip the page and look at the document with the Bates Stamp Number 20 that is part of Exhibit 61. Do you recognize that document? A. Yes, I do. Q. What is it? A. It's the administration and faculty recommendation for the biology change. Q. Did you receive these documents in your capacity as superintendent? A. Yes, I did. Q. Did you have an understanding concerning the difference between Exhibit 60 and Exhibit 61, the proposed curriculum changes that were attached? A. Yes, I did. Q. What were the differences as you saw them? A. Two. Under the second column, it notes on the board recommendation but not the administration and teacher recommendation intelligent design, and under the materials and resources under the board recommendation and not the teachers and administration Of Pandas and People as a reference. Q. And just to make sure the record is clear and that we get the point across, is it true that the board curriculum committee version references Of Pandas as a reference text? A. That's correct. Q. And does the staff and administration recommendation do that? A. No. Q. Okay. Is it true that the board curriculum committee version references intelligent design? A. Yes. Q. And is it true that the staff and administration version Roman XI-B does not? A. That is correct. Q. Was it your understanding that those were the points of divergence at that time between the two versions? A. Yes. Q. Learning that there were two versions circulating at this time, did you do anything? A. Yes. Q. What was that? A. I contacted the board president, Mr. Alan Bonsell, and told him that there were two items on the agenda, there were two recommendations coming dealing with the biology curriculum. Q. And why did you contact him? A. As board president, it's my responsibility to communicate to him issues that may rise on the board agendas. Q. Looking at the way he approached this process, was there anything that you saw that he would want that was inconsistent with these two versions? By that I mean, you've got two versions. Knowing Mr. Bonsell as board president, would he want disagreement or consensus? MR. ROTHSCHILD: Objection. Calls for speculation. MR. GILLEN: I can ask for his belief concerning what Mr. Bonsell would regard as desirable as the outcome of a collaborative process. THE COURT: Well, the way you framed the question, it was sort of in the alternative, would he want disagreement or consensus. You can ask him to characterize his understanding of Mr. Bonsell's reaction, but I think the -- MR. ROTHSCHILD: It's leading as well, Your Honor. Disagreement or consensus I think is -- THE COURT: Well, we'll allow a little bit of leading, Mr. Rothschild, or we'll never finish this trial. So I'll overrule the objection on that basis. I'll sustain it. You can rephrase. MR. GILLEN: I do understand, Your Honor. BY MR. GILLEN: Q. Rich, in your capacity as superintendent, did you have an understanding concerning the way Mr. Bonsell would view this state of affairs, namely, that for the proposed curriculum change, there are two rival versions being offered instead of one? A. Yes. Mr. Bonsell always had a premium on consensus. He, throughout this process and almost every process that we were involved in in the school, the building project on through, spent a considerable amount of time and effort making sure that everybody agreed or at least compromised on an issue. Q. Did you do anything as a result of your discussion with Mr. Bonsell? A. Yes. Q. What did you do? A. Mr. Bonsell requested that I meet with the senior biology teacher, Jen Miller, to see if I could generate from her consensus. Q. And did you do that? A. Yes, I did. Q. Did you have a discussion with Jen Miller about this issue? A. Yes, I did. Q. Tell us what you said. A. I met Jen Miller, because she was a senior biology teacher, and discussed both of the proposals and the issue dealing with the divergent issues and communicated to her that Mr. Bonsell had recommended a note, specifically that origins of life will not be taught, because he thought that would address the concerns that the teachers continually had about teaching the origins of life. And we also discussed at length the placement of the Panda book. MR. ROTHSCHILD: Objection, Your Honor. I think it's hearsay. It's not clear from Dr. Nilsen's testimony whether he's repeating exactly what he said or he is incorporating in his answer some reasons for the things he said, his reasons for why origins of life -- THE COURT: Relating to what Mr. Bonsell said, I think, specifically? MR. ROTHSCHILD: Right, why Mr. Bonsell wanted to add origins of life. MR. GILLEN: I didn't ask him why. MR. ROTHSCHILD: No, it's the answer. THE COURT: I know you didn't. It wasn't your question. But I'll simply say to the witness -- and I'll sustain the objection on that basis -- what we want you to avoid doing, unless otherwise instructed, is to avoid saying what someone else said. THE WITNESS: Okay. THE COURT: Now, there are circumstances where you can do that, but if I tried to explain that to you, we'd be here until tomorrow. We're not going to do that. But try to stay with that rule, and that will eliminate the objections. You can proceed. MR. GILLEN: Thank you, Your Honor. BY MR. GILLEN: Q. Rich, what did you tell Mrs. Miller about the purpose of the note? A. The purpose of the note was to allay the fears that the teachers had that if they mentioned intelligent design, they would be liable. Q. And did you have an understanding concerning how the note was supposed to do that? A. Yes. Q. What was that understanding? A. The understanding was that the note would reinforce the fact that the teachers did not and will not teach the origins of life. Q. And how does that relate, in turn, to the subject that's at issue here, intelligent design? A. The teachers believed that the intelligent design referenced the origins of life. Q. Did you discuss anything else with Mrs. Miller that touched on the differences between the proposed curriculum changes? A. Yes. Q. What? A. The placement of the Pandas book. Q. And what was the issue there? A. In the August meeting, the faculty had agreed on the compromise of having the Pandas book as a reference in the individual classroom, and we talked about the implementation of that. And specifically, she asked me where and how she was to bring that book into the classroom. And I ended up telling her that it should be on the shelves. And then she communicated to me that she couldn't do that and have the students see it, because all of her shelves had doors on them. And then I ended up saying, well, then place it on the tables. And then she referenced the fact that that would be intrusive to her instruction. Q. Well, let me ask you in terms of the listing of Of Pandas on the curriculum, did you discuss that with Mrs. Miller? A. Yes. Q. What did you tell her? A. I told her specifically that I had recommended placing that there so if in the future and currently if the teachers had referenced that, that their liability would be covered because it was a board action. There is case law or at least directive that if a board directs a superintendent and/or teachers to do something, that they're under the cover of direction. And in this case, I thought putting the reference Of Pandas and People on the right-hand side would protect the teachers currently and in the future if they made that reference. Q. Did you ask Mr. Baksa to do anything as a result of the fact that two rival versions were created and circulating? A. Yes. The outcome of the meeting with Mrs. Miller was inconclusive, so I requested him, after I communicated that it was an inconclusive meeting, he then spent some time trying to develop a compromised version. Q. Did there come a time when you had reason to believe that Mr. Baksa had been successful? A. Yes. Q. I'd ask you to look at Exhibit 68. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's the -- attached is the second draft of the recommended changes to the biology curriculum from the administration and staff. Q. And did you understand that this document was a result of further collaboration with the staff? A. Yes. Q. Did you have an understanding concerning the nature of the compromise that was offered here? A. Yes. Q. I'd ask you to direct your -- well, for the record, I'd say first that Exhibit 68 references an enclosure, Roman XI-C. Correct? A. Yes. Q. And the following page, which is Bates stamped 22, is attached. Correct? A. Yes. Q. Is this the document that Mr. Baksa showed you? A. Yes. Q. Did he tell you anything when he showed it to you? A. He told me that he had -- MR. ROTHSCHILD: Objection, Your Honor. Calls for hearsay. MR. GILLEN: Your Honor, if I can ask him -- I can ask him questions concerning what someone said if it's for the purpose of establishing what he believed. That's what I've done. I'm not offering Mr. Baksa's statement for the truth of the matter asserted. That's something you'll have to find. But I'm asking Rich what Mr. Baksa told him about this document for the purpose of getting his understanding. THE COURT: Well, he can say what his understanding is. Why doesn't it go to the truth? I think it does. We're talking about the emergence of a particular policy by the board, and it seems to me that what Mr. Baksa said to him may go to the truth. You seem to conflate that with some state of mind, but I don't see it. MR. GILLEN: I suppose, as you said, it's an exceedingly fine line, and we won't spend all day. I'll ask him his understanding as to what this document represented. Is that satisfactory? THE COURT: I think that cures the objection. Does it? MR. ROTHSCHILD: I believe so, Your Honor. THE COURT: All right. The objection is sustained then for the record on that basis. Why don't you proceed in that fashion. MR. GILLEN: Certainly. BY MR. GILLEN: Q. Rich, looking at this document, the portion of Exhibit 68 with the Bates Stamp Number 22, did you have an understanding concerning what that document represented? A. Yes. Q. Did you have an understanding concerning -- what was it? A. It was the document that Mr. Baksa generated as a compromise. Q. Okay. Looking at that document, did you have an understanding concerning the elements of the compromise reflected in the document? A. Yes. Q. And what were they? A. Two things. One, under the first two columns, Note, the origins of life is not taught. And, secondly, under materials and resources, it references Of Pandas and People. Q. Okay. I'd also ask you to direct your attention to the second column of the page under the heading, Unit Content, Concepts and Process. Further direct your attention to the language at the bottom-most portion of that column. Would you look at that, Rich? A. Yes. Q. Did you have an understanding concerning whether that proposed language reflected an effort to compromise? A. Yes. Q. What was your understanding? A. Intelligent design was taken out. Q. Okay. Now, if we look at this document, Roman XI-C, and consider that in comparison to the board curriculum committee's proposed version, which is Roman XI-A, did you have an understanding concerning how they diverged? A. I believe two words very specifically, intelligent design. Q. Well, you've said those two words, and let me ask you also to direct your attention to the note that is on Roman XI-C. A. Yes. And the note on C specifically states, Note, the origins of life is not taught. Q. Are these the three versions of the curriculum change that were at issue as we enter the October 18th meeting? A. Yes. Q. With that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 63. Do you recognize that document? A. Yes. Q. What is it? A. It's the October 18th, 2004 Dover Area School District board agenda. Q. And I'd ask you to direct your attention to that portion of Exhibit 63 which has the Bates Stamp Number 145 in the lower right-hand corner. Do you have that, Rich? A. Yes, I do. Q. If you'd look at the agenda item curriculum. I notice that there are two of the versions we've discussed listed. Which are they? A. A and B. Q. That means that Roman XI-C is missing. Can you tell me why? A. The C version was developed after the agenda was printed. We print the agenda on Wednesday prior to and submit to the board five days in advance, and C was developed after the board got the agenda. Q. Under that item there is further background information. Would you read that for the record? A. Background information, copies of the changes have been sent to the district curriculum advisory committee and the science department. Q. Is that true? A. Yes, it was. Q. As we enter the October 18th meeting, let me ask you if you discussed these different versions of the proposed curriculum change with the board. A. Yes. Prior to the meeting, we were in executive session to meet the new high school assistant principal, and at the end of the meeting, on the way to the board meeting, I handed the board all three copies -- they had not yet received C -- just to make sure that they had in their possession all three copies prior to the discussion. Q. Do you recall what you told them? A. I reiterated at that time period the recommendation, what was the covered section, who had recommended what and why. Q. Okay. Removing from the executive session to the public portion of the board meeting that night, do you remember anything about that public portion of the meeting? A. Yes. Q. Tell us what you remember. A. Mrs. Bert Spahr had attended the meeting and gave comments during the public comment period. Q. And do you remember a reaction by any board member to the comments? A. Yes. Mr. Buckingham asked her where she had gotten her law degree. Q. And why did Mr. Buckingham say that? MR. ROTHSCHILD: Objection, Your Honor. Calls for speculation. BY MR. GILLEN: Q. Well, did you have a sense or belief as to why he uttered that comment? MR. ROTHSCHILD: That still calls for speculation, Your Honor. MR. GILLEN: He can give his impression or belief. That's what a lay witness does frequently. THE COURT: Well, the objection to the first question is sustained. He doesn't know why. Why can't he ask him what his impression was? MR. ROTHSCHILD: I'll withdraw my objection. THE COURT: All right. That objection is overruled. He can answer the question. THE WITNESS: During the public comment period of Mrs. Spahr, she referenced that intelligent design was creationism and that intelligent design was illegal. BY MR. GILLEN: Q. And did Mr. Buckingham agree with her? A. No, he did not. MR. ROTHSCHILD: Objection, Your Honor. Calling for speculation. THE COURT: I'll sustain the objection. BY MR. GILLEN: Q. Do you believe that Mr. Buckingham agreed with her? MR. ROTHSCHILD: Objection, Your Honor. It calls for speculation. If Mr. Buckingham said something that provided his understanding, that would serve as a basis, but this is really -- THE COURT: Is an acceptable question, what was your impression as to Mr. Buckingham's response? MR. ROTHSCHILD: I think your suggestion might cure it. THE COURT: Answer that question. MR. GILLEN: Thanks, Judge. THE WITNESS: Am I allowed to ask her to reread that question, Your Honor? THE COURT: Yes. Read that back. (Previous question read back.) THE WITNESS: My impression of Mr. Buckingham's response was the fact that he wanted to know where she got her law degree. BY MR. GILLEN: Q. Good enough. Let me ask you as superintendent, without going into the details, did you have reason to believe that you were recommending an unlawful course of action to the board on the night of the October 18th meeting? A. Did I have reason to believe that? Q. Yes. A. I had reason to believe we were not. Q. Okay. Let me ask you, when the board came up -- board curriculum items came up for a vote, was there discussion of that issue? A. Yes. Q. And despite that claim that it would be illegal, was the board curriculum committee -- did the board approve a curriculum change? A. Yes. Q. Do you have an understanding concerning whether the board believed it was engaged in an unlawful course of conduct? A. I have a reason to believe that the board did not think they were involved in an illegal activity. Q. Okay. Let's talk about the process that resulted when these rival versions came up for a vote. Do you remember anything about that? A. Yes. Q. Tell me what you recall. A. I recall that it was moved and that through a series of amendments, individuals tried to delay the approval of that, of the biology curriculum. Q. Well, as the voting started, did you make any comments? A. At the beginning of the discussion of the curriculum, I made sure that all the board members understood what the three options were, who supported which options, and what the difference was in all three options. Q. In terms of support for the various options that were circulating at this time, did you make a statement with respect to the administration's position? A. Yes. I specifically stated that Item C was the administrative recommendation, and, in fact, since Mr. Baksa was in charge of the curriculum, I requested he to come also to the podium and reiterate his support, as well. Q. And why did you take that position? A. It was the administrative feeling that for a successful implementation of the curriculum, we needed the teachers to buy into the program and change. Q. How about in terms of the relationship between the various versions, did you think that Roman XI-C did a good job addressing board goals? A. It was also our understanding, if I may answer it this way, that over the past six months, each of the concerns that we had heard from every board member from presenting gaps, presenting recommendation of using Pandas as a reference, as well as the origins of life will not be taught, that C covered all of the concerns that had been voiced over the past six months. Q. Well, did you support the compromised version because you believed that intelligent design was religion? A. No. Q. Did you have any understanding as to whether intelligent design was religion or science at this time? A. In a general sense, we had a report from our solicitor telling us that he had researched it and found no case law indicating either way. Q. All right. Let me ask if you had derived any impression concerning whether intelligent design was science from your conversations with the science faculty. A. Over the conversations that I have had with the board over the -- at that time and prior, it had been conveyed to me that there were over 300 individuals, scientists, specifically, that had supported it. There was a university professor from Lehigh that had done a lot of the foundation work associated with it, and the science teachers had approved the compromise of having the Of Pandas and People book as a reference. Q. If you look at that compromised version again, which is Exhibit 68, Rich, I'd just like you to describe your understanding concerning the elements of concerns you had heard from this period June through October of 2004 which you saw reflected in that document. A. The first concern is the fact of the origins of life will not be taught. That was placed in there. The other concern is the fact of making students aware of the gaps and problems, and also the other concern of other theories of evolution, as well as the concern of referencing Of Pandas and People. Q. Okay. And just to make sure we're clear on this, you supported the reference, the listing of Pandas as a reference. Correct? A. Yes. Q. And what was your reason? A. In support of a board request that we end up having that as a reference material. Q. How about with respect to teachers' expressed concerns? A. Specifically, again, reiterating past testimony, I thought that provided an opportunity for the teachers to follow a board directive and provided coverage for their liability concerns. Q. Do you remember any discussion of board members before the voting started? A. Yes. Q. Tell me what you recall. A. A minority of the board wanted to postpone the adoption and send it back to various committees for continued review. Q. Let me ask you to look at Defendants' Exhibit 64 and further, Rich, to direct your attention to the page with Bates Stamp Number 158. A. I have that. Q. Okay. Now, as we look at the voting process, you mentioned that some people wanted to delay the vote. Do you recall the votes taking place? A. Yes. Q. Did you have a sense for the purpose of the various votes? A. Yes. Q. What was your understanding? A. My understanding was the fact that some board members still were not satisfied with the status of the recommendation and wanted to revisit it. Q. And how about the remainder of the board? A. My understanding of the remainder of the board is the fact that at that time they wanted to end the conversation, had gathered enough information, and were prepared to act that evening. Q. All right. As the voting starts, there were three versions of the proposed curriculum change that were at issue. Correct? A. That's correct. Q. Was the final version any one of those? A. No. Q. What was the final version? A. The final version was board recommendation A with the note, origins of life will not be taught as a note. Q. How did that come to pass? A. The board president at the time, Mr. Alan Bonsell, made that recommendation. Q. And you say "recommendation." Did he make a motion? A. Yes, he made a motion. Q. Was that motion seconded by anyone? A. Yes. Q. Do you recall who seconded his motion? A. Yes, Mr. Brown. Q. Did you have an understanding concerning the purpose of Mr. Bonsell's motion? A. Yes. He was concerned and continually hearing the teachers' concern that they thought they were involved in a liable situation by teaching the origins of life. And he stated that he believed that stating the -- MR. ROTHSCHILD: Objection, Your Honor. The answer contains hearsay. MR. GILLEN: He's testifying, did you have an understanding concerning Mr. Bonsell's purpose for that note. THE COURT: The objection is sustained. He was repeating what he said. MR. GILLEN: Oh, okay. THE COURT: That was the basis of the objection. So you can ask a further question. BY MR. GILLEN: Q. And forgive me, Your Honor, Rich, the thing is, you can testify to what you understand but not what someone said. A. My apologies. Q. That's quite all right. Did you have an understanding concerning Mr. Bonsell's purpose in making that motion? A. Yes, I had an understanding. Q. Okay. Tell me what it was. A. My understanding was that he wanted to address the teachers' concerns about teaching the origins of life. Q. Okay. You said that the motion was seconded by another board member? A. Yes. Q. And did that motion eventually come up for a vote? A. Yes. Q. And was it that vote that produced the final version of the curriculum change? A. Yes. Q. During this meeting, was there any discussion by any board member about their desire or any desire to teach creationism? A. No. Q. Did the term come up? A. No. Q. On the part of any board member, at least. Did any board member reference that? A. My prior answer referred to board members, and the answer is no board members. Q. Okay. How about from members of the public, were there assertions involving creationism? A. Yes. Q. Do you recall any of those? A. Minimally. I believe Mrs. Bert Spahr had made comments. Q. And what was the thrust of her comment? How did you understand what she said? A. I understood that she identified intelligent design with creationism. Q. Okay. As the voting progressed, were there any other developments that produced a controversy in the aftermath of the board meeting? A. Yes. Q. What were they? A. During that time period, the discussion addressed the fact that we had a recommendation from our solicitor that the liable concern with the board and the teachers was not an issue. Q. Okay. And without going into that, you've said "liable." Do you mean liability? A. Yes. Q. And were any statements made in response to that? A. Yes. When the individual mentioned, well -- or another board member said, well, what if they are wrong? Ms. Geesey then communicated, well, we'll then fire them. Q. And was there a reaction to that statement? A. Yes. There was a muffled gasp. Q. When she made that statement, what was your understanding of her point? A. My understanding of her point, and continues to be my understanding of her point, is the fact that if she believed that the solicitor gave us bad information, that that was reason for reviewing the contract. Q. And I believe you said "if" he did. Correct? A. Yes. Q. Okay. Did Mrs. Geesey ever ask you to do anything as a result of the controversy surrounding her comment? A. Yes. The next morning the paper reported that she had recommended firing the teachers. And she immediately contacted me and told me that that was obviously not what she had said, and I agreed with her, and she did two things. One, she sent me an e-mail explaining her position and asked me to forward that throughout all the teachers stating on her behalf that -- or, in her words, that that was not what she had intended and, in fact, that she had liked all the teachers and supported the teachers. Secondly, to prove that that was not what she had said, she requested that I develop a verbatim transcript of the October 18th meeting concerning the issues of -- or the area of curriculum. Q. Well, the tape has been mentioned before, so I want to show you that tape, Rich. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. I hope it's in there. MR. GILLEN: It's been sealed, believe me. BY MR. GILLEN: Q. Rich, take a look at that tape. And I want to ask you, does Dover Area School District have a general policy with respect to the taping of its board meetings? A. Yes, it does. Q. Describe that for us, please. A. The general policy and procedure is the fact that the secretary of the board tapes all meetings, uses that as a backup for the notes and developing the minutes. Once the minutes have been approved, the policy, even prior to when I showed up, was the fact that either the tapes were overwritten or destroyed. Q. Was this tape destroyed? A. No. Q. And why was that? A. By recommendation of counsel. Q. Okay. And we were not your counsel at the time of that recommendation? A. No. It was our school counsel. Q. Okay. Very good. You were well advised. Let me ask you, is that tape complete? A. This tape is complete, but the taping of the board meeting is not. Q. And I understand what you're getting at, but the Judge might not, so let's go through that again. I understand that's all the tape we have? A. Yes. Q. Does the tape record the whole meeting? A. The tape does not cover the whole meeting. The background of that is the fact that at this time our business manager and board secretary was battling cancer and was on medical leave, and her secretary had filled in as the acting secretary over that time period. But at this meeting, her son had a wrestling match, and she was absent, so a third secretary filled in at that time period. And when I requested for the verbatim transcript to be developed, he communicated to me that when he had taken the first tape out to put a second tape in, that he had paused the tape, and when he had hit play, he had not unpaused the tape, so the second half of the meeting was not recorded. Q. Did you ever act on Ms. Geesey's request for a transcript? A. Yes. Q. With that in mind, I'd ask you to look at Defendants' Exhibit 153. A. I'm sorry, what number? Q. 153. Do you recognize that document, Rich? A. Yes, I do. Q. What is it? A. It's the verbatim transcript from the tape dealing with the curriculum section. Q. And does that transcript reflect the whole of the board meeting discussions relating to the curriculum change? A. No. MR. ROTHSCHILD: Your Honor, I'm not sure this is an objection or a clarification, but my understanding is that this is not a full verbatim transcript of what was actually on the tape, that there's actually more on the tape. We've had some back and forth. MR. GILLEN: And I couldn't agree more. It's a partial transcript, and I'll make that clear if there's any question on that score. MR. ROTHSCHILD: Okay. BY MR. GILLEN: Q. And let's do that for the record, Rich. Let me ask you, perhaps, a more precise question so that we can say precisely what's on here. First of all, is this a transcript of the entire board meeting? A. No. Q. It is a transcript of a portion of the board meeting. Correct? A. Yes. Q. What portion? A. The beginning of the discussion on the curriculum section of the board meeting. Q. Okay. Is the transcript all of that discussion so far as it was all taped? A. No, there were sections the secretary left out. Q. And those were the votes? A. Yes. Q. Now, where the transcript ends, is that where the tape ends? A. Yes. Q. So as Mr. Rothschild indicated, it's partial in that sense? A. Yes. MR. ROTHSCHILD: So that the record is clear, I think what you're saying is there are parts of the meeting that are on the tape that precede this? MR. GILLEN: Yes. MR. ROTHSCHILD: Okay. And that's not part of this document? MR. GILLEN: Correct. MR. ROTHSCHILD: Thank you. THE COURT: And there are parts of the meeting that came after the tape? MR. GILLEN: No, there's nothing after, Your Honor. Well, let me ask Mr. Nilsen. BY MR. GILLEN: Q. Mr. Nilsen, is there anything that occurred at the board meeting after what's reflected in this transcript? A. Yes. THE COURT: Sure looks like it, because it has -- MR. GILLEN: Yes. THE COURT: He's cut off in mid-sentence. MR. GILLEN: Exactly. THE COURT: And do I also understand, Mr. Gillen, that there are -- that this is not a continuous narrative, that there are, for example, votes in the midst of this dialogue that were not transcribed? MR. GILLEN: Exactly, Your Honor. And I'm going to try to get that out so you know exactly -- THE COURT: I heard that. I just wanted to verify that. MR. GILLEN: Yes, the votes are reflected in the minutes. And that's -- THE COURT: I understand. MR. GILLEN: All right. Good enough. MR. ROTHSCHILD: Your Honor, to make sure I'm clear, there is actually -- the tape includes other parts of the meeting that are -- that precede the part of the meeting where this transcript begins, and that's not taped over or missed, it actually exists, and so this is not everything that was taped. Is that right? MR. GILLEN: Yes. THE COURT: But they're not germane to this issue. Is that -- MR. ROTHSCHILD: Well, I'm not sure that's correct, and I'm not -- THE COURT: Do we care? MR. ROTHSCHILD: I just want to make sure that the record is clear. This is not everything that's on that physical tape. THE COURT: I understand. MR. GILLEN: Okay. Good enough. THE COURT: Are you going to get into an extended area? I was going to go until 4:45, but if you think that you're going to get into a longer area, we could adjourn. MR. GILLEN: It's a good place for a break, Your Honor, if it's okay with you. THE COURT: All right. Why don't we then call it a day, this shortened session. We will reconvene for a full-day session at 9:00 a.m. tomorrow morning, and we'll stand in recess until that time. Thank you, all. (Whereupon, the proceedings were adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 14 (October 21), AM Session, Part 1 THE COURT: Good morning to all. We're in the middle of Dr. Nilsen's testimony, and we can resume that. MR. MUISE: Your Honor, if we may, at this time we are prepared to move for Dr. Behe's exhibits. THE COURT: All right. Let's do that. MR. MUISE: If we could maybe address that now. THE COURT: That's fine, sure, before we go too long. The typed version that I have, does that represent stipulated exhibits or not? They were not. Okay. Let's make sure that we have these. Then on defendants' ledger on direct, we have the CV that is D249. And I'll just go through the whole list and then we'll go back. MR. MUISE: Counsel and I have discussed this. We'll just verify your list, but there are no objections to the Dr. Behe -- MR. ROTHSCHILD: Assuming our lists are the same as yours. MR. MUISE: Right. We'll just check the list, and then we can just move them all without objection. THE COURT: That's fine. Let's just do it that way then. D249 is the CV. D203 is the article, the Behe article. MR. MUISE: Your Honor, there's 203 and then there's -- THE COURT: There's A, B, C, E, G, H, and J under 203 is what I have. Is that correct? MR. ROTHSCHILD: A, B, C, G, H -- THE COURT: I have an E. MR. MUISE: There's an E, yes, Your Honor. THE COURT: I have a G and I have an H and I have a J. What have I missed under 203? MR. MUISE: There's a 203-I, as well, Your Honor. THE COURT: All right. So we'll include I, as well. Any other subparts of 203? MR. MUISE: That should be all of them, Your Honor. THE COURT: Okay. Then D220, which is Of Pandas and People, that, I guess, is already in under another number, perhaps. MR. MUISE: We would still move that. THE COURT: All right, you move that. 237 is the Saier article. 238 is the article by Saier and others. 266 is the Thornhill and Ussery article. 267 is the Knoll interview. 269 is the Wuethrich article. 270 is the Kondrashov article. 271 is the Pennisi article. 271 is the Doolittle article. 274 is the -- MR. MUISE: Excuse me, Your Honor, that's 272. THE COURT: 272, that's correct, is the Doolittle article. Thank you. 274 is the DeRosier article. Those are the defendants exhibits I have. Tell me if you have others. MR. MUISE: There was a 265, as well, Your Honor, Down with the Big Bang. MR. ROTHSCHILD: Stipulated. THE COURT: Rapidly stipulated. All right, 265, as well. Any other defendants' exhibits? MR. MUISE: That's all of them, Your Honor. THE COURT: All right. Any objection? MR. ROTHSCHILD: No, Your Honor. THE COURT: All of those named exhibits are admitted. And, Liz, you have the addition of 265 and 203-I. Is that right? COURTROOM DEPUTY: Yes. THE COURT: On cross, I have P140, which is The Wedge Strategy; P256, the Zhou article. P279 is the van Gent article. P280 is the Clatworthy article. P281 is the Messier article. P283 is the Kapitonov article. P602 is the Behe report. P621 is the Dembski report or a portion thereof. P718 is the Reply to My Critics article. P721 is the Behe-Snoke article. P722 is the Young/Edis book, Chapter 8. P723 is a Behe article. P724 is the Minnesota Daily article. P726 is the Tulips and Dandelions article. P742 is the Lehigh University statement. P743 is the Behe immune system articles. P747 is the Agrawal article. P748 is the Bartl article. P751 is the Paley book. P754 is the Muster Seeds article. P755 is the Vaandrager article. P756 is the Curtis/Sloan article. And P775 is the excerpt from the draft of the Design of Life. Any others, Mr. Rothschild? MR. ROTHSCHILD: We had marked the Buell testimony as 573, but we'll move that in as designations later. So we're not moving that in now. And then I think all the other ones that we used were ones that had been separately marked as -- had already been admitted. THE COURT: All right. So all the exhibits that I named, you're then moving for their admission at this point? MR. ROTHSCHILD: No, Your Honor. We're not moving 621, which is the Dembski report; 602, which is the Behe report; 754, which is the Atchison Muster Seeds article; and 724, which is the Kirsinger article in the Minnesota Daily. Everything else we are moving in. THE COURT: So we're eliminating 602, 621, 724 and 754. Is that correct? MR. ROTHSCHILD: That's correct. MR. MUISE: And we have just one objection, Your Honor, with P742, the Lehigh statement on the basis of hearsay. MR. ROTHSCHILD: It's like the AAAS and NAS statements, which are statements of -- this is a virtually identical document, just on a smaller scale, of a statement of a smaller scientific community's position. It's not entered for the -- it's entered for the fact that it is their statement, not for the correctness of whether intelligent design is or is not science, similar to the AAAS and NAS. I'm fairly confident Professor Behe acknowledged that it was what it was, not an authenticity issue. MR. MUISE: Your Honor, first of all, it's not the same as the AAAS and the NAS. It's some of the biology members in the biology department, and it's clearly hearsay. He testified -- (Musical cell phone ring.) MR. MUISE: He testifed as he did. It was, you know, obviously for purposes of cross-examination, but the document itself doesn't come in as a hearsay statement. THE COURT: You had a musical background. I don't know if that was a significant point. I think that, Mr. Muise, under the circumstances, since we had testimony, your objection at the front end might have vitality, but inasmuch as he did testify about the statement and he did admit during his testimony that the statement appears on the Web site and that it was a statement by his colleagues, I'm inclined to admit it. It is a bench trial. I don't necessarily take it for the truth, that is, the truth as it relates to his theory and his work, but for the existence of the statement on the Web site. I think at this point it's a pretty cumbersome distinction to make, to say that it doesn't exist on the Web site for the purpose of the record. MR. MUISE: That's not the point, Your Honor. It's an out-of-court statement. I'm making my hearsay objection, Your Honor. THE COURT: Well, the point is that it's a bench trial. MR. MUISE: Yes, I understand. THE COURT: I understand that it's an out-of-court statement, but he did testify. And I say again, had it been objected to at the front end -- and I'm not faulting you for this -- but, you know, he testified in all candor that it does exist and that it is on the Web site. I take it for what it is, and I'll assign it whatever weight I think is appropriate in my determination. MR. MUISE: For a point of clarification about how things have been proceeding here, I mean, I didn't object on the front end because it wasn't offered as an exhibit. I just want to make sure that we're -- you're not wanting us to be objecting on the front end when they haven't moved for it to be admitted. THE COURT: I understand. MR. MUISE: That hasn't been the procedure, I think, that we've been -- THE COURT: Well, I think if you see a statement -- it's hard to develop a hard-and-fast rule, if you will. But I think if you see a statement like that that comes up and you want to make a preventative objection at the front end -- and that may preclude even a reference to it. If you make the objection at the front end and I let him refer to it, then obviously that front-end objection is likely going to fail. I can't go back and know at this point how I would have ruled on a front-end objection. I would have heard argument from counsel. And, again, no fault assigned at this point, but inasmuch as his testimony then established the accuracy of the Web posting, I'm not inclined to not admit it. MR. MUISE: Your Honor, just the one last issue is with regard to the demonstrative exhibits. We've had -- MR. ROTHSCHILD: We think we can take a simple issue and make it more complicated. MR. MUISE: I'll let Mr. Rothschild do that. MR. ROTHSCHILD: There was some discussion a couple of days ago about what we were going to do with demonstratives, and I think the parties have absolutely agreed and the Court has accepted that we are going to provide the demonstratives and assign a number to them. My view is that the demonstratives, as a general matter, are not necessarily evidence. A lot of times they're just cues to the witness's testimony. They're just, you know, words that they're going to read into the record, and it's really the testimony that's the evidence. But we do think within the demonstratives there are some types of evidence. And one example that Mr. Walczak has raised is, for example, we have diagrams in Dr. Padian's testimony, in Professor Behe's testimony, for example, from the Voet book, that those would be evidence. And the slides of fossils, those would be evidence. What I would suggest is we don't treat them all as admissible evidence and that the parties separately move in those portions, not this morning, hopefully, but later on move in what they think should be properly treated as evidence. MR. MUISE: Your Honor, that was, I guess, the point I was trying to make yesterday, the difference between a demonstrative exhibit and -- or the day before, the difference between a demonstrative exhibit and an exhibit for evidence. I mean, I think the Court should have all the demonstratives. And how you want to address and deal with the individual exhibits -- again, you made the comment it's a bench trial, but I do think there's a difference between a demonstrative exhibit and an exhibit that goes in as substantive evidence, as Mr. Rothschild just explained. So however the Court wants to deal with that. THE COURT: Well, let me see if I can help. Whether they're admissible exhibits or they're demonstrative exhibits, as I re-review the testimony as I need to, I will tell you that in certain cases to not have the slide, be it demonstrative or be it admissible evidence, may place me at a disadvantage. I'm sure you understand that. MR. MUISE: That's the point of doing that. MR. ROTHSCHILD: We're in agreement that you should have them. THE COURT: Right. And you all have your eyes on a record which potentially could be for the purpose of an appeal, so you're going to have to decide what you want to do as far as the admissibility of the exhibits. So if I understand you correctly, you're going to give them to me so that I have them. The distinction is simply going to be what you're going to want to be made part of the record in this case. Really, I'll abide by your stipulation in that regard inasmuch as you're going to give me the -- I hesitate to call them exhibits -- slides, whatever they are, whatever we want to call them, anyway. So if you could reach a stipulation as to the admissibility of those that you want to have made part of the record, that's fine, and I can take that at a later point in the trial. That's certainly not urgent now, but we need to do it before we close the record. It wasn't that hard. MR. MUISE: That's agreeable to us, Your Honor. MR. ROTHSCHILD: Thank you, Your Honor. THE COURT: Anything else before we resume Dr. Nilsen's testimony? MR. MUISE: That's it, Your Honor. THE COURT: All right. Dr. Nilsen, you can retake the stand, and we will resume with your testimony. DR. RICHARD NILSEN, having been previously duly sworn or affirmed, resumed the witness stand and testified as follows: DIRECT EXAMINATION (cont'd.) BY MR. GILLEN: Q. Good morning, Dr. Nilsen. A. Good morning. Q. Good to see you this morning. I'd say it's a pleasure, but I don't want the Judge to call me a liar again. THE COURT: It is Friday, Mr. Gillen. MR. GILLEN: I know. BY MR. GILLEN: Q. Rich, when we left off, we were leaving this October 18th meeting and discussing the tape, and Mr. Rothschild asked me to make one point clear for the record, and I want to do that now. With respect to the tape and the portion that you asked to be transcribed, it does not cover the public comment section. Correct? A. That is correct. Q. You asked the person to begin the task at the portion of discussion relating to the agenda item that dealt with the curriculum. Correct? A. That is correct. Q. Okay. Let me ask you just generally as we leave that meeting and the discussion among the board members, was there a back-and-forth between board members about this proposed curriculum change? A. There was general discussion among board members about the change, yes. Q. Can you remember any of the specific statements that specific board members made? A. No, I cannot. Q. Can you -- describe for us your perception of the tone of the exchanges between the members. A. I think there was frustration on a number of members. In fact, at that meeting two of the members resigned. Q. How about the way they approached the issue, can you tell us whether there were questions being asked, an exchange of information between board members about the curriculum item? A. I think there were individuals talking among themselves on what it meant. Q. And as the voting proceeded, was there questioning that related to the nature of the motion before the board at that time? A. Yes. Q. Was it difficult to follow in a sense? A. Yes. Q. Who was making the chain of motions? A. Predominantly Mr. Wenrich. Q. And, again, from your standpoint as the superintendent at the meeting, did you have an understanding as to his purpose in making those various motions? A. Yes. Q. Tell us what that was. A. My understanding in listening to Mr. Wenrich, he -- his motion specifically was the fact that he wanted to have additional input from various committees on the proposed biology change. Q. We've described a statement that was made as the meeting broke up. After the meeting, did you direct Mr. Baksa to do anything as a result of the board's decision? A. Yes. Q. Tell us about that. A. The faculty, specifically the science department, had voiced concerns on the implementation. And I recommended to Mr. Baksa that he end up developing statements that would address their concerns, with the objective being advancing what the board had addressed in the change, as well as supporting the teachers, finding exactly what they would do in class to protect them. Q. Well, with that in mind, I'd ask you to look at Defendants' Exhibit 65. Do you recognize that document, Rich? A. Yes. Q. What is it? A. It's a memo from Mr. Baksa to the board of directors. Q. Did you receive this document? A. Yes. Q. And when you received it, what was your understanding as to its purpose? A. My understanding was that Mr. Baksa was developing draft copies dealing with the implementation of the biology curriculum. Q. I'd ask you to turn to the portion of Exhibit 65 with the Bates Number 15 in the lower right-hand corner. And if you would, just looking at that statement, give us your understanding about this last paragraph here, which reads, The school leaves the discussion of origins of life to individual students and their families. Did you have an understanding concerning why that language was included in this document? A. Yes. Q. Tell us about that. A. The teachers never taught the origins of life. And the board specifically, on the curriculum approved on the 18th, had the note that said the origins of life will not be taught, and that statement reiterated both practice and adopted policy. Q. With that in mind, did you have an understanding about the way in which the statement was designed to address the concerns expressed by the teachers in the lead-up to the curriculum change? A. Yes. As referred to, the teachers had a concern that intelligent design would be taught, and intelligent design, in their minds, referred to the origins of life. So we reinforced the fact that we were not teaching the origins of life or intelligent design. Q. If you direct your attention again to that last paragraph, in the last sentence of that paragraph on the portion of Exhibit 65 with Bates Stamp Number 15, you'll see the last sentence reads, As a standards-driven district, class instruction focuses on the standards and preparing students to be successful on standards-based assessments. Did you have an understanding concerning why that language was included in this statement? A. I think for two reasons. One, we were reinforcing that what the teachers were doing was following the state curriculum, specifically teaching the standards. We were focusing on the standards and the fact that all the assessments would be based solely on the individual state standards. The teachers were continuing to do what they were doing before, which is teaching the state standards, teaching evolution. Q. Did the curriculum change that was put in place by the board on October 18th, 2004, elicit a response on the part of the science faculty? A. Yes. Q. Tell us about that, Rich. A. They specifically requested direction on what they should teach. Q. Let me ask you to look at Defendants' Exhibit 81. Do you recognize that document? A. Yes. Q. Did you receive this? A. Yes. Q. And did you have any discussion with Mr. Baksa about this document? A. Yes. Q. What was the nature of that? A. Mr. Baksa communicated to me that he had received this memo and that he had followed through with their request and had taken their name off of the planned courses. Q. I'd like you to look at the concerns expressed by the teachers in this memo. And look first at the first sentence, first two sentences, Rich, and read those for the record. A. We request that our names be removed from the top of the biology curriculum. At the top of the curriculum it states, Written by Jennifer Miller, Robert Linker, and William Rickard. Q. Please continue. A. Since we did not write the portion of the curriculum under evolution that the board approved on October 18th, we do not want the document to falsely state that it was, indeed, written by us. Q. When you read that language, Rich, did that seem to have connection to the objections the teachers had been voicing or was this something new? A. It was consistent. Q. Okay. Continue, please, with the last portion of that paragraph. A. If there is any litigation, we do not want to be named as the authors of the curriculum in question. Q. Again, did that assertion on the part of the teachers seem linked to concerns they had expressed in the lead-up to the curriculum change? A. Yes. Q. What was your reaction to this document? A. Somewhat confused based upon the fact that they had written the majority, if not 99 percent, of the document, and the only difference was what the board had directed to be placed in the document. And since that was board directed, they would not be in litigation based upon an action of the board. Q. And I'd like you to just explain that again briefly, your understanding as to litigation and the potential liability of board versus the teachers. What are you getting at? A. Specifically, teachers, as well as administrators, are covered in state code, the fact that if a board has an action and the teachers and/or administrators are following the board directives, they're covered based upon the fact that they're following board directives. Q. Did you direct Mr. Baksa to take any steps as a result of this memo? A. I didn't have to. He told me that he had withdrew the names, and I supported him in that action. Q. Was there any particular reason? A. No, not really, not an issue of significant importance for me. Q. Did you see the request that the teachers' names be withdrawn from the curriculum as significant? A. No. Q. And why is that? A. Based upon the fact that in the scope of things, it really didn't matter one way or another. I, as assistant superintendent, had originated the concept of having teachers' names on the planned courses as a point of authorship and pride, and if they chose to withdraw their name, that was fine. Q. Now, there's been some testimony in this case about the board's perception of reporting on their actual curriculum change. I want to ask you a few questions about that by way of background. Were you aware of press coverage of the curriculum change after the October 18th meeting? A. Yes. Q. And did you learn or have an understanding concerning board concerns relating to that coverage? A. Yes. Q. And what was the nature of your understanding, Rich? A. The board was concerned that the newspapers were reporting that the action of the board had the teachers teaching creationism, had the teachers teaching intelligent design, had the teachers teaching religion, and had the textbook Of Pandas as a -- or the book Of Pandas as a required text. Q. With that in mind, Rich, I'd just like to ask you, do you remember the specific reports that were producing board concern during this period? A. Not specific reports, no. Q. I'd ask you to direct your attention to Defendants' Exhibit 84. Do you recall this article coming to your attention? A. Specifically, no. Q. Okay. If you look at -- what I'm looking for is, can you recall the specific items of reporting that were producing board objections? A. Yes. Q. Are those the ones you've just described? A. Yes. Q. With that in mind, I'd ask you to look at Defendants' Exhibit 83. Before we discuss that document, I'd like to ask you, did you personally, as superintendent, take it upon yourself to do anything about press coverage? A. No. Q. Why is that? A. I didn't have the time of day to contact every incorrect newspaper article. It would have taken 12 hours a day contacting every media, every outlet that was inaccurately stating -- or stating inaccurate comments. And graduate school administrators are given an adage, you never take on individuals that buy ink by the barrel, and I knew it would be a losing proposition, anyway. Q. Well, let me ask you, did there come a time when a board member thought that some steps should be taken to try and address perceived inaccuracies in the reporting? A. Yes. Q. And if you look at 83, is that related to what I've just described? A. Yes. Q. Do you recognize this document? A. Yes. Q. What is it? A. Mr. Alan Bonsell, board member at the time, communicated to me that he continually, in the community, had people coming up asking him why he had supported teaching religion in school and why he had supported creationism being taught. Q. Did Mr. Bonsell ask you to do anything? A. Yes. He directed me to develop a press release to communicate what the board had accurately done. Q. If you look at Exhibit 83, there are some handwritten notations there, Rich. Are those your notes? A. Yes, they are. Q. And why did you write those notes? A. Prior to developing the press release, I wanted to make sure that we had developed specifically what was going to be noted in class, and that note is addressed to Mr. Baksa requesting an update on what his status was on developing the paragraphs. Q. And for the record, Rich, if you'd just read that, please. A. Mike, please see me, press review status of sentence, Rich. Q. And did you speak with Mike about the statement? A. Yes. Q. I'd ask you, were there any other concerns that supported Mr. Bonsell's desire to have a press release or some sort of statement on the part of the board? A. I think they were trying to make sure that everybody understood exactly what was going on and make sure the teachers understood what the board had implied, as well. Q. If you would, Rich, direct your attention to Defendants' Exhibit 70. Do you recognize this document? A. Yes, I do. Q. Do you recall seeing it? A. Yes. Q. Was this in the mix, so to speak, when Mr. Bonsell asked you to prepare some sort of press release? A. Yes. Q. And why is that? A. I think, again, Mr. Bonsell wanted to make sure that everybody, including parents of ninth-graders, understood exactly what was going to be happening. Q. I'd ask you to look it over and just make plain the portion of this document which supported Mr. Bonsell's desire to have a press release. MR. ROTHSCHILD: Objection, Your Honor. He's characterizing Mr. Bonsell's state of mind in a way that isn't supported by the evidence. THE COURT: The question as stated probably gets into what Mr. Bonsell's state of mind was. Why don't you rephrase the question. I'll sustain the objection. MR. GILLEN: Certainly. BY MR. GILLEN: Q. Did you, as superintendent, see this document and the concerns expressed therein as converging with Mr. Bonsell's concern about the information the public had and its perception of the board's policy? MR. ROTHSCHILD: Objection, Your Honor. First of all, it lacks foundation. I'm not sure Dr. Nilsen has -- the foundation has been laid that he saw this. And, second, he's again speculating on Mr. Bonsell's mental state. MR. GILLEN: The first is, he has testified that he saw the document. The second is, I'm asking for his understanding, his belief as superintendent as to whether this document, which he received, converged with Mr. Bonsell's concern that there was inaccurate information being disseminated to the public. MR. ROTHSCHILD: It's getting very speculative. I probably should have raised this objection a couple of questions earlier as we got into Mr. Bonsell's mental state, but -- THE COURT: I don't think it calls for Mr. Bonsell's mental state. And my recollection is he said he did see it, so I'll overrule the objection. He can answer the question. THE WITNESS: Yes. BY MR. GILLEN: Q. And tell me how. A. If you look in the e-mail, a parent is questioning if she can take her daughter out of the class when they're being taught this theory of intelligent design, and it refers, again, to a parent having the perception that we're teaching intelligent design. Q. Did you ultimately prepare a press release as requested by Mr. Bonsell? A. Yes, I did. Q. With that in mind, Rich, I'd like you to look at Defendants' Exhibit 101. Do you recognize that document, Rich? A. Yes, I do. Q. Tell us what it is. A. It's one of the drafts -- apparently looks like one of the first drafts of the biology curriculum press release. Q. And then if you would, look at 102. Do you recognize that document? A. Yes. Q. What is it? A. Again, it appears to be one of the drafts on the biology curriculum press release. Q. And then I'd ask you, Rich, to look at Defendants' Exhibit 103. Do you recognize that document? A. Yes. It's the final first posting, or posting of the biology curriculum press release. Q. Did you show this document to anyone before it was -- well, let me ask you, did you post it? A. Yes. Q. Did you show it to anyone before it was posted? A. Yes. Q. Who? A. Two individuals, specifically Mr. Baksa, the assistant superintendent for curriculum, and Dr. Butterfield, the language arts supervisor. Q. Was the press release reposted at any time? A. Yes. Q. Tell us why. A. It was reposted a number of days after it was originally posted because we came across the fact that there was a typo and a grammar error. Q. Was there any change to the substance of the reposted press release? A. No. Q. Was it identical in substance to the initial posting? A. Yes. Q. Does Exhibit 103 contain the statement that was meant to be read to students in January of 2005? A. Yes. Q. Do you know the details as to how the language of that statement had been worked out, that is, the statement that would be read to students? A. Specific details, no. Q. Do you know the process which was employed to produce the statement that was read to students? A. Yes. Q. Tell us about that. A. Mr. Baksa talked to the majority -- or at least my recollection the senior biology teacher on getting input, as well as, I believe, also talked to board members. Q. Rich, I'd ask you to direct your attention to the portion of Exhibit 103 with the Bates Stamp Number 50 in the lower right-hand corner. A. Bates Stamp Number 50? Q. Correct. A. Yes. Q. And I want to focus your attention on the second-to-last paragraph, the full paragraph there, so we can get your understanding as to your purpose in drafting this. If you would, I'd ask you to read the first sentence. A. The foregoing statements were developed to provide a balanced view and not to teach or present religious beliefs. Q. What was your purpose in including that sentence in this press release? A. The purpose for the press release overall was not to develop any instructional piece, was to communicate specific statements that were in the press that were inaccurate. And this specific statement addresses the fact that a lot of media outlets had reported that we were teaching religious beliefs and we were teaching religion. Q. In that sentence, you referenced a balanced view. Was your choice of that language linked to information you had received from the board in the lead-up to the curriculum change? A. Yes. All the way back to January of 2004, there were discussions about providing other theories and providing a balanced view. Q. I'd ask you to look at the second sentence and read that. A. The superintendent, Dr. Richard Nilsen, has directed that no teacher will teach intelligent design, creationism, or present his or her or the board's religious beliefs. Q. What was your purpose in including that language in the press release? A. First of all, reinforcing what I had said, and also stating for the press and the community that there would be no teacher teaching intelligent design, there would be no teacher teaching creationism, and there would be no teacher presenting his or her or anybody's religious beliefs. Q. Let me ask you again, at the time you drafted this statement, you understood that this press release, you understood that the statement which is included would be read to students. In this sentence, you've said that no teacher will teach intelligent design. What was the basis for that language choice in light of the fact that the statement was going to be read? A. Well, the statement made students aware. It did not teach intelligent design, as I had priorly defined teaching. Q. If you would, I'd ask you to read the rest of that paragraph. A. The Dover Area School District supports and does not discriminate against students and parents who have competing beliefs, especially in the area of origins of life debate. The school board has not -- has noted that there are opinions other than Darwin's on the origin of life. School districts are forums for inquiry and critical discussion. The above statement and the district's revised biology curriculum together provide an opportunity for open critical discussions, the real heart of the scientific practice. Q. Okay. And forgive me, I got ahead of myself here. I want you to look at that second sentence again, and I note that you used the terms "intelligent design" and "creationism" in the alternative. Why did you do that? A. I'm sorry, could you ask that question again? Q. Sure. In the second sentence of that paragraph, Rich, if you look at it, it reads, The superintendent, Dr. Richard Nilsen, has directed that no teacher will teach intelligent design, creationism, or present his or her or the board's religious beliefs. In this sentence, you have used "intelligent design" and "creationism" in the alternative. Why did you do that? MR. ROTHSCHILD: Objection, Your Honor. Leading the witness. MR. GILLEN: I'm asking why. It's not a yes or no answer. THE COURT: I'll overrule the objection. He can answer the question. THE WITNESS: I did not see intelligent design as creationism. I saw them totally separate. BY MR. GILLEN: Q. And why is that? A. Creationism specifically references Genesis or, at least my definition, the origins of life debate, and intelligent design does not reference a biblical context at all. Q. Did you see intelligent design as religion at the time you drafted this press release? A. No, I did not see it. In fact, the teachers' acceptance of the Of Pandas and People book in the August meeting as a reference reinforced that concept. Q. Well, forgive me again, but now I'm going to ask you to discuss the remainder of that paragraph that you've read. And I want you to give the Court a sense for what was your purpose here as you finished this paragraph. A. The paragraph, again, was directed to address the inaccurate comments in the community. It was not done as a curricular outline or a directive of what is taught in individual classrooms, just specifically relating to the inaccurate media comments. Q. If you look at the last sentence on that page, with Bates Stamp Number 50, Rich, did you author that? A. Yes. Q. And what was your purpose in including that language in this press release? A. Any graduate student in administration appreciates the debate on religion and the Lemon test, the second and third prong, and I wanted to reinforce the fact that we were not involved in inhibiting or promoting religion as it related to past court cases. Q. Now, Rich, I'd ask you to turn back to Page 103, which has the Bates Stamp Number 49, and direct your attention to the first -- well, actually, the last full paragraph immediately above the indented portion, which is the statement, and read that first sentence. A. The Pennsylvania academic standards? Q. No, I'm sorry, the paragraph above that. A. Students will be made -- Q. The paragraph above that, Rich, In coordination. A. In coordination with the science department teachers, the district solicitor, and the school board, Mr. Michael Baksa, the assistant superintendent in charge of curriculum, developed the following procedural statement that will be read to all students as the new biology curriculum is implemented beginning in January of 2005. Q. Did you write that language? A. Yes. Q. And what was your purpose in doing so? A. My purpose in doing so was to end up communicating the fact that Mr. Baksa incorporated individuals, teachers, our solicitor, and the school board in developing the implementation. Q. Did the press release elicit a response on the part of the science faculty? A. Yes. Q. With that in mind, I'd ask you to look at Defendants' Exhibit 106. Do you recognize that document, Rich? A. Yes. Q. Tell us what it is. A. It's a letter from the high school science faculty and the local area union president to me. Q. And what is the -- what is your understanding as to the purpose of that memo? A. A letter basically stating that they had an argument or a concern with, I believe, two words in the press release. Q. And what were those two words? A. "In coordination with." Q. Did you have a reaction to this statement, Rich? A. Yes. Q. And what was that? A. I didn't understand what their concern was. Q. Did you -- what do you mean? Please be more specific. A. They had a concern with the comment "in coordination with," and my usage of that term reflected the fact that Mr. Baksa did sit down with science teachers and get input from them on the statement. Q. Did you do anything in response to this document? A. Yes. Q. What did you do? A. I told Mr. Baksa that I wanted to fully understand what their concerns were and requested for him to schedule a meeting on an in-service day, November 24th, that included all the science teachers so I would understand exactly what their concern was. Q. Okay. Now, before we move to that meeting, I'd like you to look at Defendants' Exhibit 172. Do you recognize that document, Rich? A. Yes. Q. What is it? A. It's a memo I sent to Mrs. Spahr after the board meeting requesting time for us to get together and talk about the implementation of the board action. Q. Okay. And let me ask you this. You sent this memo. Was there a meeting close in time to October 19th, 2004, with respect to the curriculum? A. I'm sorry, could you ask that question again? Q. Well, you've indicated that this document, Defendants' Exhibit 172, is dated October 19th, the day after the board meeting. Was there -- MR. ROTHSCHILD: I'm sorry, if we could just clarify for the record, this has actually many communications, and I just want clarity, are we just talking -- is Exhibit 172 intended to be the entire group? THE COURT: You're referring to Bates 341. Is that right? MR. GILLEN: You're correct, Your Honor. And I thank Mr. Rothschild for that point of clarification. THE COURT: Is that the issue, Mr. Rothschild? MR. ROTHSCHILD: Yes. What makes it a little more confusing is there's a cover page that says "Communications" that's Bates stamped 338, and then it skips a few pages and then goes on -- the first page is 341. MR. GILLEN: Well, let me clarify the record on that point, Your Honor. At this time I'm directing Dr. Nilsen's attention to the portion of Defendants' Exhibit 172 with the Bates Stamp Number 341 in the lower right-hand corner. THE COURT: All right. BY MR. GILLEN: Q. With that in mind, Rich, let me ask you again, do you recognize this document? A. 341, yes. Q. Okay. What is it? A. It's a memo from me to Bert Spahr, Robert Eshbach, Jennifer Miller, and Leslie Prall. Q. And what was your purpose in sending that memo? A. My purpose was to meet with the science teachers to discuss the implementation of the board action on the bio curriculum. Q. Did you meet with them personally? A. No. Q. Did you direct Mr. Baksa to meet with them? A. Yes. Q. Did you have an understanding concerning whether Mr. Baksa met with them? A. I'm sorry? Q. Did you have an understanding concerning whether Mr. Baksa met with them? A. Yes, I have an understanding he did. Q. Okay. Looking back at 106, tell us again what you did in response to that document. A. I convened a meeting on November the 24th at 1 o'clock in the administrative office. Q. Did that meeting take place? A. Yes, it did. Q. Do you remember anything from that meeting? A. Yes. Q. Tell us what you remember. A. The meeting began with the science department showed up, as well as the local union president and the two past presidents. And it began with the past president, Mr. Miller -- Q. Let me ask you, you say the science department showed up. Do you remember which science teachers were present? A. I remember Bert Spahr, Jennifer Miller. Those are the only two I remember. Q. Was Rob Eshbach there? A. Yes. Q. Was Bob Linker there? A. I don't remember Mr. Linker. Q. You've mentioned some union representatives. Do you remember who was there? A. Yes, Mr. Miller and Mr. Neal and Mrs. Bowser. Q. What happened? A. We began the meeting by asking if they would convey to me what their concern was concerning the prior, aforementioned letter. Mr. Miller answered that the faculty had a concern with the press release that was sent out, that it said "in coordination with." And he ended up communicating that the teachers had input based upon the fact that they were directed to do so because they did not want to be insubordinate and then the fact that they had not agreed with what the board had done. And he also requested an additional press release from me verifying that they had not agreed on what was being done. Q. Did you say anything to the teachers in response to their concerns? A. Yes. Q. Tell us what you said. A. Once again reiterating, I told them the press release was done predominantly for a way to convey that the teachers had been cooperative throughout the whole process, and in no way did the press release say that they agreed or, for that matter, the administration agreed with what was done. It was just that they were included in on the process. Q. Did you offer them anything else by way of a show of support? A. Yes. Predominantly through the meeting, they continually voiced that they had been cooperative throughout the whole process, that they had met with board members, they had met with administrators. They had agreed, through the process, to include gaps and problems in the curriculum. They had agreed to include the Of Pandas as a reference. And I communicated to them that I would support that comment and thought they had been very agreeable, I guess. And I communicated to them that I would be willing to go on a local radio talk show and communicate to them -- communicate to the community that the teachers had been very positive in this whole experience. And I requested them to give me what they wanted me to say in the radio show. Q. With that in mind, Rich, I'd ask you to turn back to Defendants' Exhibit 172 and direct your attention to the pages of Exhibit 172 which have the Bates Numbers 359 and 360 in the lower right-hand corner. And if I could direct your attention first to the portion of Exhibit 172 with the Bates Number 359 and ask you, Rich, do you recognize that document? A. Yes. Q. What is it? A. It's a memo to me from the science department, a carbon copy to Mrs. Bowser, for the suggestions for the Gary Sutton Show. Q. Did you receive that document? A. Yes, I did. Q. I'd ask you to turn to the portion of 172 with Bates Number 360 in the lower right-hand corner and ask you if you recognize that document. A. Yes, I do. Q. And what is that? A. That's my transcript of what I said on the Gary Sutton Show. Q. Was there -- and did you express the sentiments you had stated in this meeting on the Gary Sutton Show? A. Yes. Q. Was there anything else regarding the curriculum change or its implementation discussed at this meeting? A. Yes. Q. Tell us about that. A. First of all, the teachers continually asked what are we supposed to do on various aspects. And I told them as superintendent, I understood their concern and would sign off on any procedural or anything that they had a concern with, that all they needed to do was send me a list of all the concerns that they ended up having, and I would sign off to give them administrative approval. Q. You've mentioned concerns expressed by parents. Was there any discussion of an opt-out at this meeting? A. Yes. Q. Tell us about that. A. At the time period Mr. Baksa began discussing with the science teachers the implementation. And I believe there were two or three items he discussed with them, the implementation of the Pandas book, if a student asked to take a book out, how long would he or she have the book, as well as a discussion of a procedure on parents, if they so chose to opt out of the unit. Q. You've mentioned a statement to students in the press release. Was there any discussion about the reading of the statement? A. Yes. Jen Miller repeatedly, at least, I believe, two times, asked me specifically what happens at the end of the statement if a student follows up and asks a question concerning what was read. And I answered to her, you would answer the same way you would answer anything else that was not specifically in the curriculum or as it relates to a standards-driven curriculum, that that is a good question, we appreciate your interest, please research that on your own behalf or talk to your parents about it. Q. Just if you would, Rich, what was your impression about the tone of the meeting? A. Honestly, it was strained. Q. And did you have an understanding concerning why? A. I think the teachers were concerned about two things. One, they were concerned that they did not see the press release prior to it being sent out. Secondly, they were concerned about their own liability, legal concerns. Q. As you lead this meeting, what was the general nature of your response to the teachers' concerns? Did you offer them assurances? A. Yes. Q. What kind? A. Once again, as stipulated in my prior comments, I told them if they had any specific issues, to communicate to me, and I would end up telling them what they were to do as it related to any actions. We also agreed that any future communications we would share, in my behalf with the science teachers and the association on their behalf. Anything that they disseminated, they would share with me. Q. Did the press release elicit another response on the part of the science faculty? Did they respond to this meeting? Well, let me ask you, Rich, a more specific question. Perhaps I'll help you out here. Was there more than one press release relating to the curriculum change? A. Yes. After the meeting, at the next board meeting a newspaper reporter came to me and asked me what I thought of the teachers' press release, because apparently they had disseminated a press release the next day. Q. With that in mind, Rich, I'd ask you to look at Defendants' Exhibit 105. Had the teachers shared this document with you prior to its dissemination? A. No. Q. How did you learn about it? A. At the board meeting a newspaper reporter asked me what my reaction was to the teachers' press release. I had to say I didn't know what they were talking about. Q. Did this document later come to your attention? A. Yes. Q. How is that? A. I contacted the union president asking her what they were talking about as it related to the press release. Q. What was your reaction to this document? A. Initially frustrated based on the fact that I thought we had left the meeting with the understanding that we would communicate prior communications with each other. Q. And did they respond to that concern on your part? A. Originally they had communicated that they would convey to me prior to any dissemination, much like I had subsequently promised them. Q. But did they do that? A. No. Q. At the meeting that you've described in November of 2004 was there discussion of how Of Pandas could be used or placed in the classroom? A. Yes. Q. And tell us about that. A. I think Mr. Baksa continued the conversation of where the book would be placed in the respective classroom. Q. And you spoke with Jen Miller about that? A. Yes. When I had met with her on or about before the October 18th board meeting, we had an extended conversation. Q. With that in mind, I'd ask you to look at Defendants' Exhibit 127, Rich, and also direct your attention to Defendants' Exhibit 137. Look at 137 first. Do you recognize that document? A. Yes. Q. What is it? A. It's a memo from the high school librarian, Cora Kunkle, to Mr. Baksa, subject, reference books, carbon copied to me. Q. And if you would read that communication. A. As per your directive on December 22nd, 2004, 58 copies of the book Of Pandas and People have been processed and are ready for student use. Twenty copies have been placed in the reference section of the library as per your request. Q. Did you direct that the book Of Pandas be placed in the library? A. Yes. Q. Why did you do that? A. Mr. Baksa and I were in the library on or about December 22nd, 2004, for a student council function. And after the function, we were talking to the librarian about a number of items. And then she had communicated to us that she had a reference section on the topics of creationism and evolution. And at that time period I was pleased to hear that and still struggling with where to put the textbooks and then directed the textbooks to be placed there, because I thought as a reference book, I now knew there was a reference section in the library on that subject. Q. Were you advised to place the book in the library by anyone -- A. No. Q. -- before you made this decision? A. No. Q. Let me ask you a few more questions about the opt-out you've described. Did you believe the opt-out applied in the case of this curriculum change? A. The opt-out applies to any curriculum in Dover. Q. Did you believe the opt-out applied because intelligent design was religion? A. No. Q. Are there other areas in which the opt-out policy has been applied? A. Yes. We have a custom of where any parent can opt out of any curriculum. The No Child Left Behind, the NCLB requirement, stipulates that a parent can opt out for any religious purposes. They also have the requirement in NCLB that the parents have an option of having their students' names eliminated from the recruiter's list. We also send an opt-out letter anytime we have a dissection of animals. We provided an opt-out letter at the intermediate school when we sent home booklets that containing Planned Parenthood, as well as we provide opt-out letters when we have units on sexuality. Q. We've talked about the reading of the statement, Rich. With that in mind, I'd like you to look at Defendants' Exhibit 138 and 139. Looking first at Defendants' Exhibit 138, do you recognize that document? A. Yes. Q. What is it? A. It's a draft of Mr. Baksa's notes concerning a meeting he had with the science department. Q. There are written notes. Did you have an understanding concerning why they were written? A. Those written -- I directed Mr. Baksa to memorialize all communications dealing with the science department. Q. And why did you do that? A. Based on our prior conversations on the 24th, we thought we would provide clear directions and clear communications so everybody understood what to do. Q. I note that on 138 there are handwritten changes. Are those changes in your hand? A. Yes, they are. Q. And what was your purpose in making those? A. There are a number of purposes. First of all, I wanted it structured in an outline format. Second of all, I ended up eliminating some pronouns for specificity. And I also, on the third one, wanted to make sure that there was a clear understanding that anything associated with intelligent design was not being taught, and I specified nothing discussed during a student absence will be assessed, which reflects the teaching strategy. Q. What do you mean by "reflects the teaching strategy"? A. As mentioned prior, we define teaching very specifically as a component with assessment. And in this case, the fact that it was only mentioned, it would not be assessed. Q. Was there a specific reason that that issue came to your attention? A. Again, reinforcing the fact that the teachers were not teaching intelligent design. Q. How about with respect to the opt-out, did you make notes relating to the opt-out? A. On the document to the opt-out? Q. Yes, on Exhibit 138. Look at Exhibit 138, Rich, and tell me if you made notes relating to the opt-out on that document. A. As it relates specifically to the opt-out, there are notes that I end up talking about as per prior procedures. Q. Rich, I'd ask you to look at Defendants' Exhibits 133 and 134 and 135. Looking first at 133, do you recognize that document? A. Yes. Q. Did you receive this document? A. Yes. Q. What is it? A. It's Mr. Baksa's letter he developed for the parents concerning the opt-out. Q. If you'd look at Exhibit 134, do you recognize that document? A. Yes. Q. What is it? A. It's Mr. Baksa's letter he developed dealing with the form attached with the opt-out. Q. And what is the purpose of that form? A. The purpose of the form is to communicate to the school district from the parent that they are choosing their student not to be in the class during the reading of the statement. Q. And I'd ask if you look at Defendants' Exhibit 135. Do you recognize that document? A. Yes. Q. What is it? A. I believe that's the final form. Q. With respect to this opt-out procedure, Rich, did you have a plan for how these documents would be distributed? A. Yes. Q. What was that plan? A. Mr. Baksa coordinated with the high school administration and I also believe the science department that on the Friday prior to the unit or the four statements of the unit on evolution, that the parents would receive these letters with the opt-out. Q. Did the teachers distribute the forms? A. No, they did not. Q. How did that come to your attention? A. I got a call Saturday from a board member asking why the opt-out letters had not gone out to the parents as I had said they would. Q. Did anyone ever explain to you why the opt-out forms were not distributed by the teachers? A. Yes. Q. Who was that? A. Two individuals. After receiving that phone call, I contacted the high school principal and asked him why they had not been disseminated, and he wasn't aware that it was not. So we further contacted other individuals in the science department to find out what had happened. And later on the next day, Sunday, Mrs. Bowser returned my call and communicated to me what had happened. Q. Did you gain an understanding from that communication concerning why the teachers did not distribute the opt-out forms? A. Yes. Q. Tell us about that. A. The teachers had decided that they did not want any part of the dissemination of the opt-out letters and therefore had an individual Friday going around collecting all of the letters that were to be sent out that day with the purpose of giving them all back Monday morning. Q. What was your reaction to that information, Rich? A. Twofold. One, I was somewhat frustrated based upon the fact that information that I had disseminated that the opt-out would be sent on Friday was not followed through and that I was not even aware that it was not being followed through and, secondly, somewhat of a confusion based upon the fact that administratively, we had supported the teachers and their request not to be involved in the curriculum and yet they were not sending home information that allowed the students the same option. Q. Well, explain a little more, Rich. You said you supported the teachers with respect to their desires concerning the statement. What do you mean by that? A. During this time period, the teachers had communicated to the high school principal and therefore the administration that they did not want to read the four-paragraph statement, that they thought that there was an ethics issues associated with it. Q. Did you see a rather ironic connection between that request and their conduct here? A. Yes. Q. What was that? A. Again, the issue of they did not want involvement, but they wouldn't disseminate information that allowed the students the same option. Q. I'd ask you to go to Defendants' Exhibit 142. Do you recognize that document, Rich? A. Yes. Q. What is it? A. It's the statement that was read in class. Q. At the time this statement was prepared did you have a plan with respect to the reading of the statement? A. Yes. Q. What was it? A. The plan was the teachers would communicate to us when the unit on evolution was to begin, and then Mr. Baksa and I would come in and then read the statement after we had given the students who had, by parents and by their own request, had opted out. Q. Did the teachers read the statement? A. No, they did not. Q. Was the statement read? A. Yes. Q. Who read it? A. Mr. Baksa and/or myself. Q. Rich, why did the administration come into the science classroom to read this four-paragraph statement? A. The same reason we wrote the statement. Through this whole process, it was never our intent to develop a statement, it was never our intent to read the statement. In both instances, it was done solely for the protection and request of the professional staff. Q. Did you have something in mind when you initially saw that the curriculum change had been approved? A. Sure. My understanding of what would have happened is the fact that the teachers would still teach evolution. Through this whole conversation and process, no one had ever said we would modify or ignore the state standards on evolution. The teachers at one time, prior to the updating, had taught it 19 days. Through the current process, they had taught it for two days. And I'm aware now that they have a new draft that has it five days. The teachers would continue to teach evolution as it related to the standards and as it related to what they thought was professionally accurate and appropriate. I was also under the understanding that they had mentioned -- and the reinforcement of the fact is the Dr. Peterman memo -- that they had mentioned creationism as an alternative theory. It was my understanding that the board procedure would have ended up having a five- or ten-second additional comment that they end up saying, creationism is another theory, as past practice, as well as there is another theory called intelligent design. They would then reference a book in the library and then move on. Q. Why didn't that happen? A. The teachers requested that it not happen and requested that there end up being a four-paragraph statement reflective of what the board did and they requested not to do the statement. Q. So, again, I ask you, some weight has been placed on the fact that the administration has read this statement. Why did the administration read the statement to the students? A. Solely based on the fact that the teachers ended up requesting it. Mr. Baksa and myself long for the day when we don't have to do that. Q. Was there a -- let me ask you next, what happened in terms of steps related to this curriculum change? Before I do that, Rich, forgive me, was Defendants' Exhibit 142 the statement you read in the class? A. Yes. Q. Now, let me ask you next, was there another effort to reach out to the public with information about this curriculum change? A. Yes. Q. What was that? A. Mr. Bonsell came to me and said that the press release that we had posted on the Web was not good enough because they didn't communicate the information to all the constituents, that even though we periodically accessed our Web page, that not everybody in the community accessed the Web page, so he wanted to make sure that everybody was getting the information. Q. Did you participate in the drafting of that document? A. No, I did not. Q. Did there come a time -- we've mentioned Of Pandas being in the library. Did there come a time when Dover Area School District received another donation of books? A. Yes. Q. And did those books touch on the subject matter of this dispute, evolutionary theory and other theories, the controversy surrounding evolutionary theory? A. Yes. Q. When did that happen? A. Sometime in the spring of '05. Q. How did the books come to your attention? A. I read about it in the newspaper. There was a front-page article asking, I guess the organization that donated it, asking what the administration was going to do with the books. Q. At this time did you have the books? A. I don't know. Q. What do you mean by that? A. I didn't -- no one ever communicated to me when the articles came out -- in fact, I think the newspapers ran two or three days asking what the district was going to do with the textbooks, and we never knew where the textbooks were. The first time we found out about the textbooks was subsequent, a few days afterwards. The union president, in a meeting I had, asked us what she should do with the books that are in the high school library. And my answer was, okay, now I know where the books are. Q. What did you tell Ms. Bowser in response to that information? A. I directed her to send the books over to Mr. Baksa. Q. And why did you do that? A. Two reasons. One, we were curious on what the books were, and, secondly, we wanted to review exactly what was sent. Q. When the books were received, did you ask who sent them? A. No. Q. Did you care? A. No. Q. Why is that? A. Anytime you end up getting information, things that you can end up using that's appropriate, I think it's more important to look at what was sent, not who sent it. Q. Were the books reviewed? A. Yes. Q. Were they placed in the library? A. Yes. Q. Did you direct the librarian to place those books in any specific location? A. No. Q. Who determined where the books were placed in the collection? A. Librarian. Q. Did the receipt of the books have any impact on the implementation of the curriculum change? A. Yes. Q. What was that? A. After understanding that there was more than just one textbook for reference in this conversation, I directed Mr. Baksa to reword the statement that there would be other books besides the Panda book in the library for students to review. Q. With that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 193. Do you recognize that document? A. Yes. Q. What is it? A. It's the statement that was read to the students in 2005. Q. Would you read the portion of the document that reflects the change you've described? A. I'm sorry, I couldn't hear you. Q. Would you read the portion of the document that reflects the change you've described. A. Intelligent design is -- it's the third paragraph. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book Of Pandas and People is in the library, along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves. Q. And what was your purpose in including that additional language? A. To convey that there were other resources for students. Q. Did you have an understanding concerning whether that addition was consistent with the board's purpose, as you understood it, in adopting the curriculum change on October 18th, 2004? A. Yes. The board referenced other theories, not just intelligent design. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. BY MR. GILLEN: Q. Rich, I've placed before you three books. I'd ask that you read their author and title for the record. A. Tower of Babel by Robert T. Pennock; Finding Darwin's God, Kenneth Miller; Intelligent Design Creationism and Its Critics, edited by Robert Pennock. Q. Do you know whether these books are in the Dover Area School District library? A. They are. Q. Do you believe that the placement of these books in the Dover Area School District library was consistent with the intent of the board when it enacted the curriculum change on October 18th, 2004? MR. ROTHSCHILD: Objection, Your Honor. Calls for speculation. MR. GILLEN: No, I'm asking for his understanding. MR. ROTHSCHILD: An understanding based purely on speculation. MR. GILLEN: It's based on his role as administrator, the personal knowledge he received from communications with them. It's not hearsay. THE COURT: Well, no, I don't think the objection is hearsay, is it? MR. ROTHSCHILD: It's speculation and doesn't -- I'm not sure that there's any basis other than his guess. THE COURT: To know whether it was consistent with the board policy, he would have to have consulted the board. Now, he could state what his impression was, what his interpretation was. But the way the question was phrased might assume that he knew from a contact with the board or having consulted the board, so why don't you rephrase. I'll sustain the objection. MR. GILLEN: Okay. I believe I can ask him for his understanding, Your Honor, as to whether what he did was consistent with district policy? THE COURT: That would be my opinion. MR. GILLEN: Okay. Thank you, Your Honor. BY MR. GILLEN: Q. Dr. Nilsen, do you have a view concerning whether your placement of these books in the Dover Area School District library is consistent with the board's policy approved by the board on October 18th, 2004? A. Yes. Q. Has anyone from the board ever asked you to remove those books from the library? A. No. MR. GILLEN: No further questions, Your Honor. THE COURT: All right. This will be an appropriate time then to take a break. We'll take a 20-minute break and we'll resume then with cross-examination by the plaintiffs' counsel. We'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 14 (October 21), AM Session, Part 2 THE COURT: We'll commence with cross-examination by Mr. Rothschild. MR. ROTHSCHILD: Thank you, Your Honor. CROSS-EXAMINATION BY MR. ROTHSCHILD: Q. Good morning, Dr. Nilsen. A. Good morning. Q. Dr. Nilsen, you had your deposition taken four times in this case? A. Yes, I did. Q. You were the lucky winner of the most depositions taken? A. What's the prize? Q. And there were actually some reasons for that. The first deposition was taken in January of 2005 so that the plaintiffs would have an opportunity to take evidence to decide whether to seek a temporary restraining order. You understand that? A. That's correct. Q. And then after a more complete production of documents, the plaintiffs took your deposition again in April, 2005? A. That's correct. Q. And then you found -- in cleaning out your office, you found some additional documents you thought might be responsive to plaintiffs' document request, and you promptly turned them over to your counsel. And they provided them to us, and I took your deposition again in August of 2005? A. That is correct. Q. And then Mr. Baksa found some additional documents which he turned over to defendants' counsel and were turned over to us, and plaintiffs determined that they needed to take your deposition relating to those documents. Correct? A. That is correct. Q. I'm going to be asking you some questions, and we may need to refer to the depositions, so I'm going to give you all four copies of your transcripts. Enjoying litigation so much, you've also attended a number of days of this trial? A. That is correct. Q. And I'm just going to go through the names of some of the witnesses and ask you whether you were at their testimony. Jennifer Miller? A. Yes. Q. Bertha Spahr? A. Yes. Q. Casey Brown? A. Yes. Q. Jeff Brown? A. Yes. Q. Christy Rehm? A. Yes. Q. Bryan Rehm? A. Yes. Q. Barrie Callahan? A. Yes. Q. And Fred Callahan? A. Yes. Q. In your capacity as superintendent, you regularly attend all the school board meetings. Correct? A. Yes. Q. And you also attend executive sessions when you're invited by the board? A. Yes. Q. And you testified yesterday that one of your responsibilities is to set the agenda for board meetings? A. Yes. Q. Does the board president have any responsibility for the agenda? A. Yes. Q. And is it basically a collaborative effort between you and the board president to set the agenda each month or each meeting? A. Yes. Q. And you're also the primary contact for the district with the school district's solicitor? A. Yes. Q. And the school district solicitor, for some time, other than in this litigation, has been the law firm Stock and Russell -- Stock and Leader? I apologize. A. Stock and Leader. Q. And the lead attorney for that representation has been Steven Russell? A. I'll phrase it this way, during the time period he was one of two. Q. Who was the other one? A. Phil Spare. Q. And Mr. Russell's wife actually served as the board secretary prior to her passing. Correct? A. Yes. Q. And she was the board secretary during the June, 2004 meetings that are the subject of so much discussion in this trial? A. I don't remember specifically that. It would make sense, but I can't speak to that. Q. You don't take front-line responsibility for developing curriculum and selection of textbooks? A. That's correct. Q. Mr. Baksa does that? A. Yes. Q. And you don't have any background in science education. Correct? A. That's correct. Q. And neither does Mr. Baksa? A. That's correct. Q. Fair to say that the people who have the most expertise on science education in your school district are, in fact, the science teachers? A. That's correct. Q. You're not aware that any member of the school board at -- members of the school board during the year 2004 have any background in science other than, you know, that we all took high school science or maybe some college science classes? A. That's correct. Q. And similarly, you're not aware of them having any background in science education? A. That's correct. Q. The board does have hiring and firing power for school district administrators? A. Yes. Q. You described a group of board members that emphasized or ran on a platform of fiscal responsibility. Can you tell us which board members that applies to? A. During that election? Q. Why don't we look at the composition of the board on October 18th, 2004, and tell me which of the members of the board ran on that platform. A. Mr. Bonsell, Angie Yingling, Casey Brown, and I don't remember who the fourth member was that ran. Q. What about Mr. Buckingham, did he emphasize, when he ran, a platform of fiscal responsibility? A. Mr. Buckingham was appointed to fill a vacancy. When he was reelected, I don't remember what his platform was. Q. You testified that the -- well, let me withdraw that for a moment. Did you -- from his time on the board, did you understand Mr. Buckingham to be an advocate of fiscal responsibility in the same vein that you described Mr. Bonsell or Ms. Yingling? A. Yes. Mr. Brown, during one of his first years on the board, was looking at fiscal concerns. And he had tried to set up a county-wide taxpayer association. And, in fact, this taxpayer association met a number of times at North Salem, and one of only two members that attended was Mr. Buckingham. Q. You testified that the curriculum advisory committee, their input on curriculum was not required by policy. Is that right? A. That's correct. Q. And by that you mean a written policy? A. Yes. Q. And counsel showed you one exhibit which was a version of a policy that said it was amended on August 2nd, 2004. But just to be clear, I think you also said that you looked at prior versions of policy, and that was your understanding for the time period prior to that? That was a convoluted question. Is it your understanding that it was never written policy that the curriculum advisory committee give input on curriculum? A. That is not my understanding. Q. Your understanding there was no policy? A. Let me answer your question this way because I think this is -- well, ask your question again. Q. I'm asking, you said that you checked to see whether curriculum advisory committee input was required for curriculum by written policy. Right? You said you did that after you saw that complaint? A. Yes. At 2004, when the curriculum was approved, we verified what was current policy at that time period, yes. Q. And then a document that counsel showed you -- and I'm happy to find that again, if you'd like -- actually said that it was a version that was amended as of August 2nd, 2004. And what I'm trying to clarify is, did you also check policy in effect prior to August 2nd, 2004? A. Yes. Q. And it was based on that research you understood that even prior to August 2nd, 2004, there was no written policy requiring curriculum advisory committee input on curriculum? A. That is incorrect. Q. Tell us your understanding. A. Our understanding was when we reviewed -- when Mr. Schaffer, the assistant principal, reviewed and subsequently communicated to us that there were a number of prior policies during the update procedure that did not have the requirement on them, but there were policies I believe in the '80s, if not early '90s, that did require it. Q. In the 2004 year, it was not required? A. That's correct. Q. Okay. Thank you. I'm sorry I was unclear there. But the board did have a practice of getting curriculum advisory committee input on curriculum? A. Yes. Q. And it's a pretty good practice, isn't it, involving the community? A. Sure. Q. It's an example of consensus-building? A. Yes. Q. And, for example, we looked at Defendants' Exhibit 3. Let me show you a copy of that again. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. MR. ROTHSCHILD: It's up on the screen, Your Honor. BY MR. ROTHSCHILD: Q. Defendants' Exhibit 3 is an example of where this practice of involving the curriculum advisory committee, the citizens committee, was done? A. Yes. Q. And it looks like it's fair to say that administration communicated quite a bit of information to the community members. Is that fair? A. Yes. Q. And, again, you said that you agreed this is conducive to consensus-building? A. Yes. Q. And you said that was a priority for Mr. Bonsell when he was president during 2004? A. Yes. Q. You also testified that it was policy to destroy tapes of board meetings after the minutes were prepared. You really meant to say "practice." Correct? A. Yes. My apologies if I said "policy." That's incorrect. It was "practice." Q. There's no written policy? A. No, there is not. Q. Speaking of practices, when you became the district's superintendent, you started a practice of holding a retreat for board members and administrators. Correct? A. Yes. Q. And one of the things you did at that retreat, as you explained on your direct testimony, was to have each board member take a turn communicating what issues were important to them. Is that right? A. Yes. Q. And while they did that, you took notes of what they were saying? A. Yes. Q. And you did your best to accurately record the issues identified by each board member? A. Yes. Q. And you had your secretary type up those notes after the meeting? A. Yes. MR. ROTHSCHILD: Matt, would you pull up Exhibit P21. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. And what we've marked as P21, which we looked at as a defendants' exhibit yesterday, these are the typed-up versions of the notes you took at the January 9th, 2002 board retreat on board issues? A. Yes. Q. And this document, again, was not produced with the majority of the document production, but you did produce it when you found it later in your office? A. That is correct. Q. And on January 9, 2002, you were acting superintendent. Correct? A. That is correct. Q. And that was your first year in the position of superintendent, no matter how qualified? A. First week. Q. First week. And this was also actually Alan Bonsell's first year on the board. Correct? A. That's correct. Q. And this was basically the first week for him, too? A. No. Q. First few weeks? A. Yes. Q. Okay. And as we looked at yesterday under his name, the first two issues listed are creationism and prayer. Correct? A. Yes. Q. And sitting here yesterday, you claimed that you had no independent memory of Mr. Bonsell saying those words. Correct? A. That's correct. Q. But you also have no reason to doubt you correctly recorded what he said? A. That's correct. Q. You also testified yesterday that Casey Brown was opposed to something called pathways. What is pathways? A. Pathways is a curriculum at the high school that categorizes certain curriculum to allow students to specialize in areas. Q. The next year you held another board retreat? A. Yes. Q. And by this time you were no longer acting superintendent, you were the full-time superintendent? A. That's correct. Q. And Mr. Bonsell was, by this time, the chair of the curriculum committee? A. Yes. Q. And before that meeting, before that meeting, you had sent Mr. Baksa to that seminar at Messiah College on the subject of creationism? A. I recommended he go, yes. Q. And Messiah College is an Evangelical college in the area? A. I can't define what Messiah is or is not. I know it's a college. Q. You're familiar with the college? A. Yes. Q. And you know it has a religious mission? A. Yes. Q. In fact, an Evangelical mission? A. I can't speak to that. MR. ROTHSCHILD: Matt, can you pull up Exhibit 785. May I approach, Your Honor? THE COURT: You may. MR. GILLEN: For the record, Your Honor, in light of your comment this morning, I'm just going to object to this document as hearsay. MR. ROTHSCHILD: It's being used for impeachment and to add context to the mission he sent Mr. -- or what he sent Mr. Baksa to. MR. GILLEN: There's no evidence that the witness has ever seen this. THE COURT: Well, it's not impeachment. I think he answered your questions, Mr. Rothschild. If it's to establish the truth of what the mission of Messiah College is, then it's a hearsay document, isn't it? MR. ROTHSCHILD: I'll withdraw, Your Honor. THE COURT: The objection then is sustained. BY MR. ROTHSCHILD: Q. Returning to the retreat in 2003, that was in March of 2003. Correct? A. Yes. Q. And at that retreat, each board member in attendance again had the chance to identify the issues that were important to them? A. Yes. Q. And you took notes? A. Yes. Q. And, again, you did your best to accurately record what the board members said? A. Yes. Q. And you had those notes typed up? A. Yes. MR. ROTHSCHILD: Matt, could you pull up Exhibit P25. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. And these are the typed-up notes from the March 26th meeting? A. Yes. Q. And, again, these were produced in July of this year? A. Yes. Q. And on this document you again recorded Mr. Bonsell listing creationism as one of his issues. Correct? A. Yes. Q. And also, as you testified about yesterday, he had a big emphasis on American history. Correct? A. Yes. Q. But on the subject of creationism, again, you have no independent memory of him saying that? A. No. Q. But you have no reason to doubt that you correctly recorded that Mr. Bonsell did, again, bring up creationism? A. That's correct. MR. ROTHSCHILD: Your Honor, may I approach? THE COURT: You may. BY MR. ROTHSCHILD: Q. What I've presented to you is Defendants' Exhibit 288. It's Bates stamped 3968 through 3971. And the first page of that is your typed-up notes from the January 9th, 2002 board issues. Correct? A. Yes. Q. And behind that you have the agenda for the March 26th, 2003 retreat. Correct? A. Yes. Q. And on Section 5, you have an opportunity for district accomplishments? A. Yes. Q. And that's when administrators describe what they have done during the year? A. Yes. Q. And one of the people who gets to make a presentation, in fact, two presentations, is Mr. Reeser. Correct? A. Yes. Q. He gets to do it on maintenance, three-year plan, and stadium lights and also high school construction? A. Yes. Q. Again, that's Mr. Reeser. What was his position? A. He's the director of buildings and grounds. Q. And he was the -- that's the same Mr. Reeser who burned the mural the year before? A. Yes. Q. And that was a mural painted by a former student? A. Yes. Q. And you were aware of that at the time of this board retreat? A. Yes. Q. And you let him make a presentation in this retreat? A. He was an administrator, director of a department. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. MR. ROTHSCHILD: Matt, could you pull up Exhibit P26. BY MR. ROTHSCHILD: Q. This is the memo you received from Trudy Peterman on or around April 1st, 2003? A. Yes. Q. And in that memo Dr. Peterman reports on a conversation that -- and Dr. Peterman was the principal at Dover High School at the time? A. Yes. Q. And she reported on a conversation that she had had with Bert Spahr, the head of the science department? A. That's what it says in this memo. Q. And she reports that Mrs. Spahr told her about a conversation that Mrs. Spahr had had with Mr. Baksa on March 31st? A. That's what this memo says. Q. And that was just five days after the board retreat. Correct? A. Yes. Q. And what the memo says is that Mrs. Spahr had reported that Mr. Baksa had told her that a board member wanted creationism taught in biology class. Correct? A. That's what the memo says. Q. And that this board member wanted 50 percent of the topic of evolution to involve the teaching of creationism? A. That's what this memo says. Q. And when you got this memo, you didn't immediately have a conversation with Mr. Baksa about it, did you? A. No. Q. But he did tell you some time later that the board member being referred to here was Mr. Bonsell. Correct? A. Yes. Q. And you didn't tell him right after you got this memo, Mike, you know, what you're telling Bertha, that's dead wrong, that didn't happen. Right? You didn't have that conversation with him? A. Could you ask that question again? Q. I asked you whether you had spoken to Mr. Baksa when you received this memo. You didn't speak with him and say, Mike, you know, why did you tell Bertha this, this didn't happen? A. No, because I had the belief that Dr. Peterman exaggerated constantly, and this reflected another exaggeration. Q. You didn't have a conversation with Ms. Spahr about this either, did you? A. No. Q. You didn't tell her that the facts you're reporting to Dr. Peterman are wrong? A. That was up to Mr. Baksa to follow up on. Q. And you didn't go to Mrs. Spahr and say -- ask her, you know, to clarify whether she, in fact, even said that to Dr. Peterman. Correct? A. No. That's Mr. Baksa's responsibility. Q. And Dr. Peterman has a number of questions here. Correct? A. Yes. Q. And you didn't answer any of those questions. Correct? A. No, this memo is not directed to me. Q. You didn't instruct Mr. Baksa to answer those questions? A. He would have under his responsibility. Q. But you didn't instruct him to? A. I don't micromanage Mr. Baksa. Q. You're not aware that he did answer them? A. I'm aware that he had a conversation with Dr. Peterman. Q. But you're not aware that he answered these questions here? A. No, I don't micromanage Mr. Baksa. Q. And you also didn't tell Dr. Peterman that any of her instructions to the teachers about how they teach science class should be changed. Correct? A. No, that's Mr. Baksa's responsibility. Q. You were here for Jennifer Miller's testimony? A. Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Dr. Nilsen, I'm handing you an excerpt of Ms. Miller's testimony in this trial. MR. GILLEN: Your Honor, I'm going to object to the use of this testimony unless a legitimate purpose can be established. MR. ROTHSCHILD: First of all, he heard the testimony, and it's for purposes of impeachment and to ask him about his own knowledge and understanding. MR. GILLEN: Asking about his own knowledge and understanding I understand. That's proper. Impeaching Dr. Nilsen on something that Jen Miller said is not appropriate. THE COURT: Well, it's not impeachment. I guess the proper mechanism, Mr. Rothschild, would be to ask him if he recalls a particular statement by the witness, and if he doesn't recall exactly or if he's vague on it, then I think it's proper to direct him to the transcript. MR. ROTHSCHILD: I will direct him to the transcript. It can't be hearsay. I mean, it's testimony in this trial. THE COURT: I don't say that it's hearsay. The substance of the objection seems to be that you go right to the testimony, and I guess the precursor needs to be, does he recall it independently of the transcript. If I understand you correctly, Mr. Gillen, or do I? MR. GILLEN: Perhaps I was too brief. No, my understanding of impeachment is it's got to be a prior statement by this witness. Otherwise, he can ask the questions to see if he agrees. THE COURT: It isn't impeachment. Is it? MR. ROTHSCHILD: I think it's just questioning the witness about whether something that someone else said is what he understood. MR. GILLEN: I have no objection to that. THE COURT: I don't see it as impeachment. Do you withdraw the objection under those circumstances? MR. GILLEN: To the extent that it's not going to be used for impeachment purposes, yes, Your Honor. THE COURT: You can't impeachment him with somebody else's testimony, which Mr. Rothschild agrees. MR. GILLEN: Yes. THE COURT: All right. Proceed. BY MR. ROTHSCHILD: Q. Dr. Nilsen, if you start on the page of -- on Page 14, Mr. Gillen asked whether -- asked Ms. Miller about -- and I'll paraphrase until we get to the important aspects here -- but whether she gave instructions on teaching evolutionary theory in class. That's in the middle of the page. Do you see that starting on Line 14? A. Yes. Q. And the upshot here is that Ms. Spahr told Ms. Miller, keep teaching as you teach it. Right? A. I'm not sure I understand the question. Q. We can read aloud, Dr. Nilsen, but all I'm asking is, does this testimony indicate that Ms. Miller was testifying that you -- that Ms. Miller continue to teach evolution as she taught it? A. Again, what's your question? Q. Is that what this says, Dr. Nilsen? MR. GILLEN: Objection, Your Honor. The transcript of this trial speaks for itself. MR. ROTHSCHILD: We can do it more methodically. BY MR. ROTHSCHILD: Q. Mr. Gillen asked, starting at Line 23, Did Bert Spahr tell you, Ms. Miller, to essential continue teaching evolution as you taught it? And Ms. Miller said, Correct. Right? A. Yes. Q. And then Mr. Gillen asked Ms. Miller, Now, I want to ask you, did she continue to -- did she tell you to continue teaching creationism in the classroom? And Ms. Miller answered, No. And then Mr. Gillen asked, But you mentioned creationism. Correct? And Ms. Miller said, No, not specifically, no. And then Mr. Gillen asked, Is it your testimony that you had no discussion with Bert Spahr about teaching creationism in connection with your presentation of evolutionary theory? And she answered, Yeah, I -- I know that somewhere in here it says -- I remember reading -- let me see if I can find it. She explained to Mr. Baksa that all biology teachers state that another theory of evolution is creationism, but creationism, per se, is not taught since it's not addressed by the standards. So when I saw this memo for the first time, I had some misgivings about that because I disagree that we state that another theory of evolution is creationism, but I do agree that creationism is not taught. You have no reason to doubt that that is, in fact, how Ms. Miller acted in her own classroom. Right? A. I would believe Mrs. Miller would be telling the truth. Q. And you certainly have no reason to believe that Ms. Miller was telling the students at Dover that creationism is another scientific theory on the development of life. Correct? A. I'm sorry, could you ask that question again? Q. Sure. You have no reason to believe that Mrs. Miller was ever telling the students in her Dover High School biology class that creationism is another scientific theory on the origin or development of life? A. That's correct. Q. And, in fact, if she was doing that, that would bother you, correct, because you think creationism is a religious proposition? A. That's correct. Q. You testified yesterday that you did not punish Dr. Peterman for the content of the memo. Correct? A. I don't remember specifically saying that, but the emphasis on the evaluation was not the content, it was the process. But not drawing a fine line on it, the process does impact on the content. Q. But you, in fact, gave her a negative evaluation for being untruthful in the April 1st, 2003 memo, didn't you? A. No. Q. Dr. Nilsen, could you turn to Page 59 of your April deposition. And, Dr. Nilsen, at all four of these depositions you understood you were under oath. Correct? A. That's correct. Q. And you were required to tell the truth. Correct? A. That's correct. Q. All right. If you could turn to Line 15 on Page 59. I asked you, Did you believe when you saw this memorandum that it raised -- or, I'm sorry, Mr. Schmidt asked you, Did you believe when you saw this memorandum, referring to the April 1st memorandum, that it raised important issues that required some attention by the administration? And you answered, Yes, but not in the direction you're heading. Mr. Schmidt asked, What attention do you think it required -- it required to? A. Excuse me, what line are you on? Q. I'm on Line 19. Are you with me? A. On 60? Q. On 59. A. Thank you. Q. And you answered, To make sure the principal was telling the truth. And Mr. Schmidt asked, What part of what is in this exhibit did you think was untruthful? And you answered, The third line, the third sentence, Mr. Baksa mentioned that a board member wanted creationism taught in Biology I class. Mr. Schmidt asked, What was untruthful about that statement? And you answered, I am not aware of that, nor is Mr. Baksa aware of that conversation, nor did I ever hear a board member mention that in any capacity. Neither did Mr. Baksa. Mr. Schmidt asked, When you read that, if you thought it was untrue, what did you do? And you answered, The germane area was directed to Mr. Baksa. It is his responsibility to take care of that additional quote. It is my responsibility to deal with the principals, the behavior. And he asked, What did you do with it? And you answered, It reflected in her evaluation. And he asked, In what way? And you answered, Her behavior was evaluated, her conversations were evaluated negatively. So there was a consequence for the content of that memo, wasn't there, Dr. Nilsen? A. No, let me give you a fine line. If you would give me a minute, because I think we continued in our conversations where I clarified that. Q. There is more testimony in this deposition asked by -- in response to questions by your counsel, so maybe we can turn there and you can see if that will help. If you could turn to Page 95 of that same deposition. And on Line 3, you can see that there are questions started by Mr. Gillen. Correct? Do you see that? A. On which page? Q. 95. A. Yes. Q. And his question was, Mr. Schmidt asked you a few questions. One set of them related to Plaintiffs' Deposition Exhibit 9, which is that memo from Dr. Peterman. Tom asked you, Did you take action in light of that, and you said, No. Just to be clear on this point, at that time that you received this memo, did Dr. Peterman have a lot of credibility with you? And you answered, Zero. And he asked, Was it in large measure because this memo came from Dr. Peterman which explained your inaction? And you answered, Two things. One, first of all, I knew no one was discussing, either from the administrative standpoint or the board standpoint or Mr. Baksa's standpoint or my standpoint, any discussion of creationism. So a memo that generated and stated that there was a discussion of creationism had absolutely a non-starter. That was your testimony up to that point. Correct? A. Yes. Q. And you said that even though this was a memo received five or six -- less than a week after the March 26th, 2003 board retreat. Correct? A. Correct. Q. In which you had recorded Mr. Bonsell saying the word "creationism"? A. Correct. Q. For the second straight year in board retreats. Correct? A. Correct. Q. You heard Bertha Spahr testify in court? A. Are we skipping the questions you asked before? Q. I'm not skipping anything, Dr. Nilsen. Is there anything you need to say? A. Yes. You ended up asking me on the evaluation of Mrs. -- or Dr. Peterman. Again, answering that question, the evaluation reflected process. And it's a fine line when you end up communicating process with what is in a content. She was evaluated on the process that she developed a memo that did not include -- or she did not communicate with the individual she was memorializing in the memo. Specifically, she ended up saying Mr. Baksa said something to someone without asking Mr. Baksa whether he had said that or not. So she was evaluated on the process because she continued to send out memos without incorporating the individuals that ended up saying it. If it reflected specifically on the content, it reflected on the content due to the fact that her memos constantly stated inaccurate information because she did not talk to people before she ended up doing the memo. So the emphasis of the evaluation was clearly on the process. Did it reflect on the content? Yes, because the process, unless you talk to people about what you're saying they're saying, it is going to end up being inaccurate. Q. But, Dr. Nilsen, here you're not just saying process, you're saying it was inaccurate. You're pretty much saying Dr. Peterman was lying in this memo. Correct? A. I'm saying that I talked to the assistant superintendent that said that did not happen. Q. You didn't do that immediately after the -- after you got the memo. Correct? A. No, not on that individual day, but subsequent to that, yes. Q. And you never went to Ms. Spahr, who would have been a natural person -- she was the source of Dr. Peterman's information. You never went to her and said, Bertha, what did you tell Dr. Peterman? A. Again, that's not one of my responsibilities. That's Mr. Baksa's. Q. And nevertheless, you negatively evaluated her because she was untruthful, she said something that was a non-starter, that a board member could be teaching -- could be talking about creationism? A. I think the reference was a board member was talking about creationism as 50/50. And, again, I go back to my comment, I evaluated her based on the process. Q. Dr. Nilsen, let's reread your answer on Page 95. I knew no one was discussing, either from the administrative standpoint or the board standpoint or Mr. Baksa's standpoint or my standpoint, any discussion of creationism. So a memo that generated and stated that there was a discussion of creationism had absolutely a non-starter. That was your testimony. Correct? A. That's correct. Q. Dr. Nilsen, as I asked you a few minutes ago, you were here to hear Bertha Spahr testify in this trial. Correct? A. Yes. Q. And she actually backed up the Trudy Peterman memo, didn't she? She said that Baksa did tell her that there's a board member who wants to teach creationism 50/50, or I think she used the expression "equal time" with evolution? A. She said that, yes. Q. She's also being untruthful? A. I can only speak to what I was told from Mr. Baksa, that he said he did not say that. Whether it's her interpretation of what he ended up saying or not, I can't speak to. Q. And you also heard Barrie Callahan testify? A. Yes. Q. And she was actually at that March 26th, 2003 board retreat, wasn't she? A. Yes, she was. Q. She was still a board member at that time? A. Yes, she was. Q. And she took notes about what Mr. Bonsell said, didn't she? A. Yes. Q. And what she testified was that Alan Bonsell did say 50/50 creationism and evolution. Correct? A. She testified to that, yes. Q. Was she untruthful, too? A. No, to her ability. I don't know whether he did or did not say that. Q. Just don't have a memory? A. That's correct. Q. You testified that sometime in the spring of 2004, Mr. Buckingham gave you two DVDs and a book? A. Yes. Q. And you had trouble remembering the book yesterday, but was that a book called, Icons of Evolution? A. Sounds familiar. Q. And you understood these were all from the Discovery Institute? A. At the time I didn't know where they were from. Q. You eventually developed that understanding? A. Yes. Q. And that was an understanding you developed from Mr. Buckingham? A. I don't know who gave me that understanding. Q. And your understanding is that Mr. Buckingham required the teachers to watch at least one of those DVDs? A. No, he did not. Q. Did he give it to the teachers to watch? A. No. Q. Did he give it to Mr. Baksa to have the teachers watch it? A. No. Q. Your understanding is Mr. Buckingham didn't give it to anybody in school administration or faculty? A. No, I think I'm on record yesterday saying that he gave them to me, and I gave them to Mr. Baksa. Q. And is it your understanding that Mr. Baksa gave them to the teachers to watch? A. My understanding is the fact that the teachers watched it on one day, on an in-service day. Q. An in-service day, that's a working day for teachers? A. Yes. Q. And you're aware, also, that Mr. Buckingham had conversations with the Discovery Institute? A. I'm aware of that, yes. Q. And you also talked to the Discovery Institute on several occasions about the biology curriculum? A. Yes. Q. You attended the board meetings in June of 2004. Correct? A. Yes. Q. And there were quite a few newspaper articles reporting about statements made in relation to the discussion of a proposed new biology textbook. Correct? A. Yes. Q. And it was your practice to read news clippings of all educational related articles relating to the Dover Area School District. Correct? A. Correct. Q. You would have your secretary clip them for you, and then you would read them? A. The building secretary does, yes. Q. And that includes articles about the biology curriculum issue that was quite dominant in 2004? A. Yes. Q. And including the biology textbook discussion? A. Yes. Q. You personally never asked for a retraction about anything said about the biology curriculum or textbook? A. Yes, as testified before, it wouldn't have meant anything. Q. And you never communicated to the newspapers that you personally had been misquoted regarding the subject of the biology curriculum? A. That's correct. Q. Or that anyone else had been? A. That's correct. Q. Now, we discussed before that -- I took your deposition in early January of this year. Correct? A. Correct. Q. And on that same day, the depositions of Mrs. Harkins, Mr. Buckingham, and Mr. Bonsell were taken. Correct? A. I know they were taken. I don't remember what day. Q. It was right around that time, if it wasn't that day? A. Yes. Q. And that deposition was taken so that the plaintiffs could decide whether to seek a temporary restraining order. Correct? A. That's correct. Q. It was the plaintiffs' chance to take evidence to determine whether they could stop the district from implementing the change which did go into effect in the middle of January of 2005. Correct? A. That's correct. Q. And as you know, the depositions were taken, the plaintiffs decided not to seek a temporary restraining order, and, instead, we went out to develop the remainder of evidence that's being presented at this trial? A. That's correct. MR. ROTHSCHILD: Matt, could you pull up P752. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. And, Dr. Nilsen, am I correct that you read the depositions -- your own deposition from that day after it was given, after you got a transcript? A. Yes. Q. And you also read the depositions of the other people who were deposed in January, Mr. Bonsell, Mr. Buckingham, and Ms. Harkins? A. No, not all of them, no. Q. Which ones did you read? A. I don't remember. I don't believe I read Mr. Bonsell's. Q. If you could turn to your April deposition, Page 5, and if you could turn to Line 17. Mr. Schmidt asked you -- are you there Dr. Nilsen? A. Yes. Q. Mr. Schmidt asked you, Have you reviewed the transcripts of other depositions that have been taken in this litigation? You answered, Yes, I have. He asked, Which ones? You said, Mr. Baksa's, Ms. Geesey's, Mr. Bonsell's, Alan Bonsell's, and I'm not sure, but my recollection may be also, in fairness of disclosure, Mr. Buckingham's. So at least Mr. Buckingham's and Mr. Bonsell's, it looks like? A. Yes. Q. If you could now return to Plaintiffs' Exhibit 752. Do you recognize this document? A. Yes. Q. What is it? A. It's a document I submit to the board on a weekly basis. Q. Does anybody else get it? A. No. On certain occasions, certain administrators. Q. Does Mr. Baksa get it regularly? A. Yes. Q. And this is -- this document is dated January 7th, 2005, and it's titled, Dr. Richard Nilsen, Dover Area School District, Superintendent's Weekly Update? A. Yes. Q. And you have a listing of meetings and activities? A. Yes. Q. And the first one you list is, As you are by now aware, the time and effort put in over the holidays has produced a positive impact. The plaintiffs, ACLU, could not find anything to file an injunction on our biology curriculum. In conjunction with the Thomas More lawyers, Mr. Baksa, Mr. Buckingham, Mr. Bonsell, and Mrs. Harkins did a great job. The ACLU is doing a great job of putting a positive spin, in quotes, quote, positive spin, close quote, on the situation, but I cannot help but feel gratified that they could not stop the implementation, and you know if they could, they would have. That's what you wrote to the board? A. Yes. Q. And when you're talking about the great job here, you're talking about the great job that the individuals from Dover, Mr. Baksa, Mr. Buckingham, Mr. Bonsell, and Mrs. Harkins, and I assume yourself, did preparing for the depositions with the lawyers. Correct? A. Yes. Q. And the great job that the witnesses did testifying? A. Yes. Q. And just so the record is clear, Mr. Baksa didn't actually testify in that January period, but there were other individuals who did. Is that your understanding? A. I can't speak to when they did or did not specifically testify. Q. Now, in terms of the preparation, you all met together the night before the deposition, Mr. Baksa, Mr. Buckingham, Mr. Bonsell, Mrs. Harkins, and yourself, with the lawyers? A. Yes. Q. And you remember when I took your deposition in January, I asked you a number of questions about statements that had been reported in the newspapers about the June meetings. Correct? A. Yes. Q. And one of the statements I asked you about was attributed to Mr. Buckingham. A. Yes. Q. 2,000 years ago a man died on a Cross, can't someone stand up for Him now. Right? A. Yes. Q. And that was a statement that was in the newspaper articles from that time period. Correct? A. Yes. Q. Two different newspapers. Correct? A. I can't speak to whether it was in both. I know it was in at least one. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. MR. ROTHSCHILD: Matt, could you pull up Plaintiffs' Exhibit 53, please. BY MR. ROTHSCHILD: Q. Plaintiffs' Exhibit 53 is an article by Joseph Maldonado on June 15th, 2004, in the York Daily Record. Is that correct, Dr. Nilsen? A. That's what it says here, yes. Q. Okay. And going a little bit more than halfway down the page the statement, 2,000 years ago someone died on a Cross, can't someone take a stand for Him, that's attributed to Mr. Buckingham? A. Yes. Q. And then if we turn to Plaintiffs' Exhibit 54, that's a June 15th, 2004 article in the York Dispatch by Heidi Bernhard-Bubb. Correct? A. Yes. Q. It's titled, Church/State Issues Divides Creationism, Draws A Hundred to Dover Meeting. Correct? A. Yes. MR. GILLEN: Your Honor, just for the record, I interpose a hearsay objection, as per a motion in limine. THE COURT: Well, the objection is overruled inasmuch as we're taking it subject to testimony that we have yet to hear. MR. GILLEN: Okay. THE COURT: So the objection is noted, but it's overruled. BY MR. ROTHSCHILD: Q. And if you turn to the second page of the document and go about, I guess, the fourth full paragraph, the reporter attributes to Mr. Buckingham the statement, Nearly 2,000 years ago someone died on a Cross for us, shouldn't we have the courage to stand up for Him. Right? A. It says that, yes. Q. And it actually says, After that, Board Members Alan Bonsell and Noel Wenrich agreed with Buckingham saying creationism should be taught to balance evolution. Correct? A. It says that, yes. Q. So that was being reported about the June 14th meeting in two different newspapers by two different reporters. Correct? A. Yes. Q. And I showed you those articles in your deposition, correct, and asked you whether you remembered Mr. Buckingham making that statement at a -- at that June board meeting. Correct? A. I don't remember you showing me the articles, but I remember the question. Q. Okay. And you said that you didn't remember him making that statement at that board meeting. Correct? A. That's correct. Q. And, in fact, in court yesterday you were quite specific it was at a meeting the year before regarding the pledge controversy. Correct? A. In the fall of the year before, yes. Q. Fall of 2003? A. Yes. Q. Okay. And let me show you what Mr. Buckingham said in his January deposition. Matt, if you could pull up Pages 44 and 45. MR. GILLEN: Your Honor, for the record, I'd make the same objection to the extent it appears that Mr. Rothschild -- THE COURT: And the objection is overruled for the same reason. MR. GILLEN: Okay. BY MR. ROTHSCHILD: Q. And Mr. Buckingham was asked -- if we start at Line 14, it says, 2,000 years ago someone on the Cross -- someone died on a Cross, can't someone take a stand for Him. Do you see that, Mr. Buckingham? Answer: Yes, I do. He was asked, Did you make either of those statements? Not at this time. And then if we go over to Page 45, he's asked again on Line 8, 2,000 years ago someone died on a Cross, can't someone take a stand for Him, did you say? And he says, That goes back to taking it out of the pledge. That's what he said. Right? A. That's what I said. I thought you said this was from -- Q. That's what Mr. Buckingham testified to. Correct? A. I'm sorry, is this mine or -- Q. This is Mr. Buckingham's. A. So your question is? I'm sorry. Q. That's what Mr. Buckingham testified to in these January depositions taken so the plaintiffs could decide whether to seek a temporary restraining order. He said, It didn't happen in June, it happened at the pledge meeting. Correct? A. I can't speak to the transcript, but I would expect it to be true. Q. That's what it says. Correct? A. That's what it says, yes. Q. Matt, could you pull up Ms. Harkins' deposition, Page 51. MR. GILLEN: Your Honor, for the record, same objection. THE COURT: Understand. The objection is overruled. BY MR. ROTHSCHILD: Q. And if you could look -- and this is Ms. Harkins' deposition of January 3rd, 2005. And she was asked, 2,000 years ago someone died on a Cross, he said, can't someone take a stand for that -- for Him? Ms. Harkins said, He never said that. And she was asked, He didn't say that at a board meeting? And she said, He only said that the year before, he never said that again. That's what Ms. Harkins testified to? A. I can only speak to what is ahead of me based on the fact that I wasn't at the deposition. But if the deposition reflects that, yes. Q. And, Matt, if you could pull up Mr. Bonsell's deposition. This is also his January deposition. If you could turn to Page 49. And he was asked, The statement that's attributed to Mr. Buckingham, Nearly 2,000 years ago someone died on a Cross for us, shouldn't we have the courage to stand up for Him, did Mr. Buckingham make that statement? Mr. Bonsell said, I'm not sure he said that. I'm not sure he said that at this meeting. He was asked, Do you recall him saying -- making that statement at any school board meetings? It's a pretty powerful statement to say at a school board meeting. Mr. Bonsell answered, I don't think it has to do with what we're talking about. He was asked, Do you think he made that statement at a meeting? He said, I'm not positive. I think he said something along those lines, but I don't believe it was -- it had to do with this. He was asked, What do you believe it had to do with? Mr. Bonsell's answer was, There was -- a year ago before this there was another discussion on the pledge, but this was the year before. And to be fair to Mr. Bonsell, he was asked then, Do you think he made a statement along those lines regarding the pledge? And he said, To be honest, I'm not sure when he said it or if this is exactly what he said. I'm just not sure. That's what Mr. Bonsell said. Right? A. That's what the deposition in front of me says. Q. Yes. And you read that transcript some time ago. Correct? A. Yes. Q. And that was true for Mr. Buckingham's, as well. Correct? You read Mr. Buckingham's transcript, as well, prior to today? A. I believe I read one. I don't know if I read both. My recollection is at least one. Q. So you all were in agreement that Mr. Buckingham did not make this highly provocative statement at the June meeting, but rather at this earlier period regarding the pledge. Right? A. I believe that's what the record shows. Q. And therefore the newspapers, two newspapers, got it all wrong? A. Yes. Q. And we talked about the witness's that you heard at this trial. You heard Jen Miller testify, and she said that this comment was made at the June meetings. Correct? A. I remember her testimony at that point. MR. GILLEN: Your Honor, again, I object because it appears to be an attempt to impeach Dr. Nilsen based on what other people have remembered or testified, which is not proper. MR. ROTHSCHILD: He witnessed this testimony. I think it's fair to ask him, you know, he heard it and whether it's true. THE COURT: Well, the question is -- it's not an impeachment question, I don't think, Mr. Gillen. The question is, did he hear another witness say that statement. How does that impeach him? MR. GILLEN: Well, and that question I guess I can understand, but what's the purpose? THE COURT: Well, the purpose is, he's got your witness on cross-examination, and he may have an additional question that flows from that question where he asks whether a particular individual was heard to have said that Mr. Buckingham said the statement. So I think it's proper cross. I'll overrule the objection. BY MR. ROTHSCHILD: Q. So, Dr. Nilsen, you heard Jennifer Miller testify? A. Yes. Q. You heard Bertha Spahr testify? A. Yes. Q. You heard Casey Brown testify? A. Yes. Q. You heard Jeff Brown testify? A. Yes. Q. You heard Christy Rehm testify? A. Yes. Q. You heard Bryan Rehm testify? A. Yes. Q. You heard Fred Callahan testify? A. Yes. Q. They all testified that this 2,000 years ago statement was made at the June meetings in the context of discussing the biology textbook. That's what they testified to, didn't they? A. Is that a question or a statement? Q. That's a question. You heard it? A. I don't remember if all of them stated that. I do remember some of them did. Q. Okay. And so they're all wrong, too? A. I can only speak to what I remember. Whether they are wrong or I'm right, I can't speak to that. I can only speak to my recollection. Q. Now, you testified about Charlotte Buckingham reading from the Bible at a board meeting or stating Bible passages? A. Yes. Q. It was pretty unforgettable? A. Yes. Q. And just to clarify the record, I think you testified yesterday or you may have been asked did that happen on July 14th, and I think you meant to say June 14th? A. It was June 14th. Q. And you said you were sympathetic to the board president who was waiting for it to end? A. Yes. Q. And that board president was Mr. Bonsell. Correct? A. That's correct. Q. And, as a matter of fact, he waited until the end. Correct? He let her finish? A. Yes. Q. He didn't gavel the table or call a recess because a public comment went too long or was inappropriate? A. He didn't gavel it down, no. Q. Or call a recess to stop it? A. No. Q. But both of those are practices engaged in by the Dover board now. Correct? A. It has been done, yes. Q. Including by the board president, Sheila Harkins? A. Yes. Q. And you remember I asked you at your January deposition whether members had expressed an interest, members of the board had expressed an interest in teaching creationism as was reported in the newspapers. Do you remember that? A. Yes. Q. And you testified that you couldn't remember that occurring. Correct? A. That's correct. Q. And I actually asked you the question, Dr. Nilsen, Do I understand you correctly that notwithstanding the fact that there are many articles during this June period about discussion about teaching creationism, you have no recollection of the subject of creationism at any school board meeting? And you answered, That's correct. Does that sound right? A. Yes. Q. And I expanded my question to ask whether they had made any references to creationism at any time in a board meeting, and you testified you couldn't remember that occurring, either. Correct? A. That's correct. Q. And then I expanded my question to whether any board member had ever discussed teaching creationism in any setting, and you denied that, as well. Correct? A. That's correct. Q. But we know from the two board retreat issue summaries that you prepared that that's not true. Correct? A. That's correct. Q. And, in fact, in one newspaper article -- and why don't we actually pull up Exhibit 44. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Exhibit P44 is a June 8th, 2004 article in the York Dispatch written by Heidi Bernhard-Bubb. Correct? A. Yes. Q. And early in the article she reports on some question and answer she had with you or statements you made? A. Yes. Q. And I'll read that into the record. Dover Area Superintendent Richard Nilsen said he is bound by state law to abide by the board's decision. He said the board votes on all textbooks and has the final say. And then a quote is attributed to you, The teachers cannot teach from a book that is not board-adopted, he said. It continues, He said the district will always look for textbooks that have a balanced approach to all topics. And then the article goes on, When asked what that means for the evolution versus creationism debate, Nilsen said Dover will, quote, present all options and theories. And you never asked that anything that was attributed to you be retracted? A. No. Q. Or communicated to the York Dispatch that there was anything wrong with that story? A. No. Q. Now, you testified yesterday that Mr. Buckingham brought up the Pandas book in July, 2004. Correct? That was the first time he made you aware of it? A. Yes. Q. And he wanted to purchase it? A. He wanted the district to purchase it. Q. The district to purchase it. Better answer. Thank you. And have it used in the classroom. Correct? A. Yes. Q. Matt, could you pull up Page 99 of Pandas, 99 to 100, and highlight the passage beginning, Intelligent design means. That statement reads, 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, et cetera. You understand that passage to be a tenet of creationism, don't you? A. Yes. Q. Yes? A. Yes. Q. And, Matt, if you could now turn to Page 85 of Pandas and highlight on the right-hand side column the first full paragraph. It says, in the middle of the page, This strong analogy leads to the conclusion that life itself owes its origin to a master intellect. When I asked you what you understood that to be referring to at your deposition, you said it could only mean God or aliens. Correct? A. I remember something along those lines, yes. Q. Would you like to look at your deposition on that? A. No, I think you're pretty close to the statement. Q. Is that your idea of good pedagogy, to make students aware that an alternative scientific theory to evolution is that biological life was made by God or aliens? A. I think it's good pedagogy to give them the understanding that people believe that that is true and that there are other options. Q. You first heard of intelligent design in July of 2004. Correct? A. I heard of intelligent design sometime in the summer of 2004. I can't speak whether it was June, July. Q. Could you turn to your January deposition, Page 19. And if you'd look at Line 21 on Page 19. A. I'm sorry, which line? Q. 21, please. I asked you, When was the first time you heard about intelligent design? And you answered, July of 2004. Correct? A. Again, that would be about that time, yes. Q. No reason to believe that isn't an accurate recollection? A. Correct. Q. Matt, could you pull up Defendants' Exhibit 26. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. This is the memo or request by Mr. Buckingham to you for the district to purchase -- to purchase the Pandas books? A. Yes. Q. And at this time he's asking to purchase 220, not just the 50 or 60 that were donated. Correct? A. That's correct. Q. And the cost that he communicated here was almost $4400? A. That's correct. Q. And by comparison, the standard biology textbook, the Miller and Levine textbook that was ultimately purchased was approximately $14,000? A. That's about right. Q. So this frugal board member was willing to add to the textbook budget by more than 30 percent? A. You're better at math than I am, but that sounds about right. Q. And you testified at some length about your communications with Mr. Buckingham and Mr. Bonsell leading up to the August 2nd meeting. Correct? A. Yes. Q. And you testified that Mr. Buckingham communicated that he didn't have the six votes necessary to accomplish the purchase of a supplemental text that was not approved by the administration. Correct? A. Correct. Q. Did you understand him to have five votes? A. No. I didn't know how many votes he had. Q. Good enough. In any event, you told him that you wouldn't delay approval of the biology text at the August 2nd, 2004 meeting. Correct? A. I can't make approval or delay approval. All I can do is put it on the agenda for approval. Q. And that's an activity that you and the board president would do. Correct? A. Yes. Q. And the board president at that time was Mr. Bonsell? A. That's correct. Q. And he was in agreement with you, we're not delaying this? A. That's correct. Q. So it didn't get delayed? A. It was placed on the agenda. Q. And this was pretty important because you knew you were already late in approving a biology text for the upcoming school year. Right? A. Correct. Q. And you offered a compromise to Mr. Buckingham after the Miller and Levine book was purchased, you would go to the teachers to discuss bringing in Pandas as a reference text? A. Correct. Q. And that was with the prospect of purchasing it as a reference text, wasn't it? A. I don't think we ever discussed the financial aspects. Q. At this point you had had no offers of a donation, had you? A. No. Q. And your understanding was that he would go along with that, bring on the biology textbook, get that voted on, and then we'll revisit the Pandas issue? A. Correct. Q. But he reneged on that agreement, didn't he? A. Correct. Q. He voted against the approval of the Miller and Levine book? A. Correct. Q. He voted to deprive the students of the biology textbook they needed to learn about evolution as required by state standards? A. At that time. Q. And he wasn't alone in voting against that, was he? A. No. Q. Mrs. Geesey, Ms. Harkins, and Mrs. Yingling all voted with him in the first vote. Correct? A. Correct. Q. They were all willing to deprive the students of their textbooks? A. They were willing at that time to vote no for those textbooks. Q. And a no vote, if there were enough votes on that side, would result in depriving the students of their textbooks. Correct? A. At that time. Q. With less than a month before the school year starts? A. Correct. Q. And you expressed your displeasure about this? A. Yes. Q. Because you knew the students and the teachers needed the book. Right? A. Yes. Q. And you were able to convince Mrs. Yingling to switch votes? A. Yes. Q. By your view of things, she did the right thing for the students, didn't she? A. Yes. Q. But Mr. Buckingham, Mrs. Harkins, and Mrs. Geesey didn't. Right? A. Correct. Q. They held firm against that biology book that teaches evolution? A. Correct. Q. They were not going to let the students have that book if their votes could control? A. Correct. Q. Mrs. Geesey and Mrs. Harkins are still on the board, aren't they? A. Yes. Q. In fact, Mrs. Harkins has been elevated to president. Correct? A. Yes. Q. And those two and Mr. Bonsell are actually the only remaining members of the board -- that are currently on the board that were ever elected to a school board position. Correct? A. No. Ms. Geesey was elected. Q. Ms. Geesey, Ms. Harkins, Mr. Bonsell, they were elected, the other six members were not. Correct? A. That's correct. Q. They were handpicked by the other members of the board. Correct? A. They were appointed by the other members of the board, yes. Q. They had full authority to select them? A. Yes. Q. And the other thing you testified about the August 2nd meeting was that no one said creationism on August 2nd. Correct? A. I testified that I don't remember anybody saying creationism. Q. Okay. So you just don't remember? A. I don't remember people mentioning creationism at the August 2nd meeting, no. Q. You testified about the October 18th meeting. You didn't just say, I don't remember, you said no one said creationism. So which is it today, is it no one said creationism or I don't remember? A. I can only speak to what I can remember. I don't remember anybody saying creationism. Q. The next thing you testified about was the late August meeting about Pandas? A. Yes. Q. And you testified that the teachers voiced concerns about the book? A. Yes. Q. It was dated? A. Yes. Q. Had faulty science? A. Yes. Q. And had readability issues? A. Yes. Q. And by "readability issues," they thought it was above the reading level of ninth-grade students. Correct? A. It was above some of them, yes. Q. They actually did a readability study, didn't they? A. Yes. Q. And found that it was at least grade 12, maybe grade 13? A. Yes. Q. And these are the district science education experts. Right? A. Yes. Q. And you also talked to Thomas More about Pandas, didn't you? A. At some time. I don't remember when. Q. And you called them and you actually asked whether Pandas was being used in any other school district. Right? A. Correct. Q. And Mr. Thompson told you he was not aware of any school district that used the book. Correct? A. Correct. Q. And nevertheless, you agreed to accept the donation of the books? A. Yes. Q. And you were made aware of this opportunity from Alan Bonsell? A. Yes. Q. And you said at that time you didn't ask who was donating? A. Correct. Q. You did subsequently find out that his father, Donald Bonsell, was one of the people donating? A. Yes. Q. And you said you're always happy to accept donations. Right? A. Appropriate donations, yes. Q. Fair enough. But as you said, you didn't read Pandas before accepting the donation. Correct? A. Correct. Q. And so all you knew was that the district science education experts had told you that it was dated, it had faulty science, and it had readability issues. Right? A. I also knew that on the August 27th meeting, the science department chairperson was willing to take the book as a reference in the classroom. So with the understanding that the science department was willing to accept the book, that was good enough for me. Q. They acquiesced to that? A. Use whatever words you want, but they accepted the book. Knowing Mrs. Spahr's backbone, if she didn't think it was an appropriate book, she wouldn't have acquiesced. Q. Well, she certainly had communicated or the science department communicated it was dated, had faulty science, had readability problems. Correct? A. Yes. Q. And so far as you knew from the questions you had asked the Thomas More Law Firm, nobody else was using it. Correct? A. That's correct. Q. And so based on that, you decided it was appropriate to put in the science classroom? A. Yes. Q. And typically when you get donations from other sources, they're not added to the official school curriculum, are they? A. No. Q. But Pandas has been? A. Yes. Q. And you testified near the end of your testimony that the statement read to students has been modified to refer to other books in the library. Correct? A. Yes. Q. Those books aren't mentioned. Correct? A. No. Q. And Pandas has now been placed in the reference section of the library? A. Yes. Q. And none of those other books about intelligent design are in that section, are they? A. I don't know. Q. And when you refer to these other books, you're primarily referring to these books donated by the group you referred to in your direct testimony? A. No. I'm also aware that the librarian had additional books on the subject matter prior to this whole situation. Q. And the books that you did get donated more recently were from a group called Debunk Creationism? A. That's my understanding, yes. Q. But you have no knowledge whether they're actually placed anywhere near Pandas. Correct? A. No. It's up to the librarian to decide where she wanted them. MR. ROTHSCHILD: Could I have Exhibit 753. Could you pull that up, Matt. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Do you recognize this document, P753? A. Yes. Q. What is it? A. It's my superintendent's weekly update for April the 1st, 2005. Q. And this is something that goes to the board? A. Yes. Q. And if you could go down to -- Heading A says, Meetings and Activities? A. Yes. Q. And under Heading 2, there is some discussion about the legal activities. Correct? A. Yes. Q. And then there's a discussion about these donated books. Right? A. Yes. Q. Could you read that paragraph beginning, The board committee? A. The board committee has finished reviewing the 23 donated books and will now give to the administration to review. Thomas More Center has stated and the board president, Mrs. Harkins, and curriculum chairperson, Mr. Bonsell, all recommend we take the issue off the front page and accept the donation of the books. As much as it makes me mad to have an outside organization dictate our library collection, I understand the political and legal implications. Anyone know of a pro-ID group that wants to donate books? I've even received a call from plaintiffs, Mrs. Callahan, asking about the status of the books. My response was, this issue is part of a legal matter and an item I cannot discuss with you. Her response was, Oh, I forgot. Q. This is an example of your "happiness to accept any book that's appropriate"? A. It's my reflection of the politically charged aspect of people going on the front page on issues without communicating directly with me. This is an attempt of an individual or an organization to embarrass the district. That's my frustration with this. Q. And you're referring to the Debunk Creationism group trying to embarrass the district? A. Yes. Q. Now, you also testified that at the late August meeting you gave Jennifer Miller a memo from the city solicitor -- the school district solicitor relating to the issue of Pandas? A. I gave it to everybody at that meeting. Q. And that was the members of the board curriculum committee? A. And the science teachers, yes. Q. And I think you testified that it dealt with the constitutionality of Pandas? A. Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Dr. Nilsen, this is Plaintiffs' Exhibit 70, and do you recognize this as the advice from counsel that you distributed at that late August meeting? A. Yes. Q. And if you go through the text of it -- and just take your time to read it -- but the word "Pandas" doesn't appear anywhere in the text, does it? A. No, it does not. Q. And let me represent to you that this is the only legal advice document that's been produced to plaintiffs in this litigation. This is a memo from Steven Russell, the school district solicitor. Correct? A. Yes. Q. And let's look at what is reported here, if we could highlight the first paragraph. What Mr. Russell reports to you, Dr. Nilsen, is that I talked to Richard Thompson, president and chief counsel for the Thomas More Law Center. There is some talk about why it took awhile to get back to him. And then if you go down after the parentheses, Mr. Russell reports that they refer to the creationism issue as intelligent design. Is that right? A. That's what it says there, yes. Q. That's what Mr. Russell reported to you about his conversation with Mr. Thompson? MR. GILLEN: Objection, Your Honor. Mischaracterizes the thrust of the e-mail. THE COURT: Well, it speaks for itself. I'll sustain the objection to the extent that I can read it and it speaks for itself. BY MR. ROTHSCHILD: Q. And then going on in the document, it indicates that Thomas More has indicated they would represent the district pro bono, for free? A. Yes. Q. But it also points out that they would not pay any attorneys' fees to plaintiffs if the plaintiffs were to prevail in this lawsuit. Correct? A. Yes. Q. And he explains how that works? A. Yes. Q. And then in the last paragraph, he expresses some concerns, doesn't he? A. Yes. Q. And if we could highlight where it begins, I say this because. I realize it's a little hard to read. He says, It could be difficult to win -- it could be difficult to win a case. I say this because one of the common themes in some of the U.S. Supreme Court decisions, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons. And he describes another case, and then he says, My concern for Dover is that in the last several years, there's been a lot of discussion, newsprint, et cetera, for putting religion back in the schools. In my mind, this would add weight to a lawsuit seeking to enjoin whatever the practice might be. That's what Mr. Russell told you giving his legal advice in this e-mail he sent to you? A. Yes. Q. And you knew exactly what he meant, didn't you? A. Yes. MR. ROTHSCHILD: This would be a good time to break, Your Honor. THE COURT: All right. Let's take a break until 1:20 for lunch, and we'll return and pick up Mr. Rothschild's continued cross-examination at that time. We'll be in recess. (A luncheon recess was taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 14 (October 21), PM Session, Part 1 (1:23 p.m., reconvene after luncheon recess.) THE COURT: All right. Mr. Rothschild, you may continue. BY MR. ROTHSCHILD: Q. Dr. Nilsen, there came a time when you found out that Mr. Buckingham wanted to put the curriculum change on the October 18th agenda? A Yes. Q. And that was to add intelligent design to the curriculum? A Reference to it, yes. Q. That intelligent design, that's what Mr. Russell had told you was Thomas More's name for the creationism issue? MR. GILLEN: Objection, Your Honor. He's offering a hearsay statement for the truth of the matter asserted. And what's more, Mr. Russell's characterization, if you read the document, is his characterization of the issues not ours. THE COURT: Well, the letter or the E-mail was referred to without objection. So the question is couched in the -- in the context of the letter. MR. GILLEN: Okay. And my point, Judge, is simply that the statement that Mr. Rothschild is referring to is his description of the issue. MR. ROTHSCHILD: Mr. Russell's. MR. GILLEN: Yes. MR. ROTHSCHILD: And that's how I couched my question. THE COURT: Well, if you take the question in context, that intelligent design, that's what Mr. Russell told you was Thomas More's name for creationism, I took it as Mr. Rothschild referring to what Dr. Nilsen had received via this E-mail. Why is that objectionable? MR. GILLEN: Well, the only thing that I'm intending to point out is when Mr. Russell says they referred to the creationism issue as intelligent design, that's his interpretation of the issue. Obviously from -- it's one of the issues. THE COURT: I understand that, and I take it as that. MR. GILLEN: Okay. THE COURT: And I don't take it for the truth of what the Thomas More Center may have actually thought. It is simply a reflection, and I think that was the gist of the question of what was transmitted to him through this E-mail. MR. GILLEN: Thank you very much. THE COURT: All right. So noted. Was the question answered? I don't think it was. MR. ROTHSCHILD: It was not. THE COURT: Do you want to read it back for us, Lori, please? (The record was read by the court reporter, as requested.) THE WITNESS: Could you highlight the -- what sentence in this E-mail, please, you are referring to? He speaks to -- the quote is they refer to the creationism issue as intelligent design. That's what's in the E-mail, yes. BY MR. ROTHSCHILD: Q. Mr. Buckingham also wanted to add Pandas to the curriculum? A Yes. Q. That's the book that you agreed has at least one creationist tenant on pages 99 to 100 of the book? A Yes. It's also the book that the teachers at this meeting had agreed would end up being a reference text and had understood as being part of their curriculum. Q. And this is also the text which teaches children that life was made by either God or aliens? A I don't know that. Q. But it added the language of a master intellect. Correct? A I don't know that. MR. ROTHSCHILD: Could you pull up page 85 of Pandas please? Highlight the passage on the right side that begins the strong analogy. BY MR. ROTHSCHILD: Q. It refers there to life owes its origin to a master intellect. Correct? A Yes, it says that. Q. You agreed with me previously the only understanding you could have of that term is it's either God or aliens? A Yes. Q. You actually objected to the way Mr. Buckingham was putting this item on the agenda. Correct? A Yes. Q. But you didn't stop it. Correct? A Didn't stop what? Q. Stop the item from being put on the agenda. A What item on the agenda? Q. The item to add intelligent design and Pandas to the curriculum? A Did I stop him from putting on the bio curriculum recommendation? Q. Right. A No. Q. And nobody else on the board did either. Correct? A No. The reason we did not is the fact that the curricular chair, or any board member for that matter, can bring under miscellaneous any action. And knowing that he had an interest in that, I preferred the board to know prior to the agenda -- when they received the agenda prior to the meeting what was going to happen. So anytime someone tells me that they are going to bring something up, even if I'm not supportive of it, I prefer to put it on the agenda so individuals, the board members and the community are aware of what's happening. Q. And ultimately it did come to a vote. Correct? A Yes. Q. And a majority of the board supported it coming up for a vote. Correct? They didn't delay it? A Correct. Q. Okay. And that included Mr. Bonsell. Correct? A Yes. Q. Now, you suggested to Mr. Buckingham that there be a meeting of the curriculum advisory council? A Yes. Q. And kind of like the one we saw documented in Defendant's Exhibit 3, the April meeting? A Yes. Q. But that didn't happen. Correct? A Correct. Q. They were sent a memo with the change to the curriculum information, but there was no meeting. Correct? A No. His comment was he had thought he had already received enough information from the curriculum committee meeting and that the committee members had conveyed information over the past six months, and he didn't see another reason to hold another meeting and get the same input that he has gotten over the past six months. Q. Well, you did get a little bit of feedback back from the curriculum advisory committee. Right? A Yes. Q. Mr. Baksa had prepared that memorandum that had two comments by the curriculum advisory -- THE COURT REPORTER: Could you please slow down? MR. ROTHSCHILD: I apologize. BY MR. ROTHSCHILD: Q. Mr. Baksa had prepared that memorandum with the couple of suggestions by the members of the curriculum advisory committee? A Yes. When Mr. Buckingham said he didn't want it meeting again, I talked to Mr. Alan Bonsell, the president, and I communicated to him that I was going to send the information out to the curriculum committee anyway and he supported that. In like fashion, we had two items that came back. Q. And the two items that came back were, according to policy, curriculum advisory committee should review changes first before going to the board, which you have explained you disagree with as a matter of policy. Right? A I disagree that that is currently the policy. Q. Right. And also, hadn't been for sometime. Correct? A Correct. Q. But it certainly was practiced. Right? A Yes. Q. And the second comment was, I disagree with the highlighted statement. Maybe we should meet as a curriculum committee. But there was no meeting of the curriculum committee on this issue. Right? A Not on the issue currently. There were curriculum committee discussions on this issue over the past six months. Q. Actual meetings? A On the science curriculum? Yes. Q. On the biology curriculum? A I can't speak to that specifically, no. Q. In any event, there was no meeting after this request was made by a member of the curriculum advisory committee? A That's correct. Q. And no board member supported that occurring, did they? No board member that voted for the change of the biology curriculum. A That's correct. Q. And you also thought that it was irregular to put this item on the agenda when it hadn't been previously on a planning meeting agenda. Correct? A Yes. Q. As you've said now again, Mr. Buckingham said we've had enough input over the last six months. Right? A Correct. He ended up leaving -- as I stated in my testimony yesterday, that he wanted to make sure that all the board members that had been involved in the discussion for the past six months had an opportunity to vote on it, because he was under the understanding that two individuals were not going to be on the board in the near future. Q. And those were Mr. Wenrich and Ms. Cleaver. Correct? A Correct. Q. And if they were replaced, you wouldn't have had -- the couple of board members that replaced them wouldn't have had the whole history that had been going on since April. Correct? A That's correct. Q. Now, Mr. Wenrich actually, as you explained in your direct testimony, didn't feel the same way. Correct? A Same way as what? Q. As Mr. Buckingham, that he Mr. Wenrich needed to be part of this decision. Isn't that right? A I'm not sure I understand your question. Q. Mr. Wenrich was the movant on all of the motions to delay consideration of this curriculum change. Correct? A Yes. Q. Okay. So he actually thought it was a good idea to involve all the relevant constituents, the teachers, the curriculum advisory committee and the like? A That's correct. Q. He didn't want this rushed. Correct? A He wanted it to be revisited. Yes. Q. And when we talk about these last six months, I think you actually said in your direct testimony, it sort of goes back to the point where Mr. Buckingham distributed the DVD's and the book. Right? A Yes. Q. And that was the DVD's and the book from the Discovery Institute? A Yes. Q. And then he also was referring to the numerous board meetings and comments by members of the community. Correct? A It covered that time period, yes. Q. And six months back from October, that takes us back to February? A About. Q. Okay. And so that period would have included the board meetings in June where the newspapers had reported that many religious statements were made by board members including balancing evolution with creationism and 2,000 years ago a man died on a cross and other religious statements. Correct? A The newspapers reported that, yes. Q. And these discussions had occurred during these past six months? A Newspapers reporting those discussions, yes. Q. And those were the kind of religious statements that Attorney Russell was referring to, wasn't it? A Yes. Q. And this period also included the board meeting in August when Buckingham, Harkins and Geesey had tried to deprive the teachers and students of their biology textbook. Right? MR. GILLEN: Objection to the characterization. THE WITNESS: I'll phrase it this way. THE COURT: Wait. There's an objection, Doctor. MR. GILLEN: Mr. Rothschild is asking whether the board sought to deprive them of their text. They had a text. The question is whether they were going to get another text. If he rephrases the question precisely, I would have no objection. MR. ROTHSCHILD: I'll repeat and rephrase the question. BY MR. ROTHSCHILD: Q. This period included the August 2nd board meeting in which board members Buckingham, Harkins and Geesey had voted to deprive the students and teachers of the new biology textbook recommended by the teachers. Correct? A Yes. Q. Now, at the October 18th meeting Mrs. Spahr made a statement in opposition to the curriculum change. A Yes. Q. And she testified about that in court. A Yes. Q. At that October 18th meeting did you state your disagreement at that board meeting with anything Mrs. Spahr said? A No. Q. Now, at the meeting to approve the curriculum change there were several versions being discussed. A Yes. Q. And version B was the proposal of the administration and the staff? A Yes. Q. And it does not include intelligent design. A That is correct. Q. And that was the one you supported. Correct? A There were two we supported, B and C. Q. And the teachers indicated that they could live with that? A They could live with B and C. Q. And the board members who voted against the final version of the policy, Mrs. Brown, Mr. Brown and Mr. Wenrich, they actually indicated they would have voted for versions B or C, as well. Is that correct? A I don't remember that specific statement. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Do you recognize this document? A Yes. Q. What is it? A It's the October 18th, 2004, Dover Area School District board minutes. Q. And this was the -- these are the minutes of the meeting where the change of the biology curriculum was passed? A Yes. Q. If you could turn to page 158 of that document, the Bate stamp 158. A I have it. Q. And it might require your review all the way through 160. But this is a rather complicated set of parliamentary maneuvers to put on the agenda different versions of the change to the biology curriculum? A Yes. Q. And if you could take a minute to review that and tell me if I'm correct that the three ultimately dissenting board members; Mrs. Brown, Mr. Brown and Mr. Wenrich all indicated through their votes that they would support versions B and C. A I don't see any final vote on B or C. What I see is motions to move the discussion or the vote to A -- I'm sorry -- from A to B and C. There is no final vote on either B or C. Q. Fair enough. So they were supportive of a vote to -- they were supportive of moving the consideration from A to versions B and C; Mr. Brown, Mrs. Brown and Mr. Wenrich? A Yes. Q. But that effort was defeated by other board members. Correct? A Yes. Q. And the other board members included Mr. Bonsell. Correct? A Yes. Q. He didn't support having a vote on versions B or C. Correct? A Correct. Q. Okay. He stood firmly behind a version that included intelligent design? A I can't speak to what he stood firmly behind. I know he stood firmly behind what's reflected here. Q. And that was -- all of his votes indicate that the only version that he would support was one that had intelligent design. Correct? A Yes. Q. Okay. So just to summarize, for votes B and C, there is some indication that Mr. and Mrs. Brown and Mr. Wenrich would have supported those versions. Correct? They wanted the consideration to move to those versions? A I'll state it the way you did in the second half of your question. They voted to consider B and C. I can't recollect, nor does the minutes reflect, how they would have voted eventually on B and C. Q. And certainly, the administrators and the teachers were supporting B and C? A That's correct. Q. So for a board member that placed a premium on consensus, B and C could have achieved that, couldn't it? A I can't tell you that because we never got to deciding to vote on B and C. Q. Certainly it would have brought the administrators and the teachers into the fold. Correct? A Yes. Q. Okay. And you describe Mr. Bonsell as someone, he puts a premium on consensus. Correct? A Yes. Q. But he blocked -- he joined other board members in blocking every effort to even bring B and C to a vote. Correct? A To a vote, yes. But the concept behind C, no. Meaning later on you'll note in the minutes the major concept of C was note the Origins will not be taught, and he's the individual seconded, I believe by Mr. Brown, that he moves the origins of life will not be taught to A, because he believed the major sticking point with the professional staff was that the intelligent design was going to be taught. So his consensus effort, at least from my viewpoint and understanding, is the fact that he was looking at developing a consensus between the teachers and a majority of the board by addressing their individual concern that intelligent design was taught, and he thought he had directly addressed their concern with the support of one of the three, Mr. Brown. Q. But adding origins of life didn't actually meet the teachers' concern that intelligent design not become part of the curriculum? A I think that's eventually what the interpretation was. But I would hesitate to make an understanding that I think at that time period he thought he had developed a consensus that the teachers would be satisfied with it. Q. Dr. Nilsen, there is no way anybody could reach that interpretation about the teachers' position from what the teachers said at that October 18th meeting. Isn't that right? A I think you are going to have to ask Mr. Bonsell that question. Q. We'll have the chance to do that. But certainly Bertha Spahr got up there and stated her absolute opposition to intelligent design. Correct? A Yes. Q. After indicating she had engaged in compromise after compromise, this was the one issue she couldn't compromise on. Correct? A That would be my understanding, yes. Q. And Mrs. Miller actually got up at a point during the session to make clear that the teachers were not the drafters of what was being put into place. Correct? A You are going to have to be more specific than that. Q. Didn't Jennifer Miller jump up at one point in response to Mrs. Geesey's -- and I don't want to get into who Mrs. Geesey's comment was directed at. But Ms. Miller was adamant that the teachers not be construed to have been the authors of the curriculum change that was being voted into place? A Yes. Q. Now, on the subject of origins of life, your understanding is that refers to macroevolution. Correct? A Yes. Q. And the origins of man? A Yes. Q. And this curriculum change makes the -- makes not teaching origins of life policy. Correct? A Yes. Q. Teachers can't teach it now? A Correct. Q. It's not just practice, it's policy? A Correct. Q. Now, at the time this was passed there was very little discussion about what intelligent design actually is. Isn't that right? A I can't speak to what the board did or what Mr. Baksa did. I can only speak to what I did. Q. In terms of what you actually observed, there was very little discussion of what intelligent design actually is. Isn't that right? A From my viewpoint of what I saw, again, I can't speak to what was discussed in the curricular areas. I can only speak to my responsibility. And I did not see anything from my responsibility, although I can't speak for the board or anybody else. Q. And you were at all of the board meetings. Correct? A At this time, yes. Q. So if there was discussion of what intelligent design actually is, you would have heard it? A Yes, at board meetings. Q. And there also wasn't any discussion about how this would improve science education except for this idea that there would be some balance. Right? A I think the discussion was the board wanted students to be aware of other theories, and one of the other theories was intelligent design. Q. I'm going to ask you, do you remember that I asked you at your deposition how the science curriculum has been enhanced beyond how it previously existed before the change in the curriculum? A I remember the question. Q. If you could turn to page 93 of your January deposition. A I have it. Q. I asked you that question on lines two to four of page 93. A Yes. Q. And you answered, "Students prior to the change only knew that there was one theory, Darwin's, and there were students that held other theories. And those that were priorly discriminated against now know that there are other theories and can believe those other theories and not believe the school district is discriminating against their beliefs." That's what you answered. Right? A Yes. Q. Discriminating against students' beliefs. That's what this policy was fixing. That was your answer, Dr. Nilsen? MR. GILLEN: Objection to the characterization of his answer. MR. ROTHSCHILD: I'll rephrase, Your Honor. THE COURT: All right. BY MR. ROTHSCHILD: Q. That was your answer to how this was enhancing the science curriculum beyond how it stood before the curriculum change, that it would mean that we -- that the district was no longer discriminating against student beliefs? A Yes. Q. I also asked you about the statement in the press release that the statement and revised biology curriculum together provided an opportunity for open and critical discussion. Do you remember that? A Yes. Q. And you testified that there is critical discussion being allowed for the gaps part of this but not for intelligent design. Correct? A Correct. Q. There's no questions allowed on that? A Correct. Q. In your experience as an educator, the only time students are directed not to discuss topics and teachers are not permitted to comment on topics with students is for issues of political affiliation, sexual education, issues that are highly politically charged and religion. Correct? A That was examples I gave you. I also told you that there may also be items that are far afield of what is in the planned courses and/or not in the standards. Q. And you actually testified today about that, that you discussed with Jen Miller what would happen if questions were asked. Right? A Yes. Q. And you answered to her well, you handle it like everything else that's not in the curriculum; you don't have to answer those questions. Right? A No. What I think I believe I said is that the teachers would say that was a good question, not what we're teaching at this time period. You may refer to your own individual research and/or your parents. Q. Okay. But in any event, this is -- this item here is not like things that are outside the curriculum. This is something that's inside the curriculum. Right? A I'm not sure I understand the question. Q. Well, we are in agreement that this particular issue that students are not allowed to be asked about is part of the curriculum. Right? A Yes. Q. And that's pretty unusual that something that's actually in the students' curriculum can't be discussed by the students or the teachers. Would you agree with that? A Yes. Q. Now, there came a time when this lawsuit was filed. Correct? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Do you recognize this document, Dr. Nilsen? A Yes. Q. And what is it? A It's a letter from Pepper Hamilton signed by a gentleman by the name of Eric Rothschild to Mr. Russell, our solicitor. Q. And he showed you this document after he received it? A Yes. Q. It's dated December 15th, 2004? A Yes. MR. ROTHSCHILD: Just for the record, this is P-758. BY MR. ROTHSCHILD: Q. And in that letter I made you aware of Pepper Hamilton, the ACLU and American United's representation of certain parents of children in the Dover Area School District? A I believe you actually made Mr. Russell aware of that and eventually made me. Q. Fair enough. And I also made Mr. Russell aware that we felt we had a very strong case that this violates the First Amendment and that if parents prevail in the lawsuit there would be recovery of attorneys' fees for the prevailing parties. Right? A Yes. Q. All of that is consistent with what Mr. Russell told you in that August E-mail we looked at. Correct? A Yes. Q. And then I went on to say the plaintiffs and their attorneys would prefer to resolve this matter amicably. Correct? A In your third paragraph you state that, yes. Q. And going over to the next page, in the first full paragraph it states, "If the defendants agree to resolve this matter in this fashion, which is nothing more than what the law otherwise requires, the plaintiffs and their attorneys will agree not to apply for the attorneys' fees and expenses to which they otherwise would be entitled." Correct? A That's what it says there, yes. Q. And you were made aware of that offer by your solicitor. Correct? A Yes. Q. But the district stayed with its policy. I'm sorry. Let me withdraw that. Did you make the board aware of this letter? A Yes. Q. But the -- the board did not take the opportunity to present it in this letter? A That is correct. Q. It went ahead with the -- with the -- with implementing the policy? A Yes. Q. And the district retained Thomas More to represent it? A Yes. Q. And I assume that yourself and the board did some due diligence to find out about Thomas More before it engaged Thomas More? A Yes. Q. You did some research to find out their qualifications? A Yes. Q. Went to their web site? A I can't speak to what efforts were done. I know that the board president designated a board member to do research on what would be our recommended plaintiff counsel. Q. And the board president was Mr. Bonsell? A Excuse me? Q. The board president was Mr. Bonsell? A No. I believe at the time period we were discussing this, it actually was Mrs. Harkins. Q. Who did she designate to -- A Mr. Bonsell. Q. Now, you talked about how you -- you talked about how you made an effort to go on the Gary Sutton Show to communicate something that the teachers wanted you to communicate. Is that right? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. I'm showing you what's been marked as Defendant's Exhibit 172, a collection of documents. And I would like you to turn to the page Bate stamped 359. A I have it. Q. Okay. This is what the science department asked you to tell Gary Sutton? A Yes. Q. That included they had acted in a professional manner, they made every attempt to maintain the integrity of the Pennsylvania state science standards and the Constitution of the United States of America. Correct? A Yes. Q. And you then went on the Gary Sutton Show? A Yes. Q. And if you could turn to the next page. A Yes. Q. And this is your statement that you made on the Gary Sutton Show? A Yes. Q. And you did communicate that the science department staff acted professionally? A Yes. Q. And you did communicate, as they wanted, that they had made every attempt to maintain the integrity of the Pennsylvania state science standards? A Yes. Q. But you did not communicate their statement that they had made every attempt to maintain the integrity of the Constitution of the United States. A That's correct. Q. Now, you testified today that you had given instructions to put the books in the library. Correct? A Yes. Q. But that wasn't your initial instructions about what to do with the book, was it? A No. MR. ROTHSCHILD: Can I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. I'm showing you what's been marked as Plaintiff's Exhibit 109. Do you recognize this document? A Yes. Q. And this -- what is it? A It's a letter or a memo from Mr. Baksa to Bert Spahr. Q. What does it say? A "Please place Of Pandas and People in the biology classrooms and make available for students." Q. And that was something you were copied on? A Yes. Q. And that's dated December 7th, 2004? A Yes. Q. And then the lawsuit was filed, correct, on December 14th or 15th? A Yes. Q. And then on December 22nd you told the librarian that the book should be put in the library. Correct? A Yes. Q. After the lawsuit? A After I realized two things. One, we had difficulty finding a place in the classroom, as well as I didn't know we had a section in the library dealing with this issue. Q. And the section was a section on creation and evolution? A Yes. Q. And the librarian made you aware of that? A Yes. Q. And she thought those books belonged there? A She didn't mention thinking that the Panda books belonged there, no. She didn't make any comment about that at all. Q. That was your thoughts? A Yes. Q. You talked about giving the students the opportunity to opt out of the -- of hearing the statement read in biology class. Correct? A Yes. Q. And the other examples, the circumstances in which students are allowed to opt out that you identified are, I guess you would say, military recruiting. Correct? A Yes. Q. This surely doesn't fall under that? A I'm sorry. What's the question? Q. The statement doesn't fall under military recruiting. Correct? A No. Q. Sex ed. basically; they were allowed to opt out of that? A Yes. Q. This doesn't fall under that? A No. Q. Materials relating to planned parenthood -- A No. Q. -- they are allowed to opt out from receiving those? A No. I'm sorry? Q. I'm not sure what -- that was one of the examples that you gave when they're -- A Yes. Q. This was not -- this statement does not have anything to do with planned parenthood? A No. Q. Or the subject of abortion? A No. Q. Or reach any kind of issues of reproduction or contraception? A No. Q. And dissections, that was another thing that students were allowed to opt out of? A They are allowed to opt out of anything the parent chooses. But yes, that's an example. Q. Okay. And this obviously doesn't fall under that? A No, it does not. Q. The last thing you said they could opt out from was issues relating to religion. Correct? A Yes. Q. We talked about -- you talked about the newsletter. If you could pull up Exhibit 127. That was something that was created by Mr. Bonsell and the lawyers at Thomas More. Correct? A Yes. Q. But that wasn't entirely -- that wasn't entirely from Thomas More's pro bono representation, the district actually had to pay for it? A Not the letter itself but the mailing of the letter. Q. And that cost the district about $1,000? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Dr. Nilsen, I'm going to give you a copy of the newsletter and also the answer filed in this case by defendants. That's Exhibit P-120. Dr. Nilsen, if you could go to the second page of the newsletter and look at the section entitled quotables. There's a quote from Rick Santorum. Right? "The Dover Area School District has taken a step in the right direction by attempting to teach the controversy of evolution." Right? A Yes. Q. Then at the bottom of the page there's a quote, "Where topics are taught that may generate controversy such as biological evolution, the curriculum should help students to understand the full range of scientific views that exist." It's attributed to conference report from the No Child Left Behind Act of 2001. That's sometimes called the Santorum Amendment. Is that right? A Yes. Q. And the district has actually relied upon that as support for what it's doing. Correct? A Yes. Q. And you understand that this is not actually part of the No Child Left Behind Act. It's not part of the law. Correct? A It's not part of the law, no. Q. And in the answer that defendants filed, Exhibit P-120, there's again a reference to this language from the Santorum Amendment on page two of the answer, second full paragraph. A Okay. Q. And this is an answer you reviewed before it was filed with the Court. Correct? A Yes. Q. It says here, "Defendants affirmatively state that DASD's resolution" -- and that's the Dover Area School District's resolution. Right? A Yes. Q. -- "adopted on October 18th, 2004 reflects the intent of the Santorum Amendment to the No Child Left Behind Act of 2001 which was adopted by the U.S. Senate, 91 to 8, and included in the final conference report as follows." And you quote the same language that you had in the newsletter, "Where topics are taught that may generate controversy, paren, such as biological evolution, closed paren, the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy and how scientific discoveries can profoundly affect society." So there again, the district is relying on the Santorum Amendment. Correct? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Dr. Nilsen, I have handed you Exhibit P-786, which is titled the No Child Left Behind Act of 2001, conference report to accompany HR, House Resolution, one. Do you see that? A Yes. Q. If you could turn to the next page and go down to the second full paragraph. Now, you see the language that's relied upon in the answer and in the newsletter, Where topics are taught that may generate controversy, that's actually the second sentence of that paragraph. Correct? A Yes. Q. Could you read the first sentence of that paragraph into the record? A "The Conference recognizes that a quality science education should prepare students to distinguish the data and testable theories of science from religious or philosophical claims that are made in the name of science." Q. And that's not something that the Dover Area School District communicated to its citizens in the newsletter. Correct? A That sentence was not in the newsletter, no. Q. It's not something that was put in the answer as evidence to what the District's intent was in passing this policy. Correct? A That's correct. Q. Dr. Nilsen, you have argued, as have your attorneys and members of the board in depositions, that what you're doing with this policy is not teaching. Correct? A That's correct. Q. You read this four paragraph statement to the students, but it's not teaching? A That's correct. Q. And you heard Ms. Miller talk about it and she disagrees with that. Correct? A Yes. Q. You're not a science teacher like Ms. Miller? A No. Q. You were a history teacher. Correct? A That's correct. Q. Let me ask you this. If students in Dover Area School District were told in 1066 William the Conqueror invaded England and nothing more, is that teaching? A Depends on what happens around that individual statement. Q. Just part of European history, but it's the only thing they are told about William the Conqueror invading England. A Again, it goes back to the pedological question, being if it's done in isolation, if it's done in the context of what's being presented, if it's just a random statement, no, it's not teaching. Q. If they are being taught European history but the only thing they're being told about that set of facts is in 1066 William the Conqueror invaded England, is that teaching? A No. Q. If students are told about the Declaration of Independence this one fact; Thomas Jefferson wrote the Declaration of Independence, is that teaching? A As I've defined teaching, no. Q. If students are told that William Jennings Bryan represented the state of Tennessee in the Scope's monkey trial, and that's all they are told about William Jennings Bryan, is that teaching? A No. Q. If they're told that American foreign policy was characterized as isolationist before World War II, is that teaching? A As I've defined it, no. Q. If they are told that John Wilkes assassinated Abraham Lincoln, is that teaching? A No. Q. They are told that John Jay was the first chief justice of the United States, is that teaching? A I continue to answer it in the same way. As I have defined teaching, no. Q. If they are taught about the presidency of Franklin Delano Roosevelt and they are told only the following about -- and they are taught a lot about Franklin Roosevelt, but they are taught only this about the court packing episode; in 1937 Franklin Delano Roosevelt tried to add several members to the Supreme Court bench and many people opposed it because they thought it was unconstitutional, is that teaching? A Again, as I've defined it. Q. And similarly, you stand by your position that the statement read to the students before the class on evolution starts is not teaching? A It's learning without question. But as I've defined it, teaching? No. Q. But it's definitely learning, isn't it, Dr. Nilsen? A Yes. Q. Students are learning when they hear that statement? A Yes. MR. ROTHSCHILD: I have no further questions, Your Honor. THE COURT: Thank you, Mr. Rothschild. Mr. Gillen, redirect. REDIRECT EXAMINATION BY MR. GILLEN: Q. Dr. Nilsen, is teaching a term of art in the educational profession? A Yes. Q. And what do educators mean when they use that term of art? MR. ROTHSCHILD: Your Honor, I would just object to state that they are trying to treat this as expert testimony. MR. GILLEN: He's the superintendent with a Ph.D. in education. MR. ROTHSCHILD: He's not been -- he's not been offered or qualified as an expert in this case. I have no objection to him giving his opinion or understanding, but it should not be treated as expert testimony. THE COURT: I think that's the point. I think he's qualified to answer it. I think your objection goes to the weight that the Court should give it. So I'll overrule the objection. I'll let him answer. I understand your point. THE WITNESS: There are basically four components to teaching; one specifically behavioral objectives; secondly, specific learner behaviors or outcomes; thirdly, materials used; and fourthly, assessment based on the behavioral objectives. BY MR. GILLEN: Q. Thank you. Mr. Rothschild has mentioned that an individual, Mr. Reeser, spoke at the March 26th, 2003 board retreat, and he's also pointed out that Mr. Reeser is the individual who destroyed a display in a science classroom in the Dover Area School District. Did you tell Mr. Reeser anything when you learned he had done that? A Yes. I brought him in my office and told him if he continued behavior like that he would be terminated. Q. At the time you received the Peterman memo, did you have the information that Jen Miller provided to this Court in her testimony in court? A No. Q. At the time you received the Peterman memo, was that the only information you had about what teachers taught in the biology class? A Yes. Q. Mr. Rothschild has asked you about the Discovery Institute. During the period that has been the subject of your testimony, did you learn anything about the Discovery Institute? A I learned that they were a scientific think-tank. Q. Mr. Rothschild has asked you certain questions about the board issues, documents that were produced late in this litigation by you. I want to ask you a few other questions. When you found those documents, Rich, did you realize that they were inconsistent with your recollection as testified to in your depositions? A Yes. Q. Did you turn them over nonetheless? A Yes. Q. And why did you do that? A I'm honest. Q. As you sit here today, do you recall anything about the term creationism being mentioned in either the 2002 or 2003 board retreats? A No, I did not, much like neither did the Browns or Mrs. Callahan. Q. Had you looked at the text of -- MR. ROTHSCHILD: Your Honor, move to strike. I'm not sure what he even based that on. They testified in this court -- Ms. Callahan testified in this court of a recollection of that. MR. GILLEN: The record will speak for itself. He's speaking to his recollection of Jen Miller's testimony. THE COURT: Deny the motion to strike. It's the Court's recollection that controls. My recollection may comport with yours and I understand your point, but I'm not going to strike it. It's his testimony. I don't take that as controlling. I'll weigh the evidence and make a determination. You can proceed. BY MR. GILLEN: Q. Mr. Rothschild has drawn your attention to certain portions of the text of Pandas. Had you reviewed those prior to seeing them here in court today? A No. Q. As you sit here today, do you believe that Pandas is a creationist text? A No. If it was a creationist text, the teachers would not have accepted it as a reference. Q. Mr. Rothschild has characterized the vote held on August 2nd, 2004 as a vote to deprive the students of their text. Did the students have a biology text at the time of the August 2nd vote? A Yes. Q. Are you aware of the copyright of that text? A Yes, 1998. Q. Did you ever believe that the students would not get the biology text recommended by the science faculty? A No. In fact, my statement to the board was the fact that when they eventually agree on the text it would end up being mid September when we would start with the teachers using two different texts. There was never a perception that we would not get a new text. Q. What was the actual outcome of that vote on August 2nd, 2004? A Five/three for the text. Q. Mr. Rothschild has drawn your attention to the fact that it is unusual for a reference text to be specifically referenced in the curriculum. Why is it specifically referenced? A The only reason it was referenced was because the concern of the teachers and my attempt to convey my support and legal coverage for them. Q. Mr. Rothschild has drawn your attention to the fact that besides the book of Pandas, the other texts that were donated were not listed in the revised statement which was read to students in June of 2005. Why were those individual texts not listed in the statement? A Because I think they would end up being -- first of all, I think there were a lot of different texts. We were just referring to the group of texts. Q. Mr. Rothschild has questioned you at some length about Defendant's -- Plaintiff's Exhibit 70. Would you look at that, please? A Could you tell me what it is? Q. Certainly. It's that E-mail. A I have it. Q. Rich, would you tell us what was your purpose in sharing that document with the teachers? A To address their concerns about the legality of the Of Pandas and People book. Q. You say address, were you trying to allay? A Excuse me? Q. When you say address, were you trying to allay? A Yes. Q. Mr. Rothschild asked you if the document had a Pandas in it, and you responded it did not. Does the E-mail reference text? A Yes. It references it in two places. In fact, this is an answer to questions that I had conveyed to him. So I think it was pretty much assumed when he was answering my questions what he was referring to. Q. Do you have an understanding concerning what text is being referenced? A Yes. Of Pandas and People. Q. Mr. Rothschild has pointed out that in that E-mail Mr. Russell points to some difficulties. Did you have a sense for the nature of Mr. Russell's concerns? A Yes. Q. What were they? A Media. Q. Mr. Rothschild has pointed out that Mr. Russell pointed to some difficulties. Did you have an understanding concerning whether Mr. Russell had said it was unlawful to use these texts? A Nowhere did he say it was unlawful. Q. You've -- Mr. Rothschild has asked you about Bill Buckingham requesting that you put the board curriculum version of the proposed curriculum change on the agenda for the October 4th, 2004 board meting. Could you stop Mr. Buckingham from bringing it up? A No. In fact, that's why I put it on the agenda, because I knew if I didn't put it on the agenda he was going to bring it up under miscellaneous. Q. Did putting it on the agenda mean it would pass? A No. Q. On the night of the meeting did you believe that the board curriculum committee version would pass? A No. Q. Did you believe that the final result of the voting process on October 18th, 2004 would be one that the teachers could live with as the meeting began? A I'm sorry. Could you ask that question again? Q. Sure. Well, let me ask it this way, Rich. Did you have a sense for what version of the proposed curriculum change would pass? A Yes. I believed we would end up having C pass. Q. And that is the version the teachers have said they could live with? A Yes. Q. Is it correct that you made a statement to the teachers to that effect? A Yes. In fact, I communicated to them that when the vote was successful with C that I wanted to make sure that the decorum was positive because I envisioned some comments. Q. Mr. Rothschild has drawn your attention to the note appended at the foot of the curriculum underneath the item that's produced this litigation to the effect that origins of life are not taught. Do you have an understanding concerning whether the teachers in Dover Area High School ever taught origins of life? A They never have. Q. Do you have an understanding concerning the purpose of making that note to the curriculum? A Yes. Mr. Bonsell wanted to reassure the teachers that they would not in the future have to teach the origins of life. Q. Mr. Rothschild has asked you some questions about the movement of the text Of Pandas into the library. I want to ask you, did you move the text to the library because of the lawsuit or because of the practical considerations you have described? A I moved it because the practical considerations, and I also thought it was educationally appropriate there. Q. Did you think that Of Pandas should be put in the library because you thought Of Pandas was a creationist text? A No. Q. Did you allow the opt-out policy of Dover High School to apply in this case because you believed intelligent design was a religious assertion? A No. Q. Mr. Rothschild has drawn your attention to portions of the senate report requiring -- or indicating that it is good education to distinguish scientific from religious or other philosophical assertions. Did you believe that intelligent design was a religious or philosophical assertion? A No. Q. What kind of assertion did you see that theory to be advancing? A I think intelligent design is science. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Gillen. Mr. Rothschild, recross. RECROSS-EXAMINATION BY MR. ROTHSCHILD: Q. Doctor Nilsen, you just expressed that you think intelligent design is science. Correct? A Yes. Q. Now, do you remember at your deposition I asked you your understanding of what intelligent design was? A Which one? Is that the January one? Q. Yes. A I remember you questioning it. I don't remember the answer. Q. Why don't we turn to page 16 of your deposition? Turning your attention to page 16, line two. I asked you Mr. -- Mr. Nilsen. I forgot to use your title of doctor. "Mr. Nilsen, the draft resolution uses the term intelligent design. What do you understand intelligent design to mean as used in this resolution?" You asked, "Which resolution?" I asked, "The resolution that is the final resolution that is set forth in the complaint." You answer, "Scientifically evolution has a design." I asked, "Anything else?" You said, "No." And I asked you, "Where did you gain that understanding?" You said, "In discussions I have had with numerous individuals." I asked, "Can you identify those individuals?" You said, "Counsel and board members." I asked, "Anybody else?" You said, "To my recollection, no." So that was the extent of your understanding of the scientific nature of intelligent design several months after the resolution had been passed? A In January, yes. Subsequent to that, obviously I've learned a lot more. Q. Okay. But at that time that was your full understanding? A Yes. Q. And your full understanding was based on what board members told you, who don't have a scientific background. Correct? A That's correct. Q. And counsel. Correct? A Yes. Q. And it was inconsistent with the understanding of the teachers in your district who had communicated that they didn't believe intelligent design was science. Correct? A Yes. Q. And they, as we've discussed, are the science education experts in your community? A Yes. Q. You testified that the reference to Pandas was placed for the teachers' benefit. Correct? The reference to Pandas in the curriculum was actually put in there to protect the teachers. A Yes. Q. Now, there was a board curriculum committee meeting on October 7th where the amendment was discussed. Did you attend that meeting? A The October 7th meeting? Q. Right. A Yes. Q. Let me show you a document. This one is marked as P-81. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Do you recognize this document? A Yes. Q. Okay. And is this a memorandum regarding proposed curriculum changes being discussed by the board curriculum council meeting? A Yes. Q. Were you at this meeting? A Not that I remember, no. Q. It appears that people who were at this meeting are members of the board curriculum council meeting. A Yes. Q. And the teachers have testified in this case that they were not at this meeting where the curriculum change was discussed, and you have no reason to dispute that, do you? A I have no reason to state one way or another. Q. And here, without your participation, there is already a reference to including Of Pandas and People as a reference source in the curriculum. Correct? A Could you please tell me where that is? Q. At the bottom of page -- section B, concerns to be addressed, item four. A Okay. Q. That's what it says, right, under materials and resources in the curriculum, Of Pandas and People be cited as a reference source. A Okay. Q. That was what the board curriculum committee was discussing at a meeting that you didn't participate in. Correct? A That's correct. But that doesn't mean that that had not been a conversation that I had had with Mr. Baksa when this whole process was evolved. When we were talking about the Pandas book being a reference, all the way back to when the teachers accepted it in August, I'm sure I had conversations about where it would be placed in the curriculum when Mr. Baksa was going through that process. I'm sure, but I can't be specific, I would have had conversations that if teachers had a concern about it, a good place to put it would end up being in the reference section. Q. Let's be clear here. We're not talking about the reference section or anything about the library. We're talking about whether Of Pandas and People would be cited as a reference source in the curriculum? A That's what I'm talking about. Q. Okay. And you're suggesting that that was already a thought in your mind and in Mr. Baksa's mind? A We were -- yes. Q. Now, you are aware that version B of the proposed curriculum change that was represented as being the product of the administration and staff, that was created before this October 7th meeting? A I don't offhand know the exact date it was created. Q. We'll get to that in a moment. You said you couldn't stop Mr. Buckingham from putting the curriculum change on the agenda. Right? A No. What I said is I couldn't stop him from bringing up at the agenda -- or during the board meeting. That was my comments. Q. At least three board members were advocates of delaying the vote on it. Correct? A Yes. Q. And any collection of five board members could have stopped the curriculum change coming to a vote at that meeting. Correct? A Yes. Q. So any combination of Ms. Cleaver, Ms. Yingling, Ms. Geesey, Ms. Harkins and Mr. Bonsell; any two of those five could have joined the Browns and Mr. Wenrich to stop the curriculum change from being voted on at that meeting. Correct? A Yes. Q. But they didn't. Correct? A That's correct. MR. ROTHSCHILD: Could I have one moment, Your Honor? THE COURT: You may. (pause.) MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Dr. Nilsen, what I have shown you is marked Plaintiff's Exhibit 73. This is a memo from Mr. Baksa of the board curriculum committee dated September 20th, 2004 regarding the biology curriculum. A Yes. Q. He says, Attached is the recommended curriculum change for biology. Correct? A Yes. Q. He says, The changes were reviewed by the science department. Correct? A Yes. Q. So this is what administration was recommending to the board curriculum committee. Right? A From the biology teachers. Q. Well, let's be specific on the language. It says here's the recommended curriculum change for biology. And the changes were reviewed by the science department. Right? A Yes. Q. It doesn't say it was recommended by the science department. A To be perfectly clear, I'm somewhat hesitant in the specificity of those comments. You would have to ask Mr. Baksa that. Q. Fair enough. But it certainly did constitute the recommendation from administration. Correct? A It doesn't say that anywhere here. Q. It says recommended curriculum change, and it's coming from Mr. Baksa. Right? A Yes. Q. If you could turn to the next page. It says that students will be made aware of gaps in Darwin's theory and of other theories of evolution. Correct? A Yes. Q. And under materials and resources, there is nothing mentioned there. Correct? A Which Bate stamp are you looking at? Q. I'm looking at 29, what was attached to 28. The other page there, Dr. Nilsen, I think is just an extra page. It doesn't have a Bate stamp on it. A That's why I asked, because that does say Of Pandas and People on it. Q. I understand. It also says intelligent design. We know that wasn't the recommendation. A I wanted to make sure you and I were clear. Q. Fair enough. Looking at the Bate stamp 29, it says that students will be made aware of gaps in Darwin's theory and of other theories of evolution. And nothing under materials and resources. Correct? A That's correct. MR. ROTHSCHILD: I have no further questions, Your Honor. THE COURT: All right. That will conclude your testimony, Doctor. We thank you. You may step down. (Witness excused.) THE COURT: We have quite a few exhibits. Counsel, why don't you approach, please for a moment? (The following occurred at sidebar between the Court and counsel:) THE COURT: Yesterday you were talking about breaking for an expert, but I guess -- MR. GILLEN: In fact, I'll put on the record now we will not be bringing him on. THE COURT: So what's your pleasure? MR. ROTHSCHILD: Can we put on the record who it was? MR. GILLEN: Sure. Dick Carpenter. THE COURT: Let's put Mr. Rothschild there on the other side. Okay. Who do you have next? MR. GILLEN: Baksa. THE COURT: Well, why don't we take our break now, if that works for everybody. MR. GILLEN: I think that's a good suggestion. Do you want to get these in? THE COURT: Yeah, I would rather keep moving and not get tied up with exhibits. We could probably take these on Monday, if that's alright with everybody unless you -- MR. GILLEN: No. That's fine with me. MR. ROTHSCHILD: Yes. THE COURT: How long do you want to go? Do you have any airplane issues? MR. GILLEN: I don't. Thanks for asking, Judge. I'm here unfortunately. THE COURT: I would say 4:30. I don't want to beat this to death today unless we're drastically behind. Do you want to try to pick up some more time at the end of the day, which I hate to do on Friday but -- MR. GILLEN: No way. THE COURT: Liz is making me go later. MR. GILLEN: No way, Judge. 4:30 is fine with me. THE COURT: Liz has the stick out. She's afraid we're getting behind. I, of course, don't get concerned about these things. All right. We'll go to 4:30. Let's take our break now for the afternoon and take it up with Baksa after that. Okay. (Discussion held at sidebar between the Court and counsel was concluded. THE COURT: All right. We'll take our afternoon break at this point and we'll take the defendant's next witness at the end of the 20 minute break, and we'll go until approximately 4:30 this afternoon. We'll stand in recess for 20 minutes. Kitzmiller v. Dover Area School District Trial transcript: Day 14 (October 21), PM Session, Part 2 THE CLERK: All rise. p.m. THE COURT: All right. We'll take the defendant's witness next. MR. GILLEN: Your Honor, the defendants call Mike Baksa. THE COURT: All right. THE CLERK: Raise your right hand, please. MICHAEL RICHARD BAKSA, called as a witness on behalf of the Defendants, having been duly sworn or affirmed according to law, testified as follows THE CLERK: Please be seated. If you can state your name and spell your name for the record. THE WITNESS: Michael Richard Baksa, M-I-C-H-A-E-L R-I-C-H-A-R-D B-A-K-S-A. DIRECT EXAMINATION BY MR. GILLEN: Q. Good afternoon, Mr. Baksa. A Good afternoon, Mr. Gillen. Q. Would you please state your current employment? A Currently I'm employed as the assistant superintendent in the Dover Area School District. Q. All right. I would ask you to give us some idea for your family background. Are you married? A Yes. Q. Do you have children? A I have five. Q. Give us some sense for your educational background from your college years onward? A I did my undergraduate work at Moravian College and received a BA in education, a teaching certificate in English and communications. I received my master's in educational administration from Lehigh University. And I've completed doctorate work in all my courses at Widener University. Completed my doctorate. I received my superintendent's letter already, but I need to take my comprehensive exams and do my dissertation at this point. Q. Would you please give your employment history for us? A I began teaching at Penn Ridge High School, secondary English. I taught there for six years in Perkasie, Pennsylvania. After that I took an assistant principal's position at Proctor Area Intermediate School, grades 5 through 8. I was there for four years. I then took an assistant principal position at Governor Mifflin High School in Shillington, Pennsylvania. I was there for four years. Then five years principal of Conestoga Valley High School in Lancaster County. And then I came to Dover and I'm starting my fourth year or in my fourth year. Q. So when did you come to Dover? A 2002-2003. Q. And in what capacity did you first come to Dover? A As the assistant superintendent. Q. Okay. We know the facts that have brought you to the courtroom to provide your testimony, and I would like to begin unfolding the story from your perspective. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Mr. Baksa, I've placed before you a few binders with exhibits. I would ask you to open the slimmer one and take a look at Defendant's Exhibit 288. It should be at the beginning of the folder, Mike. A Got it. Q. Okay. You'll see that those are notes relating to a meeting held on January 9th, 2002. Were you present at that meeting? A No. Q. I would ask you to turn to the next page of Exhibit 288, the page with the Bate stamp number 3969 in the lower right-hand corner. Would you look at that document? A Yes. Q. Do you recognize it? A Yes. Q. What does it refer to? A That's the agenda for the administrative retreat. Q. What's the date for that administrative retreat? A March 26th, 2003. Q. Were you at that meeting? A Yes. Q. Can you recall anything about that meeting? A Not specifically. But from the topics there, I probably know what was talked about. Q. Okay. Well, before we get to the topics of this specific meeting, let me ask you. You say you came to Dover in 2002? A Correct. Q. Did you have any discussion with any board member relating to evolutionary theory in the period between your arrival at Dover and this retreat held on March 26th, 2003? A Yes. Q. Who did you speak with? A Mr. Bonsell. Q. What was the subject of your discussion with Mr. Bonsell? A During this period when I came, I was new to the district and Mr. Bonsell was the chair of the curriculum committee. And he asked to meet with me, to meet me and then also to share some of his interests in some of the curriculum areas. Q. Can you remember any specific curriculum areas that he discussed with you? A Early in the fall I remember sitting down with Mr. Bonsell and him talking a great deal about the importance of the founding fathers and that we give that due attention in our curriculum, that that would be important for our students to learn about their beginnings and foundation. Q. Do you remember any discussion with Mr. Bonsell about evolution theory? A This was the year the science curriculum was up for review. So our teachers would be looking at textbooks and reviewing their curriculum for revisions for the purchase of new textbooks for the following year. As a part of that process it's typical that the textbooks would be given over to the board curriculum committee for them to review. I do remember at one point giving the current textbook to Mr. Bonsell and him returning that book with a couple pages marked where he had questions or concerns about. Q. Do you remember the nature of the concerns that he conveyed to you? A I did look at the books that -- or the pages that he had marked, and just reading the pages I was unable to determine exactly what his concerns are. So I do remember sitting down with him and speaking with him afterwards. And primarily Mr. Bonsell was -- felt that -- was concerned with the presentation of Darwin in the current textbooks. He felt that Darwin was presented not as a theory but as a fact, that it overstated the evidence and really didn't talk about gaps or problems or leave students room to consider that any other theory might be considered. Q. Was there mention of other theories with Mr. Bonsell? A I don't remember Mr. Bonsell talking about other theories. I do remember at some period of time him also conveying to me that he had read an article on carbon 14 dating which casts doubt on the dating of the earth. And that he had also -- he felt it highly improbable that species could turn into another species. He talked to me about having seen a documentary video on TV that showed -- or was trying to explain and showing a bear turning into a whale. He found that highly improbable that such an evolution could occur. Q. Let me ask you, Rich, to direct your attention to Defendant's Exhibit 283. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A It's an invitation to a workshop that Dr. Nilsen had given to me. Q. There's a handwritten notation at the upper right-hand corner of the first page of Exhibit 283. Is that your writing, Mike? A Yes. Q. What was the purpose of that notation? A To ask my secretary to register me for this seminar and to order the book from one of the books that the featured speaker had authored. Q. Did you -- well, let's look at it. What was the title of that seminar? A Creationism and the Law. Q. And did you attend that seminar? A Yes. Q. Can you tell us from the Exhibit 284 who sponsored the seminar? A Messiah College and The Pennsylvania School Board Association. Q. If would you, Mike, I would ask you to direct your attention to Defendant's Exhibit 284. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A These are my notes from the workshop. Q. Can you tell from your notes who presented at the seminar? A Ted Davis facilitated the workshop and spoke a bit. The key speaker, though, was Dr. Edward Larson. Q. Did you note the credentials of the persons who presented? A Dr. Larson was a -- had a degree from Harvard Law, I believe. And Ted Davis, I think, had a Ph.D. in history of science. Q. Do you remember anything else about the seminar? A I remember it dealt with -- that the lion's share of the seminar dealt with kind of the history of evolution, its teaching and competing theories of evolution and how they kind of historically reviewed and presented throughout the past 50 years or so. Q. Was there any discussion of the situation at the time that you attended the seminar with respect to this topic? A Yeah. At the end of the presentation, the discussion focused on what might be appropriate -- or in what manner might public schools handle some of the alternate theories other than Darwin's theory for evolution. Q. Did the presenters express an opinion as to the subject of their seminar, Creationism and the Law? A The presenters for the most part presented that they didn't see why -- they thought that including discussion of other theories would make for a rich classroom discussion environment. They couldn't understand why public schools might be resistant to having that open discussion with students and thought it would be okay to simply present that there are other theories out there that are different than Darwin's. Q. If you would, Mike, I would ask you to direct your attention to the page of Exhibit 284 with the Bates number 4013 in the lower right-hand corner. A Okay. Q. Looking at that let me ask you, did you come away from the meeting with any -- I'm sorry, Mike. 284 at the prior page, 4012. There's a to-do up there. Did you come away from the meeting with a to-do? A Yes. Q. And what was that? A There was another workshop that was scheduled for history and science teachers and how they might present alternative theories of evolution in the public school classroom. Q. And what did you intend to do with respect to that presentation? A Well, I did make -- usually when I have a to-do I'll follow up on that. Normally what I would do is I would present that workshop information to those teachers and offer them a chance to attend something like that. Q. Did you do that? A No. Q. Do you remember why? A I'm just guessing. But typically when I come back from a conference I'll have conference folders that get filed away. I believe I filed my notes away without going back to look if there was anything I needed to follow up on. Q. There's testimony from Dr. Nilsen that there were projects moving large in this 2003 period. Tell us from your perspective what projects were important? A Certainly the high school building project was drawing the lion's share of attention in the district involving Dr. Nilsen and I. Also, I was involved in working with the high school and school board members in looking at bringing $110,000 tech ed. program that would be new to the high school. So we were visiting schools and doing research and getting budget figures, estimates for implementing that program. In addition to that, we were looking at re-doing -- we had a transitional one, which was essentially a repeat of first grade. We were looking at making that a developmental one which would use the existing first grade curriculum with support. So I had to work closely with teachers to gather data for us to really support instruction of why we would do that move. The science curriculum was up for review along with the family consumer science. And coupled with the science are technology standards. So even though on the curriculum technology was separated out, I did have to go address the technology K-12 to line it up with the science curriculum. Q. Mike, I would ask you to look back at Exhibit 288 at the page Bate stamped 3969. That's the agenda for the March 6th, 2003 meeting. A Okay. Q. I would just ask you to look down the items for discussion there. A In 2002? Q. In 2003. A 288? Q. 288 at 3969. A Okay. Q. There's a number of items there. And I would just like to get whatever you can give us as general information for what was going on at this time. A Under Roman numeral five? Q. Yes. A Okay. One of my items was PSSA. So I don't remember specifically, but I would typically update the board on student achievement and where we were with our PSSA scores. Mrs. Grove was implementing a pilot ELM program, which is a support for students in second grade. So she would be reporting on student achievement there. Mr. Wiestling was in charge of public relations for the first time. So he would be reporting his activities. Mr. Walker was piloting an extended kindergarten. CTC, Mr. Riedel. I don't know what that is. Drug testing. I know Mr. Riedel had a committee working with the board. So they were looking at schools that required mandatory drug testing in some areas. Mr. O'Donnell was chair of the Dollars for Scholars. I think he was a chair or a member. So he would be reporting on their activities. Don't remember a lot about the handbooks. Stadium lights, I remember the three year maintenance and stadium lights. I remember there was a lot of talk about getting Army engineers and how to pay for that because he didn't have all the monies for that. We had some. Mrs. Russell was a chair or member of the safety committee. She would be reporting on them. K-6 elementary coordination, I don't remember anything on that. LS schedule, I don't remember that. Policy review. I was on that committee. So was Mrs. Grove. We were kind of looking at rebuilding all of our policies in a very short period of time. So there were a lot of policies that were always under review. Curriculum cycle update. At this point I don't have the year down here, but I'm guessing at some point we made a financial decision not to purchase some science books, family consumer science books. So it took and made our seven year curriculum cycle an eight year curriculum cycle. So I would have probably been giving that update. Mrs. Hoppe chaired the K to 4 science committee. Mr. Hufnagel, 5 to 8. They would be giving reports for that. I don't remember anything about food service, special ed. Voyager for Dr. Butterfield, that was a grant program that would be piloted in kindergarten. She would have reported on that progress. Construction, we were always having reports on where we are. Technology, I don't remember. Transportation, I don't remember. Q. Well, the next item on that agenda is board feedback and items of interest. There's been some testimony about that portion of the meeting, but I would like you to tell us what you recall about that portion of the meeting in 2003. A Can I look at the -- Q. Sure. Well, let me ask you before you look at that. As you sit here today, do you remember anything specific about the board feedback and the items of interest portion of the meeting? Do you remember about how long it was and how it occurred? A I think without -- what I'm not sure of now is having looked at the board concerns and seeing -- you know, I think I recall that I remembered from this meeting Mr. Bonsell talking about a 50/50 split in evolution. But now having looked at it, I'm not sure if that triggered my memory. But I'm pretty sure I remembered that before looking at the report. Q. What I'm getting at, Mike, is something a little different. I want you to describe the way in which the feedback was solicited and provided. A Okay. Q. How did it happen? What portion of the meeting? How long was it? Things like that. Tell us what you recall. A Typically what Dr. Nilsen would do is just ask boards for any concerns or issues or questions they have and then they would speak, you know, a minute or so. And he would -- we won't respond to those. He would just take them down or they were dealt with somebody's particular area. He would take those down and just went right around the room until we got to all of the board members. Q. About how long did each board member have to convey their items of interest? A Well, nobody was cutting a board member off. But typically it would only be a few minutes. Q. All right. With that in mind, Rich, turn to the next page of 288, the one with Bate stamp 3970 at the bottom right-hand corner. I would just like you to look at that and give us a sense for what you recall about these items that was discussed at the meeting. Look at Mr. Wenrich's concerns. A I do remember Mr. Wenrich talking about discipline. I know that was also Mrs.-- one of Mrs. Brown's concerns about double standards. So I remember him talking about consistency. Checklist review cycle, I don't remember. Alignment. He was on part of the committee that I was working on the high school to visit schools. So I'm thinking technology in the curriculum has to do with that, because we were coordinating the curriculum 7 through 12. I don't know what four is. Q. How about Mrs. Callahan; do you recall anything that she said specifically at this meeting regarding those topics? A I don't remember one. Don't remember -- don't remember two. Q. How about Mr. Brown, those two items listed under his name. Do you remember anything specific that Mr. Brown said at this meeting about those concerns? A I don't remember one or two, no. Q. Let's skip down first to Mrs. Brown, item E. Do you recall anything she said at this meeting specifically? A Yeah. Again, that's the same issue that Mr. Wenrich was pointing out. Because I remember her talking about that. Q. Let's look back up at Mr. Bonsell's concern there. There's a number of listed items. Do you remember anything that Mr. Bonsell said about the first item? A I don't remember that. Q. How about the second item? A I don't remember that. Q. How about the third item, which is creationism? A Don't remember that. Q. How about the fourth item, which is emphasizing American history? A I know he talked about that a lot, but I'm not sure I remember him talking about it at this meeting. You know, nothing pops out that -- Q. How about the remainder of the items listed under his name? A Don't remember five, six, or seven. Q. Now, I believe you said you had some discussion with Mr. Bonsell around this time about evolutionary theory. Is that correct? A Yes. Q. What -- tell us what you recall about that discussion. A Just what I had stated before, that Mr. Bonsell had concerns about students being presented with Darwin's theory of evolution, and the way it appeared in the text he interpreted that as leaving no room for any other theories to have a chance to be examined side by side. And then he also expressed concern that if that's the way it's in our book and if our teachers are teaching it that way that students might have a conflict with evolution as it may be taught or understood in the home. He was concerned about that, what conflict there might be with that. Q. Well, do you recall Mr. Bonsell using the term creationism at the March 26th, 2003 retreat? A No. Q. Do you recall Mr. Bonsell using the term creationism in the discussion that you've just recounted? A No. Not when I talked to him. Q. What was he talking about, so far as you can make it out? A Well, I mean, that's one of the things that I was never able to get a clear handle on from -- in this whole process through any board members. We -- I kept getting information about dissatisfaction with maybe the presentation in the text and the concerns about maybe how teachers are presenting it. But what was never clear is that if something else is going to be presented, what is that thing going to be. Q. Well, let me ask you. Did you do -- let's look at some of these board concerns. For example, Casey Brown, she was talking about block scheduling. Did you do anything as a result of this March 26th, 2003 retreat that related to Casey Brown's raising the block schedule? A Yes. Q. What did you do? A Casey, on a number of occasions, had talked to me and Dr. Nilsen about her dissatisfaction with block scheduling at the high school. She brought it up again here. And I remember afterwards going over to the high school and talking to the assistant principal, Larry Redding, and saying hey, I just want you to know, kind of like a heads-up, that Casey is still talking about her dislike for block scheduling. Q. And did anything ever come of Casey Brown's objection to block scheduling? A No. I remember down the road, in talking to me, she would throw a comment in here and there, but she never pressed any real formal action to have it evaluated or have it dismantled and something else put in its place. Q. In your experience is it unusual for a board member to raise an issue like block scheduling and then nothing concrete to result at the end of the day? A No. Q. Did you do anything with respect to the discussion you had with Mr. Bonsell about evolutionary theory in this period? A Yeah. I would have met with Mrs. Spahr and told her of Mr. Bonsell's concerns of the material in the textbook. I'm sure I would have told her about his -- his questioning of carbon 14 dating and his questioning species to species changes. So I'm sure I would have given her that information sometime during that year. Q. Do you recall using the term creationism when you spoke with Mrs. Spahr? A No. Q. Do you have a belief as to why she says you used the term creationism? A Well, the only thing I could -- I remember Mrs. Spahr in my conversations talking with her that I think the immediate assumption was that we -- that we -- the intent was creationism. While creationism wasn't -- I don't remember that being said to me, but I think if you -- if you look at some of Mr. Bonsell's concerns, particularly with carbon 14 dating and the age of the earth, you know, I don't think it's -- I think that's one of the tenants that might have led her to believe that that's, in fact, what he was talking about. Q. But did you use that term when you spoke to her? A No. Q. Did there come a time when you had reason to believe that Dr. Peterman had become aware of your discussion with Bert Spahr? A Yeah. Q. And with that in mind, I would ask you to look at Defendant's Exhibit 1. A Did you want to ask me about pathways? Q. No, I'm not going to go through all that. It's just -- I can see the judge is tired. I can see my fellow counsels are tired. And we're not going to belabor at this point. THE COURT: I'm as chipper as can be. BY MR. GILLEN: Q. What I would like to ask you is this. You said you talked to Bert Spahr and not Dr. Peterman. Was there a reason you did that? A Yes. Q. Tell us about that. A Dr. Peterman had a knack of overreacting to sensitive situations. In other words, if something -- if something comes up on the horizon and you want to start just being prepared for it, she would in many cases overreact to that situation when the actual situation didn't call for that level of action or that level of concern. Q. Will you give us an example of that? A There's a couple I can give you. I do remember very early on when Dr. Peterman joined Dover, one of the things that Dr. Nilsen and I were working with the board on was securing air conditioning for the high school. It was a very sensitive subject. The board was discussing the pros and cons, the merits, and we were working with them to get them as much information as possible. And very early on in Dr. Peterman's time with us, I remember at one of the board meetings she got up and really berated the board for them even considering other options and for them not acting immediately on the air conditioning. Eventually bids were sent out and the high school did get air conditioning, but it made Dr. Nilsen's and my job a lot harder in trying to work with the board when somebody publicly is embarrassing them that way. Q. Are there any examples of Dr. Peterman blowing things out of proportion that touch on policy making it difficult? A There was. Dr. Nilsen holds administrative team meetings, which all of the supervisors and principals and administrators attend. When I came to Dover there was a promotion and retention policy that did not allow for the grading of effort and homework, and the policy was being followed for 3 to 6 but not 7 through 12. When I found that out, the next year I made arrangements to fully implement the existing policy. And the way it was implemented caused real upset on the part of the teachers 7 through 12. So here's a policy that we have to follow the policy. So what I did is I did some research on how that policy came to be, how it was changed and went back a number of years to get the different versions. So I put together a history of this policy for us to be able to try to work with the staff to come to some understanding. I gave those documents out at the A team meetings with explicit instructions not to share these, these are confidential, these are for only us to make sense of the stories so that we can figure out how we can move forward with the staff there. Dr. Peterman turned around the next day and shared those documents with her department chairs. Again, now they had information that I had to now defend something else and try to explain to them. It just showed really poor judgment on her part. Q. Is that why you went to Bert Spahr rather than Dr. Peterman? A Yes. Q. And is that experience part of what shaped your reception of Defendant's Exhibit 1? A Yes. I think I heard that right. Q. What did you think about this memo when you saw it? A Again, I thought Dr. Peterman totally overreacted to what was a two minute conversation with Bert in her classroom. Jut that a board member mentioned something 50/50, we might have to do something down the road here, I just want you to know that's still being talked about, Bert. Q. How about in terms of the information reflected in the memo concerning what the teachers were doing in the classroom. Did you read this memo? A Yes. Q. Did you have any reason to believe that part of the memo was inaccurate? A Where Dr. Peterman writes I advised them to continue? Q. Well, I guess there is two portions here. I mean, she gives advice. Read that for the record, Mike. A Dr. Peterman writes, "I advised them to continue to mention that creationism is another alternative theory of evolution." Q. How did you react to that statement? A Well, two ways. One, I felt Dr. Peterman was overstepping her bounds here. If there is going to be a curriculum piece that teachers are going to preface a unit of study with, it ought to be I sitting down with the teachers to work that out. I did not direct her to do that. No other administrator directed her to do that. That's her acting entirely on her own directing teachers. It really should be handled in a curriculum committee or something like that. Q. Well, when you got this memo, did you have the concern that the teachers were engaged in unlawful activity? A No. Q. Why not? A It does mention in here that -- she's saying that they had mentioned that creationism started in the unit. I don't believe that mentioning something is teaching something. I think teaching it would be illegal but not -- certainly not mentioning it. Q. Well, when you create this distinction between teaching and mentioning it, how do you understand that, Mike? A Well, I think teaching in our profession has a very distinct definition with components. I mean, when we talk about the art of teaching, it involves specific instructional objectives, instructional goals for the students. It involves materials that the teachers would use and that the students would use in using the materials. It involves assessments to measure that, so teachers are able then to give feedback grading those to the students. I think all of that makes the process of teaching. Q. All right. We're looking at a memo, Defendant's Exhibit 1 that's dated April 1st, 2003. Let me ask you before we go forward. Up until this point, do you recall any board member mentioning a desire to teach creationism 50/50 to you? A I remember Mr. Bonsell saying 50/50. But I don't connect that with creationism. So I remember that piece, but I don't remember specifically creationism and 50/50 together anywhere. Q. Okay. How about any board member mentioning teaching creationism, period? A No. No. Q. Well, with that in mind, I want to ask you to look at Defendant's Exhibit 286. A Okay. Q. Do you recognize that document, Mike? A Yes. Q. What is it? A This is a document that I found during the summer when I was cleaning up my office. Q. And what did you do when you found it? A I turned it over to counsel. Q. Okay. And it's -- I can tell you it's right here front and center in this litigation. So I want to ask you some questions about it. What is it? A This would be a copy from the biology curriculum guide on the unit that deals with evolution. Q. And did you create this document? A I don't remember creating this document, but I believe I did. I'm the only one who has access to this curriculum. So if changes were to be made, I would be the one doing that. Q. Did the way in which you found the document give you some sense for the time period in which it was created? A The document itself wasn't dated, but papers on either side place it, you know, in August 2003. Q. Well, you know, there's a -- if you look at the unit content concepts column of this document and look down to the bottom entry, you'll see there's a reference to creationism. Do you know how that got there? A No. But I'm -- I believe I probably put that in there. Q. I think that's a good guess. Do you have an idea for why you may have put this in a document generated around August of 2003? A Well, not -- that's hard to answer. Not remembering creating the document, it's hard to say why. I mean, I do know that from Dr. Peterman's memo, she referenced teachers mentioning creationism. And I do know from the Messiah workshop they talk about that it might be -- add to a rich discussion in the classroom. And certainly Mr. Bonsell was looking for alternative theories to be mentioned alongside Darwin's evolution. Q. Well, did Mr. Bonsell mention teaching creationism to you? A No. Q. Was this document passed out? A No. Q. How do you know that? A On the document when I found it there's a note for my secretary to make copies for the meeting with science teachers. When I found the document the note was still on it and all the copies were still attached. So I do not believe I ever shared this document with anybody. Q. You've referenced two sources of information that you had at the time regarding creationism and the legality of teaching creationism. Before we go forward, let me just ask you. Apart from the seminar at Messiah College and apart from the information you had in the Peterman memo at this time, did you have any other information bearing on the teaching of -- or the mentioning of creationism? A Other than Dr. Peterman's memo -- Q. And the Messiah seminar, the seminar held at Messiah College. A I don't remember additional. Q. If you look at that draft curriculum change you had worked on, it says students will be able to demonstrate an awareness. Was there a discussion of students being made aware of other theories around this time? A That was -- you know, from my initial conversations with Mr. Bonsell, that was, you know, I think the thrust. The presentation of Darwin and where's the balance; can we present other theories. In looking at this document, I mean, I could -- I could -- I remember my thinking earlier on if we are going to address these concerns, one of the things that had happened earlier on is Dr. Nilsen had requested a copy of the curriculum page, this page, and had given me some language that talked about alternative -- other theories of the origins of life. I remember -- I don't remember getting language that had creationism in it, but I remembered getting language that had other theories of origins of life. So earlier on, I'm thinking we might be able to address Mr. Bonsell's concerns with a mention of something from Dr. Nilsen that looked like maybe a curriculum change would address those concerns. But it was -- you know, there was nothing specifically being brought forward to the table to say, you know, do this, look at this, you know, check this unit out. So it was kind of hard to address it when we didn't know what the target was. Q. All right. Well, let me ask you. You didn't -- you said you didn't pass this document out. Why? A I had met with Bert -- one of the concerns was how we might be addressing teaching origins of life. I remember I had a meeting with Bert Spahr, and Bert told me the teachers didn't address origins of life. What they taught was they taught the change over time within the species. After I learned that then really this becomes a moot point because you don't need to balance other theories of the origins of life if we're not presenting any. I know I remembered Mr. Bonsell saying that he was in full agreement with what the teachers were doing in the classroom when he learned that they were just teaching change over time within the species. Q. Let me ask you about that. Did you do anything as a result of your conversation with Bert Spahr? A Yes, I met with science teachers. Q. And can you recall about when that meeting took place? A September, I believe. September. Q. And the meeting did occur? A Yes. Q. I would ask you, Mike, to look at Defendant's Exhibit 287. Do you recognize that document? A Yes. Q. What is it? A Those are my notes for the meeting with the science teachers in September. Q. And looking at those notes, can you tell us what you learned during that meeting? A The teachers reported that, as Mrs. Spahr had told me, that they don't teach the origins of life, that they teach the origins of species, in other words, species within species are changing into different species, that we teach change within species, that they -- Q. Did they have any discussion of origins of life as it relates to change within species? Did they differentiate the two? A Yeah. I believe when they mentioned origins of life, it was life from the very beginning and totally different species becoming different species. But they simply dealt with -- I know Mrs. Miller uses Finch's as an example. But they simply dealt with a single species developing and a change over time and evolution in that single species. Q. I would like you to look at Exhibit 287, Mike, and look at the fourth entry down on that page. Can you make that out? A We teach change within species. Q. What's beneath that? A We don't teach ape turning into man. Q. Let me ask you, Mike. Did you have a discussion with Mr. Bonsell about that subject prior to coming to this meeting? A No. Q. Did you raise that issue with the teachers during that meeting? A I don't remember raising it. To me it looks like these are the notes of what the teachers were reporting back to me. Q. Is that what you were taking notes on? A Yes. Q. Well, what was the result of this meeting from your perspective? A After we confirmed this, then the teachers and I both thought it was a good idea to -- Mr. Bonsell was concerned about teaching origins of life and not doing that, so let's sit down and have the teachers explain exactly what they are doing in the classroom for him to hear firsthand from them. Q. Were the teachers amenable to that idea? A Yes. Q. Was it their idea? A I think -- from what I remember, it was suggested and I know they were agreeable to it. They wanted to do that. I know Mrs. Spahr was certainly eager to sit down. Q. Did that meeting take place? A Yes. Q. Tell us what you can recall about that meeting. A The science teachers were there along with Mr. Bonsell and myself. And it was -- I think I remember Mrs. Miller speaking, Mr. Linker speaking and pretty much they just explained here is what we teach. Here is what we say before we start teaching the unit. Here is what we don't teach. Mr. Bonsell had a couple of questions for them. The meeting didn't last real long. At the end of it Mr. Bonsell was satisfied and all of his concerns were kind of allayed from that meeting. The teachers had answered all of his questions. Q. Do you remember anything that Mr. Linker said at that meeting? A I remember Mr. Linker talking about when he introduces the unit that he -- on the board he puts creationism in a line on the chart. MR. ROTHSCHILD: Objection, Your Honor. He's testifying to hearsay. MR. GILLEN: I guess I will clarify the question for the witness. THE COURT: All right. We'll sustain the objection. Strike the answer. You can move on or ask it a different way. MR. GILLEN: Sure. Thank you, Your Honor. BY MR. GILLEN: Q. Did you gain an understanding concerning whether the information contained in the Peterman memo was accurate based on Mr. Linker's comments? A My understanding is that some of the teachers mentioned creationism before. MR. ROTHSCHILD: Objection, Your Honor. We're getting right back into the hearsay. MR. GILLEN: No, he's not. MR. ROTHSCHILD: His understanding is going to be based solely on hearsay. MR. GILLEN: That's different between hearsay. The way you have ruled throughout, Judge, he can testify to his understanding of the teachers' practice. THE COURT: That's not what he said, though. He said -- he used the word mentioned. That does implicate hearsay. So the objection is sustained on that basis. It's his understanding, as you know, that's permissible. But if the answer involved what someone said, that's objectionable. So the objection is sustained. The answer is stricken. Try it another way. MR. GILLEN: Okay. BY MR. GILLEN: Q. Did you have an understanding concerning whether teachers mentioned creationism in the biology classroom as a result of this meeting? MR. ROTHSCHILD: Your Honor, I really think even with this change in the question this way, it's just a way of getting in hearsay as to what the teachers communicated. Mrs. Miller was here. Mr. Linker has been subpoenaed. And it seems to me that this evidence has to come in through them. I think even just putting the words understanding, he's still going to just bring it in for the truth of how they taught -- MR. GILLEN: No. MR. ROTHSCHILD: -- the class. THE COURT: Give me an evidentiary reason that it's objectionable. MR. ROTHSCHILD: Hearsay. THE COURT: No. Give me one more. Give me one more. MR. ROTHSCHILD: Relevance would be another. His understanding -- THE COURT: No. I think his understanding is relevant. He was at the meeting. I think his understanding is relevant. Your point is that their testimony is more reliable than his. That's for me to weigh and to determine. He was at the meeting. His impression is relevant. MR. ROTHSCHILD: I think what they are trying to prove with bringing this in is the way the science teachers actually taught the class. They are doing it for more than just his understanding. Now, so it is for the truth of the matter asserted. That's the evidentiary weight that they want to give to this. THE COURT: And that would be a fair objection if what Mr. Gillen was attempting to elicit -- and we are going at this in fits and starts -- but if he elicits hearsay, that's certainly a good objection and it does go to the truth. But for Mr. Baksa's impression to be stated, relevancy would be a plausible objection. But I think in the context of his testimony and at this meeting as a fact witness, I'll take his impression. I understand your point it goes to weight, but I think it's relevant. MR. ROTHSCHILD: I want my objection on the record that it not now or later be construed as for the truth of how Mr. Linker and Mrs. Miller was teaching biology. THE COURT: Their testimony is certainly better evidence of that. MR. ROTHSCHILD: What I'm trying to raise, it's the only evidence of that. This is the only evidence of his impression. THE COURT: That's a fair argument. But now we're getting into argument and we're not arguing the objection. So I'll overrule the objection. You can state your impression. Do you remember the question, sir? If not, we can read it back. Or restate it. Why don't you restate the question? MR. GILLEN: Yes, Your Honor. BY MR. GILLEN: Q. Did you get an understanding concerning whether the teachers were presenting creationism as a result of this meeting? A As a result of this meeting, I got the impression that some teachers were presenting creationism. Q. Let me ask you about the tone of the meeting. Was the meeting civil? A Very. Q. When the parties departed, were they on good terms? A Yes. Q. Did Alan Bonsell -- did you ever get a sense for Alan Bonsell's impression of the meeting, whether it was constructive? A After the meeting I did stop in the parking lot and talk with Mr. Bonsell. Q. And did you have a sense that he was pleased with the outcome? A Yes, very. Q. Did Alan Bonsell ever ask you to take any action with respect to the biology curriculum in 2003? A No. Q. Did Alan Bonsell ever ask you to take any action with respect to the biology text in 2003? A Yes. Q. What was that? A The text for biology and chemistry and some family consumer science tests were postponed for a year. Q. Okay. Apart from that, did he ever ask you to take any specific step relating specifically to the biology text? A No. Q. Okay. You've referenced some overall direction he gave you with respect to texts. Was that text purchased? A The following year, yes. Q. Well, tell us what you mean. Describe what you're referencing. A The texts for science and family consumer science, those texts were used for one additional year. So they were not purchased for the 2003-2004 school year, but then they were purchased for the 2004 and 2005 school year. Q. Let me ask you. Let's just look at that issue of text purchase, Mike. In your capacity as assistant superintendent, did you have a sense for a series of consistent concerns that the board brought to each text purchase? A Typically the board looked at a couple of things. One they would always inquire and I would always present the -- ask the teachers to send over a copy of the old text and the new that they are looking at. The board was interested in the copyright of the existing text and the new text and the implementation year to see how many years we had used the text. They also looked at the condition of the text to see if it warranted being replaced. And if the condition looked fairly good and the teacher's still advocating different texts and they then they ask for justification of content and that it's substantially different from the old text to warrant the purchase. Q. Do you recall whether there was some concern that texts weren't being used? A Yes. Q. Tell us what you remember about that one. A I remember Mrs. Harkins said on a number of occasions that she didn't think -- she kept saying that the teachers weren't using the science texts, so why are you even thinking about buying new ones for them. Q. Do you recall a concern that students didn't have texts? A Yes. Q. Biology texts? A Yes. Q. Who voiced that concern? A I had heard on that -- I remember at least on one or two occasions Mrs. Callahan bringing that concern up that students don't have science texts. Q. Was it accurate to say that they didn't have science texts? A No. Q. Let me be more specific. Was it accurate to say they didn't have biology texts? A No. Q. Did you check on that? A Yes. Q. Did you gain an understanding concerning whether students had a biology text at this time? A Yes. Q. And was it a text assigned to them or used in some other way? A What happened is in the year I came, 2002-2003, we had moved our biology curriculum from 10th grade to 9th grade to align the standards. So that year we had to teach biology in two grades and didn't have enough textbooks to go around. So that year the teachers used the textbooks and students had them, but each student wasn't individually issued a textbook. Q. So were they using classroom sets? A Yes. Q. I would like you to look at Defendant's Exhibit 2. Do you recognize that document? A Yes. Q. What is it? A This is a budget sheet from the high school that is budgeting for 220 biology textbooks and assorted materials. Q. This document is dated January 5th, 2004? A Yes. Q. At this time was there a concern expressed that the science department wouldn't get its texts because the purchase had been delayed in 2003? A Mrs. Spahr was concerned about that. She was worried, since it was delayed once. Q. Did you receive Defendant's Exhibit 2? A I would have seen this. Dr. Nilsen and I review all of the building principal's budgets page by page. So I would have seen this page, and I possibly could have had this page forwarded to me in preparation for meeting with the board curriculum committee to talk about the purchase of new textbooks. Q. I would ask you to look at Defendant's Exhibit 3 and further direct your attention to Roman numeral four, that item. A Okay. Q. And ask you to look that over. A Okay. Q. Do you recognize this document, Mike? A Yes. Q. What is it? A These are minutes that I created after meeting with the curriculum advisory council on April 15th, 2004. Q. We have had some testimony about what that council is. Let me ask you, what does item four reflect? A I remember Mrs. Wideman bringing up a concern that we had not purchased the remainder science and family science consumer books, and I believe Dr. Peterman also addressed that concern. They felt that what needed to happen is the teachers needed to get together with the board curriculum committee so we could make sure that we get textbooks this year. Q. Did you speak to their concern for getting textbooks this year? A Yes. Q. And what did you say? A Well, two things. One, that I would follow through and get the teachers and the board curriculum committee together and that Dr. Nilsen had already made sure that we had monies that were escrowed from last year so that we wouldn't have any budget shortfall to purchase the books. Q. Was there a board curriculum committee meeting as indicated by this item? A Yes. Q. Was there more than one? A Yeah, there were a few. Q. Tell us about it. When did the first one occur? A I believe in May. Q. Do you remember anything about that meeting? A At that meeting the science teachers would be there, the family consumer science teachers, I believe Dr. Peterman, myself, the board curriculum committee. I remember asking teachers to be prepared to justify -- I think I did this beforehand. I think they had already given me justifications for the purchases. I prepared that as a handout and I gave that out at the meeting. So the meeting really was for the board, if they had any questions of the teachers why they were advocating these purchases, they could get answers at that time. Q. Do you remember any specific comments made at that May meeting about a text? A The science teacher spoke. The family consumer science teacher spoke. The only thing I really remember is I remember Mrs. Harkins pointing out that one of the family consumer science books, it had the same picture as the old text. She questioned whether there were substantial changes in them enough to warrant purchase of a new book. Q. Mike, I would ask you to take a look at Defendant's Exhibit 164. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A It's an E-mail from Mrs. Spahr. Q. I would ask you to just look it over, Mike. A Okay. Q. Does that document reflect the concerns that the science faculty was expressing to the -- to you at this time about purchase of their texts? A Yes. Q. There's a reference in there to a justification. What kind of justification were -- were you looking for a justification? A No. Q. Was -- who was? A The board curriculum committee. Q. What kind of justification were they interested in? A Again, they were interested in the age of the books, how many years they've been in use, their condition, and if there is substantially different content in the old and new editions. Q. Looking at -- you talked about some concerns expressed during the 2003 period about text usage and so on. Was there a concern that texts were not being used that carried into the 2004 period? A In biology? Q. Yeah. A Could you ask that again? Q. Sure. Well, we know -- you've said Barrie Callahan was saying that students don't have a book. Do you remember that issue coming up in 2004? A Yes. Q. Do you remember Sheila Harkins saying teachers aren't using the book? Do you remember that concern being expressed in 2004? A Yes. Q. I would ask you to look at Defendant's Exhibit 8. Before we move on, let me ask you this. Was Bert Spahr in charge of interacting with you as assistant superintendent on these budgetary issues? A Yes. Q. How would you describe Bert's attitude towards that process? A Well, Bert liked to do things once. And you know, she was frustrated with not getting everything and having to reproduce some of those materials. But it was very hard to console Bert. Even though I assured her money was escrowed, that, you know, we're going through a very normal process of reviewing the books, Bert was still a little panicky that all of this might not happen. Q. Did you come to believe that she was concerned that she would have to wait a whole other cycle to get her book? A Yeah, she's saying eight years. That would be -- I mean, the textbooks would be some 16, 17 years out. So I mean, that couldn't possibly happen. Q. And did it happen? A No. Q. I would ask you to look at Defendant's Exhibit 7 and 9. A Okay. Q. Look first at 9, Mike. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A This -- when I asked for justification, this is what the science department sent over to me. Q. Is Exhibit 9 related to Defendant's Exhibit 7? A Yes, it's -- I put it together and incorporated it into this -- into 7 as a board handout at the board curriculum committee. Q. All right. I would ask you to look at Defendant's Exhibit 8. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A That's the amount that was in the current budget for textbook purchases and the textbooks that were remaining that we needed to purchase that year. Q. Why was that document generated? A To show to everybody involved, including the board curriculum committee, that there were funds available. Q. If you would, Mike, look at Defendant's Exhibit 10. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A It's a five year average of actual textbook expenditures for the district. Q. And why was that document created? A Mr. Bonsell was interested in learning typically, you know, what did we spend on textbooks a year. Q. Was it generated for his information? A And the rest of the board curriculum committee. Q. We've been focusing increasingly on biology texts here. So I would like to ask you, can you recall -- we're in the May period. Before we go on, I want to ask you, do you recall considerations being raised about the family consumer science text? A Concerns? Q. Yes. A Yes. Q. And what were they? A Again, Mrs. Harkins felt that the text was not sufficiently different to warrant the purchase of a whole new series. Q. All right. If we turn our attention to the purchase of the biology texts, and realize that we're in the April/May period, can you recall what happened next relating to the purchase of the biology texts? A After the meeting in May for biology I think the next thing I remember is getting a list of concerns from Mr. Buckingham about the proposed biology textbook. Q. And with that in mind, I would ask you to look at Defendant's Exhibit 15. Do you have that? A Yes. Q. Do you recognize that document, Mike? A Yes. Q. What is it? A This is the list of concerns that I got from Mr. Buckingham. Q. When you got this document, did you understand the nature of Mr. Buckingham's concerns? A No. I -- when I got the document I did go to each of these pages in the sections he referenced and read that, but I was unable -- from doing that I was unable to determine the specific nature of his concern. Q. Did you do anything as a result? A Yes. Q. What did you do? A I asked Mr. Buckingham to meet with me to be more -- help me fully understand his concerns and needs on these pages. Q. Did that meeting occur? A Yes. Q. I would ask you to look at Defendant's Exhibit 4. Do you recognize that document, Mike? A Yes. Q. What is it? A That's my notes from my meeting with Mr. Buckingham. Q. Was anyone else present at this meeting? A No. Q. Did the meeting take place, as indicated, on June 4th, 2004? A Yes. Q. Give us a sense looking at this document as to the nature of Mr. Buckingham's concerns. A The first one, Mr. Buckingham was concerned that there was lots of mention of Darwin throughout the book. MR. ROTHSCHILD: Objection, Your Honor. Hearsay. MR. GILLEN: He's testifying to what's reflected in his notes, which he created as assistant superintendent in the course of his duties. THE COURT: I don't think that cures the hearsay objection. Tell me why it cures the hearsay objection. MR. GILLEN: Because what he's conveying is based on his notes, not on what Mr. Buckingham said. MR. ROTHSCHILD: That's then using the notes to bring in hearsay. I mean -- MR. GILLEN: The note is a business record. MR. ROTHSCHILD: It's for the truth of what Mr. Buckingham -- MR. GILLEN: The note is a business record. That's a document that's admissible as such. He's taking it down. In his capacity as assistant superintendent he's taking notes to collect input from a board member. THE COURT: Is the note a business record? What do you say about that? MR. ROTHSCHILD: I don't think it's necessarily a business record. There hasn't been foundation laid. Let me just be a little more specific about my concern. He's talking about Mr. Buckingham's concerns. It's not just simply the statements made, but he's characterizing what Mr. Buckingham's concerns are. So it's a -- you know, it's clearly hearsay. I don't think he's laid any foundation that this is a business record. We certainly don't have a record that this was regularly done. We haven't seen the notes from all of the different types of meetings Mr. Buckingham participated in. We've seen some. THE COURT: If, in fact, it's a business record, and I don't know that it is, you haven't laid a foundation to make it a business record. That would have to do with the admissibility of the exhibit itself. I don't think that that would allow you, even if the exhibit itself were admissible, to go beyond the four corners of the exhibit. And I think that's the objection, an objection, a part of the objection. You can't in my opinion use the note, business record or not, as a pretext to elicit hearsay testimony which is outside the four corners of the note. And it sounds like that's what you're attempting to do. MR. GILLEN: And if that's -- THE COURT: It does indeed go to the truth. MR. GILLEN: I would say this, Your Honor. You're correct. And let me lay a foundation, that he took this in connection with his duties as assistant superintendent. THE COURT: Again, even if you do, even if it's conceivably admissible on the business record grounds, and I don't know that it is, he can't go outside the four corners of what's in the note. It's not a springboard to elicit other testimony outside of the note which would be hearsay. MR. GILLEN: No. He -- well, I guess, Your Honor, unless I'm mistaken, he can -- I'll lay a foundation that he took this in the course of his duties. Then he can testify to what he recalls based on the notes he took. Correct? THE COURT: Not if it's hearsay. Not if it's hearsay. MR. GILLEN: Well, if it's what -- if he purports to testify as to what Mr. Buckingham said, I agree, that would be hearsay. If he purports to testify to what he learned as a result of the exchange and note it, that's his personal knowledge. THE COURT: Well, we're back to the old impression versus hearsay statements. And we all understand what the distinction is, I think. But again, to be clear, if you were going to utilize this to refresh his recollection and get him to state his impressions, if those impressions do not implicate hearsay statements, that may be fair. The admissibility is another issue. I don't know if you want to lay the foundation and attempt to admit the note under -- or on that basis. Do you want to say something? MR. ROTHSCHILD: Yeah. I think there's another fine distinction here, which is if Mr. Buckingham said something, and we can call it a verbal act that Mr. Baksa reacts to that I think may result in some hearsay, but I think the way the question was asked it was really for the truth of what Mr. Buckingham's concerns are. THE COURT: I agree with that. The objection is sustained on that basis. Now, be guided by what I said and you can -- you can proceed accordingly. Or do you need clarification? MR. GILLEN: I am having some difficulty understanding the precise nature of Mr. Rothschild's concerns. THE COURT: The question itself as originally objected to was, in my view, quite evidently designed to elicit a statement and that statement would be what Mr. Buckingham said, and it would go to the truth. That's hearsay. The objection was sustained on that basis. You then got into a discussion about the admissibility of the note based on your contention that it's possibly a business record. Mr. Rothschild's further objection is that you did not lay a foundation to take this as a business record. That's correct. Now, I don't know if you want to do that. But in any case, you can't go outside the four corners of the note. The fact that he took this note or took these notes does not provide -- I'll say this again and for the last time, it does not provide a springboard for you to elicit statements, extrajudicial statements, by Mr. Buckingham which go to the truth. MR. GILLEN: And certainly I agree with that, Your Honor. And I -- it's not my intention to do that. I'm trying to get at what Mr. Baksa believed he learned as a result of this exchange and noted and took with him to go forward. To the extent that it's demonstrating his understanding, his belief and what he's trying to do as assistant superintendent, that's his own knowledge. THE COURT: Without repeating what Mr. Buckingham said. MR. GILLEN: Right. THE COURT: Let's proceed. MR. GILLEN: All right. BY MR. GILLEN: Q. Mike, just to be clear and to move this along, you can testify to your understanding but you cannot testify, and the judge will tell you if you try it, to exactly what Mr. Buckingham said. A Okay. Q. So with that in mind, let me ask you about this document. This is a set of notes. THE COURT: I didn't make the rules of evidence, but we must live by them. MR. GILLEN: As the judge said yesterday, we could be here all day. THE COURT: We're working on it. BY MR. GILLEN: Q. Mike, let's talk about how you created this set of notes. Did you call the meeting with Mr. Buckingham in your capacity as assistant superintendent for the purpose of learning his concerns relating to the biology texts? A Yes. Q. Did you create this set of notes in your capacity as superintendent in an effort to facilitate the purchase of the biology text? A Yes. Q. Did you create this document in the ordinary course of your duties as the superintendent of Dover Area School District? A Yes. Q. Is it your practice to keep notes of this kind in meeting with board members on issues relating to district business? A Yes. Q. Thank you. Then looking at this note and being careful not to try to sort of repeat what Mr. Buckingham said, let me ask you, does this document reflect your understanding as to the nature of Mr. Buckingham's concerns? A Yes. Q. If you would, look at item number two. Does that reflect your understanding of the nature of Mr. Buckingham's concerns relating to the biology text? A Yes. Q. Explain, if you will, exactly what your understanding was. A Well, I don't remember what he said but -- Q. And you couldn't say it if you did. THE COURT: After all that. Why didn't you tell us that before? BY MR. GILLEN: Q. Tell us what you understood. A What I understand is number two, that his concern would be that the theory is treated like a fact, a reality and that it's mentioned so many times in the book that that by itself kind of biases students to accept it as a fact. Q. And let me just ask you, generally speaking, does this document reflect the nature of your -- the concerns as you understood them of Mr. Buckingham? A Yes. Q. Well, did there come a time when Mr. Buckingham gave you additional materials to consider in connection with the biology curriculum, or did there come a time when you received materials that you understood came from Mr. Buckingham? A Yes. Q. What were those materials? A I received two DVDs and a book. I'm not sure that I received them all at once. Q. You mentioned two DVDs. Do you remember which ones? A I remember Icons of Evolution was a DVD and also a book, and then I remember there was another DVD. Q. Did you say that the title of the book was the same as the DVD? A Yes. Q. What was that title? A Icons of Evolution. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Mike, I have handed you two DVD's. Do you recognize those? A Yes. Q. Are those the materials Dr. Nilsen passed on to you? A Yes. Q. There was also a book, and I just want to confirm again, was it -- what was the title of the book you received? A Icons of Evolution. Q. Given that Mr. Bonsell has -- I mean Mr. Buckingham has expressed concerns, what happened next as a result? Did you do anything? A Yes. Q. What did you do? A I took the notes that I had from my meeting with Mr. Buckingham and made a copy of those, and then I met with Mrs. Miller and went over those with her. Q. Let's look at Exhibit 19 and 20. Looking first at Exhibit 20, Mike, do you recall that document? A Exhibit 20? Q. Yeah. Do you recognize it? A Yes. Q. What is it? A Those are my notes from the board curriculum committee meeting with the science teachers on June 24th, '04. Q. Again, let me ask you, did you take this -- these notes in connection with your duties as assistant superintendent of Dover Area School District? A Yes. Q. And did you take it as a result of the meeting that was had on this date? A Yes. Q. Did you take it for the purpose of performing your duties as assistant superintendent? A Yes. Q. Do you regularly take notes of meetings with staff or board members relating to district business? A Yes. Q. Does this document, Exhibit 20, reflect, at least in part, your understanding of the outcome of the meeting that was held on this day? A Yes. Q. And I would ask you to look at Exhibit 19. A Okay. Q. Do you recognize that document? A Yes. Q. Now, what is it? A These -- on this document I do have more notes from that meeting. But at the top of the document is survey results from biology books used in some Parochial schools. Q. Did you create this document in your capacity as assistant superintendent? A Yes. Q. To further the duties of assistant superintendent of the district? A Yes. Q. Are the handwritten notes on that document your own? A Yes. Q. Did you make those notes at your meeting with the science faculty held on June 24th, 2004? A Yes. Q. Did you make those notes in your capacity as assistant superintendent? A Yes. Q. Did you make those notes for the purpose of performing your duties as assistant superintendent relating to curriculum? A Yes. Q. Do you ordinarily take notes of this nature when meeting with the faculty or board members for the purpose of board business? A Yes. Q. District business? A Yes. Q. Okay. Do you recall specifically what occurred at the June 24, 2004 meeting? A Yes. Q. Tell me what you can recall. A At the meeting we already had one meeting in May where the science teachers presented the textbooks that they wanted and the rationale for that. Between that we got the list of Mr. Buckingham's concerns. We did meet with Mrs. Miller for us to be able to address it at the next meeting. And then in the meantime the other thing I did is our teachers had already previewed texts that are typically used in public schools. I went out and looked for other organizations to look at other textbooks that might have a different treatment of Darwin that would be more acceptable to the board curriculum committee. So I do have this and -- this from Parochial schools and what some of our home-schoolers used. So I brought those documents to the meeting. At the meeting there was an exchange. Our teachers tried to address Mr. Buckingham's concerns at this meeting, did explain to him clearly what they were teaching in class. And Mr. Buckingham was okay with that. But he -- he kept bringing up -- Mr. Buckingham was concerned that teachers taught origins of life in the past even though they're saying that they're not doing it now. There was a mural that showed the descent of man which would speak to the origins of life as far as he was concerned. And so as a consensus in this meeting because we're -- the teachers are asking for the Miller-Levine book. Mr. Buckingham is expressing concerns. So as a result of this meeting, there were some assurances put in place for Mr. Buckingham to give his approval for us to move forward and purchase the book. That was that Mrs. Brown, as the chair of the policy committee, would revise two policies. One was a gift policy to assure that any gift that comes into the classroom matches the curriculum and supports it. Another was the curriculum policy to make sure that our curriculum always aligns with our standards. Q. You referenced some discussion of the mural. Did you have an impression concerning the nature of the significance of the mural to Mr. Buckingham? A I believe the mural showed the descent of man, of ape to man. And Mr. Buckingham, I would describe him as objecting to that. I can only believe that he did not believe in that type of evolution. Q. Did he tell you anything about -- relate the mural -- or did you have an impression that he related the mural to the teachers' assertion they didn't teach origins of life? A I think Mr. Buckingham felt that by having that mural displaying that image and that species to species evolution displayed in the science classroom that, in fact, that was advocating that school of thought. Q. Well, did he -- I mean, Bert Spahr has been here in court. What did Bert Spahr say in response to that? A I think she said like if you mention that mural one more time I'll something or other, and we stopped talking about the mural at that point actually. Q. Let me ask you. You've got a note here that says not teach origins of life. Did you have an understanding at the meeting concerning whether teachers did that? MR. ROTHSCHILD: Can we just clarify which document? MR. GILLEN: Oh, sure. Defendant's Exhibit 20. MR. ROTHSCHILD: Thank you. THE WITNESS: I think that's the note that's a concern of Mr. Buckingham's that we not do that. BY MR. GILLEN: Q. Let me ask you to look at Defendant's Exhibit 20. A Okay. Q. I would ask you to -- can you remember the specific things that were said at this meeting, Mike? A I can remember in general kind of what the results were that we all intended to do when we left the meeting. Q. Okay. Well, tell me about that. A Again, that the teachers assured Mr. Buckingham they are teaching that origin of species has changed in time with the species. Mr. Buckingham said that he was fine with that but he wanted assurances that they weren't teaching the origins of life. Mr. Buckingham brought up an incident that referred to -- it was my understanding that he thought that we did do that and had reports that we did do that from our teachers. Q. How about, there's a reference to Icons -- I'm sorry, Mike. Go ahead. A So the -- Q. There's a reference to Icons of Evolution. Did that come up during the meeting? A Yes. Q. Did you direct teachers to do anything with that video? A The teachers, I believe at this point, already had looked at it. And they agreed to review it again. And if there were any pieces that did match up and align to their curriculum, they would consider using the video. Q. If you look down further beneath that note there's an entry teachers will review tape. Did you take that note as a result of your discussions at the meeting? A Yes. Q. Beneath that there's a notation intelligent design instead of creationism. Tell us what you can recall about that notation. MR. ROTHSCHILD: Are we back now on Exhibit 19? MR. GILLEN: Yes. Exhibit 19, page 55. BY MR. GILLEN: Q. Tell us what you can recall about that item, intelligent design instead of creationism. A At the -- I believe one of the things we talked about, the curriculum -- that was written in the curriculum. I think one of the things we talked about and I might have suggested this that instead of us talking about intelligent design or creationism that we -- that we talk about intelligent design and not creationism. I mean, one of the things that I understood is way back in October I had in my pocket an opinion from the solicitor on the teaching of creationism. MR. ROTHSCHILD: Objection, Your Honor. MR. GILLEN: Yeah. Don't -- you can't -- THE COURT: The objection is sustained. The answer is stricken. You may proceed. BY MR. GILLEN: Q. Mike, for the purposes of this examination, do not reference any of that matter that you've discussed with your solicitor. Just the one document that was provided but that's it. You are speaking to this note you made, intelligent design instead of creationism. And I would ask you to explain what you can recall at this meeting about that. A Well, I thought one of the other agreements we had that we would include some language in the curriculum and it wouldn't be creationism. It would be intelligent design instead. Then on 20 at the very bottom I started drafting language that might be included in the curriculum guide. It was my understanding that -- I mean, I thought I read this language back, and we were in agreement at that meeting that that would be okay to include. Q. And when you say we were in agreement, who were you referring to? A The teachers and Mr. Buckingham and the rest of the board curriculum committee. Q. Did you come away from this meeting with any sense for whether you had managed to bring together Mr. Buckingham and the science faculty in some sort of consensus? A I thought when we were done with this meeting with what we had understood that Mrs. Brown was going to do with the policies, with what the teachers were going to do with reviewing the video, and I was going to do with the curriculum language that Mr. Buckingham would be satisfied, we would move forward and purchase the Miller-Levine textbook. Q. And did you have a sense for whether Mr. Buckingham was on board with the purchase of the text? A Yes. Q. And I would ask you to look at Defendant's Exhibit 21. Do you recognize that document? A Yes. Q. What is it? A This would be a memo from my secretary to Dr. Nilsen's secretary to place on the board agenda the purchase of the Miller-Levine textbook in July. Q. And did you believe that was consistent with what Mr. Buckingham had agreed to at this meeting? A Yes. Q. Let me ask you to look at Defendant's Exhibit 5. Do you recognize that document, Mike? A Yes. Q. Was there any discussion of this document at the June 24th meeting? A No. This was handed out but not discussed. Q. And did you believe this text was a viable candidate as a possible text for Dover Area School District? A No. Q. And was that based on your review of the document? A My review of the description of the text, yes. Q. There was some -- has been some reference to information you collected about books used by other schools. Tell me how that came about. A In -- after receiving objections from Mr. Buckingham and sharing those with teachers, then we looked at -- we were going to show the board curriculum committee and Mr. Buckingham all of the texts that we had looked at. I thought of other places and public schools where we might be able to get some additional books that maybe we hadn't typically looked at. So I had one of the secretaries in the office survey Parochial schools and also had my secretary look at what Bob Jones was using. Q. When you looked for texts, did you understand the teachers had already reviewed some texts? A Yes, they had. Q. Why did you select the areas of inquiry that you looked into? A Well, pretty much what our teachers, and the main stream publishers that they would get pilot books from or samples from, pretty much what they receive are what all of the local public schools are using. Q. Focusing on the text purchased, we have just looked at a memo to Barb Holtzapple. Who is she? A Dr. Nilsen's secretary. Q. She was instructed to put it on the agenda? A Correct. Q. I would ask you to look at Defendant's Exhibit 22. A I don't have that one. Q. It's not in the folder? THE COURT: It may be out of order. In my book -- THE WITNESS: I got it. I'm sorry. Okay. BY MR. GILLEN: Q. And I would ask you to direct your attention to the page with the Bate stamp number 101 in the lower right-hand corner. A Okay. Q. The item under Roman 13, curriculum. A Okay. Q. What do you see reflected there? A There's -- the first two items are the approval of the Miller-Levine textbook and the second item is the purchase of the books. Q. And what is the copyright of the text reflected for purchase there? A 2002. Q. Now, you were instructed that Barb place this on the agenda. Did you have a belief whether Mr. Buckingham was prepared to approve purchase of the text for this board meeting? A Yes. Q. What was that? A That he would approve it. Q. I would ask you to turn to Defendant's Exhibit 23 and look at the page with the Bate stamp number 110 in the lower right-hand corner. A Okay. Q. And further direct your attention to the item six, curriculum. A Okay. Q. And do you see approved the text reflected there? A No. Q. And do you know why? A Yes. Q. Why is that? A Just before the -- this July meeting Mrs. Spahr called me and said that she had just discovered that Rob Eshbach had received the 2004 biology text and she just opened it by accident and asked that we postpone the approval of these books so that they could take a look at that book, because they thought pretty much they would probably want the 2004 edition instead. Q. Who made that request? A Mrs. Spahr. MR. GILLEN: Judge, I suggest it's a good time and high time to adjourn for the day. Are you amenable to that? THE COURT: Any objection from the plaintiffs? MR. ROTHSCHILD: Not at all, Your Honor. THE COURT: We'll call it a week and we'll reconvene and continue with direct examination of this witness at 9 a.m. on Monday. And of course we'll have a full trial day on Monday. And I wish you all a pleasant weekend. We'll see you Monday. THE CLERK: All rise. MR. GILLEN: Your Honor, if I may, one housekeeping matter. We have an expert coming in from Great Britain which we would like to begin with on Monday, if that's okay. THE COURT: Any objection? MR. ROTHSCHILD: No objection. THE COURT: So we'll suspend Mr. Baksa's testimony and we'll pick it up after the expert. MR. GILLEN: Thanks, Judge. THE COURT: All right. We'll start with that on Monday. Thank you. (The proceedings were adjourned at 4:34 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 15 (October 24), AM Session, Part 1 THE COURT: All right. Good morning to all. And we are going to take testimony out of order, is that correct? MR. GILLEN: That's correct, Your Honor. THE COURT: Okay. Are you prepared? Then you may proceed. MR. GILLEN: Thank you, Your Honor. The defense calls Dr. Steve Fuller. Whereupon, STEVE WILLIAM FULLER having been duly sworn, testified as follows: COURTROOM DEPUTY: If you'll state your name and spell your name for the record. THE WITNESS: My name is Steve William Fuller. S-T-E-V-E. W-I-double L-I-A-M. F-U-double L-E-R. DIRECT EXAMINATION ON QUALIFICATIONS BY MR. GILLEN: Q. Good morning, Dr. Fuller. A. Good morning. Q. We've brought you here to offer an opinion on behalf of the Defendants in this action, and I'd like to briefly introduce you and your academic credentials to the Court. Would you please give us your current position of employment? A. I'm a professor of sociology at the University of Warwick in the United Kingdom. Q. What is the standing of the University of Warwick as in the British education system? A. It's normally regarded as one of the top five research universities in Britain, and we do have a national ranking system, so this is pretty consistent. Q. Do you have a chair at that university? A. Yes, I do. I've had that since 1999. Q. And what does it mean to have a chair? A. Well, in the United Kingdom, only about 10 to 15 percent of academics are full professor, which is what a chair amounts to. And I've held a chair in that sense since 1994, since moving to the United Kingdom. So I was also a chair at the University of Durham before then. Q. Let's take a brief look at your educational background. Where did you do your undergraduate work? A. I did my undergraduate work at Columbia University in New York, and I graduated summa cum laude in 1979. Q. After that, did you go on for further study? A. Yes, I won a Kellett fellowship to Cambridge University, which was my first trip to the United Kingdom. That was in 1979. And I was there for two years. I earned a Master of Philosophy and then went on and did a Ph.D. at the University of Pittsburgh, which I completed in 1985. Q. And what is the standing of the University of Pittsburgh as it relates to your academic pursuits? A. My Ph.D. is in history and philosophy of science, and the University of Pittsburgh is probably the best department, certainly in the United States, and probably in the world. Q. Okay. MR. GILLEN: Your Honor, may I approach the witness? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Steve, I've just given you a copy of your CV, which is Defendants' Exhibit 243. I'd like you to take a look at that, and I'm going to ask you a little bit about your credentials. As we go on, let me ask you, have you been a visiting professor at other institutions? A. Yes, at several different countries, in fact, including Sweden, Israel, Japan, and, of course, I've been back in the United States as well. Q. In terms of your -- let's take a look, a brief look at your publications. Can you give us an idea in general for the number and kind of your academic publications? A. Well, roughly speaking, I have 200 published articles or book chapters, vast majority of which have been peer reviewed. And also, I have a lot of book reviews and incidental pieces, including pieces in the media. And this has been over the last 20 years. And in terms of books, I have -- well, nine books actually published at the moment. There will be two more coming out by the beginning of next year. And altogether, my works, one sort or another, have been translated into about 15 languages. Q. Have you given academic presentations and talks? A. Yes. I have given them throughout the world, 500 maybe altogether. They are listed in the curriculum vitae. They've been on every continent. Many keynote addresses in a wide variety of fields. Yeah. Q. How many countries approximately? A. About 25 to 30. Q. I'd like to draw attention to two elements of your CV. I notice that you received a post-doc from, was it the National Science Foundation? A. Yes, I was the first National Science Foundation post-doctoral fellow in history and philosophy of science in 1989, and that was at the University of Iowa. Q. You mentioned history and philosophy of science. What was your nature of your work in that post-doctoral fellowship? A. Well, I was working on the rhetoric of science, and that is to say, the means by which science is made persuasive for larger public social audience, and they have a program there. And the idea was basically to bring scholars into places where they would have some kind of synergy. Q. Then in terms of firsts, I note you were also the first research fellow in the public understanding of science at the United Kingdom's Economic and Science Research Council? A. Social Research Council. Q. Thank you. What did that position entail? A. Well, the United Kingdom has been very much in the vanguard of public understanding of science; that's to say, the need to study the role of science in society and how people perceive it. And I was the first fellow in this while I was at the University of Durham. And during that time, I ran a global cyber conference where people around the world were able to discuss matters having to do with the, you know, their perceptions of science and forth. And a lot of different issues got raised in that context. Q. You mentioned peer review. Do you participate in that process? A. Yes, very heavily. In fact, I've just about peer reviewed anything you could peer review. I mean, people, books, articles. In my CV, I list -- I've peer reviewed for about 50 journals. I mean, at the moment, while I'm here I'm supposed to be peer reviewing eight articles, which I'm not being able to get to. And these are in a wide range of disciplines, mostly in the humanities and social sciences, but there have been a couple of occasions in the natural sciences where I would be a peer reviewer, having to do with issues in the history, philosophy, or sociology of science that would arise in those adjourns. I also peer review for academic publishers both in Britain and the United States. And I also peer review grant applications, including still in the United States, as well as in Britain for the European Union and for Australian and Canadian Research Councils. I recently chaired the International Advisory Board that basically signs off on peer review grants for the Academy of Finland, and -- yeah, that about sums it up, I suppose. Oh, also not to mention tenure and promotion cases which are, in a sense, kind of, of that kind as well academically. Q. You've mentioned that your work is in philosophy and the history of science. I take it that work started with your Ph.D. dissertation? A. That's correct. Yes. Q. Tell us about that briefly. A. My Ph.D. at the University of Pittsburgh was done under the supervision of J.E. a/k/a Ted McGuire, James Edward McGuire, who's probably America's leading expert on Sir Isaac Newton's, the relation between Sir Isaac Newton's science and his religious beliefs. I mean, my Ph.D. wasn't on that topic specifically, but I took a lot of courses with regard to that and have followed that up in many respects. But the Ph.D. itself was on bounded rationality in a legal and scientific decision making. And there I was -- Q. I'm sorry. Tell us, just give us an idea for what that bounded rationality means? A. Bounded rationality is an expression from Herbert Simon, and it has to do with basically making decisions under conditions of material constraints; so whether we're talking about resource constraints, time restraints, so forth. For Simon, who was a Nobel Prize winner in economics and originally trained as a political scientist, this was kind of the, main kind of reasoning that was involved in a field that he called the sciences of the artificial, which was meant to be a kind of universal science of design, and in which case, one could, as it were, interpret all sorts of issues that wouldn't be normally thought of as designed based issues as designed based ones. Q. Do you see that work you did on bounded rationality as having relevance to this case? A. Yes, indeed, because it seems to me that one of the things that's at stake here is the idea that intelligent design, as it were, is something more than just a kind of a fig leaf for the idea of God or some other kind of religious entity. And the point here about Herbert Simon, who has no very clear, no theistic views whatsoever, is that he actually thought it was possible to have a universal science of design, and that was what the sciences of the artificial were about. And bounded rationality was a key kind of inference and form of reasoning within that. Q. Let me take a brief look at some of your books. And just, we'll briefly describe the subject matter and how it bears on your expertise. The first book I see listed is Social Epistemology. Would you briefly describe the subject matter of that text? A. Yes. Social Epistemology, it's not a phrase that I coined, but in the sense I'm most closely associated with it. It was the title of my fist book. It basically kind of lays out the foundations for the kind of work I currently do, which has to do with looking at the social foundations of knowledge, as the title indicates, both from an empirical and historical standpoint, but also what you might say, enormative in policy standpoint. Given what we know about the nature of knowledge and how it's developed, what sorts of policy should we be setting for it, and how, and for whom. And that's the general scope of the book. And -- Q. I'm sorry. Does that book relate to some of the issues in this case? A. Yes. The one chapter of my Ph.D. that I ever published is, in fact, a chapter of this book. And it's on consensus formation in science. And one of the things that I address there, which I do think is relevant to the case, is how exactly does consensus form in the scientific community. Given that there are many scientists working in many different locations, how does one get a sense that there is a dominant theory or paradigm operating at any given point. And my view on this, which I developed, is, in fact, there is never -- it's very rare to actually find a decision point where you say, well, some crucial test has been done, and this theory has been shown to be true, and this one has been shown to be false. But rather, what you have is kind of a statistical drift in allegiances among people working in the scientific community over time, and especially if you add to it generational change. What you end up getting is kind of a, what Thomas Kuhn would call, a paradigm shift; that is to say that, where over a relatively short period of time, simply by virtue of the fact that the new people come in with new assumptions and new ideas, that you actually do get a massive shift, but not necessarily because there's ever been any decisive moment where someone has proven one theory to be true and another theory to be false. THE COURT: Wendy, is he going too fast? COURT REPORTER. Yes. THE WITNESS: I'm sorry. My apologies. THE COURT: I sensed that. A little slower. And it's important that we get a good record here, so just take the pace down. MR. GILLEN: I warned him, Your Honor. THE WITNESS: I'm sorry. My apologies, Your Honor. THE COURT: That's all right. MR. GILLEN: It's just part of the process. THE COURT: I'm trying to help Wendy out. BY MR. GILLEN: Q. Let's take a look at your second book, Philosophy of Science and Its Discontents. Briefly describe, if you would, the subject matter of that text? A. Yes. This is a book, as the title may suggest to you, it's relatively critical of the current state of the philosophy of science. But one of the -- I guess the key thing, as far as this case is concerned, that is of interest, is that I very strongly identify myself as being a philosophical naturalist. Q. And if you would just briefly explain what that means? A. Well, a naturalist basically is someone who believes that everything that happens in reality, as it were, can be understood as part of the natural world. And more specifically, that can be understood in terms, at least in principle, in terms of the methods of the natural sciences. And that includes human, social, life as well. That's the general perspective that naturalism offers. And I identify specifically with that view in the book, and I haven't retracted it either. Q. Well, let me ask you, does that philosophical disposition you've described relate back to your work with Newton? A. Well, I mean, the issue here -- not in a very direct way actually. But it does relate to the idea of what happens over time regardless of where scientific beliefs come from, that there is a tendency, in fact, to be assimilated into this naturalistic view. Q. Does it speak to science and the nature of science? A. What does? Q. Your text, Philosophy of Sciences -- A. Yes, it does. Yes. See, one of the problems that I argue about in the book is that there's a sense in which, if we're going to understand the nature of science, we have so sort of study it naturalistically. One of the consequences of that may be that we find out things about the nature of science that we didn't quite realize were true. And one conclusion that I think is very relevant to this case is that, ironically perhaps, from a naturalistic standpoint, if you study how you actually come about to a culture or a society that thinks seriously about scientific questions and the way that we're used to, you may have had to start off with something like a monotheistic standpoint that, that may, in fact, be a natural fact about the way science develops. And that is a point that I first raise in that book and then subsequently develop. Q. Let's look at your next book, Philosophy, Rhetoric and the End of Knowledge. Would you briefly describe what that text addresses? A. Well, that one has to do again, as the title suggests, with the rhetorical character of science. And here, I think one has to understand rhetoric as kind of the arts and sciences of persuasion. And I'm talking about this here not only in terms of, as it were, how science or organized bodies of knowledge make themselves persuasive to the larger society, but I'm also talking about how scientists amongst themselves persuade each other to be part of a common group or a common paradigm that move together despite perhaps some internal disagreements. And one thing I would say that is relevant to this case from this book is that, some concepts from this book have, in fact, been inspirational for people who have been writing about the rhetoric about how the neo-Darwinian synthesis was forged in the middle third of the 20th century, because that is an example of where there's been a lot of strategic ambiguity and suppressed disagreements among people operating in many various disciplines in order to move forward with this general picture that the neo-Darwinian synthesis puts forward. Q. Does that text speak to the science, non-science boundary? A. Yes, in the sense that this always has to be negotiated. It is, in fact, very easy, as it were, for things to fall out that, in a sense, the boundary between science and non-science isn't something one can ever take for granted. It is actively being negotiated at all times because there are all kinds of people who are trying to make claims that what they're doing is scientific. Insofar as science is the most authoritative body of knowledge in society. So in that respect, there's a kind of policing, you might say, and an occasional negotiation of the boundary that takes place. Q. How about your next book, Science. Give us an idea for the subject matter of that text. A. Well, that book, in a way, really gets, I think, very close to the heart of the issues. This is a book that, in fact, I developed a part -- from my undergraduate teaching in Britain. It's been published both in Britain and the United States. And the idea here is, I basically look at what is the concept of science from a social standpoint. So this is a book in a series called Concepts in the Social Sciences. And one of the points that I make very much up front is that, if you want to identify something as a science, it's going to be very difficult to identify it purely in terms of what the practitioners do, okay, because, in fact, if you look at the various fields that we normally call science, ranging from physics to chemistry to biology and including many of the social sciences and so forth, people are doing vastly different things even within the disciplines themselves. So there's a sense in which one can grant that there's a lot of technical expertise required of people who do science and get trained in science, but that in itself does not explain the thing being science. There's something in addition. Okay. And that has to do with the way in which this body of knowledge called science relates to the larger society. And in a sense, the question then becomes, how does science establish this kind of authority? And it's in this context that issues like testability, some of the issues that have been arising in this trial, are, in fact, quite important and, in fact, then serve as a kind of umbrella notion for understanding the way in which vastly different practices are relating to the larger society. Q. Your next text is the Governance of Science. Give us an idea of the subject matter of that text. A. Well, The Governance of Science again, as the title suggests, addresses sort of the political structure of science, you might say, and the occasion for it. And this is something I think that would be very familiar to people who are in the kinds of fields I operate in. There has been a kind of, you might say, a shift in the burden of proof with regard to the way in which one defends the value of science in the post Cold War era. There's a sense in which the, if you look at the Cold War era, that was the period where science, especially in this country, in the United States, was very much centrally funded, where there were national agendas, where it was seen as very obviously a bowl work of national security. And, in fact, in a sense, the Cold War was being conducted as a race between the U.S. and the Soviet Union, kind of at a surrogate level, as a science race. But now with the end of the Cold War, there's kind of an open question about what the value of science is. So there's been a tendency to devolve funding away from the central authorities, from the Government. And then the question becomes, okay, if we're not worried about science as a bowl work to national security, why should we be supporting science, and should the state be supporting science, or should it just be completely devolved to private authorities? And that's kind of the central problem of the book. Q. Does the text Governance of Science speak to the role of peer review in science? A. Well, yes. And one of the things that it says is that, while the scientific community is nominally governed by a peer review process, as a matter of fact, relatively few scientists ever participate in it. So if one were to look at the structure of science from a sort of, you might say, political science standpoint, and ask, well, what kind of regime governs science, it wouldn't be a democracy in the sense that everyone has an equal say, or even that there are clear representative bodies in terms of which the bulk of the scientific community, as it were, could turn to and who would then, in turn, be held accountable. There is a tendency, in fact, for science to be governed by a kind of, to put it bluntly, self-perpetuating elite. Q. Well, let's skip for a moment to your text Knowledgement Management Foundations. Is that a related work? A. Yes, I mean the Knowledgement Management Foundations book, the phrase knowledgement management, which is probably one of the -- now one of the hottest topics in business school research in a way reflects kind of what's happened to organized knowledge in our time. Namely, it's a kind of -- it's something that's seen as very powerful, very important as a resource, but as it were, doesn't have a kind of natural home anymore. So that when one talks about knowledge management, it could be knowledge produced not only in universities, but in R and D divisions of industrial labs, or think tanks, or all kinds of places. And then the question becomes, is there some kind of, you know, organized uniform way of regulating what's going on, you know, given that the universities no longer seem to have a monopoly over this? So I deal with that. In that context, I actually spend more time talking about the role of peer review and the strengths and weaknesses of it. Q. You've got a text entitled Thomas Kuhn. Would you give us the general idea for that text's subject matter? A. Thomas Kuhn was probably the most influential theorist of science, certainly in the second half the 20th century, and maybe the entire 20th century. Certainly one still to this day, he is one of the five most cited people in the humanities and social sciences. And he published this book called The Structure of Scientific Revolutions in 1962, which is probably the most important book that people in my field ever read and very influential outside of it. What I argue in my book called Thomas Kuhn, which is probably the book that's been most highly reviewed, 50, 60 reviews, from the New York Times to esoteric academic journals around the world, is that basically his theory is not only false, but also in a way, bad policy, you might say, in terms of the way one thinks about the governance of science, and in a sense, has had a very bad influence in the way we think about science, because the key thing about Kuhn's book, and again, this is quite relevant to the case, is that, Kuhn is very big on the idea that, at any given point in the history of science, there is a dominant paradigm, and that's, in fact, how you know there's a science. So there's always one dominant paradigm, and that the only way in which you can have alternative points of views that have anything any kind of legitimacy is if that paradigm is, in a sense, in a self-destruct mode. So when it has accumulated so many anomalies, that then people start looking for alternatives. But otherwise, there is no incentive within science to be looking for an alternative while the dominant paradigm is still strong. It seems to me, while this may cover about 300 years of the history of physics, that's historically all that it covers. And in any case, it is bad as a kind of policy recommendation in terms of how to organize your science generally. Q. Well, looking at Kuhn versus Popper, does that take up the idea of normal science or paradigm that Kuhn developed? A. Yes. I mean, Karl Popper had a -- Karl Popper is originally a Viennese philosopher of science who, under the Nazi occupation, moved to Britain and spent most of his career at the London School of Economics, had a very famous debate with Kuhn in 1965. Popper was a believer that, of the idea that science was kind of the vanguard of what he called the open society. That is to say, a society where all claims in principle are open to criticism and that, in fact, the way we make progress both socially and scientifically is through mutual criticism and learning collectively through that mutual criticism. But the question then becomes, under what kinds of social arrangements is that possible? And the big debate with Kuhn was basically over this point, because Kuhn basically said you really couldn't have science if, in fact, you allowed free flowing criticism at all times. There's a sense in which science has to close ranks, has to be dogmatic, and, in a sense, has to start excluding people. And that's, in fact, one of the secrets of science's success, is that kind of monolithic structure that goes on as long as possible. And what I do in this book is basically take Popper's side of the issue. Q. And is that -- describe just the thrust of your text as it relates to distinguishing Kuhn's position? A. Okay. Well, it seems to me that one problem that we have nowadays where, you might say, the start-up costs for coming up with alternative theories in science are so high, not only in terms of the academic background that people need to have, but also the amount of material resources one needs to have to mount labs and research teams and stuff of that kind, that it's, in fact, very difficult in the current climate to mount very serious fundamental criticisms, because you really have to do a lot of front loading before you actually get to the point where criticism will be taken seriously at a fundamental level. And this is a relatively recent development, certainly a 20th century development. Q. Is your discussion of Popper in this book linked to ideas of testability, and if so, how? A. Well, Popper is primarily known in philosophy of science for having put forward the criteria of falsification, which is his preferred way of talking about testability, which is -- basically what you do is, you set up a very stiff test where, in a sense, if the theory actually passes it, it's kind of unique in passing it, you wouldn't expect it to pass it, and, therefore, it supposedly says something very significant about the theory's knowledge claims. Popper primarily imagined this kind of in the context of what is known in the trade as a crucial experiment where, in a sense, you have a kind of two theories facing off over some kind of common phenomena where they say radically different things about. And that's -- and the point being, right, how do you get two theories to be sufficiently equalized in status that they will be tested by one case? See, Popper is kind of imagining science is a bit like a game, right, where you go in and match and both sides are imagined to be fundamentally equal, and then they test their wits against themselves. But, of course, in the kind of world we live in, theories don't come in equal. Some theories come in with a lot more resources, a lot more back story that provides a kind of authority and makes it very difficult for these theories to be tested adequately. Q. You mentioned the Open Society. How about the Open University. I note that your CV reveals you've done work there and some work in an area that touches directly on this case. What is the Open University? A. Yes, the Open University is the original -- I believe it's the original, and probably still the largest, or one of the world's largest, distance learning institutions. It was created in the 1960's as part of a labor government initiative in the United Kingdom to enable people in Britain to get higher education more easily; so the idea being that you would purchase these books and study guides and things, there would be television programs that would be shown very early in the morning that would cover the courses, and every week there would be classes taught basically in classrooms that aren't being used, you know. So it would be like evening classes, things of that kind. So 3 to 400,000 people currently are enrolled in this. And it has a very high academic reputation. Q. And you've done a course in the Open University that touches on the subject matter of this litigation, correct? A. That's correct. Q. Describe it, please. A. A few years ago, maybe 10 years ago, the Open University established a Master's of Science in science communication. And within that, there is a module, which I'm the author of it, called Are Science and Religion Compatible? And the way in which this module is set up is basically a text by me where I'm taking the students through a set of readings. And the basic thrust of this is that, science and religion are compatible at an intellectual level, but there have been institutional reasons why there has been conflict -- and actually, it is focused on the United States -- and saying that there is some idiosyncratic features of the way in which the separation of church and state and how these things have developed in this country that have exacerbated differences between science and religion more than is intellectually warranted. Q. There's a course, I believe, or a section entitled Will Science Recreate Creationism? Is that correct? A. Yes. That is toward the end of the module. One thing I should point out, as a sort of back drop to this, the module was originally published in 1998, and so one of the things that comes up toward the end of it, there is a piece from Michael Behe in there, so this is at the beginning of what we now call the intelligent design stuff coming out. And there is a discussion of the significance of that movement. And what I'm talking about in that part of the module is basically that, the kind of design based impulses, the idea of doing science from a design standpoint -- and let me be clear by what I take that to mean. That is to say, imagining yourself in the mind of God. I think that is kind of what we're talking about here. Is something that may, in fact, be recreated within what we call mainstream ordinary science, especially as computer programming and the whole idea having to design programs becomes a more integral part of how science is done. So this sort of idea of design which, you know, a lot of people think of as a purely religious idea is, in fact, an idea that is probably going to be of great significance as a kind of heuristic for doing science in the future as more and more science goes on computers. And I also argue in the module that this will not be, in a sense, a radically new thing that, in fact, there is a lot of precedent for this way of thinking about how science is done throughout the history of science. Q. Let me ask you to just give a little detail about, you mentioned, history of science, philosophy of science, and sociology of science. I just want to get a brief description of how those disciplines are defined and how they relate. Let's look first at history of science. What is the field of inquiry known as history of science? A. Okay. I think the best way to answer that, I mean, other than stating the obvious, it's about the history of science, is that there is a sense in which this field, the question to ask about is, why is this field different from science? The reason is because, in fact, when most scientists learn science, they don't learn very much of their history or the kind of history that they learn is self-serving. That is to say, it is a history that is written from the standpoint of leading up to whatever the current state of research is. Now Thomas Kuhn called this Orwellian, right, thinking about the, you know, the ministry of truth in 1984, right, which is constantly rewriting the history to justify whatever happens to be current government policy. Well, this is, in a sense, the kind of history that scientists normally learn about their own fields, which means that there needs to be this other field, history of science, done by historians, that actually tells you what did happen in the history of science in a not scientifically self-serving way. Typically, that subject, the history of science, turns out to be quite critical of the taken for granted notions that scientists operate with today. Q. You mentioned philosophy of science. What is that field of inquiry? A. Now philosophy of science is a field that, first of all, historically used to be quite co-extensive with science. So if you look at somebody like Sir Isaac Newton, not only does he give you the laws of motion, he gives you the laws of the scientific method as to how he got the laws of motion. That used to be quite common. So that was a sense in which, back in those days, you know, 17th, 18th century, it was all natural philosophy. So it was like science and philosophy of science at the same time. But the field now is an independent field just like history of science is. And it has been that way certainly since the middle third of the 20th century, and it basically tries to come up with criteria of what it is to be scientific, that is specifiable independently of what is the dominant theory in any given scientific discipline. And this is where issues of testability get their legs, because there's a sense in which one can talk about testability in a way that is abstracted from what the dominant sciences are at the moment and provides, you might say, a kind of neutral court of appeal. I mean, that's kind of a -- in fact, it is a kind of quasi-judicial traditional discipline traditionally, which makes judgments about what is science and not science from a punitively neutral standpoint. Q. You mentioned sociology of science. Give us an idea of the subject matter of that inquiry. A. The sociology of science is the most recent of these disciplines, and it is a field that is concerned with the institutional conditions under which science, however one defines it, is made possible, and also kind of the internal arrangements that have to take place. So, for example, you know, a philosopher of science might say, well, you know, what makes a science scientific is that it's testable. A sociologist might come back and say, yeah, but what if it's impossible for anybody to pay attention to your tests? There has to be some kind of social conditions, as it were, before, in fact, a lot of this science can get off the ground and be maintained. And sociologists are very sensitive to that. And very much like the historians, they tend to look at the ways in which things have been excluded or marginalized over the course of the history of science. Q. You're identified with a journal Social Epistemology. What is social epistemology? A. Social epistemology, in a way, is designed to be a kind of synthesis of these three fields that we were talking about -- history, philosophy, and sociology of science -- and basically take the incites from these fields, and with a kind of normative orientation -- now normative, the word normative in philosophy basically has to do with what ought to be the case, right, policy, right, to put it in a kind of practical way. And so, in other words, given what we know about the way in which science has been organized in the past and many different cultures and so forth, how should it be organized now, and are there problems, and how might they be remedied, and all of that kind of stuff. And that's what social epistemology is concerned with. Q. Well, the Plaintiffs have had an expert here in history and philosophy of science also, and he has addressed some of the issues that you've sketched out in connection with your work. But in connection with that, I'd like to ask you, how is it then that your training, your area of academic expertise qualifies you to address the issues in this case that relate to science? You're not a scientist. A. Well, I think the key thing is that, if you have noticed from what I said about the history, philosophy, and sociology of science, the kinds of things that are, as it were, relevant to know about science aren't necessarily the things that would be in a science curriculum, especially if we're talking about people who are being professionally trained to be scientists. Nowadays, to be professionally trained to be a scientist, is, in effect, to be a technical specialist in a very small area, a small branch even of your own science. And very often, these technical specialists have to take largely on faith what people from other branches of their own field are doing because they have only the most cursory understanding of it. Now if what we're doing here in this case is making judgments about what is science and not science, we're making very general global kinds of judgments, right, the kinds of information and knowledge and forms of reasoning that one needs to have would not normally be part of an ordinary scientific education, but would, in fact, require this additional kind of knowledge, the kind of knowledge that one gets from studying the history, philosophy, and sociology of science. Q. So is it true then that the training you have actually makes you better equipped to answer that issue than a scientist that's practicing? A. Yes. MR. GILLEN: Your Honor, at this time I would proffer Dr. Fuller as an expert in the history of science, the philosophy of science, and the sociology of science. THE COURT: All right. Is there a stipulation with respect to his testimony? MR. WALCZAK: There is, Your Honor. THE COURT: All right. Then he's admitted for that purpose, and you may proceed with your direct examination. MR. GILLEN: Thank you, Your Honor. DIRECT EXAMINATION BY MR. GILLEN: Q. Dr. Fuller, as we begin, I'd like to- THE COURT: Keep the -- THE WITNESS: I'm sorry, Your Honor. THE COURT: That's all right. It's the afternoon in the UK. THE WITNESS: I'm just kind of wound up. THE COURT: We're not quite as awake as you are perhaps, but if you just keep it at a modest pace, then we'll have no problem. You may proceed. MR. GILLEN: Thank you, Your Honor. BY MR. GILLEN: Q. Dr. Fuller, as we begin your direct examination, which is my opportunity to elicit your opinions, I want to ask you a few questions, which we'll go back and explain. Do you have an opinion concerning whether intelligent design is science? A. Yes. Q. What is that opinion? A. It is. Q. Do you have an opinion concerning whether intelligent design is religion? A. It is not. Q. Do you have an opinion concerning whether intelligent design is inherently religious? A. It is not. Q. Do you have an opinion concerning whether intelligent design is creation-science? A. Nope, it is not. Q. Do you have an opinion -- A. I do have an opinion. The opinion is, it is not. Q. Thank you. Do you have an opinion concerning whether intelligent design is creationism? A. I do, and it is not. Q. Do you have an opinion concerning whether methodological naturalism is an essential element of science? A. It is not an essential element of science. Q. Do you have an opinion concerning whether any testability criteria, if applied evenhandedly, makes intelligent design as much a testable scientific theory as evolutionary theory? A. Yes, it does. Q. What is it your opinion? A. It is. Yes, it does. Q. The remainder of your testimony will be our opportunity to explain the basis for your opinions. And I'd like to start at the outset by explaining the basis for your opinion that intelligent design is science. Explain why you believe intelligent design qualifies as science. A. Okay. Having looked at some of the materials in intelligent design, and I guess I'm most familiar with the work of Dembski and Behe, that, first of all, there are some salient phenomena. One of the things that you want, a science needs to be grounded in something, needs to have a kind of subject matter. And Dembski and Behe have identified something. They identify it in quite different ways. And here I'm referring to the sort of irreducible complexity complex specified information kind of notion. Dembski comes at it from a kind of, you might take, top down standpoint, where in a sense he's trying to define a sort of domain of design that is separable from necessity and chance. And his most motivation, intellectual motivation for it has to do with the difficulty, if not impossibility, of coming up with a random number generator. The elusiveness of the idea of chance which, in other words, whenever you try to come up with a random number generator, it seems as though you can always figure out what the program is, which means it's really designed. Okay. And that's kind of what motivates him to think, well, you know, why is it so hard to come up with a kind of formula for randomness? Okay. And that kind, you know, led him in that direction. There is a problem and a problem that is generally recognized by mathematicians and statisticians, regardless of what they think of Dembski, there is an issue there that deserves attention. In the case of Behe, he's a bottom up guy. He's a more inductive guy. And he sees phenomena, biochemical systems in particular, the structure of the cell, that natural selection historically at least has had difficulty trying to explain. And he thinks, well, you know, that might indicate that there is something quite special in terms of its status as a biological entity. And design would enter there. So there is this issue of salient phenomena that aren't readily being explained by the already existing theories that then create a kind of pretext for thinking that one then can perhaps, you know, have an extended field of research. Moreover -- oh, sorry. Q. I'm sorry. I didn't mean to cut you off. Go ahead. A. The other point I just want to raise is that, design isn't just the name of particular phenomena that other theories can't explain. But also it is, as I mentioned with regard to Dembski, meant to be a kind of general explanatory framework for a research program that covers basically anything that could be regarded as design. I mean, so, for example, in evolution, there is a tendency to kind of use design sometimes literally and sometimes metaphorically, and there's a kind of ambiguity that's there in the discussion in the evolution literature. But I think, with these guys who do intelligent design, design is meant to be literal. That is to say, you're going to have one science at the end of the day that is going to explain how artifacts are, and is going to explain how the biological systems are, and social systems perhaps, all under a common science of design. So there is, in a sense, a kind of general explanatory framework here that is also at play. Q. You contrasted the approaches taken by Dembski and Behe. What did you mean by that? A. Well, in science, you might say that some scientists work deductively, other scientists work inductively. With intelligent design, you've got a bit of both. Okay. So that Dembski, who is a mathematician by training, and in many respects, has a kind of intellectual background that one, let's say Sir Isaac Newton, had, right, tends to think about these things very much from the top down, Right. So he's thinking in terms of, where do the fundamental -- what is designed in the most fundamental abstract mathematically specifiable way? Now Behe, right, is a lab scientist, and so he's used to looking at phenomena, and he sees phenomena that don't lend themselves to very easy explanations. And so then he tries to then induce the kind of explanation for it. Q. If part of what has been said in the courtroom is that intelligent design is not science because it would be necessary to revolutionize science for intelligent design to be considered science, does the aim of revolution disqualify intelligent design from the realm of scientific theory? A. No, not at all. And I think -- I mean, this word scientific revolution, as I mentioned earlier, is largely associated with Thomas Kuhn, who I wrote these books about. And I think there are two things I would draw your attention to with regard to the concept of scientific revolution. One is, first of all, we should -- you know, it's a dramatic term. That's the first point. It's not a political revolution, a scientific revolution, and I do think that sometimes some of the rhetoric of that expression, of the term revolution leaks out, and one thinks, oh, my God, if we have a scientific revolution, there goes civilization or something. Okay. So a scientific revolution isn't meant to be quite like a political revolution. But one thing it does draw attention to, it seems to me, is, you don't have revolutions unless you have a clear sense of what is currently dominant, because what are you revolting against after all? In other words, if we lived in a world, a scientific world where there were multiple theories around, all roughly equal, all pursuing their own lines of research, and doing things, you know, wherever the truth may lead these respective research programs, there would never be a clear enough sense of a dominant theory to then have to say, we've got to revolt against it. The idea of revolution presupposes a dominant paradigm, that there is, in fact, a dominant power base in the science at the moment. And that's, in a sense, the most powerful kind of background conception to a scientific revolution. And I do think, in the kind of environment in which we live for science, where resources are so highly concentrated, that, in effect, if you want to make a fundamental intellectual or conceptual change, it's going to -- you're going to have to do something like a revolution. Q. There's been some discussion in the courtroom thus far about the historical dimensions of this, the issue that's being litigated. I want to ask you, in light of that, are scientific revolutionists unprecedented? A. No. I mean, in fact, Thomas Kuhn thought that they were a normal part of how science operates. His theory, which is based on the idea that a science can be identified by the fact that it has a dominant theory or paradigm at any given time, his view was that, these theories do their research, eventually accumulate anomalies, that is to say unsolved problems, both at an empirical and conceptual level, and then over time eventually, they get so many of these problems, that people begin to start looking for alternatives. But Kuhn's point is that, it only happens at that point. It doesn't happen while the theory is still doing well. And this is where he and Popper disagreed substantially. But point is that, yes, one can talk about scientific revolutions. Some of them have even been planned. I guess that's kind of the point that's relevant to this case, because a lot of revolutions in science are revolutions that are sort of seen in retrospect, okay, that in retrospect, we see that there was a scientific revolution in the 17th century. That phrase, scientific revolution, was not coined until the 1940's, okay. But there are revolutions that have been planned. Q. Give us a sense, just sketch out a few, to give us an idea of how the phenomena manifests itself? A. The most self-conscious scientific revolution in the sense that the guy says, I'm doing a revolution, watch out, okay, and succeeds, is Antoine Lavoisier, who is associated with the chemical revolution in the late 18th century. And in the history of science, Lavoisier is primarily known as the discoverer of oxygen. And the way he did this, and this is quite symptomatic of the way he did science generally, was, he was in correspondence with Joseph Priestly in the United Kingdom, who was actually a very good experimentalist and who discovered this thing that he called dephlogisticated air. The thing to keep in mind is that, before Lavoisier, chemistry was a very practical kind of subject, not very mathematical, kind of a thing that, you know, a bit like pharmacy, you know. It had this kind of element, practical applied kind of element to it. And people were trying to come together with some fundamental notions. And Priestly came up with this idea of dephlogisticated air, that is air without phlogiston, which was regarded as the fundamental element of chemistry at the time. But this element was very strange because, basically, when it was around, things lost weight. When you added phlogiston, it would lose weight. Very strange element. Lavoisier reinterpreted all of Priestly's experiments and a load of other experiments that chemists had been doing in the 18th century and basically said, look, these guys are misrepresenting what they're actually discovering. In a sense, we need a new kind of classifications system for chemistry so we can make sense of all of these very weird results. See, because the issue here is, you can have a lot of weird results in science and do a lot of very good practical work, and what you need is a kind of incentive to unify stuff in a way that hadn't been unified before in order to get a real science off the ground. And that's what Lavoisier did. He wasn't that great an experimentalist. He did some experiments, but for the most part, what would launch the chemical revolution was a systematic reinterpretation of a lot of stuff that other chemists had been doing for centuries. Q. Well, there's been, you know, the subject here is the neo-Darwinian synthesis. And there's been talk of genetics. And I know you and I have discussed Mendel and his role, which seems to bear directly on the neo-Darwinian synthesis. So please describe -- let me ask you are first. Do you regard Mendel's work as a scientific revolution? A. Well, it's one of those cases of revolution in retrospect in the sense that Mendel's work -- maybe I should say something about who Mendel is? Q. Certainly. A. You know. Well, Mendel, who's regarded normally as the Father of Genetics, was a monk, a Catholic monk in Moravia, which is now part of the Czech Republic, whose writing in the mid 19th century, and did these very famous experiments with peas where he basically came out with a kind of a prototype for the fundamental laws of heredity. And one problem that he had was trying to get the stuff published. It was a very difficult sort of idea to get across to people, because he was writing in a period where, even though Darwin's work wasn't completely accepted, nevertheless there was a view that evolution was more or less right. And what that suggested to botanists at the time was that, through heredity, there would be over time a kind of blending of characteristics, right, that that would be kind of the incremental change, the evolution over time, as plants with different traits, right, sort of bred together. But what Mendel showed, or claimed to have shown, was that, in fact, there are some fixed ratios between what we now called dominant and recessive traits, right, that are reproduced each generation, right, because they are intrinsic to the peas regardless of what the individual peas, what they looked like, okay. Now the head of the leading botany journal just couldn't buy this, and, in fact, Mendel was a special creationist. I mean, he believed that these were like inherent in the peas and they were kind of created that way. And so it was only much later on when -- that Mendel's work got accepted, basically when you got to a point where people could come up with some kind of naturalistic interpretation, you know, understood in that methodological naturalistic way, of what he was doing. Q. Well, carrying that forward in terms of the neo-Darwinian synthesis, let me ask you, was that synthesis regarded or described as a revolution in time? A. Well, this is the -- you're raising a very interesting point here, because obviously, in this talk of scientific revolutions, you know, one thinks of Newton, one thinks of Einstein, and I mentioned Lavoisier with the chemical revolution, and, of course, one things there's a Darwinian revolution. And Michael Ruse wrote a book in 1979 called The Darwinian Revolution. So when did it happen? And this is an interesting question. If you read Michael Ruse's book, and this is the first time -- I mean, this is the first time where in print people talk about Darwinian revolution, he thinks it actually happened shortly after Darwin published Origin of the Species, 1859. But in fact, for reasons, you know, that I'm not going to go into here, it's not until you get to the neo-Darwinian synthesis, which is being forged in the 1930's and 40's, that you actually have something that does look like a scientific revolution in the sense that you get biology in a state that looks something like the way Newton brought physics into in the late 18th century. And what the neo-Darwinian synthesis is, what it synthesizes is genetics with the kind of natural historical framework that Darwinians already have. So basically, to go back to the example of Mendel, you know, you basically bring the two sides together. You bring together Mendel and the genetic viewpoint, which, in a sense, is very much looking at life from a design standpoint or the fundamental bits of life, how do they combine to produce the things of things we see in the world, and you combine that with the natural history standpoint of Darwin, which is one that kind of looks at nature as it's already out there in nature, and then tries to make inferences about what's the source of that variety that we see. It's only in the 1930's and 40's that you actually get those two parts of the puzzle put together that enables the kind of people, you know, who have been testifying for the Plaintiffs to all say, they're part of the same science. Q. You mentioned Einstein. Just give us a brief discussion of the way in which his theory might be regarded as revolutionary? A. Now Einstein is a kind of case that Thomas Kuhn talks about and people normally talk about as a scientific revolution. And there are lots of aspects of it that are quite interesting, I think, from, you know, in terms of bench marks for thinking about what's going on in this case. One is that, when Einstein published his famous papers in 1905, you know, in relativity theory, in Brownian motion. He was, in fact, a patent clerk in Baron, Switzerland, having failed his entrance examinations in science -- by the way, Mendel also failed his entrance examinations in science. There's a long history of revolutionaries being academic failures. I don't know if that's so easy anymore, but it certainly historically has been the case. And so he writes -- but he was someone who, you know, was following developments in physics. And this was during a period in physics where still you could make major breakthroughs just by doing, you know, chalk on blackboard stuff, you know, mathematics and relatively simple experiments. And, in fact, there were several experiments, the most famous of which being a Michaelson-Morley experiment, which seemed to suggest that light could bend, that light would slow down if it's moving against the motion of the Earth, that needed to be explained. It was an anomaly within Newtonian mechanics. These were generally well-known. Anyone who was following physics would know that Newtonian mechanics had some serious problems that physicists themselves couldn't quite get. So Einstein writes up these equations, which basically end up saying, well, you got to drop absolute space in time, which is what all the Newtonians were presupposing, and say instead that, light is constant, and then that would make sense out of everything. He submits this paper. It's a very -- it's a very clever kind of move, but it's very radical as well. And he submits it to the leading physics journal. And Max Planck, Father of Quantum Mechanics, is the editor. And he sees that the mathematics in Einstein's paper is a little goofy, but he fixes it up and makes it publishable. And then, of course, people really start to take it seriously. Some interesting things about this is, Einstein was inspired to actually think along these lines that, in fact, there may be some fundamental problem with Newtonian mechanics, and that was the reason why it couldn't explain these experiments I just mentioned. By reading a book by Aernst Mach, M-a-c-h, called The Science of Mechanics, which is largely a historical work kind of putting together in a nice summary package all of the objections that people had been maintaining about Newtonian mechanics for the previous 200 years. You see, Newtonian mechanics had some unresolved conceptual problems from its very outset, including how do you justify absolute space in time. That's just taken on faith by Newton. And the Newtonians did as well, because it was able to solve a lot of empirical problems for many years. However, by the late 19th century, problems are starting to accumulate empirically, so people are beginning to question the conceptual basis. And Mach, as kind of this historian of all of this, said, you know, Einstein reads this to say, wow, so there were objections there for a long time, it was just, you know, that there was no incentive, as it were, to actually try to put these objections together and think if we can come up with some kind of positive alternative. But now at this stage in the history of physics, there seem to be. And that's kind of what Einstein did. And he mentions this, that he was inspired this way. Q. Well, you've mentioned this accumulated set of problems for Newtonian physics. Let me ask you, looking at this state of affairs today with respect to evolutionary theory, do you, in your opinion, think there's reason to believe that there are an accumulating set of problems that may be a pre-cursor to a similar development in biology? A. Well, there are certainly some longstanding conceptual issues that just don't seem to go away. And some of them are quite -- and some of them reflect kind of the fault lines of the neo-Darwinian synthesis. As I mentioned earlier, right, it has to do with the relationship between genetics and natural history being brought together. But these two disciplines are really quite fundamentally different in how they think about life. So, for example, one way, one area where this is coming to a head has to do with exactly how one defines the idea of common descent; that is to say, the idea that there are common ancestors for all organisms, which is very much a key, a corner stone of the evolutionary synthesis. Traditionally, common descent was identified morphologically, which is to say, you sort of, as it were, give the precedence the natural historians looking at the way the animals, how they appear to you in the field, what their physiologies are like, and so forth, what they're shaped like, all that kind of thing. But with the advent of genetics, one then comes up with a kind of alternative way of doing this, right, which actually looks at genetic similarity between organisms, and then one comes up with a somewhat different tree of life, as it were. This is kind of an ongoing debate. And you end up getting somewhat different trees of life often with some surprising consequences and surprising divergences. In a sense, that's a residue of the fact that the two main bodies of disciplines that were brought together in the neo-Darwinian synthesis are really, you know, sort of approach the nature of life in fundamentally different ways. And so that issue kind of revives itself in the debates over what common descent means. Now there are other issues as well. So, for example, how much does natural selection explain survival of the species? Different biologists have different angles on this. Some, like Richard Dawkins, takes what's called a very strong adaptationist approach where everything is the product of natural selection. Others say, well, there's sexual selection, there's random genetic drift, there's maybe punctuated equilibrium. You know, there may even be some version of the inheritance of acquired traits in some aspects of things. And different biologists, you might say, would apportion the explanatory merit of these mechanisms differently. And there is no consensus on this, though most agree that natural selection, in some sense, is dominant. But then that raises the question of, at what level of organic reality does natural selection operate? So there's a very -- especially in the philosophy of biology, but it definitely affects biology itself, an issue over units of selection. What exactly is selected? Are we talking -- Richard Dawkins thinks selection occurs at the gene level, right. When he says, selfish genes, what he means is, that, as it were, evolution is written from the standpoint of the gene. The genes are what is being selected, and everything else, like the organisms that contain the genes, they are mere vehicles for genes, that genes are really where the selection is. Darwin himself believed selection occurred at the level of the organism, that you guys see natural selection in principle happening if you were actually there whatever billions of years ago, because it's happening on organisms. They live or die. That was kind of how he saw it. Then you can think about, well, maybe there's group selection or kin selection. So that's to say, larger and larger units where selection is occurring. And throughout the history of evolution, you've got people pitching the claim at all these different levels, and then again, lots of disagreements. And again, these things are not being resolved. They're just kind of continuing. They're rumbling along, you might say. Q. Well, do you see reason to believe that, how should I say this, that there are, there's a way in which the theory at the level you've described it, is not actually shaping science as practice? A. Well, this is the issue, right, because if, you know, what I've just been sort of laying out for you in terms of these theoretical disputes that exist within evolution, in a sense, what I'm talking about there is what is most directly identified with evolution. If one wants to -- and when people have been testifying in this case, whenever they've talked about evolution, they've used the kinds of concepts I've just been talking about, all of which are essentially contested by people in the biological community. I'm not saying they don't believe these concepts. But exactly their definition and how they apply and their explanatory scope, all of this is being contested. So you wonder, how is it possible for biology to be conducted on a day-to-day basis, given all of this kind of conflict at this supposedly fundamental level of biology? Well, the answer is, it isn't fundamental for doing biology. In other words, these debates over evolutionary theory, that, in fact, define what evolutionary theory is, kind of continue in the kind of parallel universe to the rest of biology. And in a sense, one way you can see this is that, if you look at the Nobel prizes that have been awarded for physiology in medicine, which is the field, the biological field, essentially, you don't find anyone ever getting the prize specifically for evolution. Okay. What they get prizes for are genetics, for ethology, for various branches of medicine, for physiology, animal behavior, right. In other words, they get the prizes for areas of research that are much closer to the phenomena than the sort of generalizing, universalizing level in which evolution operates. This is not to say that these different disciplines cannot be explained or cannot be illuminated by evolution. But the point is, one doesn't need to be an evolutionist in order to do the work in these respective fields, at least sufficiently to be able to be recognized as important practitioners of those fields. Q. Well, in light of what you're saying, do you see a meaningful connection between the work of the scientists winning the Nobel Prize or working the lab day-to-day and the theory? Is there evidence that the theory exerts a powerful influence over their work? A. I mean, this is the thing that's very difficult, it's a very difficult thing to document. I mean, of course, we certainly had enormous numbers of pronouncements telling us that evolutionary theory is the foundation or the corner stone of biology. The National Academy of Sciences, I believe, says this. But you see, is this literally true? Because at least from the standpoint of someone like myself, who's looking at this as a historian philosopher or sociologist of science, when we think about foundation or corner stone of a science, we're always thinking about Newtonian mechanics. There's a sense in which physics is kind of always the bench mark for us, because there you have a very clear sense of a science where you have fundamental laws, right, and where you can deduce conclusions, and where different aspects of reality, in a sense, can be sort of figured into it in various ways. There's a kind of tight theoretical deductive connection that leads to predictions that can be validated or not, as the case may be. And now, of course, after Newton, we've got Einstein, and we see physicists struggling very hard to come up with a sort of grand unified theory. And what they mean by that is, something that's very deductively tight in that kind of way. And they recognize that there is a sense in which there is a crisis in physics. Now evolutionary theory isn't structured this way. Biology isn't structured this way as a discipline where there's any sense in which one is talking about unification in that very tight kind of sense. Rather, what you have is lots of different disciplines within the biological sciences -- and, you know, I've rattled off a few already -- kind of doing their own work, you know, with their own theories and methods that pertain to the branches of life that they're concerned with, right, and then every now and then, paying lip service to some concept in evolutionary theory. And one way in which I try to show this in the expert witness statement that I provided for this trial is this testimony of the guy, Nicholas Rasmussen, who is a historian of biology at the University of New South Wales, who basically makes the point that it's a mistake to treat evolutionary theory as if it were the same thing as contemporary biology, that, in fact, biology is all of these different fields. They have radically different histories. They come from many different directions, some of which are more or less related to developments in evolutionary theory. The problem, however, is that evolutionary theory is, in a sense, a kind of universal rhetoric of biology; that is to say, a repository for terms and concepts that people from all these different biological fields can regularly use to explain and illuminate what they're talking about. Q. How did Rasmussen go about substantiating his point concerning the relative -- A. Well, Rasmussen was someone who was himself initially trained as a biologist. I mean, a lot of people in my field, though not myself, but a lot of people in my field originally have a kind of science training, and for various reasons of disinterest, disenchantment, or disillusionment move into history, philosophy, and sociology, instead of staying with the original science. So Rasmussen had some sense that, if you look at day-to-day work of biologists in the lab or in the field, all of this evolutionary stuff doesn't really happen. It happens somewhere else. So what he did was, he did a data base search of all of the -- of all the journals that are listed, biology journals that are listed for the year. The year he looked at was 1989. And he found that, in a generous estimation, that is to say, if you look at the key words and abstracts of articles -- and abstracts of articles are the things that typically have what are the main points and the main things that the author wants to get across to the scientific community -- if you look at those things for the year 1989, and you look for the occurrence of the word evolution and the word -- and the phrase natural selection, you will find no more than 10 percent of articles include this in 1989. No more than 10 percent. Q. Is it in 1989 or was there a period of inquiry? A. Well, it was 1989. But then I checked this. I was very, you know, concerned, is this right? I mean -- and is it the same today, because we're now 15 years later? And what does this look like as a kind of historical phenomenon? I mean, I think one thing to keep in mind here is, this is against the back drop of everybody saying, you know, evolutionary theory is taken for granted. And so you wonder, okay, maybe that's why it's not being talked about very much. So what I did was, I looked at the data bases -- and now it's a lot easier to do it because we've got computer search programs -- for the biological sciences and biology, all of the articles, books, websites, whatever, from 1960 to the present. And here we're talking about 1.3 million items. And -- MR. WALCZAK: Your Honor, I'm sorry. I'm just going to object. This is nowhere in his expert report. MR. GILLEN: I mean, he's referenced the Rasmussen article in his -- MR. WALCZAK: But we're now talking about a study that is not part of his expert report. I certainly don't find it. And I could be mistaken, but I don't think so. THE COURT: Well, let's use this as an appropriate time to take a break. I have something else I must attend to at this point. I was going to break at 10:20 anyway. Why don't you look and see if you can find it either directly or in the context of the expert report, and I'll hear your objection or renewed objection after the break. Why don't we take about a 20 minute break. Water or decaff only. THE WITNESS: My apologies, again, Your Honor. MR. GILLEN: I understand. THE COURT: And we'll return in 20 minutes. MR. GILLEN: I got a paddle back there. THE COURT: We'll be in recess. (Whereupon, a recess was taken at 10:20 a.m. and proceedings reconvened at 10:44 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 15 (October 24), AM Session, Part 2 THE COURT: All right. We resume with direct examination of Dr. Fuller. MR. GILLEN: Thank you, Your Honor. THE COURT: And do we have an objection? Do you want to restate the objection? MR. WALCZAK: I would just object to Dr. Fuller testifying about some study that he apparently did on periodicals and publications, because that's nowhere in his expert report. MR. GILLEN: And I acknowledge the objection, Judge, and withdraw the question. The article is in his report, but his curiosity and what he was getting into is not. THE COURT: Then there's no reason to rule on the objection. The question is withdrawn, and you may move on. MR. GILLEN: Thank you, Your Honor. DIRECT EXAMINATION ( CONTINUED) BY MR. GILLEN: Q. Dr. Fuller, there's been some discussion of a notion of the relationship between a given theory and its service as a big tent. And so I'd like to briefly get your opinion on that sort of the sub issue in this case. ID has been described as a big tent. Do you see this as distinguishing intelligent design, ID, from evolutionary theory? A. Well, I was actually quite surprised of the use of the term big tent, which I had not run across previously to describe intelligent design, especially by people supporting evolutionary theory, because, for me, evolutionary theory is the biggest of big tents. Q. What do you mean by that? A. Well, in a sense, it's not an unusual thing. And I don't want my remarks to be taken in some way I'm demeaning evolutionary theory or scientific theory in general, because there is a sense in which all scientific theories that attempt to be very universal in general do end up becoming big tent theories, at least in the beginning. But the specific thing I have in mind here with regard to evolutionary theory, and I've mentioned this a little bit already, is that, really the people who are brought under this tent of the neo-Darwinian synthesis come from really quite different, radically different research cultures historically. And one reason why this particularly interests me, and I think is of significance is, it's -- the range of fields that you find under the neo-Darwinian synthesis ranging from laboratory based genetics, and now more recently, computer based simulations, all the way over to the paleontologists and the natural historians who study animals and plants in the field. That kind of range methodologically is very similar to what you find in the social sciences, which are my own fields, where we range from anthropology, which studies natives and their habitats, and then moves along, and we have political scientists doing surveys, and we have economists doing modeling themselves, and psychologists doing laboratory based experiments. So the range of methods are just as broad as in biology, and arguably, the subject matter of the social sciences is narrower than biology given the species as contained in just one species, as in the case of social science. Yet neo-Darwinism was able to bring together all of these vastly different fields under one umbrella theoretical framework in a way which never happened in the social sciences, even though there was attempts at roughly the same time in the 1930's and 40's to do so. So there's a kind of interesting question there from the standpoint of the history, philosophy, and sociology of science about, how did this thing work, because you would think it didn't really have a chance to work. Q. Has that phenomena you described been the subject of study? A. Yes. And I was eluding earlier when I was talking about the uptake of one of my books, Philosophy, Rhetoric, and the End of Knowledge, the people who study the rhetoric of science have paid particular attention to this business of the forging of neo-Darwinian synthesis. And the key thing that they focus on is the -- is certain key texts. And the one text I think is the most important text for launching the synthesis is the book Genetics and the Origin of Species by Theodosius Dobzhansky. Should I spell now? Q. Please spell that. A. Okay. Theodosius, T-H-E-O-D-O-S-I-U-S. Dobzhansky, D-O-B-Z-H-A-N-S-K-Y. Q. Thank you. A. And Dobzhansky was a very unique figure in the history -- and for me, I would say, personally, this is the man who I would identify as the Newton of the Darwinian revolution. If we were imagining, you know, Newton as having set a paradigm for physics that physicists, for 200 years, worked under, okay, the comparable thing in the history of biology was provided by this guy, Dobzhansky, in 1937, with genetics and the origin of species. Because Darwin himself was more like a Copernicus figure in the sense he kind of makes the big intellectual change, but he doesn't really provide a basis for research so people from a lot of different fields can work under. But Dobzhansky did this. But he didn't do it the way Newton did it, because Newton, in fact, had some very specific methods and very specific kind of mathematics that was very much a part of how he would -- how his program would develop. Whereas Dobzhansky was a big tent guy. He was a guy who, when he was still in Russia, was a natural historian. He migrated to the United States in the early 20th century and worked in the major genetics laboratory in Columbia university under Thomas Hunt Morgan. So he had like a bit of both worlds in him, and so he was able to communicate across this great divide that had existed in biology in the beginning of the 20th century. And I think the key thing to point out in this respect is that, at that time, so we're talking like the first third of the 20th century, genetics is the ascendend biological science, and it's doing perfectly well without Darwinism. And Darwinism is, generally speaking, in decline and seen as a kind of, you know, old fashioned natural history, guys who like to look at animals and plants and give just-so stories about how they managed to survive but with no clear sense of causally how it happens. And this is where Dobzhansky comes in, because he's the man who introduces the language of mechanism. And you've heard a lot in this trial, and we've always hearing about mechanisms of natural selection. Well, this concept of mechanism was not one that comes from, as it were, the natural history, the Darwin side, because the Darwinists tended to think of natural history as a kind of emerging process, you might say, that, in a sense, you couldn't actually break down into analytically discernable parts saying, this part is caused by genes, and this part is caused by environment. Whereas nowadays, in scientific biology, that's exactly how we think about it. We think about there being mechanisms of natural selection, which work by some kind of combination of genes and organisms operating in environments. And it's easy to get this impression that, in a sense, if you took apart animals and environments, you could figure out how it all worked. Well, Dobzhansky is responsible for getting that mind set into Darwinism, because Darwinism itself did not have it naturally. It was more a science of just sitting around watches animals and birds and collecting artifacts like fossils and things like that. So this was very important. But what they have figured out, looking at this book very closely and looking at the reviews of it and the way it was taken up by various branches of biology, was that, you know, mechanism is a word that has a lot of resonance in lots of different ways. So as it were, one can talk about mechanism as a force. One can talk about mechanism as an actual part of a machine. In other words, there was a lot of strategic ambiguity that was located in this book that enabled to bring everybody on board without having to challenge their fundamental assumptions about, that they brought in. Whereas, you know, so geneticists would normally think, all of science is done in labs under artificial conditions. Whereas the natural historians thought, no, the way you do life science is by looking at animals in their native habitats. Well, Dobzhansky squared the circle rhetorically by making both sides feel comfortable with this kind of arrangement. But he didn't do it because -- by, in some way, logically and mathematically synthesizing things the way Newton did. Q. Well, if he didn't do it that way, what is the purpose of the synthesis? What makes it hang together? A. Well, it is a common rhetoric. I just mentioned the issue of mechanism here. If you look at the Plaintiffs' experts in this trial, and I'll give three, because, in a sense, three of them represent a kind of range that exists today in biology. And you think to yourself, what do these people have in common? And so let's think for a moment of Padian, Kevin Padian, who is a paleontologist who spends his time looking at fossils and classifying them. And then we've got Kenneth Miller, who's a cell biologist who spends his time in laboratories looking at very small things in peatry dishes and so forth. And then you've got Pennock, who is basically doing a kind of computer modeling, artificial life research, as it's normally called. And all these three guys think they're part of neo-Darwinian synthesis. And the way you see is, of course, when they come to having to make ultimate explanations of what they're doing, that goes beyond the actual research environment and actual organism or actual work setting, they will appeal to these various notions of natural selection and mechanism and so forth. So there is, where this kind of multi-purpose rhetoric that is equally available to all of these people who otherwise are doing research that really has very little to do with each other. And, in fact, I would even go further. I would -- it's interesting that none of these three guys, and it could be actually any such people who represent this diversity of the field of biology, were asked really to comment on the work of the others. So, for example, would Padian or -- and Miller think that Pennock was doing biology? You see. And if so, to what extent is the biology he's doing really contributing to some kind of validation of the evolutionary synthesis? It seems to me, there would be a variety of views that would be on this issue here. But nevertheless, they're all talking the same language at the most general level of explanation, and that is largely due to Dobzhansky's work. Q. Would status as a big tent theory disqualify a theory from science? A. No. I mean, I think that's an important point to bring to bear here, because what basically I am trying to challenge is not that one shouldn't have big tent theories. Big tent theories are, in fact, part of what it takes to unify fields that do start off very different. That's not surprising. One is always looking for higher levels of abstraction and stuff like that. But the value of it at the end of the day comes as a kind of, you might say, what we say in philosophy of science as a metaphysical research program, and that is, in fact, how I would describe the neo-Darwinian synthesis, a metaphysical research program in biology that suggests some very interesting ways of understanding and interpreting phenomena in many different disciplines that otherwise would have very little to do with each other. Q. If you look at evolutionary theory in that light, are there key terms that are hallmarks of the synthesis? A. Well, I mean, natural selection, obviously, common descent. The issue about origins, exactly what we mean by that, because if you think about it for a moment, there are some interesting kinds of, you might say, strategic conflations when one things about origins, because what do we mean by origins? Do we mean what was actually there at the beginning of natural history, whatever, 4 billion years ago or whatever the paleontologists tells us it is? Or do we mean, what is from a biochemical standpoint the most primitive form that can sort of self-reproduce or self-change itself in a way that we would recognize as life? Now, obviously, one would be the sort of thing a paleontologist would study, and the other would be the sort of thing a biochemist or someone like that would study. And there's a presumption that somehow there would be the same answer, that, in some sense, that the historically earliest form of life, origin in that sense, would also be the most biochemically primitive form of life. And it seems to me, this is kind of part of what the neo-Darwinian synthesis does. Namely, it makes you suppose these things are going to be the same. But unless you actually thought these two disciplines had to speak to each other, it's not at all obvious that there would be a convergence. Q. In terms of the -- of this evolutionary synthesis, the neo-Darwinian synthesis, does any one person speak for -- can anyone one person speak for that? A. No. I mean, you know, there's a sense in which -- that's the whole idea of the big tent, after all, right. Dobzhansky gives you a kind of protective cover, you might say, linguistic protective cover under which all kinds of research can be conducted as long as, you know, as they are being discussed ultimately in this common rubric. So, for example, Richard Dawkins, right, emphasizes very much almost exclusively natural selection. He's an adaptationist. He thinks it's at the level of genes. There's massive disagreement with him across all of evolutionary biology. Yet he's probably the best selling author at the popular level and the person through whom most people find out about evolutionary biology today. But his view is, by no means, the dominant one in any kind of statistical sense within the field. So in that sense, no one person does it. And if you look at textbooks, because textbooks might be the place where you think you get some kind of consensual view, I think we see this in this trial, and this is again not unique to this trial, but textbooks are things that are, in a way, cobbled up by committee, right. There's a sense in which you got a lot of interest that needs to be satisfied to give a kind of common story. And so as a result, you're not actually going to tell the story of various aspects of life exactly as those people who are the experts would think would be the best way to tell it, but rather in a way that will enable all those different bodies of knowledge to be brought together in some coherent fashion so the students think, ah, this is biology and not just some collection of specialized disciplines. So there isn't going to be one person or even one book that is going to adequately capture what this, what this synthesis is. Q. Well, given what you said about the situation with respect to the neo-Darwinian synthesis, would you expect the situation to be any different for intelligent design theory? A. No, not at all. And, in fact, I think, you know, the main problem intelligent design theory suffers from at the moment is a paucity of developers, right. There are basically a handful of people doing it. And so what you don't have is really a lot of room for theory development, for developing the terms of the argument, and for developing research programs in the area. And that is the -- that would be the main problem. But the fact that there are people coming at it from different angles, you know, from different perspectives, and thinking of different phenomena as salient to design, that itself is not a problem. Q. Well, you described that the thin ranks is a problem. Is that -- how would you explain that in light of your discipline? A. Well, I mean, this is the issue here. We go back to this issue of there being a dominant paradigm. As I mentioned, you know, if we want to talk about biology as having achieved the status of a paradigm where there is a dominant theory that basically becomes the covering term of research, this is the neo-Darwin synthesis since the 1930's and 40's in biology. And one of the consequences of that is, that becomes sort of the lingua franka in which all kind of biological knowledge claims need to be transacted. So that if you actually start to come in with predices that are fundamentally different, or maybe even challenged, fundamental assumptions of the dominant paradigm, it's not exactly clear how you get in given this situation, because you have this massive amount of resources that have accumulated that, in a sense, control the show. Q. You've mentioned the terms or concepts of Darwinian synthesis as providing a lingua franka. Do you see signs that that may be changing? A. Well, I mean, I think that -- I mean the issue -- the thing I raised earlier about there being all of these kind of conceptual problems that don't get resolved and just kind of rumble along is indicative that it's not clear what's going to happen in the long-term. I think here, intelligent design, in a way, could be making some inroads. If one -- if -- I think there's certain constituencies within the neo-Darwinian synthesis that, in a sense, could pull apart from the synthesis more easily than others. And in particular, I'm thinking of the people who work on computer modeling, who work, as one might say, the design side of evolution, the genetic side, the biochemical side, where people are very much thinking in terms of mechanisms normally. It seems to me that, there, it is possible for that to pull away from the more natural history paleontological side. So there's no natural necessity that all these fields have to be together. And there's a sense in which some of the stuff in intelligent design is naturally better suited for some of this other stuff going on in biology. Q. Well, that points to another way in which people have linked intelligent design with religion or natural theology, which you've just mentioned. There's a sense that its historical roots are religious in nature. How do you approach that claim? A. Well, I mean, I think the first point always to put on the table about this is, just about, you know, all of modern science has religious roots. And this is where this idea of methodological naturalism as being the nature of science is just compete rubbish from a historical standpoint. If you look at all of the people who are most responsible for the scientific revolution, which is, after all, the benchmark of what we call natural science today, they were all people with very strong religious beliefs, typically non-conformist beliefs, and typically people who, in a sense, had to hide their beliefs from public inspection for fear of persecution. And I'm talking here, Renee Decaur, Sir Isaac Newton, you name them, Robert Boyle. And so in that respect, the religious origins of science doesn't really speak badly to it at all per se, because, in fact, that's the normal thing in the history of science. Q. Well, let me ask you. Do you see that intelligent design is necessarily linked to natural theology and its origins, such as the worth of Paley? A. Here's, I think, a real problem that intelligent design has. It doesn't know its own history. It's not really properly acquainted with its own history. And so as a result, it really can't recover -- it hasn't yet recovered all of the intellectual roots that, in a sense, could provide sustenance for it. And the first person who I, you know, if I were offering advice to intelligent design people, I would say, Sir Isaac Newton. He is the 400 pound gorilla of intelligent design theory, because this is a man who quite clearly thought he got into God's mind and figured out the basic principles by which all of physical reality was governed both in the heavens and on Earth. And in fact, and the work, some of the work of my dissertation advisor was relevant to this, you know, he has all this you unpublished stuff where he's going through, you know, Biblical exegesis and alchemy and all this stuff, and it's quite clear that all of the published work, the Principia Mathematica and all the physics that he did was in service of trying to figure out, right, in the coin of science, right, how the creator's mind worked. So he took -- this is what I mean when I say, taking a design standpoint. You put yourself in the position of the creator, and you think, how would I create the world given what we know about it? And this is what Newton did. And in that respect, he is the greatest of all the intelligent designers, okay. Now when we get to Paley, who was kind of the poster boy for intelligent design theory these days, we're basically talking about a guy who's writing at a point where he's responding to skeptics of design. So all of this stuff about the Watchmaker from 1802, all this kind of stuff, is already written in the context that there are people challenging design and he has to defend it. Okay. And so there's a sense in which the whole Paley, the framing of the Paley situation is kind of wrong footed from the standpoint of intelligent design, because he introduces the issue of design from the standpoint of someone who discovers design, discovers the watch on the beach, rather than from the standpoint of someone who could do the designing, which is what Newton did. So from that standpoint, the intelligent design people do themselves a disservice by falling back on Paley. Q. Well, you mentioned computer modeling and the way in which some people self-consciously try to put themselves in the mind of someone creating to grasp natural laws. How about someone who looks at it from a more, what shall I say, a more computer oriented standpoint historically? A. Well, okay. And here, another hidden presence in the history of intelligent design, who is very relevant to -- because, you know, nowadays, if we think about getting into the mind of the creator, and we don't want to be explicitly theistic about it, the most natural way is to think in terms of computer programming where you are designing virtual realities and worlds and things like this, like Pennock is doing. The person who is the benchmark for that, and the man who we normally credit with having invented the idea of the programmable computer, is the guy by the name of Charles Babbage, B-A-double B-A-G-E, who was one of the successors to Newton's chair at Cambridge. So he held Newton's chair. And he was writing in the 1830's and 40's, and he called the computer the analytic engine. And what he wrote, he wrote one -- a series of treatises that came out in the 1830's and 40's, basically trying to square science and religion, called The Bridgewater Treatises. And the one that he wrote was one where he sort of imagines God, we would say by our terms, as a big computer programmer; and indeed, a computer programmer who, as it were, programs free will by including not just natural laws a la Newton, which are deterministic, but actually sticks in some, what would be called, stochastic variables, that is to say, randomizing elements. Get stuck into the program. I mean, I think the interesting thing here is, probability theory was only in its infancy when Newton was writing, but by the time Babbage is writing, it's pretty well developed. And Babbage is thinking that God might have been the kind of guy who designed the world such as there are these deterministic laws, but every now and then, you throw in a random variable. So God knows the program, but he doesn't actually know what the creatures are going to do, because what the creatures are going to do is going to be determined by how this random variable plays itself out. And so for Babbage, that would be a kind of operationalization of free will. That's what he thought. That was how you square the determinism free will problem. You can imagine -- in fact, this is not a million miles from what Pennock is doing, it seems to me, and in that artificial life thing that he was talking about. And for Babbage, this would be an example of intelligent design, because, after all -- Babbage's point would be, God just needs to know the program, but the program can include variables, the outcomes of which he doesn't know. Q. Well, at several points in this discussion, you mentioned the notion that the scientists, in approaching a given problem, has adopted a mind set, which assumes creating rules. And you've used the term creator. You've opined intelligent design is not creationism. How do you see the relationship between this mind set you're describing, which assumes a creator, and the nature of the work of these individuals you've mentioned as scientific nonetheless? A. Well, I mean, the issue here -- and here, I think it's important one introduces a distinction that's very important in the philosophy of science that I think, in a way, gets blurred in the discussions we've been having in the courtroom, and that is between the context of discovery and the context of justification. And this is a very classic kind of, you know, even somewhat old fashioned philosophy of science distinction that nevertheless is worth bringing up here; the idea being, right, that there is a context of discovery for science. And that is to say, the kind of mind sets, the kind of ways of looking at the world that are, in fact, useful for coming up with scientific ideas and hypotheses. And here I would include the design standpoint, the creator's standpoint, putting yourself in the mind of God, thinking how would God do this. That's, in fact, a very useful way of coming up with theories and hypotheses and so forth. However, that's the context of discovery. That doesn't show its truth. What that shows is, it's a fruitful way of coming up with ideas, but at the end of the day, what makes the thing science is whether it's testable, and that is the context of justification. Okay. And the key thing there that's very important is that, that has got to be testable in a way that you don't have to actually share the mind set of the people. Babbage, Newton, Paley, all these people are theists. No doubt about it. But you don't have to be a theist in order to test the theories they're putting forward. That is the key thing about science, that there is the context of discovery and the context of justification. And they're both vital, but they're both -- but they're separate. Q. Well, we'll talk some about that later. But as we go forward, I want to ask you, in terms of these theories that you're describing as they develop historically, and then again in terms of intelligent design, is new research, new experimentation a necessary ingredient of scientific progress? A. Well, eventually it is. But, I mean, the thing is that, you actually do need a kind of critical mass of theory and interpretation of data before it happens. I mean, one of the things that's always worth pointing out in this context is that, all new theories are born refuted. Okay. I mean, especially if you have this view that there is always a dominant paradigm in science, right, because, in a sense, the deck is stacked against you, because the dominant paradigm sets the terms under which, you know, the domain is conceptualized, the terms under which tests are to take place, and so forth. So there's an uphill struggle from the outset. So it then becomes very important for people who want to put forward a new theory to actually engage in what we call would theory construction, namely elaborating the consequences of the theory in many different settings, kind of develop the theoretical imagination, you might say, and also to reinterpret a lot of the data that other people have already been studying. And those two things are very crucial to lay the groundwork. Now I say, in saying all this, what I have in the back of my mind as a precedent is actually Newtonian mechanics, because, of course, Newton -- I mean, I'm not going to deny this. Newton -- the big thing is, Newton had a very important achievement to begin with. But where to take that, where to go forward, how to go forward with that into domain's Newton himself did not study was not at all clear. And so it took quite a while, several decades, for people, in a sense, to play around with the theory, to work with it, to reinterpret things in light of his theory that previously weren't thought about as thinkable in those terms before you actually can come up with some serious experiments that could then test the merits of the theory. So this does take a certain amount of time to do. Q. Well, just, if you would, give us an example of this either the reinterpretation and then the testability based on some sort of agreed upon test in this area, how a scientific theory that initially means doesn't have a strong experimental showing comes to enter into that feature of scientific progress? A. Well, I think within Newtonian mechanics, you got a clear case in terms of optics. Newton did some experiments with optics in the 1670's. Results were very inconclusive. At least, the Royal Society didn't believe him. And he always believed that light was a particle, right. And, of course, the natural way of thinking about light is kind of an as a wave. It's only in the 19th century, once people start to really kind of play around with how do you test the difference between these two things, because at a certain level, given the invisibility of light, right, that it seems that this is just a different difference in metaphors here, right. I mean, how are you ever going to test this? But indeed, after people start to develop these ideas, you know, in more details, then clever experiments are come up with, and you are, you know, and you get kind of, throughout the 19th century, you might say, tit for tat. Some people supporting waves. Some people supporting particle. And they go back and forth, back and forth with clever experiments, and then eventually you get to -- sorry. Am I interrupting you? MR. WALCZAK: I'm sorry. I was trying to be polite here, but, Your Honor, I think this is outside the scope of his expert report. There's no reference to optics. There's no reference to the wave particle theory. MR. GILLEN: The report sketches the general subject matter of the expert's approach. These are specific examples of the point that he made throughout the report. No expert here has been held chapter and versus, if I day dare say, to the words uttered in the report. These are just examples. THE COURT: We could go into the report, and I'm reluctant to do that. I think what I'll do is, I'll overrule the objection and ask you to sort of lead it back into the report. I'll give some latitude. So the objection is overruled. THE WITNESS: I think I finished. I made the point I wanted to make with that example. So I don't want to -- BY MR. GILLEN: Q. Okay. Well, let's see. Where were we then? Do you regard the, which some asserts to be, the failure of intelligent design at this point in time to produce experiments along those lines to disqualify it from science? A. No. Q. Why is that? A. Well, I mean, it's too young basically at this point. And it hasn't really done all of the theoretical elaboration or the recovery of the appropriate history to set itself in a proper tradition that then would kind of field the imagination to come up with the right kinds of experiments. Q. Well, in terms of the claim for design and the way it relates to some of the mechanisms that have been testified here, adaptation or natural selection, do you see a way in which intelligent design claims can involve a reinterpretation of currently existing data? A. Yes. In fact, one of the things that's very striking, if you look at the philosophical literature that ponders this debate, is the degree to which there's a kind of interchange between the word adaptation and the word design. In a sense, what the evolutionists call adaptation could be easily reinterpreted as design. And, in fact, this is one thing that, in fact, leads a lot of evolutionists to be very skeptical about the kind of omnipresence of the word adaptation in evolutionary theory because it looks like a kind of surrogate word for design. In fact, I believe Padian talked about, well, you know, irreducible complexity is what we call adaptational packages. You know, there was this kind of equation made here in the testimony, that the kinds of things, you know -- so there is a sense in which, there is the -- there is at least the possibility of doing some very direct translations across these two paradigms. Q. If the neo-Darwinian synthesis hasn't served at a functional level as uniting scientific and creating the biological area, what do you see as historically doing that? A. Excuse me. Can you repeat that? Q. Yeah. If you're saying that the neo-Darwinian synthesis hasn't really served in a functional operative way to guide much of the work that's being done, what are the premises, the implicit premises that seem to be driving? A. Well, I do think it does provide a kind of metaphysical basis for research, but I also do think there's a lot of, kind of, policing of boundaries going on. In other words, the neo-Darwinian synthesis -- and this is true, I think, of many general scientific theories -- they're doing two things at once. They're sort of trying to guide research inside, but in the case of the neo-Darwinian synthesis and in a kind of rather loose way among the different biological disciplines, there is also a kind of a gate keeping function that it plays in terms of trying to keep out certain things from being discussed. And in the origin of the neo-Darwinian synthesis, going back to Dobzhansky's work, there was this concern about eugenics, and that if genetics was made the foundational discipline of biology, full stock, without any consideration of natural history or anything like that, that this would lead down the road of eugenics. I think in more recent times, there has been this concern about trying to keep religion out. That's been, in a way, kind of perennial, and that's kind of come back again. So there's a sense of which it's a policing function going on with the synthesis. Q. Well, in terms of that function, many people, scientists have come in here and testified, it's this methodological mechanism which is the hallmark of modern science. And I want to ask you to explain your opinion that methodological naturalism is not an essential ingredient of scientific inquiry A. Well, to my ears, as a philosopher, I find methodological naturalism kind of strange. As I said earlier, I am a naturalis. But naturalism is primarily a metaphysical position. It is not a methodological position. And, in fact, it seems to me, and I have not found precedent elsewhere, that this is, this phrase, especially when regarded as the hallmark of the scientific method, is kind of a creature of the cottage industry that's developed around this particular debate. In other words, you might say, there's a kind of parallel universe of philosophy of science in which this debate is conducted that bears some, but not complete relationship to the real philosophy of science, or real philosophy, for that matter. And so methodological naturalism seems to be a way of building in a kind of metaphysical commitment without having to say so. So in other words, in order to be able to do science, you have to have a certain -- COURT REPORTER: Could you please slow down? THE WITNESS: Sorry. So in order to be able to do science, one has to come in with a certain way of seeing the world. It's not enough just to be able to test theories and test them fairly, but one has to think about the world in a certain way first to be able to do science. That is to say that, you know, there is this kind of nature that it's all happening in this one natural world, whatever that may be. And the implicit contrast is with the supernatural. And if one looks at the history of testability, which is indeed a proper criteria for scientific method, one sees that its relationship with naturalism is incredibly checkered and vexed. It is not any straight -- you cannot read off not naturalism from testability as the criterion for science. Q. Well, explain that. What do you mean by that? A. Okay. The key thing about testability that -- because it is the hallmark of the scientific method, no disputing that -- is that it has to be able to -- the theories have to be able to be tested fairly; that is to say, without stacking the deck in favor of one or the other theory and especially not in terms of one of the other theory's assumptions. So this is turned out to actually be a very difficult thing to kind of make clear and practice, what exactly constitutes a fair test in science. And I think the tendency nowadays in methodological naturalism, as it's being used in this trial and elsewhere, is trying to give you the impression that the way you test a scientific theory is by the terms of the dominant theory, right. So if you're intelligent design, the test gets conducted by the evolutionists on the evolutionists' terms, and you got to pass those first. But that's not the spirit in which the criteria of testability was meant. Here the benchmark for it, to go back to it, is to Francis Bacon, okay. He talks about the Baconian method in philosophy, 17th century, the lord chancellor of England, a lawyer. Testability, as the criteria of the scientific method, was essentially an invention of a lawyer. And a lawyer who was very interested in the development of science saw it as, in fact, producing a lot of potential good in the world, but also realizing that scientists come with a lot of religious and political baggage that's very controversial, very hard to see through because they're talking all these different languages and making all these different claims, most of which you cannot verify or validate and so forth. So we're going to have to figure out some way of figuring out what exactly is true and false and what these guys are saying, because we know they're saying something that's valuable. But how are we going to do it? And so Bacon introduced the idea of setting up a crucial experiment, which is like a trial, right. That's his idea. It was like a trial. And the idea would be that the judge, who was this independent party, would decide between the two theories that are contesting some point. That's the original image that you're supposed to get. Now as this idea develops through the history of philosophy, the real kind of, you know, modern day benchmark is through logical positivism. And there the word testability gets used a lot and falsifiability and verifiability and all of these terms that we associate with the logic of theory testing comes from that tradition. Those guys wanted to find a neutral language of science. And they were very preoccupied with figuring out, how can you strip any scientific theory down to its bear logical structure -- so in a sense, we don't need to know the jargon, right. We don't need to know all the tricky things about it. We just need to know what follows from what and how can you prove it in some empirical way. That's what they wanted. And that's testability. Testability does not commit you to the big assumptions of a particular theoretical framework. Rather, it strips them down and gets them to a point where you can see what really matters here on the ground level. That was their idea. Q. Were the positivists working out testability criteria in contrast or with reference to an alternative approach to science and nature? A. Well the positivists initially had a flirtation with naturalism, but in the end, they believed that it, too, was kind of metaphysical. So they took a very agnostic stance on this. In fact, they thought, well, look, given the developments that were taking place in physics, which were creating rather weird conceptions of reality which really hadn't been worked out, they weren't like the kinds of conceptions of reality associated with traditional naturalism. If we think about naturalism as Aristotle or Newton, the way objects move causally in some sort of an observable space, these things of things. These very fundamental assumptions, which are associated with naturalism historically, were being challenged by science. So one couldn't really assume even that bare metaphysics in the sense that one would even have to strip that off if one wanted to be able to test scientific theories appropriately. So this is the whole idea of getting rid of the metaphysics. Q. Well, in light of that, do you see a meaningful distinction between the claims made here for methodological naturalism and philosophical naturalism? A. I think -- I mean, I really think methodological naturalism is just a fig leaf for metaphysical naturalism when it gets right down to it, especially when you see how it's elaborated by its defenders and the kinds of things they want to include and exclude and also the kind of rather sort of tenuous history of science that provides the back story for it. Q. What is that? Just give us a brief sketch. A. Well, okay. A couple of the people who have testified here, and I've seen this before in the writings of these guys, these methodological naturalists, have talked about Hippocrates as the founder of medicine, the great founder of scientific medicine. And the way methodological naturalists spins the story is, okay, before Hippocrates hit the scene, the Greeks believed that, in fact, the Gods were causing all kinds of illnesses, right. And here's Hippocrates actually looking at natural causes and looking at the sources inside the body and so forth. And he collected evidence, you know, and he did things that one might consider rudiments of experiments, and he was a methodological naturalist. Well, it's not so straight forward, because basically, if you were back there in Ancient Greece -- I mean, this is what the historians would say -- that there were basically two approaches to medicine there. And there are two approaches that, in fact, are very much part of the tradition of scientific medicine; one being a kind of patient centered medicine, which is what Hippocrates was about. What Hippocrates did wasn't just collect evidence from patients, he talked to them. He actually thought that the patients had some knowledge that might be useful in trying to cure them. And that was a very important part of what he was doing. Whereas all these guys who thought that the Gods were descending upon people were, in fact, disease based, the disease based approach to medicine. You know, what were they talking about? Well, they had something like the rudiments of what we would now call the germ theory of disease where external agents are, in fact, the causes, right, rather than some sort of disequilibrium in the body. Some external agents are, in fact, the causes of what make people ill and so forth. Now that's naturalistic, too, of course, right, under a certain description. And similarly, you know, you could turn the tables around and say, well, Hippocrates is asking people for information about their illness, why does he think people would have good information? Well, Hippocrates thinks they've got a soul, that they've got something inside of them that provides privileged access. Well, that sounds a little supernatural to me, you know. In other words, you can play this game either way. You can run the supernatural as the natural or the natural as a supernatural. So there's a sense in which this distinction is useless for understanding the history of science. Q. Well, if we take it forward to the present date, do you see areas in which -- areas of science in which there's a sense that methodological naturalism is a deficient analytical framework for inquiry? A. Well, first of all, I don't think methodological naturalism is used. I mean, I think testability is used. But I think that, in a sense, these metaphysicals, this metaphysical issue of naturalism, I don't think matters one way or another, I mean, as far as scientists are concerned. They're concerned about testing hypotheses, and they're quite willing to entertain hypotheses from almost anywhere if they end up actually bearing some kind of fruit in research. So the issue of naturalism is, in a way, a kind of way of setting up a kind of metaphysical barrier as it were to only let in certain people who think the right way to do science. Q. Well, how about in areas like mind, you mentioned to me. Is that an area where some people have reservations about whether this approach is even going to be adequate? A. Well, it's true that, if you look within the discipline of philosophy, you might get the impression from hearing some of the things here that, in fact, naturalism is the dominant view as a metaphysical view. And it isn't. I mean, it is quite -- I mean, it is quite dominant among people who do philosophy of biology and certain other areas of the philosophy of science, but in the philosophy of mind, there is a strong resistance to some of the more radical forms of naturalism, you know, largely because it's very difficult in practice, and even conceptually, to reduce, you know, all the properties of the mind to matter. I mean, so there is a sort of lingering kind of problem there. It hasn't quite gone away. Q. Is just the fact that intelligent design, at least in light of some proponents, takes issue with that claim to methodological naturalism, does that, in your opinion, rule it out of science? A. No, not at all. In fact, I think anyone in their right mind who knows something about the history of science or the history of philosophy ought to be contesting methodological naturalism. Q. Do you see evidence that scientists, practicing scientists today see a commitment to methodological naturalism as integral to their actual scientific work? A. No. Only the philosophical defenders of a certain kind see this. Q. You've discussed dichotomy between natural and supernatural in your testimony as we've discussed methodological naturalism. Let me ask you about that. Do you think that the openness of intelligent design to the possibility of causation deemed supernatural, at least by current knowledge, disqualifies intelligent design from science? A. No. And I think -- what forms my answer is here is, if you look at the history of science, the kinds of things that in the past had been considered supernatural before they were subject to proper tests and empirical evidence and so forth. One shouldn't think about supernatural as necessarily referring to God, because supernatural also applies to the level that is below observation, because you might say God is above observation. He's sort of up there infinitely. But, of course, a lot of the things that were called supernatural include things like, well, Mendel's genes or atoms, right. Before it was possible to actually detect empirically the motion of atoms and so forth, Atoms were regarded as cult entities. Robert Boyle believed in them. Newton believed in them. But those guys had non-confirmist religious views that justified them. But there was a lot of skepticism about atoms, okay, because they weren't observable. They weren't part of the observable level of reality, which was, you know, typically the kind of coin of the realm for naturalism. Q. Well, let's look at that and what you've just said in light of the testability which has been discussed. Do you think that intelligent design is not science because it's not testable in the sense that evolutionary theory is testable? A. Well, no. It does not make it science because it's not that, that's true. Q. Okay. Well, what is your response to the notion that intelligent design is not testable? A. Well, I think, here we have to think about the ways in which disciplines are testable, okay. And as I was saying earlier about logical positivism, they were very concerned about metaphysical assumptions being built into the conditions of testing, which would, in effect, bias the outcome of the test. And so there is a sense in which, when we see say that evolutionary theory is testable, and I'm quite willing to accept that locution, we don't actually mean that the most general propositions of evolutionary theory are directly testable. What a we mean is that, the constituentive disciplines that they, that evolutionary theory explains, the claims coming from them are testable. So we have testable claims in genetics, right, that can be explained in terms of evolutionary theory. We have testable claims in natural history that perhaps could be explained in terms of evolutionary theory. But the testing is of the claims in the particular biological disciplines. So when Miller, for example, was here with the bacterium, okay, what's -- this is a test of the bacterium and about whether the bacterium flagellum can survive and function under certain kinds of conditions. What is this a test of? Whether that thing can happen. Does this vindicate natural selection in some general kind of way? Well, only if you add in a whole lot of other assumptions; otherwise, it's making a very specific point about the survivability of the flagellum in a particular kind of environment. Q. Are those other assumptions you're talking about testable in the sense of the claim with respect to the flagellum? A. Not at the moment certainly, no. Q. Well, let me ask you. If you contrast the higher order claims made by evolutionary theorists with the claims made by intelligent design, do you see a comparative or a different situation with respect to testability? A. Well, frankly, I don't think you can do any -- both -- the theoretical frameworks in which both evolutionary theory and intelligent design operate are largely both metaphysical. And in that sense, they cannot either be directly tested. The difference is, evolutionary theory is much more developed, much more elaborate, and in that way, much more suggestive of forms of research to do, which then, in turn, can be tested. So it's got that advantage. So I'm not taking that away from it at all. But I think it is very loose to say, oh, evolutionary theory is being tested directly every time we do an experiment in a cell biology lab, because that is not the case at all. One has to build in a lot of other assumptions in order to reach that sort of conclusion, each of which could be contested. Q. And that's what I'm trying to get at. Do you see the situation with respect to evolutionary theory as different, marketedly different in principle from -- A. Not in principle, not in principle. Q. Okay. But you see a difference between -- A. In fact -- Q. Based on what? A. Based on the stage of the history that they're in. There are two different stages in their respective histories. Q. Which are significant with respect to the criteria of testability how? A. Well, because you actually need a certain amount of time for the theory to develop, to construct its implications, to sort of widen its scope, to do the reinterpretation of already existing phenomena. You need to scope all that out before you can actually set up an adequate research program on the basis of which then you can do some tests. Q. Well, in terms of testability again, let me ask you. Is this openness to the supernatural, does that render ID, therefore, not testable and, therefore, not science? A. No, it does not. In fact, it may turn out to be a product of the imagination that may lead to hypotheses that then can go on and be testable. Q. And do you see analogies for that in the history of science? A. This is the point about bringing up Newton and bringing up Mendel and bringing up Babbage and bringing up all of these people who, in their variously sacrilegious ways, thought they could get inside the mind of God. And they tried to figure out how God's mind worked and what he was doing when he was trying to set up various things. Q. Do you believe that intelligent design necessarily relies on the supernatural for causation of phenomena in the natural world? A. No. It relies on intelligent design. Q. Do you believe that the openness of intelligent design to the possibility of supernatural causation disqualifies it from science? A. No. Q. Let's look at the definition of theory and how a theory is viewed by someone with your training. A lot of attention has been drawn to the fact that there are certain definitions of theory which require a theory to be well-tested, well-substantiated. Do you, in your discipline, accept that definition of theory as accurate? A. No. If what you mean is, does a theory have to be well-substantiated in order to be scientific, the answer is, no, because then no minority theory would ever get off the ground. It would only mean that the dominant theories count as science ever. So how would there ever be any scientific change unless the dominant theory imploded? That seems to be the implication if one says that only well-substantiated theories count as science. You would never have change except from the inside. Q. Well, I mean, in terms of that, a related assertion has been that intelligent design is not a theory, because it's just really a negative argument. It doesn't offer anything in terms of the positive explanation. Do you agree with that? A. No. No. I think one of the things that it does do is, it does provide a kind of a different way of grouping together phenomena. I mean, because I think one thing that one needs to take seriously when assessing the prospects for intelligent design is that, intelligent design is not an alternative theory of biology strictly speaking. I mean, I think it's -- in fact, it's really covering a somewhat different range, and a broader range, basically anything that can be designed. I mean, I mentioned earlier that one difference between intelligent design people and evolutionists is that intelligent design people take the word design literally across domains. That is to say, when a human is designing something and when, you know, organisms are being designed by some intelligence, that's literally a design thing happening in both cases. It's the same kind of process going on in principle. And in terms of the way in which biologists want to explain the nature of life, there is, I think, a distinction made between how artifacts are designed and how organisms come about. And then in that sense, the word design is used more metaphorically in biology. So there is a difference in the way in which the domain is being scoped out. So in that sense, what intelligent design promises is kind of a different sort of way of scoping out phenomena and explaining it. Q. Well, in terms of that testability and the difficulty of formulating a test for a new theory, do you see precedence? I mean, I think you mentioned Einstein's relativity to mean in terms of how someone comes to grips with the implications of a new theory and has to do that in order to determine a test. Can you give an example that explains what you're getting at? A. Well, I mean, one thing about the Einstein example is, Einstein, obviously, was really changing the foundations of physics in a very fundamental way, and here I'm thinking particularly of general relativity, which talks about space time being curved, which is a very kind of unusual idea, sort of, to get your head around in a way. So people thought, well, this is just going to be kind of a metaphysical or something. But the Royal Society in 1919, having studied Einstein's work and having elaborated, suggested a test of the theory, which Einstein agreed to, which had to do with looking at a solar eclipse in West Africa. And basically, it ended up validating what Einstein would have predicted. Q. Do you believe that intelligent design is religious? A. No, not inherently religious, no. Q. And explain that. A. Well, the point is, you don't have to be religious to be able to develop it. I mean, I think that's the key point here, that even though historically it's been associated with a lot of religious people, one doesn't need to be religious. In fact, I would say, and, in fact, this is one of the scopes for development of intelligent design theory across its current constituency, is to look at things like the sciences of the artificial, artificial intelligence, and artificial life, because those ideas, those research programs, in fact, have a design orientation that's quite similar to intelligent design. Q. Well, you know, in your testimony here today, you have, what shall I say, described a certain sympathy of viewpoint between creator and the scientific mind set that has led to scientific discoveries. How do you separate? How do you police that boundary? How does the discipline, which you work in, create distinction between the religious origins or inspiration and the actual work that's being conducted? A. Well, this is where the context of discovery and justification distinction comes up. It's precisely for that reason. I think it's worth pointing out kind of the origin of this in terms of what was really motivating him. So the idea being, you don't want to judge the validity of a scientific theory just in terms of who happens to be promoting it and what their background beliefs and assumptions are. This distinction was originally coined in the 1930's, and it was basically to get around genetic-based arguments that were being made in Germany at the time trying to invalidate modern physics because of Jewish origins, because the people who were involved were from a -- to a large extent, Jewish, and that this physics was very counterintuitive, relativity, quantum mechanics, and there was a sense of, ah, yes, you know, Jews, very tricky, they say all these kinds of things that, in fact, are trying to befuddle us and all this. And people were disqualified just on those grounds, sort of racialist theories of knowledge. Q. Well, how does the distinction that you've voiced addressed that concern? A. Well, the point being is, you know, any -- that any physicist can work with, develop, and test these physical theories, that one doesn't have to have -- in fact, one doesn't judge the merits of those theories by the origins of the people who happen to have promoted them. If we actually did do that, if we actually did judge theories by the motives of people who promoted them, we would never have gotten Newton, because Newton was theologically suspect. We would never have gotten Mendel. In fact, we almost didn't get Mendel, because people figured he was theologically suspect. And you could go down the line of a lot of very important figures in the history of science who do have, you know, very, you know -- you know, if we're going to be banning religion, you know, religiously suspect motives behind their work. Q. Well, let me ask you, and we've talked about this, but I'd like you to explain to the judge. In this courtroom, there's been this discussion of theistic evolution and a notion ventured that theistic evolution is an acceptable position with respect to science. And what I've been trying to figure out is, is that -- go ahead -- MR. WALCZAK: Finish your question. MR. GILLEN: What I'm trying to figure out is, if we look at this relationship between context of discovery and context of justification, is the situation different in any material way than the position posited for theistic evolution in principle? MR. WALCZAK: Objection. Your Honor, I don't believe anybody in this trial has posited theistic evolution as a scientific concept. MR. GILLEN: That's not what I asked him. THE WITNESS: I'm not sure I actually got your question. MR. GILLEN: Okay. THE COURT: Hold on. MR. GILLEN: I'm not taking that point at all, Judge. And I -- THE COURT: Why don't you restate -- MR. GILLEN: Certainly. THE COURT: -- and we'll see if Mr. Walczak has a continuing objection to the restated question. Go ahead. Restate it. MR. GILLEN: It may, in fact, be that my question wasn't precise. Vic had that sense, and Steve didn't get it. Plainly, I need to clarify. BY MR. GILLEN: Q. You talked about context of discovery, context of justification. In this courtroom, the Plaintiffs' experts, for example, Ken Miller, have taken the position that theistic evolution, his position, is acceptable because it separates religion from science. I'm asking you, is the context of discovery and context of justification any different when applied to the situation concerning intelligent design? MR. WALCZAK: Objection. Professor Miller did not testify in any way that theistic evolution is acceptable in science. He's talking about, there are different explanations and they are not inconsistent when viewed as different explanations. But nobody is talking about the scientific legitimacy or acceptability of any particular religious belief. Our view is that these things need to remain separate. MR. GILLEN: And that's precisely the point of my question. THE COURT: Well, you attributed to Professor Miller a particular position as it relates to theistic evolution. That's the basis of your objection, is it not? I think that might be a mischaracterization, so I'll sustain the objection on that basis, but you can rephrase. MR. GILLEN: Thank you, Your Honor. And I did not mean to mischaracterize Ken Miller's position. Let me rephrase and make it abstract. BY MR. GILLEN: Q. There's been discussion by experts of the position, including Dr. Pennock, of a position called theistic evolution, which is regarded by as acceptable by adherence of methodological naturalism, so-called, because it represents an opinion that distinguishes religion and science. MR. WALCZAK: Objection. THE COURT: Let him finish his question. MR. GILLEN: What I am asking you is, is the situation any different in principle insofar as religion relates to intelligent design? MR. WALCZAK: Your Honor, I still think it's a mischaracterization. I don't believe there's been any testimony that methodological naturalism has taken a position that theistic evolution is acceptable. I mean, science, I think we've had testimony to the contrary, that science is religiously neutral and doesn't take a position on religion. THE COURT: All right. Well, I understand the question. He can answer it. The objection is overruled. THE WITNESS: I still don't know if I understand the question. Sorry. MR. GILLEN: Okay. THE COURT: Well, it's first important that you understand it. I understand the question not to be objectionable. MR. GILLEN: But that doesn't mean it's a good question. THE COURT: Well, that's right. I don't pass on the question itself as it's answerable. Restate it. MR. GILLEN: Thank you, Your Honor. BY MR. GILLEN: Q. And forgive me, Steve, if this is hard. But what I'm getting at is this notion that there's a position which we know as theistic evolution. Do you understand that position? A. Yeah. Q. Is the relationship between religion and science, which characterizes the position theistic evolution, any different in principle between the relationship between religion and science as it exists with respect to intelligent design? A. I'm having a hard time understanding what you're getting at actually. Q. Okay. Well, then it must be a bad question. Give me a minute here, and I'll see if I can -- A. I only want to answer the question if I really understand it, because I hear several things going on. Q. Well, and I'm not trying to say several things, so maybe we can look at it this way. Do you see the situation with respect to evolutionary theory and its relationship to religion as different in principle from the relationship between religion and intelligent design theory? A. Oh, I see. No, no difference. Q. And why is that? Explain. A. Well, I mean, if -- in terms of the kinds of motivations that people would have for doing both, they could be quite similar. They could be religious or non-religious. Q. And in your judgment, in either case, would the operative critical inquiry for determining whether the theory of science being that they have a context of justification apart from -- A. Yes. Q. Okay. And how do you go about demonstrating that a given idea has made that leap into a context of justification? A. Well, okay. You're able to actually test and criticize and evaluate and develop the theory without sharing the fundamental motivating assumptions of its originators, okay. So, for example, one thing that, in terms of this trial that counts in favor of intelligent design is that it's possible to discuss the theory and criticize it without actually making reference to its religious motives. So, I mean, I'm thinking in particular about the way in which Dembski's work has been treated, and also Behe's work for that matter, where it is possible to kind of discuss the matter without ever, you know, and if you didn't know in advance, you know, you would not necessarily guess that these people had a religious background. So the mode of discussion in the academic literature is such that it can be done without reference to that. So that is a sense in which the theory has made the cross-over into the context of justification. Q. Well, let me ask you. In your testimony, you've demonstrated a sort of linkage between this creationism and/or creator's mind set and intelligent design. Do you see that intelligent design is creationism? A. No. Q. Do you think there is some element of continuity there? A. Well, they're motivationally at the context of discovery level. I mean, I think that's kind of undeniable historically because, in a sense, the context of discovery is something you determined by looking at the histories of the theories and who the people are and all that. But that is not, at the end of the day, what determines whether it's science. It's what happens once it passes over to the context of justification. I mean, in a sense, it's almost like, you know, you really need other people other than the people with the vested interest in it, to sort of look at it before it can be said to be science. Q. Would the linkage you pointed to, as historical point of origin or inspiration, would that disqualify intelligent design from science? A. No. Q. And again, why exactly? What's your point? A. Well, it's the distinction between context of discovery and justification. I mean, again, if you look at successful scientific theories, the people who put them forward had all kinds of strange views. And in a sense, you know, were those views taken into account in evaluating their theories? They would immediately be overruled because they often were politically or religiously subversive. Q. There's a notion in which the intelligent design is said to be a science stopper because of that context of discovery. Do you agree with the notion that a religious context of discovery makes a theory a science stopper? A. No, not at all. And, in fact, I would say, and this is, I think, this is something I would say about. I made an elusion to this earlier. If you actually look at the history of the way knowledge has developed across cultures, modern science, starting with the scientific revolution, is a very distinctive thing. And I think there's been no disagreement on that point. But there is always a disagreement about what makes is distinctive. And the point that I would make in relation to this, in relation to the religion point, is that, actually believing, and I know prima facie this sounds strange, but it's a very unique feature, namely that the people who started modern western science and started thinking in these terms was people who believed in a mono-theistic God, and human beings were in the image and likeness of this God. I'm not just talking about the people in the 17th century. But if you look at the kind of impulse that led the Muslims to unify Greek and Roman knowledge as some kind of common legacy of humanity to work on, which then kind of got carried over, over the centuries, why do that? Well, there is this idea that human beings in principle have kind of access to the nature of reality, to maybe what the creator was up to. And these guys in Greece and Rome may be able to help us out with this, so we're putting it altogether in one package. And, in fact, this goes even further, because one of the things that very striking about western culture, and has been very instrumental in the scientific revolution, is the idea that nature has a unity, that indeed one can have, as it were, unified theories of nature, whether we're talking about Newton's theory or Darwin's theory. And that's actually a very rare thing. First, the idea of thinking of reality as a unified thing, one thing, and thinking of it as something that has, as it were, a kind of structure that is sufficiently both intricate and knowable, okay. And this is where the idea of human beings being in the image and likeness of God helps, because it suggests, first of all, that there is this creator who makes this one thing, right. And the powers this creator has is, in a way, not that different, at least in principle, to what human beings, as the privileged part of creation, has. Q. Well, I want to ask you. Has this benefit of a certain western mind set been discussed by a proponent of evolutionary theory? A. Well, yes. In fact, Dobzhansky, who I mentioned earlier, he was a Russian Orthodox Christian, and one of his later books called The Biology of Ultimate Concern, and there he actually very explicitly says, you know, evolutionary theory is necessary for having a sort of satisfying cosmology, one that is able to actually give us meaning in the universe. Q. Well, now that's a fairly recent 20th century example. How about, you mentioned Thomas Huxley to me. Did he recognize this same -- A. Well, Thomas Huxley, in a sense, was the person who I first -- the person who first clued me in, you might say, into this aspect of the history of western culture. Toward the end of his life, he gave a very famous lecture called Evolution and Ethics. And at that point, you know, Darwinism is already a generation old. It's already very important as a kind of cultural presence in England. And there are a lot of people, like Herbert Spencer, for example, Darwin's nephew, Gaulton, all these guys who are basically saying that evolution can provide a basis for ethics. And Huxley disputes this. And, in fact, one of the things that really concerns Huxley is the fact that it's very important that evolution, given the sort of deprivileging of humanity that goes on in evolution -- in evolution, right, all species, human and otherwise, are subject to the same laws, the same principles, extinction, all the rest of it. There's a flattening of the antilogical differences, you might say, between different species in Darwinism. Huxley realizes this, and he accepts this as kind of a fact. But he said, had we discovered this very early on, right, we would never have been motivated to do very systematic kind of science, because you think about has -- you take the Darwinian world view as kind of a basis for conducting your life, you just basically say you survive and you die. And everything happened -- and then the genes just get recycled, as Richard Dawkins would say now. And Huxley points out that, in fact, such -- the metaphysics behind Darwinism, which I just described, was, in fact, known to the ancients, both in the east and the west, and it never motivated them to do science, right. So, in a sense, there was all kind of primitive versions, what we would call natural selection and so forth, and even notions that there might be some kind of circulation of germ plasm through successive forms, which is like what we talk about when we talk about differences and changes in life forms. And that never motivated people to do science systematically. What it motivated people to do was to cope with the inevitability of death. Okay. And it's only when you get to a point where you have people thinking, well, you know, the universe may have been the created thing, and the creator may be someone like us, and then maybe we can figure all this out. And that, in fact, leads to the movement towards science, and that gives, of course, an enormous amount of human arrogance and hubris and so forth. And in light of that, Huxley says, maybe it's not such a bad idea human beings get taken down a peg a little bit, right, in terms of Darwinism, kind of making people a little more moderate, a little more humble about what their aspirations could be. But it's very important that the humans started thinking about themselves as being in the image and likeness of God in order to motivate all of the effort, all of the thinking, all of the work of a very systematic and specific kind that goes into doing science, because it is really unprecedented in the history of culture. Q. Is he saying that the, this particular context of discovery was necessary for evolutionary theory to develop? A. In a sense, yes. Q. Well, let me ask you. Does that context of discovery also have a relationship to the development of theory? A. Well, I mean, if you think about theory as something that aims to unify (inaudible) phenomena, which is, of course, the very normal way we think about it in science, there's always a question to ask, why unify? Why unify? In other words, why not -- because one of the things you find when you look at knowledge in other cultures, especially cultures that have very developed forms of knowledge, like it had in Ancient China or India, places like this, where you actually have very developed disciplines of mathematics, let's say, various forms of technology, medicine, things of that kind, but what you don't have in those cultures is this drive toward unifying all these things under some one large picture of reality that, in some sense, is integrated and interconnected. And that's largely because they didn't really have a sense of a universe in this kind of modern sense. They basically thought reality was multiple. It moves in many different places, different practices for different kinds of aspects of reality. So there was -- they didn't feel there was any kind of impulse. Why unify? So I think that's always a question that we need to ask when we think about the motivation for doing science, especially when we're doing theoretical science, is why unify. Why do you want to unify things that otherwise can be explained and worked with perfectly well in their own independent settings? So Dobzhansky, why does he want to unify genetics, natural history, all these branches of biology, is because he has this kind of universal, unifying view of the cosmos, okay. He doesn't talk about God in his major book. But that's adamanting it. It becomes very clear in the later writings that that's, in fact, motivating it. And what you even do see in his writings is an attempt to sort of figure out what is a science that, in fact, will, if not serve humanity by being put together in this way, will at least give a kind of coherence to our understanding. And that's, you know, that kind of drive, that motivation is not something you find in every culture historically, even ones that are intellectually very developed. Q. Well, just to close off this point. You mentioned these differences between cultures and contexts of discovery as they relate to science. But you've also said that science takes root in non-western cultures. How is that communication possible although there's not the shared context of discovery? A. Well, because it is possible -- this is where the context of justification comes in. And in the little book I wrote on science, I always use the example of Japan, where Japan is an example of, you know, an obviously non-western place that for many centuries closed off its doors to any kind of external influences until the 1860's, and then very selective appropriated aspects of western culture. They brought in loads of western advisors and they sort of picked and mixed, you might say, what they wanted and what they didn't want. They kept the science bit. And within 25 years, they became one of the five, ten leading scientific powers in the world, and they've sort of maintained that. So there's a sense in which, as it were, the testing of the science, that it works, and that you can produce results doesn't actually require that you have this particular mind set that the west had. Q. All right. There's been some discussion of peer review in this case, and I want to get your sense for peer review and how it affects scientific progress. You've done work on the sociology of science. Just give us a sense for, in brief, for the sociology, the sociological factors that affect the reception of scientific theories? A. Well, I think one thing, when one talks about this in terms of peer review, I think one thing that's very important to understand is that the function of peer review has kind of, in a way, expanded over the years. When we talk about peer review initially, I suppose the benchmark is the Royal Society where, you know, it's a self-organizing, self-selecting group of self-defined scientists in the 17th century received a charter from the King of England, and they basically decided who were the members, and they decided what got published in their proceedings and so forth. The thing that's very important about that early type of peer review was that, what was reviewed, other than your membership into the Royal Society, was the work, whether the work passed muster. And typically, what that involved was, back in those days, not only that you did work that had observations and reasoning that was transparent to other people, but that you didn't insult other people's political and religious views as well. There was a sense which that was forbidden from the outset. Now over the years, peer review has kind of mutated in a way. And so now peer review is used for a lot more things, not just for publications, but it's also used for determining who gets grants to be able to do research. And so there's a sense in which, back in the old days with the Royal Society, in a sense, if you were kind of a wealthy person, a person with leisure, you had the time and the wit, you could do some work and publish it, and they might accept it at the Royal Society. And, in fact, somebody like Darwin was a bit like this. But nowadays, because of the costs of research, the start-up costs in various ways, there is a sense in which people need to get grants in order to be able to set up the labs, in order to do the research that's necessary to then produce peer reviewable publications. But that's peer review, too. So we get peer review at the very beginning of the process in terms effectively who's allowed to do research, because the way you get money for a grant going through the peer review system is typically in terms of your track record, which gives you a kind of rich gets richer, poor gets poorer situation, because they basically look, has this guy done reliable research before. Well, you know, we'll then give him some more money to do it. So what happens then is that, the peer review system, in effect, turns out to be a kind of self-perpetuating, you know, elite network where, in some sense, you kind of have to get into that in some way, and it's very difficult if you're not there at the beginning. So if you don't actually go to the best universities, if you don't get the best post-doc or the best first job, if you don't actually get in to all of those gatekeeping practices, it's actually quite hard to make it through the peer review system. Q. Well, can peer review, which plainly has benefit in mind, can it be used to stultify or retard scientific progress? A. Well, here's the problem. As scientific research has become more and more specialized, the number of peers for any given piece of research that gets peer reviewed gets smaller and smaller, which means, there's a greater and greater likelihood that you know who you're reviewing, even though it's supposed to be blind peer review. So there is this issue of the potential for a conflict of interest to arise in peer review increasingly as time goes on. This is one of the reasons why there's been this great concern about intellectual property law and research ethics boards and all this kind of stuff. It's a kind of a biproduct of peer review becoming very specialized and the ability of people to be able to sort of, kind of, yes, I know his work so well, you know, I might benefit from it more than he would, you know. Q. Well, how about in terms of the process you described earlier of an idea trying to get started? Can peer review serve to stultify that starting of a new theory in the professional community? A. Yeah. I mean, it can and will happen that way. One of the problems with the peer review process generally, and I think one needs to appreciate this, too, it's supposedly a mark of a good citizen of science that you do peer review when you're asked for it. So if I get sent an article to review from a colleague, you're supposed to do it. You're the guy who knows about it. You're doing a favor to your field. But, in fact, fewer and fewer people are willing to give their time to do it. So it turns out that the peer reviewers, in effect, become a relatively small group of people in the field, even smaller than the potential number, okay. And so what happens then is, you end up getting fields pretty much bottlenecked by a few people who kind of make all the decisions in effect. And this is kind of the problem. It's not a problem, you might say, that's deliberately set up, but it's a kind of default problem. And journal editors are always struggling with this. When I was a journal editor, trying to find people who are willing to take the time to peer review work. And you always have to fall back on the same people. And, of course, those people may be very reliable, but it's very risky as well. Q. And why do you say risky? A. Well, because you basically have a few people's judgments on which large portions of the field depend. They are peers, but they're not, you know, as it were, you know, they are a very small percentage. Q. How about the professional societies and the role that they play in mediating claims for scientific theories? Do they present this risk that you've described? A. Well, I mean, one of the things that's very tricky about science is that, there are lots of different professional bodies represented. All of them get called peer bodies, but, you know, one wants to see how these peers are actually selected and maintained. So some bodies, you know, are, as it were, self-selecting, where people already in the society select others, you know, the more elite societies, like the National Academy of Sciences would be in that category. Professional societies are different in the sense that people who claim to be members of the field just pay a contribution and so forth. And so those tend to be quite large, but they're not necessarily democratically represented bodies, right, in the sense of the people who govern those professional bodies aren't necessarily, you know, their accountability to the larger constituency is not so straight forward. They maybe get elected to office at one point, but then they have kind of a free hand very often in what they can do. So there are issues of accountability here with these professional societies. So it's always uncertain exactly to what extent do official pronouncements reflect actually rank and file views of people in a given field. Q. Well, at the same time, you peer review. So what's your take on the process as a whole? Is this a risk that's inherent in it or one that potentially crops up in certain situations? Give us your sense for that. A. Well, it's very difficult. I think one thing is -- well, I mean, there are several things that could be done to deal with this. Peer review, it's kind of like democracies. It's the worst political system, except every other one. Right. I mean, it has that kind of quality to it, that it's not clear exactly what the alternative would be. But it is -- it's -- in terms of putting, you know, saying, something's intellectual value is proven by the fact it's been peer reviewed. I think one should not make that kind of inference. It's not that peer review is awful, right, but it is sufficiently unreliable and sufficiently questionable that you at least want to find some other means of showing intellectual merit. You want some other way of doing it. I say this as someone who found a journal and does a lot of peer reviewing all the time. And there's all kinds of work that just doesn't get published in journals. Okay. And so it's not that peer review is intrinsically bad, but it's not a gold standard. Q. Okay. And you're pointing there to reliability in light of sociological factors? A. Well, yes, in terms of how the peers are selected, in terms of what percentage they represent of the overall group of people in the discipline. Yeah, I think so. I mean, in the past, it was a little better. I mean, if you look at the history of academic journals, it used to be that academic journals were -- the editors of the journals were these kinds of personalities who, in a sense, you know, very strongly associated themselves with the contents of their journals. So there would be kind of almost competition among journals to be more distinctive and more innovative. So there would be incentives for these guys to take risks in terms of publication, like Max Planck with regard to Albert Einstein. In a sense, you know, hey, we published this guy, and this guy might turn out to be something, and it shows what an innovative guy I am, and maybe you'd like to publish in my journal, too, kind of thing. But journals nowadays don't quite have that character. The most prestigious journals in academic disciplines tend to be associated with professional societies, and there the journal editors are typically elected or at least maintained by the professional societies, okay, which means that they operate as kind of, you know, kind of like a chairman of the board where they're responsible as shareholders. There's a sense in which their hands are tied on a lot of things. And peer reviewed, in a way, in that context serves as serve as a way of not introducing too much distinctiveness or bias that might offend the membership. So there's a kind of conservative tendency as a result in these kinds of publications, and that the editor doesn't really have a free reign in the matter. THE COURT: We should wrap up shortly, and we'll take our lunch break. So I just want to alert you as you get through this particular area. MR. GILLEN: We are wrapping up, Your Honor. THE COURT: All right. BY MR. GILLEN: Q. Steve, let me ask you. Do the concerns you've referenced with respect to the peer system and its potential to stultify scientific progress in some cases explain why you're here? A. Well, yes. It seems to me that, because of the way -- I really do think, in many respects, the cards are stacked against radical innovative views from getting a fair hearing in science today because of the way peer review is run, the way in which resources are concentrated, and so forth, much more so than in the past actually. It was a kind of much freer field back in the old days. And so there's a sense in which, unless special efforts are made to make space for views that do show some promise, okay, they're never actually going to be able to develop to the level at which then they could become properly testable and then their true scientific merit can be judged. So special efforts have to be made. And in one of my earlier books, The Governance of Science, I actually talked about this as an affirmative action strategy with regard to disadvantaged theories. It's not obvious in the normal system of science that these theories will get a fair hearing. Q. Well, does that concern you have for encouraging scientific progress explain in part why you're supporting Dover's small step in this case? A. Yes. Well, in fact, that is, in a sense, the main reason, because if you think about this sociologically, how do you expect any kind of minority view with any promise to get a toe hold in science? Okay. And you basically need new recruits. This has been the secret of any kind of scientific revolution or any kind of science that has been able to maintain itself. You need enough people on the ground, a critical mass to develop it. You just can't count on three or four people and somehow expect them to spontaneously generate followers, especially when they're being constantly criticized by the establishment. You have to provide openings and opportunities where in principle new recruits to the theory could be brought about. And, of course, the way to do it, the most straight forward way is by making people aware of it early on, and to show promise, not to mandate it, but to show that it's there. Take it or leave it. And some will take it. And they may go on and develop it further. And then you'll see the full fruits of the theory down the line. But unless you put it into the school system, it's not going to happen spontaneously from the way in which science has been developing at this point. Q. And as we wrap up here, let me ask you, first of all, I mean, do you see intelligent design as religion? A. No. Q. Do you see intelligent design as science? A. Yes. Q. Do you see intelligent design as at least holding out the prospect for a scientific advance? A. Yes. Q. Just briefly describe some of the ways in which you see that. A. Well, I mean, I think that the main thing would be a kind of unified science of design where, you know, the kinds -- the design of artifacts, the design of computer programs, and the design of biological systems and social systems would be covered under one unifying science. It would be a somewhat different conception of the, you know, map science differently from the way we currently do it, but it's one that's very promising and I think will become increasingly relevant, especially as computers form a larger and larger part of not only how we do science, but, in fact, how we think about the scientific enterprise itself. And I think the fact that, for example, Pennock claims to be doing biology on a computer, he's showing natural selection on a computer and not by looking at actual animals or even doing lab experiments is very striking. It seems to me, that is moving us in the direction of this design mentality. Q. Well, how about the openness to the supernatural? Does that militate against the possibility of the benefits you described? A. No, because, historically, the people who have had these interests have gone on to do important science, whether we're talking about Newton or Mendel, which has been the main examples here, because, in fact, when other people take it up, take up the science they've been doing, they don't necessarily have to share those background assumptions. But nevertheless, once the science has reached a certain point, they can take it further and test the science on its own terms. Q. Standing here and thinking about it from the perspective of your academic training, do you see that openness that leads to the possibility to the supernatural causation as potentially eristic? A. Yes, indeed. And it has been eristic. This is not a speculation. It has been eristic. MR. GILLEN: I have no other questions, Your Honor. THE COURT: Thank you, Mr. Gillen. This is an appropriate place for us to break for lunch. We will reconvene at 1:40 this afternoon, and we'll pick up cross examination at that point. We'll be in recess. (Whereupon, a lunch recess was taken at 12:15 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 15 (October 24), PM Session, Part 1 THE COURT: It appears Mr. Walczak is up. You may commence cross-examination. MR. WALCZAK: Thank you, Your Honor. CROSS-EXAMINATION BY MR. WALCZAK: Q. Good afternoon, Professor Fuller. A. Good afternoon. Q. What does heuristic mean? A. Heuristic? Well, it's from the Greek -- it's a method of discovery. It's something that helps you imagine situations so that you can come up with hypotheses in science. It's a term that's widely used in the philosophy of science. It originates with William Whewell, who is another author of one of those Bridgewater treatises that I mentioned earlier. Q. So it relates to teaching and understanding? A. That's right, the context of discovery, correct. Q. And you would agree with me that the Dover four-paragraph statement that's read to the students is not altogether clear? A. Yes, that's true, it's not altogether clear, yes. MR. WALCZAK: Your Honor, may I approach? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as Plaintiffs' Exhibit 131. Have you seen this document before? A. Yes, I have. Q. And you know this is the four-paragraph statement that's now being read to the students? A. Yes, I do know that. Q. You would agree that saying that a theory is not a fact conflates the scientific use of the term "theory" with the colloquial understanding that it is simply an opinion or a hunch? A. Let me see. Where are you referring to here? Q. If you would look at the second paragraph under Number 4 there. A. Okay. Q. It reads, Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. A theory is not a fact. A. Yes. Q. And so that is somewhat misleading. Is that correct? A. What do you mean exactly? Q. Well, evolution is -- first of all, evolution is both a theory and a fact. Correct? A. Yes, I have said that, yes. Q. And in science, a theory is never going to turn into a fact. Is that correct? A. Yes, that is correct. Q. And this suggests to students that a theory could become something more, could become something more like a fact and that would be more reliable? MR. GILLEN: Objection, Your Honor. Calls for speculation. MR. WALCZAK: Your Honor, it's supposedly within his expertise. MR. GILLEN: It's not within his expertise. He hasn't been qualified in education. Even if he was an expert, he can't speculate as to how a student would see it. THE COURT: Well, he's not been offered as an expert in the education realm, but I think it's a fair inquiry based on the latitude that I gave during his testimony in chief. So I'll overrule the objection. He can answer the question. THE WITNESS: I actually think it's more ambiguous what's going on there. I mean, you seem to imply that there is this kind of gradation going from theory to fact. I kind of read it a bit more straight. You know, namely, a theory is not a fact, it's something else. BY MR. WALCZAK: Q. Professor Fuller, do you recall having your deposition taken? A. Yes, by Mr. Rothschild. Q. And that was on June 21st, 2005? A. That's correct. Q. And you were under oath? A. Yes. Q. And you swore to tell the truth? A. Yes. Q. And you did tell the truth? A. I hope so. MR. WALCZAK: Your Honor, may I approach? THE COURT: You may. THE WITNESS: Thank you. BY MR. WALCZAK: Q. I'd ask you to turn to Page 111, please. A. Okay. Q. And on Line 6, Mr. Rothschild asked you, A theory is not going to graduate into a fact; right? And the answer was, Right, exactly, exactly. No, I mean, I do think there is -- that the tone of the statement is a little confusing. I mean, so I'm agreeing with Miller on that point. Did I read that correctly? A. Let me just see this for a second. But what I'm agreeing with Miller on is, I can understand why he sort of sees it that way. I wasn't necessarily saying that I had some definitive view about what the statement meant, but rather that I was sympathetic to -- you know, I could see where he was coming from in finding this problematic. That's all I was saying. I can, you know, understand him. Q. Well, let me direct your attention to the first line on Page 111 where it says -- and this is your answer, and certainly you can refer back at the question. But let me just read that portion of your answer. It says, But I was agreeing with the fact that the statement did look, did seem to want to denigrate something by being called a theory as if being a fact would be the really epistemically significant thing. Right? Did I read that correctly? A. You read it correctly, yes. Q. And so that's what you testified to in your deposition on June 21st? A. Well, I did say that, but I don't know. I mean, I didn't necessarily -- I mean, I guess I was just kind of following through Miller's thinking and sort of rethinking his thoughts and thinking it did make sense what he was saying. But I wasn't making -- I mean, keep in mind this was the first time I had actually seen this Dover statement during the deposition to any great extent, so I was kind of forming opinions as we went along. Q. So that would be very similar to what the students are experiencing, because they're only seeing the statement for a snapshot? A. Yeah, but, I mean, the students don't come into it with the kind of baggage Miller and I have. Q. And you also have expressed a problem in the fourth paragraph. Matt, if you could put 131 back on, please. If you could highlight the fourth paragraph, please. And you said you thought this was kind of a, quote, downbeat ending, because what we should be doing is trying to encourage students that science is fascinating and interesting, not that it has to -- A. Can you direct me to something in the deposition? Q. Well, I'm asking you a question. A. Oh, sorry. I thought you were quoting me. Q. Well, I may be. A. Well, if you are, can you tell me where it is? Because I'd like to know -- THE COURT: The way it works, Doctor, just so that we're all clear, Mr. Walczak will ask you a question. If he sees the need to access your deposition testimony, then he'll do that following the question, but he's not bound to relate the question to the deposition testimony in the first instance. So I'll ask Mr. Walczak, since we've cleared up that confusion, why don't you restate your question. And this is not a question that is necessarily grounded -- it may or may not be -- in something that you said at the deposition, and it's not a question that calls for you to access the deposition testimony. So with that, Mr. Walczak, if you would resubmit your question. MR. WALCZAK: Thank you, Your Honor. BY MR. WALCZAK: Q. I really am just interested in your testimony today, Professor Fuller. So you think that the ending of this four-paragraph statement is downbeat because what we really should be doing is trying to encourage students that science is fascinating and interesting and not that it has to be taught because of the standards. Is that correct? A. Yeah. But if this is going to be the only way they can actually end up allowing intelligent design as a possibility, then one lives with it. I wasn't a party to how this statement was drawn up. So there's a sense in which I don't know what the alternative possibilities were of which this was the one that we now see before us. Q. Well, certainly they could have said something about how science is wonderful and marvelous and you should take great joy in studying this, instead of simply saying, we have to study this because it's in the standards? A. I guess unless I knew what the options were in terms of what alternative versions of this statement were on the table, I could make a clear judgment on that, because it seems to me at the end of the day what is good about the statement is that it actually does present an alternative that's available. And if this is the only way they could have done it, then, you know, so be it. I'm not a party to the discussion. Q. And so you would presume that the purpose of reading this four-paragraph statement is to provide information to students about this alternative of intelligent design, and this is a way of promoting open-mindedness about science and exploring different views, I mean, really everything that you talked about in your direct testimony today? A. Well, that's -- I assume that's what's going on, yes. Q. But you're also aware, are you not now, that, in fact, under the Dover policy, students are not allowed to ask questions about this statement or about intelligent design and teachers are not allowed to discuss it? Is that your understanding? A. I do know that, yes. Q. And so you would, in fact, agree with me that this gag on any discussion really defeats this purpose of promoting open-mindedness and discussion? A. Well, it seems to me that, again, what are the alternatives here? And the gag is not stated in the statement. Q. But you are aware that there is no discussion allowed? A. Yes. Q. And that gag on discussion, knowing that it, in fact, exists, defeats the heuristic purpose of the statement. Wouldn't you agree with that? A. If you mean defeat like completely obliterates it, no. Q. Could I ask you to turn to Page 140 of your deposition, please. If you could read quietly, perhaps to yourself, 140 to 142. A. Okay. Q. I'm not trying to trick you here, Professor Fuller. A. I hope not. Where should I start on 140? Q. Actually, you could start on 141 on Line 20. It says, Superintendent Dr. Richard Nilsen has directed that no teacher will teach intelligent design, creationism, or present his or her or the board's religious beliefs. Well, let me just help you out. And then the next question is, How is the objective you discussed accomplished if students are simply being told, here's intelligent design, but then they're not allowed to discuss it? And then your answer is, I didn't -- well, I'm endorsing this view -- I'm not responsible for this view. I don't, at least as far as I understand, I don't endorse this. Now, did I read your answer correctly there? A. Let me see if I understand what I said. What I'm saying is, this is not how I would handle it. That's what I'm saying. But, you know, I'm not there. And if this is the only way this statement -- it's going to make this possibility available, it's going to come about, then one lives with it. But I'm just saying, you know, this is not what I would do, but I'm not part of the Dover School Board. Q. Okay. Let's go back to Page 140 and Line 17 so we know exactly what -- A. 140, Line -- Page 140, Line 17? Q. Right. A. Right, okay. Q. And this is what you're talking about promoting in Dover. It says, Namely, we're talking about how to take science forward in the future, and it seems to me we sort of betray kind of the open-mindedness that we take to be -- you know, we take science to exemplify as a hallmark of our civilization if we don't -- you know, if we don't present students with the possibility that science is something that's still very open for very fundamental forms of inquiry. And the best way to do that is to show how one might study something like life starting with fundamentally different assumptions from the taken-for-granted view, because otherwise we're stuck with just teaching dogma science. Did I read that correctly? A. Yes. Q. And then back on Page 142, Mr. Rothschild asked you, So the Dover policy of simply making students -- of telling students about intelligent design but not -- then not allowing them, allowing the teacher to talk about it doesn't accomplish the objective? And your response was, It defeats the purpose, yes, that's true, yes. Now, did I read your answer correctly? A. Yes. But defeats does not mean obliterate here. It certainly undercuts the impact that it can have, but it's better than nothing. Q. You're not a scientist, Professor Fuller? A. I am not a scientist, that's correct. Q. You're not an expert in any of the biological sciences? A. No, I am not. Q. You're not an expert in any of the natural sciences? A. No, I am not. Q. You're not a paleontologist? A. Certainly not. Q. You're not an expert in education? A. No, not, I guess, by the standards you would consider an expert. Q. Do you consider yourself an expert? A. I don't know what passes for an expert in education these days. Q. You don't consider yourself an expert? A. I don't, I don't, no. Q. And you don't consider yourself an expert in the subdiscipline of science education, either? A. Well, we're getting closer, we're getting closer to my expertise. You know, again, I try to be modest and I won't claim expertise. Q. And you haven't spoken to any of the school people in Dover about how the policy is being implemented? A. No. Q. You're not an expert on irreducible complexity? A. No, no, I'm not. Q. You're not an expert on Professor Behe's views? A. I never claim to be an expert, no. Q. And you're not an expert on William Dembski? A. Not an expert. Q. Or on complex specified information? A. Not an expert. Q. And you're not familiar with the textbooks that are actually being used? A. Not familiar. Q. So you're not familiar with the Miller and Levine biology textbook? A. No. Q. And you're not familiar with Of Pandas and People? A. No. Q. So you're only an expert on the nature of science? A. Yes. That's a pretty big thing here, though. Q. I'm sorry, I don't mean to minimize or denigrate it in any way. A. You could even split it up into three different disciplines, and I would have three expertises. Q. Well, we may come back to that. Now, you're a philosopher by training? A. Yes. Q. So you approach this issue philosophically? A. Yes. Q. And philosophers want to keep a more open mind than scientists on the rules of science? A. I don't know if I'd exactly put it that way, but let's say -- I certainly warm to that suggestion. Q. So philosophers don't want to close down alternative assumptions, including an appeal to the supernatural? A. That's correct. I mean, again, not all philosophers, but I would say that that is kind of the -- you know, would be a majority view if you looked at most philosophers. Q. But as you said in your expert report, most philosophers have resisted the charms of naturalism? A. That's true. Q. And you say this is an allergic response to guild-like arrogance of scientists? A. Yes. Q. And you agree with that? A. Yes, I do. I am aware I did say that, yes. Q. But do you agree with that proposition today? A. Yes, yes, I do. Q. And you think the National Academy of Sciences, as they have defined science, is too dogmatic in its commitment to methodological naturalism? A. Is the National Academy of Sciences officially committed to methodological naturalism? Q. I believe it is. A. Okay. Certainly would be too dogmatic, yes. Q. And you want to open up the discussion a little bit more than it currently is in the scientific community? A. That's right. Q. I believe in your direct testimony you called yourself a philosophical naturalist? A. Yeah, yeah. Q. And said that, in fact, you're still committed to philosophical naturalism? A. That's right. Q. And then said maybe it's a little bit surprising that that's the case, given that you're here testifying in support of intelligent design? A. Yes. Q. But as I understood your definition of philosophical naturalist, it was that everything can be understood in terms of natural science? A. In the natural world and ultimately in the terms of natural science, yes. Sort of along the lines I was endorsing here with testability and so forth. Q. And personally, you believe that evolution is a better explanation of biological life than intelligent design? A. At the moment, yes. Q. But you're dissatisfied with that explanation? A. Well, you might say as a philosopher I'm professionally dissatisfied with all explanations that claim to be final. And so there is going to be a special suspicion sort of drawn toward the taken-for-granted theories in any given discipline. Q. So you're not saying that intelligent design is the correct or the better explanation for biological life? A. No, I'm not. I'm certainly not. They're not -- they haven't developed it enough to really be in a position to make any kind of definitive judgment of that kind. Q. So you think it's just worth something that we should be pursuing further? A. Well, yes, and that there have to be some conditions put in place in order for it to happen. It's not just going to happen spontaneously. Q. So is it fair to say that you're involved in this case more because you're interested in the philosophical value of intelligent design challenging the current scientific dogma, sort of the loyal opposition, than being committed to the doctrine of intelligent design itself? A. Well, I don't know. I want to see where intelligent design goes, frankly. I mean, you know, again, it's hard to make a judgment. But I do think that when you get to a situation in science where one theory is very dominant and so taken for granted that people don't even feel they have to, you know, defend it anymore, then that's kind of bad news epistemologically, just generally speaking. And it's that, in itself, that's worthwhile to support some kind of opposition candidate, in a sense. But what that opposition candidate does, you have to give it some time to develop, and then you can make further judgments whether it was a good bet or not. Q. So intelligent design here is the loyal opposition to evolution? A. Well, but it's a very specific kind, it seems to me. I mean, it's not just, you know, the negation of evolution. Q. Now, intelligent design is committed to introducing supernatural causation into the current science paradigm. Is that correct? A. That's not exclusively what it does, but it's certainly open to that. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I've given you a copy of your rebuttal expert report in this case. A. Yes. 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. Q. And that's your view? A. What do you mean that's my view? Q. This is from your expert -- A. Yes, I understand. But, what, is this like my total view about what ID is committed to? No, it's not my total view. But I do believe that ID is open to supernaturalism. But it's not exclusively supernatural, it's just with respect to this dichotomy. Q. But it has a commitment to supernaturalism and to introducing it into the scientific community? A. I mean, a commitment doesn't necessarily mean it's trying to impose it, but rather that it's something that it is open to and, in fact, is distinctive about it. Q. Could you turn to Page 10 of your report. And the first sentence -- actually second full sentence in that first paragraph, On the one hand, it is true that ID wishes to pursue research that might eventuate in design-based explanations of the natural world that fall afoul of the naturalistic presuppositions of contemporary biological science. Did I read that correctly? A. Yes. Q. So if it's not naturalistic, what else could it be? A. Yes, but the thing here is, what supernaturalistic boils down to -- I mean, supernaturalistic just means not explainable in the naturalistic terms. Right? It means involving some kind of intelligence or mind that's not reducible to ordinary natural categories. Okay? So that's the sense in which I'm using supernaturalistic. I'm not saying, you know, they're committed to ghosts or something. See, I'm not sure what exactly -- but that's how I -- I understand supernaturalistic in this fairly broad sense. Q. As not natural? A. Well, as not naturalistic, given what we take to be naturalistic now in science. Because in the past, things that we now consider to be naturalistic in science were not regarded as such. Right? So that's the basic point I'm trying to make here. Q. But we're clear on what natural is? A. Excuse me? Q. We're clear on what natural is of this world? A. Yeah, in terms of -- well, of this world, nature as it is understood within the context of natural science. Q. And here you're talking about broadening that definition beyond natural causation and to supernatural causation? A. Yes. And what I'm talking about there, yes, is going beyond the taken-for-granted categories. I mean, this has happened in the history of science and does periodically, where things that people regard as occult forces and things that cannot be observed and are not detectable by ordinary experimental means, people postulate them, use them as the basis for research, and eventually you do come up with something that can then be assimilated within naturalistic science. Q. And the intelligent design proponents don't give much detail about who the supernatural actor, the designer is. Is that correct? A. No. Q. They don't give much detail? A. No. Q. In fact, they don't give any detail? A. Well, right. I mean, in terms -- no, I guess not. Q. Okay. So the goal is -- let me see if we can agree on it -- is to have such a supernatural designer considered as a possible scientific explanation. Is that comfortable with you? A. Can you say that again? Q. The goal is to have a supernatural designer considered as a possible scientific explanation? A. Well, it's intelligent designer, and I think the idea here is that intelligence is something that cannot be reduced to naturalistic causes. Right? So there is a sense in which the idea of intelligence itself is taken to be somewhat supernatural here. Q. To allow for this extra-natural or supernatural causation, we have to change the ground rules of science as they are currently understood by the scientific community. Is that correct? A. Well, actually, I don't think they have to change the ground rules of science. Pennock thinks they do. Q. You don't think that you're -- A. I think the ground rules of science are indifferent on this metaphysical question of naturalism versus supernaturalism. This is why I think it's kind of a red herring in a way to talk about this in relation to science. Q. If you would turn to Page 115 of your deposition. Now -- A. Wait a second. Q. Well, let me just point out to you that this is part of a multi-page answer that you gave in response to a question on 113 -- A. Okay. Q. -- about what you meant about the fundamental differences in orientation between evolution and intelligent design. And I want you to focus on the very end of your answer on Page 115 starting on Line 8. A. And so you -- go ahead. Sorry. I was just trying to guess your question. Q. Well, let me read your answer here. And so that -- you're talking about giving different orientations as to what science is about. You're talking about intelligent design. And then you say, So that would obviously involve changing the ground rules of science because there is a sense in which you would change the scope of what you're talking about, because if what you're really concerned about is the nature of intelligent design, as such, with life being one example of that as opposed to being interested in the nature of life regardless of whether it's intelligent design or not, right, you're going to have to have different ways of pursuing the inquiry. Did I read that correctly? A. Yes, you did. Do you want me to explain? Q. No. And then the next question was, Okay, so you -- you agree that intelligent design aspires to change the ground rules of science? And your answer was, Yeah, I think that's fair to say. I think -- I think -- they certainly -- yes. Did I read that correctly? A. Yes, you read it correctly. Q. You would agree that methodological naturalism has worked well for science? A. Yes. Q. And you would agree that it's largely responsible for most of the scientific progress we've seen? A. No. Q. If you could turn to Page 175 of your deposition. I'm going to read your answer there starting on Line 23. You say, I'm not doubting that methodological naturalism has worked for science and that it's largely responsible for lots of science that we've got, maybe even most of that we've got. Did I read that correctly? A. Yes. I said maybe. Q. So intelligent design aspires to change this ground rule of science, this methodological naturalism? A. Methodological naturalism is not a ground rule of science. Q. A commitment to natural causation is a ground rule of science? A. Well, actually, the ground rule of science is testability. Okay? I mean, so -- and that is metaphysically neutral. Q. And how do you test the supernatural? A. Well, that's an age-old question, but there have been paranormal experiments. And even when one was thinking about gravity as a potentially occult force, right, that was the big challenge of the experimental imagination, to figure out how can we measure something that seems to be kind of, you know, invisible, you know, kind of impalpable. So this is, in fact -- this is, in fact, one of the prompts to develop very subtle kinds of experiments and get at things in indirect ways. So the idea that something is supernatural doesn't preclude it from any kind of experimental testing. It just makes it kind of tricky, and it often takes a long time to do it. Q. Well, how would you design a test to test for the intelligent designer, the affirmative test? A. Well, I take it that -- and this refers to what I meant of the sense in which I meant changing the ground rules of science. I think this business of design -- a design detector, you know, the kind of -- the sort of filter argument that Dembski gives, because at the moment the design detector is used primarily as kind of a device for detecting fraud and things like that in artifacts, whereas, in fact, what I was thinking about when I said the remark about changing the ground rules of science was to actually say this kind of design detector thing could be expanded as a tool in science more generally. And that's the kind of thing that I had in mind. I didn't mean changing the ground rules of science in the sense of replacing our normal modes of testability with entirely new modes of testability. Q. Well, but if you allowed intelligent design into science, you would lead to a different conception of science. Is that -- A. I think what is true is that the sciences would be reconfigured so that the notion of design would be taken as kind of a literal unifying concept, where design in the sense of organisms and in the sense of artifacts and in the sense of computers or whatever would be treated as design all in the same sense, which is not how they tend to be treated now. Biology is sort of studied as one subject and the study of artifacts and technology is something else. Q. But it would change the conception of science? A. Well, it would change the way -- yes, it would probably blur the distinction, for example, between life and nonlife more substantially. There would be a lot of implications, I think. But it wouldn't change testability. It wouldn't change the fundamental kind of methodological principles of science which are indifferent to the naturalism, supernatural distinction. Q. And is it fair to say that you think the National Academy of Science's definition of a scientific theory is too static and too restrictive? A. And this is -- remind me again. I'm sure I've commented on it, but can you remind me what that definition is? Q. Yes. The definition is a well-substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences, and tested hypotheses. A. Yes, I believe I objected to "well-substantiated" in that definition. Q. And your counter-definition is a little bit different, and it would be an explanatory conception -- A. Can you direct me to a page? You just want to tell me? Okay. Q. An explanatory conception of a range of phenomena and also that could serve as a basis for a research program, for an empirical research program. A. Yes. That sounds good, yeah. Q. So you would remove "well-substantiated" to allow not-so-well established theories like intelligent design? A. Well, otherwise, I don't see how any new theory would ever get a foothold in this definition. No theory is born well-substantiated. Q. Now, you've spent a fair bit of your time on this particular point about how difficult it is under the current -- I think you would say overly dogmatic naturalistic paradigm of science for new theories to break in. A. May I correct you? I think that's a mischaracterization. I don't think that naturalism is, itself, the kind of -- the sort of stultifying atmosphere. I think it has actually more to do with sort of sociological, political, and economic factors when it gets right down to it. Q. But as I understood your testimony -- and, please, you know, correct me if I'm mischaracterizing, because I certainly don't intend to do that. I mean, as I understood it, you're saying that scientists are not really open to different ways of thinking such as presented by intelligent design? A. In fact, yes. In fact, as -- this is, in a way, engrained in their training, and it's something that is very well remarked upon in our literature. It's called normal science. It's the whole idea of thinking within a paradigm. That's, in fact, how you make advances in very narrow, specialized technical fields. So, in a sense, it has a heuristic value itself, this kind of narrowness, that makes people unopen, but it isn't everything. Q. Right. But I also recall you saying that scientists are not the person -- not the people to best define science because they're within that paradigm and can't think outside of it? A. Well, that is certainly -- yeah, that's certainly true. Q. And your point is that what you need are philosophers of science and sociologists of science and scientific epistemologists to really be able to define what science is properly? A. Yes. And it's happened. It's happened in legal cases like this, for example. The definitions are taken from philosophers. And it's very common practice, yes. Q. And you also said that the scientific association, I think you called them -- you said the elites at the National Academy of Science make it difficult for new theories to be accepted? A. Well, I don't know if that particular organization is to be targeted in some conspiratorial fashion, but I think that the way science is organized generally, if you go across the professional associations, the ways in which, you know, peer review operates and journals, you look at the way in which education takes place within science and how one gets in and how one gets jobs in it, if you put that all together, that does make it very difficult for new ideas to catch on. Q. So, in some sense, you would say there's a prejudice between the scientists, the scientific associations, the peer review, against new scientific theories being accepted? A. A prejudice in -- yes. I mean, I don't know how cognitive I want to interpret that word "prejudice." Again, I don't know if there's, like, vendettas against particular viewpoints. But I do think that the overall -- you might say structural effect of all these things is, yes, to bias one toward a kind of conformist position on a taken-for-granted, established science. Q. So it's difficult but it's not impossible for new theories to be accepted? A. Of course not. But it's getting harder. Q. And I think, as you testified earlier today, scientists are willing to accept hypotheses from anywhere so long as they bear fruit experimentally. Do you recall saying that? A. Yes. And that's -- you know, that's, yes, pretty obvious. Q. So, in fact, I mean, the 20th Century and the late 20th Century give us many examples of theories that have been accepted within the scientific community. So, I mean, you testified to Dobzhansky's -- A. Dobzhansky, yes. Q. Right. His view of really -- I mean, that was the Darwinian revolution that we're talking about here? A. Yes. But what he did -- yes, but this was done by writing a book that brought together different biologists to see themselves as traveling under a common rubric. I mean, it wasn't something that required a large research grant or something. By today's standards, it was still very much little science that he was doing that had this big effect. Q. But that's perfectly well accepted in science today? A. Yes, but he was doing this in 1937. The world has changed. Q. Well, how about, have you heard of the theory of plate tectonics? A. Sure. That was ignored for a long time. Q. Absolutely. It was ignored for, what, 40 or 50 years before it was finally accepted by the scientific establishment in the 1960s? A. Well, that's right. And all along, though, there were people -- there was a current of people still pursuing it. So even though it was never any dominant position, there was kind of a -- it wasn't so discontinuous, it was just that the people who were pursuing it were largely on the margins. And then eventually, you know, they came to the surface as new evidence and so forth came in. That's certainly true. Q. Right. So there was a hypothesis, there were people who were advancing this, it was not accepted, not accepted, and eventually it did become accepted as a theory within the scientific community? A. Yes, because they did have a critical mass of workers in that area who were able to pursue it, even though they weren't being taken all that seriously for a long time. It wasn't that, you know, you had three guys doing it and then when they stopped pushing it, it disappeared. There was always kind of an undercurrent rumbling with regard to this theory until then people caught on to it when they saw new evidence arise. Q. And you know about the theory of transposons? A. I can't say I do, I'm afraid. Q. Have you ever heard of jumping or removable genes? A. Yeah, I have. Obviously I'm not an expert in biology, but I have heard of them. Q. And are you familiar that that's a theory that was first proposed in the 1950s and has now largely been accepted by the scientific community as of the 1980s? A. Right, but I bet there have been people working on this for a while in between. Q. Right. A. Well, that helps. Q. Right. So they spent 30 years, and finally they convinced the scientific community that this was a valid theory that should be accepted? A. And these people had academic posts who were pursuing this. Right? So there was an institutional substructure that was supporting this minority research. And that's a very important part of the story. Right? Because if there is no institutional substructure, right, if there are no, you know, people studying this and following it even though they know most people don't believe it, it's never going to have a chance to reach that point. Q. And you've heard of prions or prions? A. Yeah, I've heard of them. Q. And those are -- I guess advances the cause of mad cow disease, they're replicating proteins? A. Yes. They're very famous in my country, Britain. Q. I'm sorry to hear that. My sympathies. A. We invented them. Q. We have great steaks here in Harrisburg. A. Oh, I've been having one every night, let me tell you. Q. And, again, that was a theory that was advanced and eventually accepted by the scientific community in the 1990s? A. Of course, yes. Q. And one last example, the theory that ulcers are actually caused by bacteria? A. Yeah, yeah. Sure, yes, I am familiar with that. Q. Because for a long time people thought that, in fact, ulcers were caused by stress, which led to stomach acid, which led to the ulcers. And now, in fact, this year's 2005 Nobel prize in medicine went to the people who advanced that theory. A. Yes. Q. So there are scientific theories that can sort of crack the scientific establishment and become accepted? A. Sure, but these people have -- you know, they have institutional settings where they can continue the research. Right? And I'm sure -- I mean, with the plate tectonics there was some hostility, but with some of these others, I wonder if there was really, you know, any kind of ideological hostility to the pursuing of this alternative research. Because in this sense, it isn't quite the same as intelligent design, which I take it to be the point of the examples. Q. Well, I mean, the point is that you can get accepted in the scientific community. It takes time, it takes work, it takes research, and it takes effort to convince your colleague in the scientific community, but it can be done? A. Yes. And it takes institutional presence, and it takes the ability to be able to have students who follow up on leads that you make, and those students have to be able to get jobs and so forth. There are all those things, too. They're part of the sociology. This is why the history and philosophy and sociology of science need to be considered together. You can't just separate out, as it were, the philosophical status of these theories and see how they change over time. You have to look at the institutional structures. Q. But intelligent design hasn't convinced the scientific community yet, has it? A. Well, there's a chicken and egg question here. Right? I mean, you have to put the institutional -- you have to enable these people to actually have enough exposure, right, so that they can get people interested in the idea. And so people who, let's say, don't start off with, you know, whatever baggage they happen to have get interested in it and develop it in new directions and take the idea forward so it's not just seen as a kind of cultish thing. And that's very important, and that doesn't happen spontaneously. Q. Right. It takes lots of hard work, but -- A. And it takes institutional opportunities. Q. Right. But the work is done in the scientific community, isn't it? A. Well, yeah. Q. I mean, it's not done in the public schools of this country? A. Well, if we're talking about getting people interested in this kind of idea -- see, intelligent design has certain disadvantages that these other theories don't have, and that's the kind of ideological resistance to it because it's seen as, you know, overly religious and all the rest of it. And so there is a kind of -- in that sense, there is a kind of prejudice that makes it more difficult for a theory like that to get some kind of leverage. Q. Now, that's your speculation? A. Yes, indeed. I mean, that's why I don't think the analogies work quite the way you're saying. Q. But we know that the National Academy of Sciences has specifically said that intelligent design should not be taught in public school science classes? A. I know. I've read that statement, yes. Q. And the American Association for the Advancement of Science, you're familiar with that organization? A. Well, of course. Q. And that is the largest organization of scientists? A. I know. Q. And they have taken a similar position that says intelligent design is not science and doesn't belong in a science classroom? A. I know. Q. Right? A. I know. Okay. Q. So intelligent design has not convinced the science community, and you're here saying, well, you know, we've got to sort of fertilize the field and make sure that it can be taught to students so that they're more open-minded to this? A. Well, it seems to me that you're not going to -- it's not going to happen otherwise. And -- Q. You know, I'm not aware of transposons or plate tectonics being forced on students before it was accepted by the scientific community. A. Yes, but those are much more specialized kinds of entities and theories and so forth that exist, roughly speaking, within established disciplines. Here we're talking about a sort of scientific movement, as it were, that part of what it wants to do is to reconfigure the face of science. Right? And, in a sense, the neo-Darwinian synthesis covers a lot of ground. It's a very sort of big, broad picture. And, in a sense, intelligent design is offering a kind of competitor at that level. So it's a different ball game from what you've been describing. Q. And what you're saying is that it's got no chance in the scientific community, the only chance it has is for a federal judge to order that it be taught in the schools? A. Look, I'm -- MR. GILLEN: Objection to the characterization of his testimony, Your Honor. THE WITNESS: Well, I am going to disagree with it. Sorry. THE COURT: The best thing you can do when Mr. Gillen objects is not answer the question. THE WITNESS: Sorry, sorry. THE COURT: That doesn't help him. So we'll let that pass and we'll move on. MR. GILLEN: I'll withdraw the objection. THE COURT: I guess so. Mr. Walczak can proceed. That's known as the too-helpful witness. THE WITNESS: Sorry. THE COURT: But who you're helping depends on your answer. Mr. Walczak, you may proceed. BY MR. WALCZAK: Q. You talked earlier in your direct examination about a revolution in science not being a big deal. Right? Or not as -- I'm sorry, not as big a deal as, say, a social or political revolution. A. Yes. Q. And you mentioned Lavoisier and Newton and Mendel and Dobzhansky. And these were all sort of scientific revolutions that you pointed to? A. Yes. Q. And what you're telling this Court is that we need that kind of revolution because the dominant paradigm is not letting intelligent design in? MR. GILLEN: Objection to the characterization of his testimony. I don't believe he said any such thing. THE COURT: Well, the question is couched in terms of you're telling us, and he can deny that. I don't know that that's an accurate characterization of his testimony, but the way the question is phrased, it's a fair question on cross, so the objection is overruled. You may answer that. THE WITNESS: I deny that. Let me see how to put it. BY MR. WALCZAK: Q. What was the point of talking about revolutions? A. Well, the thing here is that you need to have revolutions when, in fact, the science is dominated by one paradigm. Right? That's the presupposition of a revolution, that the only way in which you're going to actually get any kind of alternative viewpoint is by displacing the dominant one, because you're not imagining science to be a naturally pluralistic field. You don't need a revolution if you had a kind of pluralistic playing field of science where you have lots of different theories of roughly equal stature. But, rather, in this case, with the neo-Darwinian synthesis, you have one very dominant theory that monopolizes all the resources. In the normal course of things, you would just have to wait for that theory to kill itself before another one is going to come about. Q. And so you are saying that, in fact, there is a very dominant theory today, neo-Darwinian synthesis, and in order to crack that, in order to allow intelligent design in, you need this revolution? A. Well, that's not quite -- I mean, I think that if intelligent design proves its merit, that will, in fact, happen. But I'm not actually saying -- I'm not calling for a revolution at the moment. What I am saying is, I would like to see some opposition thinking to force students to think, well, look, is this the only way of looking at the nature of life? Maybe there's an alternative way of looking at it. And not only that, it's a way that can fit in with other things, such as other things that are designed. I mean, thinking about biology as if it were like technology, which is part of the implication of the sort of thing Dembski is doing, is kind of interesting, and it does put a different slant on what the nature of life is and actually has some precedent in the history of science with regard to issues of mechanism and so forth, and this is where Newton and all that comes in. So it's not like some weirdo theory that I've just picked out of a hat. It's one where you could do a nice historical backstory to. Q. I want to switch gears and talk a little bit about intelligent design itself. Now, you said that intelligent design is a relatively young science? A. In this current phase, right. It has a long historical backstory, very little of which it's actually appropriated up to this point. In its current form, it's pretty new. Q. So it doesn't have its views, its conical views worked out very well on all aspects of the theory? A. I think that's fair to say. Q. So, for instance, on the position of the age of the earth, it's open-minded? A. I believe so. Q. And we have to wait until the science develops a bit more to see where it's going to come out? A. I think that's right. Q. And so there really aren't a lot of, as you've put it, conical views about fundamental principles? A. No, that's right. Q. And -- A. But there are some that are being developed, that are quite clearly being developed, like the complex specified information, explanatory filter thing of Dembski. I think he's the one that, you know, one would look for in terms of developing so-called foundations, you might say, for this science. So it is going on, and there is some discernible shape to it. Q. We'll come back to Dembski. But you've earlier used the term "normal science." And that would refer to the neo-Darwinian synthesis? A. That's right. It's the way science is done normally under the dominant paradigm. Q. And you've said that ID, in fact, is in a fringe area? A. Yes. It's not normal science. I mean, you can't have normal science until you have a paradigm that's been sufficiently flushed out that you can sort of talk about normal forms of research. At the moment, ID is basically laying out foundations and then trying to come out with some exemplary phenomena. Q. Let's talk about those foundations for intelligent design. I think -- would you agree that ID consists primarily of the views of Michael Behe and William Dembski? A. That's certainly the two I associate it with. Q. Those are the biggies? A. I would say so. Q. And you would agree that both are at relatively early stages of development? A. Yes. Q. Let's start with Dembski. Now, you say that he has suggested an explanatory filter based on math and statistics? A. Yes. Q. And he's trying to provide a probabilistic space for intelligent design? A. That's right. Q. So he's trying to move ID out of a metaphysical space and into a mathematical one? A. That's correct. Q. But as far as you know, he has not applied this filter to explain any biological life? A. No. He has done it primarily to study fraud in artifacts and things like that. Q. So he hasn't actually applied this to biological life? A. No. He's primarily a guy who develops theoretical foundations. Okay? He's not a biologist, he's a mathematician by training. Q. And you would agree that people have suggested counter-examples to his hypothesis and that he's failed to address those? A. Well, he has tried to address them. I mean, it's a very -- it's a very kind of tough game he's playing, because the idea is to come up with a notion of design that cannot be reduced to either necessity or chance. And so the counter-examples are along the lines of saying, well, you know, this could be seen as chance or this could be seen as necessity, where is that middle space that you're going for. But that's kind of to be expected, it seems to me, given that if he is able to come up with this, this would be quite a radical departure from, let's say, the way we think about evolution, which is a combination of necessity and chance. Q. If we can -- if he can come up with this. But as you say, his failure to address some of the counter-examples to this very difficult hypothesis that he's making, I mean, in your estimation right now is really damning? A. Well, no, he's been trying. I mean, it's just he doesn't satisfy all of his critics. Q. But the fact that he has failed to address some of the counter-examples is damning to his theory? A. I mean, he's trying. He doesn't do it to everyone's satisfaction. But he is -- I have seen responses to his work -- his responses to his critics' work, and he is trying. I mean, there aren't a lot of -- see, if there were more people working in this area, you know, there would be kind of support and there might be some way of developing this a little faster and on more different fronts, but he's pretty much doing it himself. Q. If I could direct your attention to Page 65 of your deposition. A. Yes. Q. I'm going to start reading -- do you have it there? A. Yes. Q. I'm going to start reading with the question on Line 2. Quote, But what is your understanding of these counter-examples? Is it that they have -- that critics have taken these counter-examples and used some probabilistic method to determine what happened to them, or have they been raised as examples that Dr. Dembski needs to apply his method to to show that it works at all? And your answer is, Yes, the latter. I mean, but is this damning? Yes, I mean, I agree with you. A. No, no, I'm not referring to that it's damning. I mean that the latter -- I'm not saying that the fact that they have raised counter-examples to -- suggests his method doesn't work at all. I am agreeing that that's the nature of the counter-example. I am not agreeing to it being damning. Q. But you're saying that Dembski needs to apply his method, and he hasn't done that to the counter -- he hasn't applied his method to the counter-examples, and that's damning? A. Let me just read this. Can you restate the question now? I've sort of -- restate the question, please, now that I've understood what I've said. Q. That Dembski's failure to address these counter-examples is damning to his theory, at least for right now. A. Well, actually, I tend to interpret the word "damming" as pretty final. But, you know, damning for right now sounds to me like a contradiction in terms. When I say, yes, I agree with you, what I'm agreeing to is that you gave two alternatives in your question, and I'm agreeing to the latter of those alternatives. I'm not agreeing to your subsequent statement of it being damning. That's what I'm doing there. Q. But that's what you said in the deposition? A. That's the order of the words, but, you know, in the course of speech, right, it's -- you know, it may not actually be as it seems. Q. So what's printed on the page may be different than what we're reading? A. No, that's not what I'm saying. But, look, the way I answered the question, right, I gave, you know, whatever, three or four short remarks. But, I mean, clearly -- because, look, the word "damning" is very final, and I don't believe it's damning. Q. All right. Well, let's look at your next -- let's look at your next answer and the question that was posed to you right after that. Isn't the challenge to Dr. Dembski right now that your method is useless? And your answer was -- and I'm going to read this and please follow along -- The fact that you bring up counter-examples doesn't mean that it doesn't explain anything. Right? I mean, in fact, the way the general verdict on somebody like Dembski is that, you know, it sort of leads -- it's kind of -- it doesn't quite fit the full range of things that we normally consider design. It tends to include certain things that we don't want to call design, and it tends to exclude other things that we do want to call design. So in that sense, the mathematical parameters aren't being set quite right, and that might indicate some fundamental flaw in the way he's conceptualizing the problem. Okay? That's what the state of play is with him. A. Yes, I would think that that's kind of what the received opinion is at the moment on his work. Q. So there may be some fundamental flaw with his hypothesis? A. Yes, but this is a very common response to someone who is making a very fundamental challenge working so early in this area. So this doesn't -- in a sense, it doesn't phase me. Q. But you would agree with me then that Dembski has not yet succeeded in showing that life is intelligently designed? A. Oh, no, he hasn't shown that. Q. And you're not aware of anyone else using his hypothesis or his mathematical filter to show that life was intelligently designed? A. Well, there has been some synergy between him and Behe in recent times, but I don't think there's been any systematic application. Q. So you're not aware of anybody else successfully applying his hypothesis to prove design? A. No, no. I mean, his stuff tends to be applied on artifacts and whether or not there's fraud or, you know, what the design features are, things of that kind. Q. Things made by humans? A. Yes, that's the prime -- I mean, it's very good on that front. Q. Right. And, of course, we know who made it if it's made by humans. Is that a tautology, I think I just -- A. Well, we often don't know which ones unless we do the work. Q. Let's turn to Dr. Behe's theory of irreducible complexity. And I believe you've termed it -- you're saying he's trying to come up with an alternative science? A. Yes. Q. And you agree that he has not gotten his studies peer reviewed? A. Well, he did get -- I mean, I've recently seen a thing that he got on proteins that has appeared in Protein Science that is sort of presented -- Q. Is that with Professor Snoke? A. I believe so. Q. And that doesn't mention intelligent design? A. No, it mentions evolution and natural selection as a test of it. Q. And it doesn't mention irreducible complexity? A. No, no. I mean, no, that's true, it does not. There may be reasons for that, but -- Q. Well, and one of the reasons -- let me ask if you agree with me that one of the reasons it's not in peer review, because from the standpoint of the way in which normal science is conducted, Behe's work is not very useful? A. Well, it's not towing the right line, that's for sure. Q. So, I mean, even under your kind of expanded definition of science where it does not have to be well established, Behe must really launch his own research program? A. Well, I think, in fact, that is what he's trying to do. Q. He hasn't done that yet? A. Well, it all depends what you mean. I think he is trying -- I mean, in a sense, making some common cause with Dembski is helpful here and, in fact, is to be expected that there will be this kind of -- you know, Behe can't do everything himself either. Right? I mean, he's a biochemist, and he has certain kinds of specialties, and he really needs to be in contact with people in other areas who are sympathetic to this in order for it to really take off. But he's certainly doing the best he can. And I really think this is, again, another one of these institutional problems, that you can't just expect one person to come up with a whole research program fully blown from his head. I mean, typically this involves having students -- you know, I mean, starting journals, getting the work published and circulated and all the rest of it, and you do need a critical mass of people for that. Q. And so you would agree that right now Professor Behe and irreducible complexity have neither robust peer review nor a robust research program? A. Well, I mean, he has as robust a research program as he possibly can under the circumstances, it seems to me. And the same would go for Dembski. They're doing the best they can with the minimal resources that they have. And with regard to peer review, you know, I think that one has to, you know, look at that very cautiously. Yes, strictly speaking, there isn't that much peer-reviewed stuff by him, but, you know, again, there -- there are institutional issues here, it seems to me. Q. And you're not aware of the research that Professor Behe is actually doing on intelligent design? A. I'm not a specialist in his work, so I don't have, like, up-to-date information about him. Q. And you haven't read his testimony from the trial last week, have you? A. Well, actually, I did read some parts of it. Q. So you don't -- do you recall what he said about his research program on intelligent design? A. I only recall the kinds of questions -- he was asked to explain, you know, the irreducibility of the cell and all this kind of stuff. I don't recall. But then I didn't commit the transcript to testimony -- excuse me, to memory. Q. But as you sit here, you're not aware of what research Professor Behe is doing? A. Yes, but I'm not an expert on the man. Q. Let's go over the logic of irreducible complexity and Dr. Behe's argument here. And it starts out as intelligent design is a better explanation than evolution. Is that right? A. It starts with that? Q. Isn't that kind of the -- A. What do you mean it starts? Q. Well, is it a better explanation than natural selection? I mean, isn't that sort of the premise, intelligent design is a better explanation of biological life? A. That's what he's aiming to show. That's what he's aiming to show, if that's what you mean. Q. That it better explains biological life than random mutation and natural selection? A. Yes, he believes that. Q. And he says that random mutation and natural selection are not an adequate explanation for biological life? A. That's correct. Q. And then, therefore, intelligent design is better? A. Well, I don't know. Does he exactly say that? Q. Well, I think that's what you said. A. Well, I mean -- did I say that? Q. Why don't you turn to Page 168 of your deposition. If you'll look at Line 21. A. Yes. Q. The question, Therefore, intelligent design is the best explanation? Answer: Yes, that's roughly what's going on. A. Yes, I see. So the idea being that I'm saying -- he's saying it's -- you know, if it's not natural selection, it's therefore intelligent design. Okay. But Miller does the same thing in reverse when he tests Behe's experiment. I mean, there's a sense in which this kind of debate tends to have this character where one side says, well, look, if you show that the thing is not irreducibly complex, therefore it's natural selection, and so he plays the game the other way around. So there's a sense in which he's -- he's hardly alone in being guilty in this sin of having dichotomous thinking. Q. Well, let's talk about that sort of first part of Behe's argument, the irreducible complexity. And there, in fact, have been challenges made to his assertion that there are cells or organisms that are irreducibly complex. Correct? A. Correct. Q. And, for instance, Professor Behe, in his 1996 book Darwin's Black Box, threw out some potential examples, the blood clotting cascade, the immune system? A. The bacterial flagellum. Q. Right. Who could forget the bacterial flagellum. And lac operons, too. A. Oh, of course, yes, yes, yes. Q. And, in fact, as happened last week, Professor Behe was confronted with -- I think it was 58 peer-reviewed journals and a number of textbooks that talked about various evolutionary pathways for the immune system. So the scientists have actually come up with possible natural explanations where Professor Behe said there were none because it's irreducibly complex. A. Um-hum. Q. Is that correct? A. I'm perfectly willing to believe this. Q. So I want to focus on the second part of Dr. Behe's argument. Okay? Irreducible complexity, I want to make sure we understand this, is that science cannot fully or evolution cannot fully explain -- A. Natural selection is really his target. Q. Okay. So natural selection -- well, that may be his target, but that's not exactly what evolution says. Evolution, if you'll agree with me, evolution doesn't say that natural selection alone is the mechanism of change? A. No, but that's the thing that he's targeting in his examples. Q. Right. But you would agree with me that natural selection is not the only change agent? A. No, but I thought you were talking about what he's trying to do. Q. I am. But as I understand it, his irreducible complexity argument is that, in fact, some things are so complex that there couldn't be a natural explanation for them or a natural pathway. A. No, what he's saying is that you could never reach -- you could never reach the state of the cell being in its sort of integrated whole just through processes of natural selection, you know, to random mutation and so forth. It would take too long to get to that state and that the earth isn't old enough, as it were, to allow natural selection to work for the cell to get into that state. That's what his argument is. Q. So he's saying, I can't imagine how this could have happened naturally in science? A. No, that's not the same thing. He's actually making a -- you know, a quite specific statement, you know, where he's calculating how long would it take through natural selection for this particular cell to develop as it is, and he's saying it's too long. Q. Right. A. It takes too long. And that's a strike against natural selection given how long we take the earth to have been around. Q. But what he's saying is that natural selection can't explain this. That's the first part of his argument? A. Well, that's right. And he means it in this very specific way that I have just described, namely, it would take too long if you took natural selection seriously. Q. So it's a negative argument against natural selection? A. It's not merely a negative argument, it's actually a potential test of it. In a sense, his argument is designed as a test of natural selection because, look, even if you can give potential evolutionary explanations, you still have to explain the time frame in which it happened, and that hasn't been done yet by the evolutionists. Q. So what he's saying is that evolutionists haven't fully explained these theories? A. Oh, yes. And I think even the evolutionists would agree with that. Q. Absolutely. I don't think anybody is disputing that. But I want to focus on the second part of his argument, which is the one actually for design. A. Right. Q. Okay? So, you know, even assuming that and even accepting that evolution and science cannot detail all evolutionary pathways, design still doesn't follow logically from that, does it? A. You're absolutely right, and there is this dichotomous thinking that just penetrates both sides of this debate, and that includes Miller. Q. So in order for the irreducible complexity to be logically valid, one would have to assume that Behe has eliminated all rival hypotheses, not just one? A. Of course, of course. Q. And here, just because science hasn't provided a naturalistic explanation today doesn't mean that there aren't any naturalistic explanations? A. Of course, that's all true. I mean -- Q. Right. And it doesn't mean that science isn't going to find some natural explanation tomorrow just because we don't know it today? A. Of course. Who could disagree. Q. So you agree that the absence of naturalistic explanations is not a proper test to show the supernatural in biology? A. No, in fact, there's a sense in which this whole debate is very wrong headed. I mean, in a sense, both should just be allowed to develop their research programs rather than to score premature knock-out punches in simple-minded fashion. And that goes for both sides again. Q. And speaking of both, let's bring Mr. Dembski back into this. A. The other "both." Okay. Not Miller. Q. So both Michael Behe and Professor Dembski have the same logical problem with their argument. Correct? A. Well, will you tell me what the problem is before I consent to it? Q. Sure. The affirmative argument for design is simply a conclusory proposition that doesn't follow from their criticisms of evolution. A. It is true that design is not entailed by criticisms in evolution, that is true. That's certainly true. Q. So the leap to design is a conclusory proposition? A. But, look, there is more to it than that. Right? I mean, it's not just that they -- they're not just presenting negative evidence, they're sort of showing what it is about the cell that appears to be designed, et cetera, et cetera, that provides a kind of prima facie positive story, as well. Okay? I mean, but it is true that these guys define their position very much in opposition to the evolutionists. And I do -- yes, there's a sense in which it would be better if there was a little space between these two so they could develop their programs independently. Q. But still, coming back, I mean, the assertion for design is really just a conclusory proposition? A. No, there is more to it than the conclusions that are drawn on the basis of negative evidence about evolution. Q. All right. Would you turn to Page 185 of your deposition. A. Yes. Q. I'm sorry, I had the wrong page here. Page 170, beginning on Line 5 -- well, let's see, you say, Dembski has a similar problem. And the question is, So both of them have this problem? And then you say, Yes, and then we elucidate. The question is, Okay, but then even granted your point, which I do, I'm still troubled by the idea that even if you would eliminate all the, for example, natural hypotheses that have been asserted, one could make a positive case for action by an intelligent designer, and I'm trying to understand how that follows, which I think is a conclusory proposition. A. Yes. Q. And your answer is, Yes. I mean, yes, it doesn't follow, you're absolutely right. A. Well, I haven't disagreed with that, have I? Q. Have I read that correctly? MR. GILLEN: Objection, Your Honor. I think if he's going to read the answer, he's got to read the whole answer, not just the beginning. THE COURT: Well, he has the opportunity to read the answer and answer it in context and answer in the context of his entire answer, so you feel free to answer the question as it relates to your entire answer or any other answers that you gave. That's understood. MR. GILLEN: Thank you, Your Honor. THE COURT: And we had a question on the floor. Is that right? MR. WALCZAK: I believe he agreed. He said he didn't disagree with the proposition. THE COURT: Then you may proceed. BY MR. WALCZAK: Q. And based on this argument, there's never going to be a decisive moment where intelligent design wins by default simply because it shows that natural explanations have not yet been shown. Is that correct? A. But that's not the whole sum of what the program is about. Q. But simply showing that natural explanations are inadequate is never going to prove intelligent design? A. Not by itself, no, but that's true of any research program. You don't establish your own position by just negating another. Q. And since you can never eliminate all the possible natural alternatives, some people have objected to the idea of inference to the best explanation as being a method in science. Do you agree with that? A. That's certainly true. Q. And you're not aware of any intelligent design people having produced an affirmative test for supernatural causation? A. No, I don't believe so, not them. Q. And you're not aware of intelligent design being empirically tested? A. Well, it is a bit early in the research program for them to actually come up with their own original tests. I mean, as I said earlier this morning, you have to wait some time for the research program to get elaborated so you actually see what would be some interesting test cases where intelligent design is really saying something interestingly different from some natural selection-based explanation, for example. Q. But they haven't done that yet? A. Well, it's very early in the day, right, for these guys. Q. And can you ever disprove a designer? A. Well, actually, that is kind of the point of having a design detector. Right? And this is where Dembski comes in, right, because Dembski is trying to put some kind of specific mathematical parameters on what would count as design. Okay? And so there is an attempt to actually nail down that concept in some way that you could then tell whether something was designed or not. Q. And how do you disprove that there is a designer? A. Well, I mean, there's a sense in which designer -- a design isn't necessarily a commitment to some sort of absolute God. I mean, you know, if what you're thinking about is how do you disprove God, well, yes. But that's not really what the issue is here. It's basically saying whether design is present or not. And then the issue is having some kind of criteria that you can apply unequivocally to be able to make that distinction. That's the goal of the project, right, at the end of the day. And so the issue is nailing down a sufficiently clear notion of design. Q. But if you never hypothesize about the identity or the attributes of the designer, how could you ever possibly disprove that? A. It's not at all clear to me -- I mean, it depends what attributes, exactly, you're talking about. Right? I mean -- Q. The intelligent design proponents refuse to hypothesize about any attributes, do they? A. It depends what -- the design of what are we talking about here. Because we're talking about design of cells, right, there's going to be one kind of design-based explanation. If you've got design of artifacts, it's going to be another kind of design-based explanation. Q. Well, we're talking about biological life here. A. Right, okay. Q. So there are different designers? A. I'm not sure that's quite the way to put it. What you want to show is that this is design as opposed to having been the product of chance and necessity, that is kind of what the project is about, and coming up with a clear criteria where you can make the difference between a chance and necessity explanation and a design-based explanation. And that's kind of the conceptual issue that people like Dembski are struggling with at the moment so that, in fact, you could say that this is design or not design, because they don't believe everything is designed. MR. WALCZAK: Your Honor, this might be a good time for a break. THE COURT: All right. Why don't we take our afternoon break now. We'll break for 20 minutes, and we'll return at about 3:20 to have our last session of the day. We'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 15 (October 24), PM Session, Part 2 THE COURT: All right. We continue with Mr. Walczak's cross-examination. BY MR. WALCZAK: Q. I want to talk to you, Professor Fuller, about evolution as the big tent. Emphasize the "T" there. I believe that you testified that evolution is the biggest of big tents? A. Yes. That's partially a compliment. Q. I took it as a complete compliment. A. Okay, good. Q. But evolution includes biology, all the biological sciences, cell biology, microbiology, genetics, paleontology. And so evolution really has managed to accommodate all of these many scientific disciplines? A. Yes, that's true, that's true. Q. And, in fact, even within these disciplines as you've testified, there are many disagreements among people about exactly the means and mechanisms of evolutionary theory? A. Yes. Q. So, in fact, evolution is a very inclusive theory that brings together many different disciplines and thousands and thousands of scientists? A. Yes, it does. That's certainly true. Q. And intelligent design has not been able to penetrate the science? A. Well, intelligent design, in a way, scopes out the sciences differently, but it certainly has not been able to get the sort of, you know, breadth of constituency that evolution has had, but it's had much less time to work with. Q. I want to talk about intelligent design's big tent. Would you put up Exhibit 429, please. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. THE WITNESS: Is there a hard copy? All righty. Life in the big tent. BY MR. WALCZAK: Q. I direct your attention to the synopsis there in the second paragraph. A. Yes. Q. If you could read beginning with "under" halfway through that second paragraph. A. Do you want me to read it out loud? Q. Please. A. Under the canopy of design, as an empirical possibility, however, any number of particular theories may also be possible, including traditional creationism, progressive old-earth creationism, and theistic evolution. Both scientific and Scriptural evidence will have to decide the competition between these theories. The big tent of ID provides a setting in which that struggle after truth can occur and from which the secular culture may be influenced. Q. So evolution brings together all sorts of scientific disciplines. Correct? A. Correct. Q. And intelligent design here brings together not only some alleged science, but also religious views? A. But this is not the intelligent design I'm talking about. This is one particular scoping of it. I don't -- this is not the type that I'm talking about as being a scientific competitor for evolutionary theory. Q. And do you know who Paul Nelson is? A. Vaguely, vaguely, yeah, yeah. He has some connection with Dembski, doesn't he? Q. He is a senior fellow at the Discovery Institute. What's the intelligent design you're talking about? A. Well, I'm talking about the type that is interested in playing by the rules of science in the sense of trying to come up with a research program with testable hypotheses, that, in a sense, is competing in the scientific space, primarily, regardless of what the religious motivations may be, but not taking the religious motivation itself somehow as evidence, as it were, for the scientific validity of the statements. Q. So, in fact, this would not be acceptable to you as -- A. Not to me, at least in terms of these various disciplines that are being included here. Some of these would not, for me, count as appropriately scientific. Q. And I know you talked about the motivations of the proponents didn't necessarily invalidate a theory so long as it was testable otherwise. A. That's correct. Q. Now, if the motivation, in fact, was shown to be -- to develop a view that is consonant with Christian and theistic convictions, would that change your opinion? A. Well, it depends whether it was testable or not, doesn't it? I mean if it's testable by scientific means. I mean, after all, Sir Isaac Newton thought he was interpreting the Bible when he was doing Principia Mathematica, but you didn't have to hold that view in order to see that his theory was valid. Q. But if you start out with a premise that we're going to design something to make it consonant with particular religious views -- A. Well, we'll have to see whether it pans out scientifically. Q. So that -- A. It may be a good heuristic, it may not be. But the proof of the pudding is in the scientific eating, not in the consistency with the Bible. Q. So it has to survive the testability that you talked about? A. Yes. And here I would emphasize the point that testability is a notion that is neutral to the tested parties. So it's, you know -- so, in other words, one doesn't, as it were, have theistic tests that only theistic people can abide by. Q. Matt, could you put up Plaintiffs' Exhibit 718. A. Oh, yes. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. THE WITNESS: Thank you. BY MR. WALCZAK: Q. This is an article written by Professor Behe. A. I'm familiar with it. Q. You are familiar with it. If you could turn to Page 705 of this. A. Yes. Q. And you'll see about four lines down it says, The argument is less plausible to those for whom God's existence is in question and is much less plausible for those who deny God's existence. Do you see that? A. What is he referring to? Q. He's referring to intelligent design. The question is, What if the existence of God is in dispute or denied? I mean, please, if you'd like to take a moment to read that. A. Yeah. Okay. How much of this do you want me to read for myself? Q. Well, let me -- A. I just looked at the first paragraph. Do you want me to look at any more of it? THE COURT: You can read all of the article that you desire to make sure -- THE WITNESS: Well, I'm not sure what he's asking. THE COURT: Well, if you need to read more based on his question, then you can tell him. THE WITNESS: Okay. THE COURT: But suffice it to say that you've read the referenced paragraph. Is that correct? THE WITNESS: Yes. THE COURT: All right. Then you go ahead with your question. BY MR. WALCZAK: Q. So if the validity of a theory or belief in a theory depends on whether or not you believe in God or not, does that undermine your assertion that this would be science? A. But he's not saying that. He's saying plausibility. Q. He's saying that if you are not sure about the existence of God, it makes this theory less plausible, and that if you deny the existence of God, if you're an atheist, then that makes the theory even much less plausible. If you have a theory that depends on whether or not you believe in God or not -- A. I think he's talking about the context of discovery. Namely, is this kind of theory, intelligent design -- what kind of person is likely to be drawn to it is something to turn into a research program. So it's a context of discovery matter, I take it. And historically, it is true, people like Sir Isaac Newton and Mendel who, in a sense, thought they could get into the minds of God had a much easier time dealing with the design standpoint. Okay? And I think that's all he's saying. I might be wrong. I haven't read the whole thing. But, you know, if that's what he's saying, that's pretty innocent. He's not saying validity, he's saying who would be attracted to this as a kind of argument to pursue. Q. Well -- A. I mean, again, I'm guessing what he really says here, but it seems to me he's not talking about validity. He may be later. You tell me. Q. Well, he's talking about the plausibility of the argument. A. Okay, but plausibility, in a way, is what would draw you to the argument as something you want to develop. Right? I mean, this is the whole issue about heuristics. Certain kinds of ideas, you know, usually like analogies, metaphors, and things we find quite compelling and we use them as the basis for research. And certain people will be attracted to certain ones more than others. Some are attracted to organic metaphors, mechanical metaphors. It seems to me that's the level at which this remark is being made, at least prima facie. Q. Well, but let's take it to the next level of justification. I mean, if that's true, if you're more likely to believe in this if you believe in God, if you're more likely to be attracted and supportive of this argument if you believe in God, does that affect your view of whether or not this is science? A. Well, look, if this were a statement about the context of justification, where, in a sense, you need to believe in God in order to see the validity of the argument, if that were the case, if that was what he was saying, that would not be scientific. Q. I believe you testified today that intelligent design is not creationism. A. That's correct. Q. But it is, in fact, a kind of creationism, is it not? A. Well, what I mean there is that there is a historical connection out of which it grew, and we share some similar kinds of proclivities, but it's, in fact, moved in a completely different direction, it seems to me. Q. But it's a modern view of creationism? A. I think that's a little misleading. It's a really radical transformation. It's a really substantively different thing, and that's indicated by the kind of training of the people who are, in fact, in intelligent design. They actually are trained as scientists of one sort or another. Q. If you could turn to Page 67 of your deposition. A. Bear with me. I have some of my pages confused. I'm sorry. Q. Take your time. A. Page 67? Q. Yes. A. Okay. Q. Line 15. And the question asked is, You've used this phrase ID in conjunction with earlier forms of creationism, not just in your previous answer, but also in your report. And I infer from that what you mean is intelligent design is a modern view of creationism. Then there's an objection from Mr. Gillen, and then the question restated, Is that correct? And your answer is, Well, again, yes, in a sense, but, I mean, not all creationism has been six-day creationism. So this isn't young earth creationism, but it is a modern view of creationism, it's a type of creationism? A. I would say it has evolved out of creationism, but it's become a totally different thing, something where one doesn't need to be an adherent to the various theological views of creationism in order to practice it. Q. If you could go to the next page, Page 68, and starting on Line 21, the question is, Intelligent design is creationism, not just six-day creationism? And then your answer beginning on Line 24, It is a kind of creationism, it is a kind of creationism. I didn't read the same passage twice. It's actually twice on there. Did I read that accurately? A. Well, it looks like that is what the sentences say. But, I mean, if I may, let me just have a look here. Well, it seems to me that what I'm talking about here is that there is some historical connection between creationism and intelligent design. And so in that sense, there is a genealogy that goes back to that. But that's all I'm saying at this point. I'm not saying that to practice intelligent design, one has to be some kind of creationist. Q. And if you could now turn the page -- A. Turn the page literally? Q. I'm sorry, to 69. A. Oh, okay. Q. And beginning on Line 2, the question is, When you use the word "creationism," what do you mean? And could you read Lines 4 through 9, please, into the record. A. Well, I mean that the idea that there is a kind of unified order to nature that is evidence of intelligent design. I mean what we now call intelligent design which used to be called the creator because the creator was always the person who had the intelligent design. So there is this historical lineage. I don't think that's controversial. So I'm making a historical point here. That's all I'm doing, is making a historical point. Q. And creationism presupposes a creator that is separate from creation? A. Yes, that's kind of the supernatural element, you might say. Q. What we now call the intelligent designer used to be called the creator historically? A. Yes. Q. Because the creator was always the person who had the intelligent design? A. That's a historical point, yes. Q. The term "special creation," are you familiar with that term? A. Yes, I am. Q. And by that do you mean that each of the species was specially created by God or some master intellect that arose -- that they arose and did not come from a common form of life and each one is made specially by design? A. I mean, the basic point about special creation is the denial of common descent. I think that's the fundamental view about it, much more so even that God happened to have done it. But, again, historically, special creation is connected with this idea of the creator, as well. There are several versions of it. But you've given a particularly sort of strong version of it. Q. And would you agree that that's a form of special creation? A. What is a form of special creation? Q. The definition that I just gave. A. Yes, it's a strong version of it. Q. But it is a version of special creation? A. Well, what you -- the thing that you said, created by God, the species separately, not common descent, and that kind of thing that you laid out. Q. But is that not, in fact, your definition of special creation? A. I'm not objecting to it. I'm just saying that there are different types of special creation. And some don't actually have to postulate a creator, it's more kind of a denial of common descent. So if you believe there were multiple origins, perhaps, right, of life or the universe or something like that. Q. Well, but special creationism really is predicated on species arose from some divine blueprint? A. Well, I mean, historically there is that connection, but there are people who believe -- who seem not to worry about the creator. I mean, Linnaeus may have been one example, actually, because Linnaeus has a kind of special creation presupposition built into his classification system but not a lot of thought about God behind it. Q. And special creation is a remnant of the old biblical creation story? A. Historically, of course. But then most notions in biology have some kind of root back there. Q. And I believe you just said that special creation is really the opposite of common descent? A. Historically, yes, that's true. And certainly they move in different directions, different spaces. Q. Matt, could you put up Plaintiffs' Exhibit 562, the page we've identified. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. THE WITNESS: Thank you. MR. WALCZAK: Matt, can you blow up the passage in question. BY MR. WALCZAK: Q. Dr. Fuller, let me direct your attention to the bottom of Page 214. A. Um-hum. Q. And there's a passage there. It appears to be a definition of creation. And I want to ask you to read that and then tell me whether you agree that that's a definition of special creation. A. What are you referring to exactly? Q. I'm sorry, on Page 2-14. A. Yeah. Q. At the very bottom. A. So where it says, Creation means that? Q. Right, and then it goes on to the next page. A. Okay. Q. If you could read that out loud, I'm sorry. A. Oh, okay. Creation means that various forms of life began abruptly through the agency of an intelligent creator with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, et cetera. Is that enough, or do you want me to go on? Q. No, that's fine. Would you agree that that's a definition of special creation? A. That's certainly one way of capturing it, yes. Q. That is a definition, a definition of special creation? A. Yes. Q. In a 1998 article, the First Global Cyberconference on Public Understanding of Science, is that something you wrote? A. Yes, I was the one who ran the thing, and this is a report on it you're referring to. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I want to direct your attention to Page 331. A. Um-hum. Q. And about halfway down the first paragraph it says -- I'm going to read it starting with the word "however." A. Yes. Q. And this is something you wrote? A. Yes. Q. It reads, However, American discussions of PUS -- and, I'm sorry, PUS is public understanding of science? A. Yes. Q. American discussions of public understanding of science have been more open to matters concerning alternative medicine and so-called new-age and multicultural knowledges, as well as the incorporation of religiously inspired doctrines, and then in parentheses, e.g., intelligent design theory, a.k.a. creationism, close paren., into mainstream science education. A. Yes. Q. Did I read that correctly? A. Yes, you did. Q. And that's something that you wrote? A. Yes, I did. Q. And "a.k.a." means also known as? A. Yes, it does. Q. So that phrase actually reads, intelligent design theory, also known as creationism? A. Well, I think what I was referring to is that is, in fact, how it is known. It's not necessarily my equation or endorsement of the two things. Q. Now, this piece was published in Darwinism, Design and Public Education? A. No, you're thinking of the other piece. Q. The other piece. A. That came up in the deposition. Q. So this piece was published in 1998? A. That's right. And that's an issue, too, because there's a sense in which intelligent design, in its scientific form, really has only taken off in a serious way since 1996, I would say. So there is a sense in which there is some fuzziness here about the dividing line. But if I were writing this today, I would make a very clear distinction because it seems to be there are two clearly separable tendencies going on here. Q. So it was creationism and then sometime in 1996 or later it stopped being creationism? A. No. What happened is, new people started to get involved with it. Behe and Dembski weren't part of the old creationist crowd. Okay? I mean, they are different people. They're sort of like a new generation of people who may be religiously inspired but who are sort of playing by the rules of science and have proper scientific training. So it's a sort of different ball game, people with different backgrounds. Q. So could you say that this is creationism without reference to God or the Bible and it's really expressed in the language of -- A. What kind of creationism is this that we're left with then you have to wonder. Q. Well, would you say that it's creationism expressed in the language of biochemistry and information theory? A. Well, look, after a certain point, it doesn't matter what the motivation is. If it's done in information science and biochemical theory or whatever, then that's what it becomes, regardless -- even if there was some sense in which this stuff was religiously motivated, if it is being completely or largely expressed in the idioms of these sciences, then it has effectively entered into the scientific domain. Q. So even though it may be the same concept but now you're talking about it in scientific or mathematical terms -- A. You're getting metaphysical with me here. The same concept? You mean the same motivation, don't you? Q. No, I'm talking about the same concept of special creation. A. No, it isn't the same concept. I mean, I don't see it. Maybe you see it. I don't see it. I don't see it as the same concept. I see it -- you know, it's like the emergence of a new species. Q. But with historical roots and a common ancestor? A. Yes. But, you know, again, this is where you have to distinguish context of discovery and context of justification. You can't damn people by their roots. Q. And in 1998, when you published the article, you used the word "creationism" so people had a sense of what exactly intelligent design is without having to give a whole song and dance about it? A. I'm not sure why you infer that. I mean, I guess I don't see -- no, I don't know why you -- Q. Why did you use the term "creationism" in that passage that we referred to before? I mean, you wrote -- A. Yes. Q. -- intelligent design a.k.a. creationism. Why did you do that? A. Why did I do that? Well, because that term was coming into vogue at the time and it wasn't quite understood where that term was coming from. And so, in a sense, I was giving a kind of historical marker to it. Q. So you were using creationism as a marker for -- A. Yes. And also, to be perfectly honest, I wasn't all that familiar with intelligent design back then. I had some knowledge of it, but there was a sense in which differences of the kind that I'm able to sort of be more confident about I wasn't so clear on before. I mean, the thing has changed, and I've learned more about it. Q. So you were using creationism as a place holder because you didn't know that much about it? A. Well, I -- in a sense, yes. I mean -- Q. Do you know Jon Buell? A. No. Q. Do you know who he is? A. No. Who is he? Q. President of the Foundation for Thought and Ethics. A. No. I don't travel in those circles. Q. So it's just purely a coincidence that you and he picked the same place holder, creationism for intelligent design? A. I'm not sure why you bring him up. Do I have some connection with him? Q. I was asking whether you did. A. No. Q. And so you would agree that ID has its roots in creationism? A. All I'm saying is that there is historical connection, a historical tie, but that's all I'm saying. Q. And it's a way of interpreting creationism? A. No, I'm saying it goes way beyond that and doesn't even require -- it doesn't require interpreting creationism. Q. If you could turn to Page 153 of your deposition, please. And if you could look at the bottom, I'm going to read the question and ask you to read the answer. The question is on Line 21. But clearly you are indicating that intelligent design is creationism -- A. I'm sorry, I'm losing the plot here. Where are you? Q. I'm sorry, Page 153, Line 21. A. Right, okay. Go ahead. Q. Question: But clearly you are indicating that intelligent design is creationism in some sense? And then Mr. Gillen objects. And then your answer, if you could read your answer going through Line 1 of the next page. A. It is -- it does have roots in that. I mean, intelligent design is a way of interpreting creationism, that's true. Okay. I didn't say it was exclusively that, and I do think it's an unfortunate choice of words. Q. Why is it unfortunate? A. Well, because, first of all, it gives the impression that intelligent design is exclusively to be understood in relation to creationism. That's sort of the main error. But also to talk about intelligent design as a kind of interpretation rather than as an original sort of form of research. That is something I think was misspoken. Certainly I wouldn't say that today. Q. Now, intelligent design uses human design capacities to lead us to conclusions about what nonhuman, non-natural actors can do in terms of creating biological life? A. Yes, that sounds right. Q. And this goes back to the Reverend William Paley? A. Well, William Paley, as I mentioned, is one such source, not exactly my ideal source, but he is one source for this. Q. And Paley -- and, again, correct me if I'm wrong, I'm a novice at all this, but Paley's idea was if human beings can do it, then God can do it kind of in a bigger way? A. Well, that's kind of -- that's kind of the idea, though, in fact, the motivation traditionally has been because we're created in the image and likeness of God, we can understand the plan. It was originally -- the design inference wasn't an inference to the existence of God but rather to the capacities of humans to be able to understand the universe. Q. But that's the -- A. But Paley, yeah, you're describing correctly. Q. And that's the theological, not the scientific, but the theological basis for the design argument? A. That's correct. Q. And historically the designer has always been known as a certain kind of monotheistic conception of God? A. Yes, it is in that tradition that comes about, yes. You need a God that's detachable from the creation. Now we're getting some stuff. That's what you were talking about. MR. WALCZAK: I'm sorry, Your Honor, one minute. THE COURT: That's all right. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as Plaintiffs' Exhibit 787. A. Yes. Q. And do you recognize this? A. I certainly do. Q. And this is part of the book Darwinism, Design and Public Education? A. That's correct. Q. And this is something that you wrote? A. Yes. Q. And if you could turn to Page 538. A. Yes. Q. Near the bottom of the first full paragraph -- A. Yes. Q. -- you wrote, It is surprising that the controversial implications of Meyer's proposal do not seem to have been registered in religious circles. A. I see what you're looking at. Okay. Q. Is that what you wrote? Did I read that accurately? A. It is surprising that the controversial implications of Meyer's proposal do not seem to have been registered in religious circles, yes. Q. And Meyer is Stephen Meyer? A. I guess. Yes, it is. Q. And he's a senior fellow at the Discovery Institute? A. Yes. He's one of the editors of the volume. Q. And back on 230 -- 536, at the bottom of the page there, you discuss what Meyer's proposal is? A. Yes. Q. And that actually is another volume in the book, correct, Darwinism, Design and Public Education? A. This is where this is from. Q. But the article -- A. What I'm talking about is in there? Q. Yes. A. That's what you're asking me. Yes, I believe so. Q. And if you need a minute just to familiarize yourself with the argument -- A. And you just want me to consider Meyer's point here, the part about Meyer? Q. Do you recall now what you wrote about Meyer? A. Yes. Q. Let me try to summarize what Meyer's point was, essentially that genetic information exhibits specified complexity? A. Yes. Q. And that science can't explain the origin of genetic information, that physical and chemical laws cannot explain the ordering of DNA and proteins because they do not specify any particular order in a chemical chain of letters and that random assembly of functional genes and proteins is far too improbable to actually occur? A. Yes. Q. And that was Meyer's argument? A. Yes. Q. And then Meyer's also said, intelligence can explain the origin of specified complex information? A. Yes. Q. And, therefore, we infer that ID is the best explanation? A. Yeah, well, okay. That doesn't follow. Q. I'm sorry, that doesn't logically follow? A. No. There are more steps to be made here. Q. But that was Meyer's argument there? A. Yes, but people do make these inferences to the best explanation much prematurely. It's not my favorite form of argument, but it is one that has been used a lot in science. Q. And you believe that there is a theological problem with Meyer's argument, don't you? A. Let me just -- do you know where I actually say that? I don't give that much thought to Meyer, I must confess. Q. Well, I'm asking you now. A. I see, you're asking my opinion about this. Q. Yes. A. Whether there's a theological problem with Meyer's argument. Q. Well, did you identify a theological problem during your -- A. May I have a look at what I was saying -- I guess this refers to the theologians being upset with what he's saying. I don't recall what it was that I meant, so may I check? Q. Please. A. Can you tell me again where it was? I'm sorry, I lost the original cite for Meyer that you mentioned and where I say that Meyer has these theological difficulties. Q. I didn't say you said it in this article. I'm asking you now whether or not you agree that there are theological problems with Meyer's position. A. But you did point to me earlier something that -- Q. Right, I pointed you to page -- I believe it's 538. A. Okay. I'm sorry to be so dense about this, but -- Q. I'm sorry, it's probably my questions. A. Like I said, I don't give a lot of thought to Meyer's theological implications. I found it. Could I have just a moment to look at it? Q. Please. A. Okay, yes, okay. Q. So at the beginning of that paragraph on 138 -- A. 538. Q. I'm sorry, 538, you're right. My tentative approval notwithstanding, Meyer's view raises its own questions, one theological and the other more strictly scientific. Is it reasonable or even non-blasphemous to suppose that God is the ultimate artificer? A. Yes. Q. Did I read that correctly? A. That's correct, yes. Q. And you view that as a theological problem with Meyer's argument? A. Yes. I mean, this is the playing God issue that I was talking about earlier this morning that was one of the reasons why a lot of these design-oriented people like Newton had to kind of go underground with their theological views because, in a sense, they thought they could know the mind of God, and Meyer's seems to be kind of moving in the same direction with his theory. Q. So even if we understand how human beings create things, why should we think this is any kind of model for understanding how God does things and let alone how life is created? A. Well, that's correct. I mean, I didn't say that I endorsed that particular -- if that's the inference that he's drawing, I don't particularly endorse it. I mean, I actually think the way that the design works, the design -- the argument for design in science works the other way around, namely by putting ourselves in the mind of God as if we were God, we can sort of understand how the natural world works rather than saying that we can infer God from the way humans do things. Q. I'm sorry, and you're saying he's doing which of those? A. He's trying to actually figure out the existence of God. And I'm saying people like Newton thought they already knew God's mind, and they were trying to figure out how nature works. Q. But you would conclude that it's blasphemous to suggest that we know -- that what we know and what we can do is a model for God? A. I think this is the kind of thing a lot of theologins would get upset about. I personally wouldn't lose sleep over it. I happen to like the connection between the human artificer and God. And I like the idea that people can think of themselves getting into the mind of God, because I think that's been very helpful in the promotion of science. And, again, Isaac Newton is my benchmark. So I have no problem with this, but I understand theologins would find this blasphemous because who are we to sort of figure out how God's mind works. Q. Well, and not only theologins, but there may be non-theologins. They may be everyday, average, ordinary people who would find this blasphemous? A. Sure, yes. Yes, I mean, I didn't say that Stephen Meyer would make it to Heaven. MR. GILLEN: And you haven't been qualified in that area. MR. WALCZAK: I have no further questions. THE COURT: Ending on that note, redirect. REDIRECT EXAMINATION BY MR. GILLEN: Q. I know it's 9:00 in Great Britain. A. All right. I've lost track of the day since I've been here. Q. And it's only 4:00 here, but I think we feel the same in a lot of ways. We're going to wrap this up quickly. Mr. Walczak has directed your attention to a few pages of your deposition, Steve, and for the sake of ensuring completeness in the treatment of your testimony there, I want to ask you to look at a few more passages. Working our way back, I'd ask you to look at -- Mr. Walczak asked you to look at a question and answer series at the bottom of Page 153. Would you look at 153 and see if you can see that passage you were asked to look at. A. Okay, I see the page. Remind me what I'm supposed to be looking at. Q. Sure. Starting at -- look at 19. It says, Question: Okay. And 20, you say, No, so it's not that kind of creationism. Mr. Walczak asked you about the lines on 153 running over into 154. I want to ask you to continue and read through 154 beginning at Line 3 down through Line 18, please, for the record. A. For the record. Q. Yes. A. Okay. So starting with Mr. Rothschild's question? Q. Correct. A. Okay. Mr. Rothschild says: Okay. And what aspects of -- what do you mean by creationism when you say intelligent design does have roots in creationism or is creationist? Mr. Gillen: Objection to form. The witness: Well, I mean the motivation. The motivation for putting forward intelligent design is from people who do think there is a divine creator. I mean, I think historically that's been the case, and I think it's probably true of these people. But, again, what makes it science isn't that fact. I mean, again, all kinds of religious motivations inform science. I mean, so there's nothing, in a sense, by calling it creationism. What I'm doing is I'm giving something about the motivation of the people but not necessarily about the scientific status of what they're doing. Those are two separate issues. You've got context of discovery, context of justification. Q. Is that consistent with the testimony you offered here today on your direct? A. Yes. Q. Okay. I'd also ask you to direct your attention to Page 146. And you'll see, if you look at 145-146, you were asked questions about this, Plaintiffs' Exhibit 788. And I want you to read your testimony there as it relates to 146 beginning at Line 6 where you talked about this a.k.a. A. Yes, so this is from the Public Understanding of Science article. Q. Right, beginning at Line 9. A. The witness: But it's -- no, but it's not all of creationism. And it's, in fact, a part of creationism that gets taken into science. So, I mean -- I mean, obviously I'm just -- because in the time that this piece was written, right, so this was written in 1998, intelligent design theory wasn't that widely used as an expression, so I put the creationism in there so people kind of have a sense of what exactly intelligent design is without me having to give a whole song and dance about it because I'm just using it as an example. But I didn't mean to say that everything about intelligent design corresponds to everything about creationism. Q. And what I want to get at, Steve, is to make sure that's clear. Are you saying, again, that the context of discovery is there are elements of continuity, but with respect to the context of justification there is what you regard as a critical difference? A. Yes, that's correct. Q. And what is that critical difference? A. Well, it has to do the way by which theories are tested in intelligent design and validated, at least in principle, by scientific means and also the sort of people who are doing it are, in fact, people who do have scientific credentials of some sort, unlike the previous generation of people who are associated with creationism. So there are some really clear kinds of breaks that one can talk about both philosophically and sociologically. Q. In terms of the negative argument, Mr. Walczak asked you if intelligent design theorists make a negative argument against evolutionary theory, that doesn't necessarily prove design. Let me ask you, do evolutionary theorists make the same sort of argument against design? A. Yes. In fact, that's how I would characterize the presentation that Professor Miller did with the bacterial flagellum where he basically showed that Professor Behe's thesis about irreducible complexity was false and therefore it followed. That was sort of the spirit in which the presentation was being made. And therefore it follows from the natural selection story. Q. And, Steve, I'd ask you to look again at Plaintiffs' 788 which is the piece on the First Global Cyberconference on the Public Understanding of Science. Turning your attention to Page 331. A. Bear with me. Where? Q. Certainly. Page 331. A. Yes. Q. You'll see there in that first full paragraph the sentence that Mr. Walczak directed your attention to beginning with "however." A. Yes. Q. I'd like you to read that sentence through to the end to yourself. A. To myself? Q. Yes. And then I have a question. A. Okay. Q. Now, this is another place where you use that a.k.a., and the portion of the sentence I'd like to direct yourself to is the phrase which begins, As well as the incorporation of religiously inspired doctrines. In light of that language usage on your part in this piece, I'd like you to describe your purpose in terms of the context of discovery versus the context of justification. A. Well, I'm only referring to the context of discovery here, obviously, when one is talking about religiously inspired. Q. And so, again, for the purpose of clarity, are you demonstrating that you see this connection as one that is in the context of discovery, not justification? A. That's correct. Q. If you would turn your attention back to Plaintiffs' 429, the piece by Nelson. A. The piece by Nelson, yes. Q. You've indicated that this is not the sort of big tent that you see intelligent design as. Is that correct? A. That's correct. Q. And why is that? A. Well, because this big tent that's being described here is basically kind of a fig leaf for all of the various forms of creationism that have ever existed. And it seems to me that the -- what is intellectually interesting and substantive and continuous with the history of science in intelligent design is kind of lost from this picture entirely. Q. Well, and that's what I want to just make clear from your direct this morning. When you speak of intelligent design as having the possibility of providing a big tent, do you mean a big tent of the kind described in this piece? A. No, I mean of reconfiguring the sciences as they are -- the sciences, the things we normally call science now, but reconfiguring what their relationships are. Q. So in terms of the context of justification, would that be a big tent that is justified by what you've called the coin of science? A. By the what of science? Q. The coin of science. A. Yes. Q. Mr. Walczak asked you some questions about the statement and the fact that no -- there is no discussion or questions. Do you know why -- A. No. Q. -- there are no questions? A. No. Q. Do you know why there is no discussion? A. No. Q. But do you believe it would be useful in terms of promoting scientific progress for there to be discussion? A. Yes. Q. Given your training in the history and philosophy of science and looking at intelligent design theory as it exists today, would you anticipate that a movement which aspires to an explanatory theory at the level of generality proposed by at least some intelligent design proponents to have advanced to the stage where it could be engaged in an experimental program? A. It still needs to be developed a bit more, but in principle it could. But it really does need more adherence and more time to sort of develop the implications of its views. Q. Earlier Mr. Walczak asked you some questions which looked at other sorts of scientific revolutions or paradigm shifts, and there was a suggestion that the case with intelligent design could be the same. Do you see the situation confronted by intelligent design proponents as different from that of, say, the proponents of plate tectonic theory? A. Well, I think there's a lot more opposition at the moment to intelligent design theory in terms of being able to get the institutional resources to be able to reach the critical mass to mount a research program. I mean, because with all these examples that Mr. Walczak brought up, there was still some institutional ability to sort of pursue research, even if it wasn't taken all that seriously at the time. People could train, graduate students could get jobs, and even though they were marginal, they were still there in the system. But I think the problems facing intelligent design are much more radical institutionally. Q. And in that regard, do you see the nature of the opposition or the resistance as different in kind in terms of metaphysical or ideological dimension? A. Yes, that's true. Q. Explain that just generally. A. Well, I think generally it's -- the religious motivation ends up blocking people from taking the theory seriously. And, in fact, intelligent design has some very natural affinities with a lot of things going on in computer-driven forms of artificial life and artificial intelligence research that, in fact, there could be some alliances forged there. But I think at the moment, because it's so -- there's such restricted access to it and there are so few people who have an incentive to work on it, that it isn't able to develop those kinds of connections. And so that's why I would say it does need to be mainstreamed. Q. Mr. Walczak asked you some questions about a piece authored by Behe. And I want to see if I understand or if you need to further explain your position. In terms of the dichotomy between context of justification and context of discovery, from the bit of Behe's article that you looked at, what do you see Behe discussing there? A. The context of discovery. And the word "plausibility" suggests that to me. He says what would make it plausible, right, to adopt an intelligent design position would be if you believe in the existence of God. He's talking about the context of discovery, how would one use that as a heuristic for doing research, who would be more attracted to it. But he's not saying anything about how it would be validated. MR. GILLEN: I have no further questions, Your Honor. THE COURT: Thank you, Mr. Gillen. Mr. Walczak, recross. MR. WALCZAK: Just a few. RECROSS-EXAMINATION BY MR. WALCZAK: Q. Dr. Fuller, you're making a distinction in these theories between the discovery phase and the justification phase? A. Correct. Q. And see if I understand this. Discovery is sort of the formulation of the idea and you throw it out there? A. Yes. And it's how you come to the idea. So, you know, what gets -- yeah. Q. It's the hypothesis? A. Hypothesis formation, formation. Q. And the justification is the test, that's where you subject it to empirical testing? A. That's basically it. Q. And, now, are you aware that young earth creationists had a scientific component to their theory? A. No, I'm not aware of that. Q. Have you ever -- A. I guess I'd like to know what it is before I agree that it was scientific, at least by the likes I've been using it. Q. And I believe in your expert report you may have referred to Edwards versus Aguillard? A. I referred to it somewhere, but I don't know if it was in the expert witness report. Q. You're familiar with that? A. Yes, I am familiar with that. Q. And that case involved something called creation science? A. Yes. Q. And is it your understanding that they were justifying creationism in the coin of science? A. Well, I actually don't have enough on-the-ground familiarity to know whether they -- I mean, whether this was just a fig-leaf term "science" or whether there was anything resembling what we would call science there. So I can't really -- you know, I mean, they may have been trying. I mean, obviously using the word "science" suggests they were trying, but whether it would pass my criteria of what science is is another matter. Q. And what I think I just understood you to say is that in terms of all of these statements that we've shown to you that you've testified about in terms of creationism sharing some concept, some verbiage with intelligent design, that's all on the discovery side of the equation? A. Yes. I mean, there's not that much verbiage, actually, between creationism and intelligent design these days, even. I mean, maybe some motivational things, but in terms of even how the hypotheses and theories are formulated in the research programs, there's not a lot of overlap in the language. Q. But the way you've explained all of the statements I read back to you where you were equating intelligent design with creationism, say in this 1998 article, you're saying that's on the discovery side of it? A. Yes. Q. So that's in the idea formulation phase? A. Yes, what's motivating people, yeah, the things that are animating their imaginations. 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. Q. And intelligent design has been around for almost 20 years. Is that correct? A. Has it? That sounds a bit long to me, but -- Q. If Of Pandas and People was first published in 1989 -- A. With all due respect, that's a textbook. I mean, you don't use a high school textbook as a benchmark of what science is. MR. WALCZAK: I have no further questions. THE COURT: All right. That will conclude your testimony, Doctor. We thank you. THE WITNESS: Thank you. THE COURT: You may step down. We have a couple of exhibits which we should take now. We have, on direct, the CV, which is D243. Move for the admission of 243? MR. GILLEN: I do, Your Honor. THE COURT: Any objection? MR. WALCZAK: No, Your Honor. THE COURT: D243 is admitted. On cross we have the article by the witness that's P787. Are you moving for the admission of that, Mr. Walczak? MR. WALCZAK: Yes, Your Honor. THE COURT: Any objection? MR. GILLEN: Well, actually, no, I guess not. That's fine. THE COURT: It's his own article. MR. GILLEN: Yes. THE COURT: Well, then without objection, P787. Have I missed anything from either plaintiffs' or defendants' standpoint? Any exhibits? MR. WALCZAK: I have 788 as not in, Your Honor, the First Global Cyberconference. MR. GILLEN: Likewise, no objection to that, Your Honor. THE COURT: That's admitted. P788 is admitted. MR. WALCZAK: I believe that's it, Your Honor. THE COURT: All right. From defendants' standpoint, any additional exhibits? MR. GILLEN: Not at this time, Your Honor. THE COURT: For this witness. All right. Well, I guess we're going to pick up the testimony of the assistant superintendent, but it's late in the day. It seems late to endeavor to start that. Do you agree? MR. GILLEN: I do agree, Your Honor. Could we have a sidebar? THE COURT: You may. Thank you. (The following discussion was held at sidebar:) MR. GILLEN: Your Honor, as Liz is bringing the hammer down, I have reluctantly agreed to do Friday and Monday. I wanted to meet with you to ask your forbearance. Bill Buckingham is coming Thursday. The reporters are scheduled for Thursday. I see Mike Baksa continuing on Friday. I will do my best to prepare another witness for that day, and I know I can get someone here, but I might not be able to fill the whole day. THE COURT: I understand that. I told Liz that that's no harm, no foul. I don't want to put you in a difficult spot. These are days I can open up. And I really would like to not extend past next week, and so I thought the greater caution would be to open the days up, if that's acceptable to everybody. And if you can't fill a day, that's fine. I hope you'll try. MR. GILLEN: I will try, Your Honor. I want this over as much as the next one. THE COURT: I have a creeping concern which hasn't elevated to the point of hysteria. Perhaps it is for Liz, but not with me. And that's why we're opening up these days. If we end up with an early quit on Friday -- I was going to be here doing case management conferences anyway. It seems absurd for me to spend time doing that when we could open up a trial day. Monday I had a sentencing hearing all day, and it was not a problem to move that to next month. I know you have travel issues and other things, and I don't want to put you in a difficult spot, but on the other hand -- MR. GILLEN: All good things must come to an end. THE COURT: Yes. But it seems to me that the plaintiffs have been good about -- MR. GILLEN: They have. THE COURT: -- taking witnesses out of order. And if we shuffle Baksa back in the deck, I don't think that that's going to be a problem for you. MR. ROTHSCHILD: And if we end a little early on October 31st so I can get home for trick or treat, also no objection. THE COURT: I'm past trick or treat. MR. ROTHSCHILD: You can come to my neighborhood. THE COURT: What costume would I wear? MR. GILLEN: But that was my request, and I thank you, Judge, for your forbearance. MR. WALCZAK: I don't know how long you expect Mr. Buckingham to go on Thursday, but I don't know that the reporters are going to take a half a day, so we may have some time Thursday to finish Baksa. MR. GILLEN: Okay. And I frankly can't be sure. I think Mike is -- my guess is, just because of the paper that he's responsible for, will take the morning and maybe just a little bit of the afternoon on Friday. MR. WALCZAK: On direct. MR. GILLEN: Yeah. There's just a lot of paper with him. He was the gatekeeper. THE COURT: Who is that? MR. GILLEN: Mike Baksa. THE COURT: So Thursday you anticipate doing what? MR. GILLEN: Buckingham, the reporters, and if I have to do Mike, I guess I'll try and -- MR. WALCZAK: The other option is -- and I've talked to Niles Benn, and he said the earliest he could do it is the 27th -- we could do the reporters later. THE COURT: No, get Benn while you can. I don't want to get another call from Benn. We're going to get Benn here. You told him Thursday, you're going to do the reporters on Thursday. I don't want -- MR. GILLEN: Thursday it will be. THE COURT: I don't want another excuse as to why he can't come in here, medical or otherwise. If I have to get an ambulett to bring Mr. Benn in, we're going to have the reporters' testimony. MR. ROTHSCHILD: The other thing is, I think we still have to do the Nilsen exhibits. We can do that on Thursday or Friday, as well. MR. GILLEN: Yes. MR. WALCZAK: We have the expert exhibits. We have Padian, Miller. MR. GILLEN: Right. THE COURT: We'll take care of that. But we'll open it up for Friday, for the 28th, and Monday the 31st. And Liz will execute me for saying this, but if worse came to worse, I mean, I can't make you do what you can't do, and if you don't finish by the end of next week, I'm going to let you try your case, and I'll have to do what I have to do, so you understand that. I'm just trying, as much as I can, given everybody's schedules -- you know, I want to give everybody an opportunity to put their case on, so if we have to go further, we'll go further. But I'd like to try to add days within the weeks that we set rather than to add them -- MR. GILLEN: I appreciate the consideration. THE COURT: I have my whole docket being compressed back to the end of the year, and I'm supposed to start criminal trials that following week. MR. GILLEN: I feel like my whole life is being compressed. THE COURT: I feel similar. All right. Thanks, fellows. MR. WALCZAK: Thank you. MR. ROTHSCHILD: Thank you. (The discussion at sidebar was concluded.) THE COURT: All right. The consultation with counsel at sidebar was for the purpose of scheduling. Let me make this announcement. We are now, with the cordial agreement of all counsel, going to -- in addition to the trial date previously scheduled for October the 27th, which is Thursday, we will now sit on Friday for as long as we can. It may be a full-day session or it may not, depending upon the availability of witnesses on somewhat short notice. So we will sit on Friday the 28th. We will likewise sit on Monday the 31st of October. We're adding that as a trial day next week, as well. I think that is our fourth trial day now next week. I think we had previously scheduled three trial days. Am I correct, Counsel? MR. GILLEN: Yes. THE COURT: So that will add day four in an effort to conclude this matter by the end of next week, if at all possible, with the cooperation of counsel and the parties. So we'll have two more trial days this week, one more the following week. We have a total of three this week and then four next week. With that, we'll then adjourn today, and we will be in recess until Thursday morning the 27th when we will reconvene at 9:00 a.m. on that day. We'll see you then. Thank you. (Whereupon, the proceedings were adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 16 (October 27), AM Session, Part 1 THE COURT: Be seated, please. All right, we're back in session, and we are still in the defense case obviously. MR. HARVEY: Your Honor. By arrangement and agreement with plaintiff's counsel -- excuse me, defendant's counsel, the plaintiffs are now going to call in their case in chief out of turn Mr. William Buckingham as on cross. THE COURT: All right. We'll have to remember to take up Dr. Nilsen's exhibits at some point. Perhaps we'll do that today later, but no reason to do it now. MR. GILLEN: Thank you, Your Honor. (William Buckingham was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: State and spell your full name for the record, please. THE WITNESS: William Buckingham. W-I-L-L-I-A-M, B-U-C-K-I-N-G-H-A-M. DIRECT EXAMINATION AS ON CROSS BY MR. HARVEY: Q. Good morning, Mr. Buckingham. A. Good morning. Q. You will recall that I took your deposition on January the 3rd of this year, do you recall that? A. Yes. Q. And I took that deposition to help prepare to make a decision about whether to seek a temporary restraining order. Did you understand that at the time? A. I don't know that I knew that at the time. I came to know that as a result of the second deposition. Q. And now have you had a chance to prepare for today's session by meeting with your counsel? A. Yes, I did. Q. And when did you do that? A. Yesterday. Q. And was anyone present other than your counsel? A. No. Q. I'd like to just give you some documents that we might be looking at today. Your Honor, may I approach the witness? THE COURT: You may. (Brief pause.) Q. I've just actually given you three things. A copy of your deposition taken on January 3rd, 2005. You have that in front of you, right? A. Yes. Q. I also gave you a copy of the transcript of your deposition taken on March the 31st, 2005? A. That's correct. Q. And I also gave you a notebook of some documents that we may look at. I took the liberty of putting them in a notebook so we can keep things straight. Now, Mr. Buckingham, are you aware that the theory of evolution teaches among other things that there is evolution within a species? A. Yes. Q. And that's not inconsistent with your personal beliefs, is it, Mr. Buckingham? A. No, it's not. Q. And are you aware that the theory of evolution also teaches that man and other species evolved from a common ancestor? A. Yes. Q. And that is inconsistent with your personal beliefs, isn't that right? A. Yes, it is. Q. And you believe that evolution has antireligious implications, don't you? A. I don't think it's good -- I don't think there's parts of it that are good science. I won't say they're antireligious. I just think it's not good science. Q. Well, Mr. Buckingham, I'd like you to take a look at a document, it's actually not in your binder, but I'll get you a copy of it. Matt, would you pull up Exhibit 127? Your Honor, may I approach? THE COURT: You may. Q. Mr. Buckingham, you're now looking at what's been marked as P-127. That's a newsletter that was put out by the Dover area school district, isn't it? A. It seems to be. Q. And that was put out in February of 2005? A. Yes. Q. Have you seen this before? A. Very briefly. If it was shown to me I didn't read it, but I was aware that it existed. Q. Well, if you turn to the second page, please, there's a question there that says, it's in the second column in the middle, it says, "Are there religious implications to the theory of ID?" Do you see that? A. I see it. Q. And ID is intelligent design? A. Yes. Q. And were you aware that the school district put out this information here under this question about the religious implications to the theory of ID? Were you aware of that? A. As I stated, I didn't read this. I was aware that it existed, but I hadn't read it. Q. Fair enough. Now, Mr. Buckingham, when we use, I'd like to just make sure that we're talking about, we'll be talking about some terms today and I want to make sure we're on the same page. The word creationism, you understand that to mean essentially the Book of Genesis? A. Pretty much, yes. Q. And you personally believe in a literal reading of the Book of Genesis, isn't that right? A. Yes, I do. Q. That's one of the foundations of your faith? A. Yes, it is. Q. And in contrast to evolution you believe that the theory of intelligent design is not inconsistent with your personal religious beliefs, isn't that true? A. I'm not an expert on intelligent design. I don't know everything about intelligent design. I just know that it's another scientific theory that we thought would be good to have presented to the students. Q. My question is a little different, Mr. Buckingham. I'm asking you it's your understanding that intelligent design is consistent with your personal beliefs, isn't that right? MR. GILLEN: Objection. Foundation. He just said he doesn't have a detailed understanding of intelligent design. THE COURT: Well, the question is different. It has to do with whether it's consistent with his personal belief. So I'll overrule the objection. You can answer the question. A. I can't answer that because I don't know everything about intelligent design. I don't know. Q. Mr. Buckingham, I'd like you to turn to a page to the deposition transcript that was taken on January the 3rd, and turn to page 134, please. A. I'm there. Q. Line 12, are you there? A. Yes. Q. Didn't I ask you the following questions and you give the following answers? " QUESTION: Earlier today I asked you about whether the theory of evolution was inconsistent with your personal religious beliefs, you told me that it was. You don't need to confirm that. Just kind of remember. ANSWER: I think I said it wasn't. QUESTION: No, you definitely said that the theory of evolution was inconsistent with your personal religious beliefs at least to the extent that it taught that life forms were derived from a common ancestor. ANSWER: Origins of life, yes. QUESTION: Is the theory of intelligent design as you phrased it, is that inconsistent with your personal beliefs in any respect?" And then there was an objection, and I said, clarified the question, "Well, in any context," and you said, "In any context no, it's not inconsistent." Do you remember giving that testimony, Mr. Buckingham? A. I remember giving the testimony, but I think in any context I'm sure there's some context of intelligent design that aren't inconsistent with my faith. Q. Now, you believe, Mr. Buckingham, that intelligent design is a scientific theory, don't you? A. Yes, I do. Q. And I asked you at your deposition on January 3rd if you could tell me what you understand intelligent design to mean, and you told me that you believe that intelligent design teaches that something, molecules or amoeba possibly, evolved into the complexities of life we have now. Isn't that right? A. Without seeing it in front of me I can't tell you if that's right or not, sir. Q. Please take a look at page 61 of that same deposition transcript. Actually, Mr. Buckingham, it begins on page 60, line 22. A. I'm there. Q. Didn't I ask you the following questions and you gave the following answers? " QUESTION: I'm just trying to understand so we can have a working understanding here of what intelligent design is if we can. Do you have an understanding in very simple terms of what intelligent design stands for? What does it teach? ANSWER: Other than what I've expressed that scientists, a lot of scientists, don't ask me the names, I can't tell you where it came from, a lot of scientists believe that back through time something, molecules, amoeba, whatever, evolved into the complexities of life we have now. QUESTION: That's the theory of intelligent design? ANSWER: You asked me my understanding of it. I'm not a scientist. I can't go into details and debate it with you." Do you remember giving that testimony? A. Yes. Q. And at least as of that date, January the 3rd, that's all that you understood about what the theory of intelligent design is, isn't that correct? A. Plus the fact that I felt that life was too complex to have randomly happened without a design of some sort. Q. That's right. In fact, you told me at your deposition that one of the differences between the theory, that between the theory of evolution and intelligent design is that the theory of evolution according to you teaches that the beginning of man is just happenstance, isn't that correct? A. Can you show me where I said that? Q. Sure. Please take a look at pages 20 and 21 of that same deposition transcript. A. I'm there. Q. If you start on page 20 -- actually to get some context here we really need to go to page 18. The question that was asked was, "Let's just take it for a second," and this is line 11 on page 18, "But let's just take it for a second that the common ancestor, let's say it's some single celled organism many millions of years ago, and that if that's what the theory of evolution teaches that that's the common ancestor, that that violates or is that inconsistent with your personal religious beliefs?" And then you answered the question over on page 20, you asked me a question, "Ancestor what? Ancestor to what?" And I said, "To all forms of life, including man," and you said, "The question was is that inconsistent with my beliefs? " QUESTION: Yes. ANSWER: Yes. QUESTION: Why is that inconsistent with your beliefs? ANSWER: Why is that inconsistent with my beliefs? QUESTION: Yes. ANSWER: My faith is founded on the Book of Genesis. QUESTION: Can you explain further? ANSWER: They're different. QUESTION: How are they different? ANSWER: Do you want to do this again? QUESTION: I would like to make sure that the record is clear on this point. ANSWER: Again I'm not a scientist, but it's my understanding that in the theory of evolution where it goes back to the beginning of man it's happenstance, it just happened, and that's inconsistent with my faith." You gave that testimony, didn't you, Mr. Buckingham. A. Yes, when we talked about the origins of life, yes. Q. And intelligent design it's your understanding teaches that the beginning of man is not happenstance, correct? A. True. Q. According to you, intelligent design expresses an order, as opposed to evolution which talks about chance, correct? A. I would say evolution talks about random chance and intelligent design expresses an order. Q. Now, Mr. Buckingham, you're familiar with the book Of Pandas and People, aren't you? A. Somewhat. Q. You actually ordered a copy of that book back in the summer of 2004, isn't that right? A. Yes. Q. May I approach the witness, Your Honor? THE COURT: You may. Q. Mr. Buckingham, I've handed you a copy of the book Of Pandas and People which has been marked as P-11. We might want to refer to it in the next few questions, and my question is do you know whether intelligent design says that life, like a manufactured object, is the result of intelligent shaping of matter? Does intelligent design teach that? A. I've never heard that. Q. Well, actually at your deposition you told me that it doesn't teach that, isn't that right? A. If you can show me where I said that. Q. Please turn to page 163 and 164 of your transcript. Excuse me, 63 and 64. Page 63, line 19, Mr. Buckingham, the question I asked was: " QUESTION: Mr. Buckingham, does intelligent teach that life, like a manufactured object, is the result of intelligent shaping of matter? ANSWER: I think one, I think intelligent design expresses an order, as opposed to the theory of evolution, which talks about chance. QUESTION: It expresses an order you said? ANSWER: An orderly process to things. QUESTION: Who or what directed that order? ANSWER: I don't know. QUESTION: But my question is, or excuse me, was, does intelligent design teach that life, like a manufactured object, is the result of intelligent shaping of matter? ANSWER: I don't know about shaping. I think there's an order in intelligent design that's not in evolution. Whether it's not, it's shaping, I don't know. QUESTION: Does intelligent design teach that life..." Let's stop right there. So you gave that testimony on January the 1st, isn't that right? A. Yes. Q. I'd like you to turn for just a second to in your book Of Pandas and People there to page Roman VII, it's little "vii," it's one of the first pages in the book. Actually it's right under the word "Introduction" on the right-hand side. I'd be happy to come show you. A. I have it. Q. Do you have it? A. I have it. Q. And Matt, would you please bring that up on the screen and highlight the language in the bottom right-hand corner? This is Of Pandas and People, this book we're looking at, isn't it? A. Yes, it is. Q. This is the book the school district approved for the Dover High School, isn't that right? A. As a resource book, yes. Q. As a resource book on intelligent design, correct? A. Yes. Q. And if you look in the lower right-hand corner it says, "Likewise, proponents of intelligent design throughout history have shared the concept that life, like a manufactured object, is the result of intelligent shaping of matter. Do you see that? A. Yes, I do. Q. You didn't even know that Pandas said that, did you? A. I didn't remember that it said that. I don't know if I -- no, I didn't. Q. You didn't know that, correct? A. No. Q. Now, do you know whether intelligent design teaches that life owes its origins to a master intellect? A. I don't know that. Q. Well, at your deposition you told me that intelligent design doesn't teach that life owes its origins to a master intellect, isn't that right? A. That's what I'm saying. I don't know what you said you thought I knew. Q. And in fact if you'll turn to page 58 of this book Of Pandas and People, please tell me when you get there. A. I'm there. Q. Just above the words "Suggested reading resources" there's the last sentence in the previous section says, "This parallel strongly suggests that life itself owes its origin to a master intellect." Isn't that what Pandas says, Mr. Buckingham? A. That's what that sentence says. I don't know the context it was written in though. Q. So but the point is you didn't even know that Pandas and People, the book that was approved for the Dover High School about intelligent design, teaches that life owes its origins to a master intellect? You weren't aware of that, is that right? A. If you're asking me if I memorized this book, I didn't. Q. I'm just asking if you were aware of that. You were not aware of that, isn't that true? A. No. Q. I'm sorry, you meant to say correct, isn't that right? Correct, you weren't aware of that? A. Could you rephrase the question or ask me the question again? Q. Sure. I'm just trying to establish, you weren't aware that Pandas teaches the life owes its origins to a master intellect? A. I didn't remember that being in there, no. Q. Okay. Now, does the theory of intelligent design teach that various forms of life began abruptly through an intelligent cause? A. What I know about intelligent design is that it's another scientific theory, and I'm sure there are a lot of things about intelligent design. I don't know. Q. Well, let me just re-ask the question. You don't know -- just let me make this clear, you don't know whether or not intelligent design teaches that life, the various forms of life began abruptly through an intelligent agency. You just don't know whether it teaches that or not, isn't that right? A. No, I don't. Q. You can put that book down. Now I'd like to ask you some background questions. Mr. Buckingham, you now live in North Carolina? A. Yes, I do. Q. And you moved there in August, isn't that right? A. Yes, I moved in July, last week of July. Q. And before moving to North Carolina you lived in Dover, Pennsylvania, isn't that right? A. Yes, I did. Q. How long did you live in Dover? A. 28 years. Q. And at least for the last part of the time you lived in Dover you attended the Harmony Grove Community Church, isn't that right? A. That's true. Q. And you at the time just before you left Dover you were a member of the Dover area school district board of directors? A. That's true. Q. And you served as a member of the board of directors for between two and three years? A. Yes, sir. Q. Your first year on the board was from December 2002 to December of 2003, isn't that right? A. I think I started in February of 2003. Q. Okay, so you began in February of 2003, and then you were a school board member for all of 2003, isn't that right? A. Yes. Q. You were a school board member of all of 2004? A. Yes. Q. And you were a school board member in 2005 until you resigned at or around the time that you moved to North Carolina? A. That's true. Q. You are retired? A. Yes. Q. And you've been retired since 1989? A. Yes. Q. And before your retirement you were a supervisor at the York County prison? A. Yes. Q. Your highest level of education is high school? A. I graduated from the Pennsylvania State Police Academy in 1973 and FBI criminal investigation school, and have a paralegal certificate from Penn State. Q. And you have three children, all grown? A. Yes. Q. And they graduated from, all graduated from Dover High School, but that was a number of years ago? A. That was back in the 80's, early 80's. Q. And you are married? A. Yes, I am. Q. And your wife's name is Charlotte? A. Yes. Q. And during the school board year 2004, during 2004 you were the head of the board curriculum committee, weren't you? A. Yes. Q. And who was on the board curriculum committee that year? A. Sheila Harkins, Casey Brown, myself, and Allen Bonsell would be there on occasion as president. Q. Mr. Bonsell was a member of the committee ex officio, isn't that right? A. Yes, that would be the term. Q. Mr. Bonsell was president of the board that year? A. That's true. Q. And Mr. Bonsell appointed you to the position of head of the curriculum committee, isn't that correct? A. Yes, he did. Q. Now, do you recall that in 2003 the board approved funds for a new biology textbook? A. Yes. Q. And do you also recall that even though the board approved the funds, it didn't actually approve the purchase of the textbook in 2003? A. That's true. Q. And do you remember that in the 2003 and school year there weren't enough biology textbooks for the students to each take one home at night? A. I know there were books in the classroom. Whether or not they were taken home I don't know. Q. Well, you knew that there were not enough for the students to take that -- strike that. You knew that there were books in the classroom, but the reason they were in the classroom is because there weren't enough for the students to take them home, isn't that correct? A. Back at the time I was new on the board and I didn't have sufficient background to really have that knowledge. Q. Now, do you remember in early 2004 you reviewed the biology textbook that was being used in the Dover High School? Do you remember that? A. That was being used? Q. Yes. A. I don't remember that. I remember reviewing the one they wanted to purchase. I don't remember reviewing the one they were using at the time. Q. Well, I tell you what. Let's take a look in your notebook at what's P-132. Matt, could you please bring that up? A. Could you give me the number again, please? Q. It's 132. A. Yes, sir, I have it. Q. P-132 is a handwritten page that has the Bates number, actually two pages have the Bates number 39, and then if you look at the second page it has the Bates number 210. Do you see that? A. I might be at the wrong part. Q. If you need -- A. Mine doesn't have a handwritten like yours does. Q. Well, I tell you what then. You do have P-132 in front of you? A. Yes. Q. That has the Bates page number 39 on it? A. Yes. Q. That's actually a document that you created? A. Yes. Q. And that's a list of references in the Miller and Levine 2004 biology textbook, is that right? A. It's a 2002 book. Q. That is a 2002 book, right? A. Yes. Q. You went through and you made a list of the aspects of the book that concerned you? A. I made a list of aspects of the book that talked about one theory and didn't mention any other scientific theories. Q. Okay. And the aspect of the book that mentioned one theory and didn't mention any other theory all concerned evolution, isn't that right? A. It concerned Darwin's theory of evolution, yes. Q. And among other things if you look at this document it says page 386, summary of Darwin's theory, do you see that? A. Yes, I do. Q. You were concerned that there was a summary of Darwin's theory in the book, isn't that right? A. I wasn't, I don't think I was concerned that there was a summary of Darwin's theory in the book. I was concerned that the only thing in the book was Darwin's theory. Q. Is it fair to say that you have a problem with the scientific theory of evolution being presented to the students at the Dover High School in biology class? A. I don't have a problem with it being presented to the students as long as it's being presented along with the gaps in the theories of evolution. Q. So I'm talking now not at your present views, because they're not relevant, but I want to know, I'm talking about back in 2004 your point of view was that you had a problem with intelligent -- excuse me, the theory of evolution being present alone. You wanted it to be presented with something else, correct? A. I knew there were other scientific theories available, and I thought it would be better for the students if other scientific theories, along with Darwin, were presented. Q. So in other words you wanted to make sure that there were other theories presented alongside of the theory of evolution, correct? A. Other scientific theories, true. Q. Now, do you recall a meeting of the board curriculum committee in January of 2004? A. Yes. Q. And do you recall who attended that meeting? A. I can't tell you for sure. I know it was Sheila Harkins, Casey Brown, myself, Mr. Baksa. I don't know if the science teachers were there at that time or not. Might have been. Q. Well, do you recall a discussion about the teachers watching a video called Icons of Evolution? A. A discussion about it? I know I was told they agreed to watch it. Q. Okay. That was, you were told in or around the time that curriculum meeting in the spring of 2004 that the teachers had agreed to watch the video Icons of Evolution? A. Yes. Q. Now, that video was something that that you obtained from The Discovery Institute, isn't that right? A. I didn't actually obtain it. They just sent it to me. I didn't ask for it. Q. But in any event the video that the teaches were watching was the video that came to you from The Discovery Institute, correct? A. Yes. Q. And do you remember at that curriculum -- by the way, do you know the date of the curriculum committee meeting that we're talking about in the spring of 2004? A. Not off the top of my head. Q. It was sometime in June? A. I think it was. Q. Do you remember a discussion at a curriculum committee meeting in the spring of 2004 with Bertha Spahr about a mural of evolution? A. Yes, I do. Q. And do you know a man named Larry Reeser? A. Yes, I do. Q. Mr. Reeser was somebody that you knew from your church, isn't that right? A. I knew who he was, but I won't say I was real close to him. I just knew who he was and I knew after I went onto the board that he worked for the school. Q. But you knew him through your church, correct? A. That's one of the ways I know him, correct. Q. Because he was a member along with you? A. Right. Q. Now, do you remember at that curriculum, at the meeting with the teachers now, we're talking about in the spring of 2004, expressing a concern that students were being taught that man came from monkeys? A. I do remember expressing a concern that the origins of life were taught to the point that yes, that man descended from monkeys. Q. And you were concerned that the biology curriculum might be teaching the students that man descended from monkeys, isn't that right? A. I won't say I had a concern. I was told right up front that they didn't do that. Q. And so fair enough. Now, I'd like to turn subjects now and talk about a board meeting that was held on June the 7th of 2004. A. All right. Q. Do you remember that there was a board meeting on June the 7th, 2004? A. Yes. Q. Now, I'd like you to just take a look at what's been marked P-42 in your book, just so we're on the same page. A. I'm here. Q. You're at that page? A. Yes. Q. That's actually the agenda for the board meeting, isn't it? A. Yes. Q. By "that," I mean the board meeting on June the 7th, 2004. If you look at pages 8 and 9 of this document, they're in the lower right-hand corner, this little page number, go to page 8. It says "Curriculum" under Roman XIII. A. I'm there. Q. And it says next to curriculum it has your name, Bill Buckingham? A. Yes. Q. That's because you were the head of the curriculum committee? A. Yes. Q. And the section on curriculum carries over to the next page you'll see, but I just want you to confirm for me that that shows that the board was scheduled to consider approval of some science textbooks at this meeting on June the 7th. A. That's true. Q. And the board was scheduled to consider approval of the chemistry textbook? A. Yes. Q. Actually more than one chemistry textbook, right? A. I remember one. Q. Okay, and there's also the board was scheduled to approve some textbooks for family and consumer sciences? A. Yes. Q. But in fact the board was not scheduled to consider approval of the biology textbook, isn't that right? A. Yes. Q. Now, at this point in time the faculty and administration of Dover High School had already recommended that the board approve the purchase of a new biology textbook, correct? A. Yes. Q. And that was the 2002 edition of the Miller and Levine textbook Biology? A. That's true. Q. But approval of that textbook was being held up by the board because of the book's treatment of evolution, isn't that right? A. We were still scrutinizing the book, going through it, and that had some weight, yes. Q. Now, there wasn't any other aspect of the book other than evolution that you were concerned with at this time, was there? A. Well, the lack of any other theory, we were concerned with that, too. Q. But the lack of any other theory in the area of evolution, isn't that right? A. I.e. intelligent design or something else, scientific to where the students would get a more well rounded education. Q. I understand, Mr. Buckingham, but I just want to confirm that the book was being held up by the board on June the 7th, 2004 because of the, because of its treatment of evolution and the fact that it didn't consider some other things that you thought should be presented alongside of evolution, isn't that right? A. That's true. Q. Now, we actually I suspect are going to have some areas of disagreement about what happened at the June 7th meeting, but let's see if we can focus on just a few areas of agreement. There was a board meeting that night? A. Yes. Q. And you were there? A. Yes. Q. And the entire board was there? A. I don't know if Mrs. Cleaver was there or not. She was back and forth to Florida. She was building a home down there, and I know she had some storm damage at one point right after it was near completion, and she was back and forth. I don't know if she was there for sure. Q. Please take a look at what's been marked as P-43 that's in your notebook. A. Okay. Q. Are you there? A. Yes, I am. Q. That's actually the minutes of the June 7th board meeting, isn't it? A. Yes, it is. Q. If you look at the top of the minutes it shows that all the board members were present? A. I thank you for refreshing my memory. Q. Now, another thing we can agree on is that at that board meeting there was some discussion of the biology text, correct? A. Yes. Q. And you expressed the concern that the book taught Darwin's theory of evolution and it was your view that this other scientific theory that you thought should be considered alongside of Darwin's theory of evolution, correct? A. True. Q. And in fact at that board meeting you said that you believed the separation of church and state is mythical and not something you support? A. That's true. Q. And Barrie Callahan, one of the plaintiffs in this case and a former board member, came up to the podium to ask about whether the board was going to approve the biology textbook. You remember that, don't you? A. Yes, I do. Q. And in response to Mrs. Callahan's question you said that you were concerned because the book was laced with Darwinism, isn't that right? A. That's true. Q. That's a direct quote, right? Laced with Darwinism? A. That's what I said. Q. Now, when I first asked you about this at your deposition on January 3rd you didn't admit then that you said that the book was laced with Darwinism, didn't you? A. I wasn't sure I said it at that point. If you recall, that was shortly after I came out of drug treatment for my Oxycontin that I was prescribed for my back, and I was still going through withdrawal from that and things were kind of foggy. Q. But the point is you didn't admit it when I asked you about that on January 3rd? A. I didn't remember. Q. As a matter of fact, the defendant's answer in this case admits that you said "laced with Darwinism" at that first meeting, correct? A. I haven't seen it, if you're saying that happened. Q. Still focusing on some potential areas of agreement about the June 7th board meeting, you said at that board meeting that with respect to evolution you were concerned that if it's taught over and over, the students begin to accept it as fact, didn't you? A. That's true. Q. And you said that in response to the comment of a young man named Max Pell, who came up to the podium to speak during the public comments section, isn't that right? A. I don't know that I said it in response to him coming to the podium and saying anything. I know I said it in response to someone, but I don't know for sure that was him. Q. And you said at that board meeting that you wanted other scientific theory taught in the classroom alongside Darwin's theory of evolution, correct? A. I don't know if I said taught or presented. Q. Well, in any event it was either you wanted other scientific theories taught or presented alongside Darwin's theory of evolution, isn't that right? A. Yes. Q. Now, scientific theory is a word that we've had some evidence about in this trial, but I just want to make sure that I understand your understanding of that term. When you say scientific theory, you mean something that is scientifically debatable, isn't that right? A. Yes. Q. And so you wanted a biology textbook that would present other what you call scientific theories alongside of evolution, correct? A. Yes. Q. And you didn't care what other theories were presented, just as long as other theories were presented alongside of evolution, isn't that right? A. I wouldn't say that. I had some little bit of background about intelligent design and I felt comfortable that that would be a good fit because of research I did on the computer and so forth. Q. But putting aside intelligent design for just a minute, you would have been happy with the science teachers teaching any theories that they thought scientifically plausible alongside of evolution, isn't that right? A. Within certain parameters with the okay of the board, yes. Q. I mean the main point for you was that there would be something presented alongside Darwin's scientific theory of evolution, isn't that right? A. In an effort to show that Darwin wasn't the only scientific theory out there, yes. Q. Right. So it could have been intelligent design, but you would have been happy with something else that was presented alongside of Darwin's theory, isn't that right? A. I wouldn't have been as happy I don't think, but it would have been something, yes. Q. And the reason that you wanted these other scientific theories presented is because you were concerned that the students might accept that scientific biological theory of evolution as a fact. That was your concern, wasn't it? A. To the exclusion of other theories, yes. Q. Now, moving on to a slightly different subject, when you lived in Dover you had the York Dispatch and the York Daily Record delivered to your home on a daily basis, isn't that right? A. My father did when he came to live with us after my mother passed away, and he liked getting both the papers, and he was with us for almost seven years before he died of lung cancer, and he liked having both the papers. Q. When did your father die? A. He died May the 1st, 2003. Q. And after that you still continued to receive the York Daily Record and the York Dispatch delivered to your home daily, isn't that correct? A. They came, but I didn't read them. I eventually stopped them. Q. Is one of those a morning paper and the other one is an evening paper? A. The Daily Record is a morning paper and the York Dispatch is an evening paper. Q. Now, I'd like to ask you some questions about some articles that were in those papers. Please if you would turn to what's been marked as Plaintiff's Exhibit 44. A. I'm here. Q. I'd like you to take a look at that and let me ask you a question. Did you review documents to prepare yourself to testify today? A. I read some depositions at home before I came up, but I didn't have all those. When we moved a lot of things just got put places I never found yet. Q. So did you read any news articles from the York Dispatch or the York Daily Record to prepare yourself to testify today? A. It wouldn't make sense to do that because I don't believe a darn thing they print. Q. So tell you what, you're going to need read, to look at what's been marked as Plaintiff's Exhibit 44, and I'd like to know whether looking at that you can tell me you read it when it came out, which is on or about June the 8th of 2004. A. I couldn't tell you what I read a month ago, let alone June the 8th, 2004. Q. Well, you just told me that you stopped reading the local papers, isn't that right? A. That's true. Q. And so you didn't, is it your testimony that you didn't read any of the articles that were in the papers about the school board in the summer of 2004? A. No, I didn't. I would be told by people there are things in there, but my experience with the reporters were the articles almost got to be laughable. They'd come to the meetings and we talked intelligent design, and you could almost bet your house they were going to say creationism the next day, and it just got disgusting and I just wouldn't pay for it or read it anymore. Q. Okay, so you didn't read any of the articles that were in the papers in the summer of 2004? A. No, I didn't. Q. And people told you about articles, but they didn't tell you what was in those articles, isn't that correct, Mr. Buckingham? A. I won't say no one ever told me what was in them, but I know they would tell me, "You're in the paper again or the board is in the paper again." Q. Well, at your deposition on March the 31st, which Mr. Rothschild took, you told him, you clarified your testimony from your previous deposition to say that you were told that there were articles in the paper, but you were not told what they were. Isn't that correct? A. Usually I was not, but I won't say I was never told. Q. Looking at this, what's been marked as P-44, at the top you see there's a heading it says "Dover debates evolution in biology text. Book on hold because it doesn't address creationism." Do you see that? A. Yes, I do. Q. Is that a true statement? A. No. Q. Now, if you turn to the second page of this, and you go to the fourth paragraph down it says that, "Buckingham said although the book has been available for review since May 2003, he had just recently reviewed the book himself and was disturbed the book was laced with Darwinism." That's a true statement, isn't it? A. Which book are we talking about, the 2004 or the 2002 edition? Q. Well, if you look at the text of the article it's referring to a biology textbook. A. They were both biology textbooks. Q. When you say what were both, the 2002 and 2004? A. Right. We eventually bought the 2004. Q. Did you say that either of them on a meeting of the board on June the 7th as reported in this article, did you say with respect to either of them that, "Buckingham said although the book has been available for review since May 2003, he had just recently reviewed the book himself and was disturbed the book was laced with Darwinism," did you say that? A. I don't know that I said that. I know that I said the book, the 2002 edition was laced with Darwinism. I don't know about the dates we're talking about there. Q. Okay. Now, if you go down just a few more paragraphs, and we're focusing on statements in here that are attributed to you, if you go down to the seventh paragraph on that page, it says "Opposes separation of church and state. Buckingham said he believes the separation of church and state is mythical and not something he supports." Do you see that? A. Yes, I do. Q. And that's in fact a true statement. You did say that at that meeting? A. Yes, I did. Q. Now, I'd like you if you would to please turn to the next exhibit, which is marked P-45. A. I'm there. Q. And this is an article from the York Dispatch dated June the 9th of 2004, and it's by a writer named Heidi Bernhard-Bubb. Do you see that? A. Yes, I do. Q. Do you know Ms. Bernhard-Bubb? A. I know who she is. I don't know her. Q. You knew that she's a reporter? A. Yes. Q. I'd like you to take a look at this and tell me whether you think you read this article at or around the time it was published. A. No, I didn't. Q. Okay. Now, if you look there's a second paragraph that has a very similar reference to what we looked at with the previous article about a statement by you that the biology textbook was laced with Darwinism. Do you see that? A. Yes, I do. Q. Except that refers to the 2002 edition of the biology textbook? A. Yes. Q. In fact, you know that statement is true, right? A. Yes. Q. Then the next statement in the article says, "Board member Noel Renwich agreed." Is that a true statement? A. I don't remember if he did or not. Q. Okay. Then look at the next paragraph that says, "The book was initially selected by the high school science department and district administration to replace the current textbook, which is six years old and out of date in some areas." Do you see that? A. Yes, I do. Q. That's a true statement, isn't it? A. I don't know that the administration selected it. I think the science department selected it and took it to the administration to bring to us. Q. So with that clarification that's a true statement, right? A. With that clarification, yes. Q. Now, if you go to the next paragraph, I'll just read you the first sentence, it says, "A recommendation on the book will come from the curriculum committee, which also includes board members Sheila Harkins and Casey Brown." Do you see that? A. Yes, I do. Q. That's a true statement, isn't it? A. Yes. Q. And then the next sentence says, "Buckingham said the committee would look for a book that presented both creationism and evolution." Do you see that? A. I see it. Q. You actually said that? A. No, I didn't. Q. You didn't say that at the -- A. No, I didn't. Q. Now, the march of the articles, let's go on to P-46, which is another article. A. I'm there. Q. This is an article dated June the 9th, 2004 from the York Daily Record, isn't it? A. Yes. Q. And it was written by Joseph Maldonado? A. Yes, it was. Q. And do you know Mr. Maldonado? A. I know he's a reporter. Q. And he was a reporter for York Daily Record, right? A. Yes. Q. Now, did you read this article at or around the time it was published on June the 9th, 2004? A. No. Q. Let's look at that, I want to ask you some questions about the text. Look at the very first paragraph in this, it says, "Former Dover high school board member Barrie Callahan repeated her request for new biology books for the high school at Monday night's board meeting." Do you see that? A. Yes, I do. Q. And that's referring to the June 7th meeting? A. Yes. Q. And that's actually a true statement, isn't it? You agree with that? A. That was normal for her. Every meeting she did that, yes. Q. And therefore the next sentence in the P-46 is also true, it says, "For the past few months she has appeared several times before the board to request a status update." A. That's true. Q. And the next statement says, "Board member William Buckingham, who sits on the curriculum committee, said a book had been under consideration, Biology, by Miller and Levine, but was declined because of its one-sided references to evolution." Do you see that? A. I see it. Q. That's a true statement, isn't it? A. No, it's not. It wasn't declined at that point. Q. So that statement is true except that it wasn't declined at that point, right? A. And I don't think I said it's declined because of one-sided references to evolution. Q. So it's your testimony that that statement in the Exhibit P-46 is in fact not true, correct? A. True. Correct. Q. Let's look at the next paragraph. It says, actually the article says, it's quoting you, "'It's inexcusable to teach from a book that says man descended from apes and monkeys,' he said. 'We want a book that gives balanced education.'" Do you see that? A. I see it. Q. Now, that's a true statement. You did say that at the June 7th board meeting? A. I don't remember saying that. (Brief pause.) Q. So your testimony is not that you didn't say it. It's that you don't remember saying it, isn't that right? A. That's my testimony. Q. Then the next paragraph says, "Buckingham and other board members are looking for a book that teaches creationism and evolution." Do you see that? A. I see it. Q. Now, you said that, didn't you? A. No, I didn't. Q. And the statement after that says, "But a former student, Max Pell, told the board Monday night that he was concerned that that type of book would trample on the separation of church and state." Do you see that? A. I see it. Q. Now, do you remember a young man by the name of Max Pell speaking at that meeting? A. Yes, I do. Q. And do you remember him saying something about what the board wanted to do would the trample on the separation of church and state? A. I can't say I do, no. Q. So you just don't remember, is that correct? A. I don't remember everything he said. Q. You don't remember whether he said this statement, isn't that correct? A. That's true. Q. Now, the next paragraph says, "Board president Allen Bonsell disagrees, saying there were only two theories, creationism and evolution, that could possibly be taught. He said that as long as both were taught as theories, there would be no problem for the district." Do you see that? A. I see it. Q. Did Mr. Bonsell say that? A. I never heard him say that. Q. So it's your testimony that he didn't say it or you don't remember? A. I don't go with him everywhere he goes. I don't know if he said it or not, but I don't remember hearing him say it. Q. Well, I guess what I'm trying to figure out is this is reporting that that was said at the board meeting, right? A. Apparently that's what they're saying was said, but I didn't hear it. Q. And I just want to make the record clear here, are you saying that you don't remember it, you don't remember hearing it, or are you saying you're sure it wasn't said? A. I'm sure it wasn't said, because if he would have said it I would have remembered it, because it just wouldn't have made sense. Q. Okay. Let's talk about the next statement in there. It says, again quoting you, "'Have you ever heard of brain washing?' Buckingham asked Pell. 'If students are only taught evolution, it stops becoming theory and becomes fact.'" That's true, isn't it? A. It's close, but it's not accurate. Q. In what respect is it not accurate? A. What I said was if students are taught the same thing over and over again, whether it's true or not, it becomes fact in their minds. Q. And then the next statement says, "After the meeting Buckingham said all he wants is a book that offers balance between what he said are Christian views of creationism and evolution." Do you see that? A. I see it. Q. And you in fact did say that at the meeting, didn't you? A. No, I didn't. Q. And then the final statement in here says, "He said, 'There needn't be consideration of the beliefs of Hindus, Buddhists, Muslims, or other faiths and views,'" and then quoting you directly, "'This country wasn't founded on Muslim beliefs or evolution,' he said. 'This country was found on Christianity, and our students should be taught as such.'" Do you see that? A. I see it. Q. You said that, didn't you? A. No, I didn't. Q. Well -- A. I didn't say it then. I made a statement similar to that when we having a discussion about taking "under God" out of the Pledge, and I said it to Joe Maldonado after the meeting because he asked me if I didn't think that Hindus and Muslims would be offended by having "under God" in there. I said I didn't think they would, because it doesn't refer to a specific god. It refers to God. And I did make this statement that this country was founded on Christianity, we have the Pilgrims and so forth, and the Federalist Papers, the Preamble to the Constitution says we're all created, you know, it's all through our history, and that's what I was getting it. Q. So the fact is you definitely said a statement or something very similar to what's reported in this article, correct? A. Not at this time. It was at the debate about taking "under God" out of the Pledge, to pass the resolution to keep it in. Q. Right, but you actually said -- it was at a different time, but you said something very similar to what's reported in this paper, isn't that correct? A. I said something close to that, and I said to it a reporter after the meeting. Q. Right, and that was at the time of the board considering passing a resolution regarding the Pledge of Allegiance, isn't that correct? A. That's true. Q. And that was in 2003? A. Yes. Q. In fact, it was in the last part of 2003, the fall of 2003? A. I believe it was. Q. Now, when I asked you about this at your deposition you denied saying it ever, isn't that correct? A. I don't know if I denied saying it ever, if I didn't understand the question or what, but I know I said it when it came to the Pledge. Q. Please take a moment to look at pages 44 and 45 of your January 1 deposition. A. You mean January 3 deposition? Q. I'm sorry, January 3 deposition. A. What pages were they? Q. Page 44 beginning at line 7, and continuing on to page 45. A. I'm there. Q. Okay, we were talking about an article which we'll actually talk about a little later this morning, and beginning on line 7 I said to you, "It says here that in addition to applauding you for the forthright way in which you dealt with your personal issues relating to Oxycontin, it says that you had made the following statements: 'This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such.' And it also says, 'Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Do you see that?" A. I see that. Q. " QUESTION: Did you make either of those statements? ANSWER: Not at this time. The 'This country wasn't founded on Muslim beliefs or evolution, this country was founded on Christianity,' I never say that. QUESTION: You never said that at all? ANSWER: Not to my knowledge." Then going to the next page: " QUESTION: You never said the statement about Muslim beliefs or evolution? You never said that at all? Is that your testimony? ANSWER: I don't recall saying that, no." That was the testimony you gave? A. I was speaking in the context of a board meeting. I made that statement after a meeting to a reporter. Q. So even though the words aren't used there, what you meant to say was that in response to the question you never said that at a board meeting, is that correct? A. That's what I thought you were referring to when you asked me that question, yes. Q. Now, let's just move on to what's been marked as P-47. A. I'm there. Q. This is another, yet another article in a local paper, this one from the York Daily Record, dated June the 10th of 2004, and it's reporting that board meeting that took place on June the 7th of 2004, isn't that right? A. I'm sorry, I don't see where it refers to a specific board meeting. Q. Well, if you look at the third paragraph it says, "During this past Monday night's board meeting board members Allen Bonsell, Noel Renwich, and Buckingham spoke aggressively in favor of having a biology book that includes the theory of creation as part of the text." Do you see that? A. I see that. Q. That's a reference to the June 7th board meeting, isn't it? A. Yes. Q. That's actually a true statement, isn't it, the one I just read? A. No, it's not. It's just another instance where we would say intelligent design and they would print creationism. It happened all the time. Q. And you didn't read this article at or around the time it was printed, did you? A. No, I didn't. Q. And then if you look, the paragraph that's just after it, it's just one sentence actually, after the one that I just said is quoting you, and it says, "'All I'm asking for is balance,' Buckingham said." Do you see that? A. Yes, I do. Q. And you did say that at the June 7th meeting, didn't you? A. Yes, to the extent that we wanted more than one scientific theory presented, that's true. Q. And then if you look at what's been marked as P-50? A. I'm there. Q. This is a very short article that was in the York Daily Record on June the 14th of 2004. Do you see that? A. Yes, I do. Q. And it's another statement in here that says, "Last time, Dover school board member William Buckingham said a new biology book for the district should offer a balance between creationism and Darwin's theory of evolution." Do you see that? A. Yes, I do. Q. And you didn't read this article at or around June 14th of 2004, did you? A. No. Q. And then one more article on the June 7th board meeting is at Exhibit P-51. A. I'm there. Q. And I just want to know, this repeats many of the statements, but I just want to know if you read this article at or around the time, June 14th of 2004. A. No, I didn't. Q. So there were six articles in the local papers that were delivered to your door every day, reporting on the June 7th board meeting, and you didn't read any of them, isn't that right? A. That's true. Q. And nobody told you that statements were being attributed to you such as wanting to teach creationism, no one told you that, isn't that right? A. I don't remember anyone telling me that, no. Q. Your wife didn't tell you that, right? A. No. Q. Nobody at your church told you that, right? A. I won't say -- people at the church would come up and tell me there were things in the paper, and sometimes they would blurt out something in passing, but there was never any in-depth discussion of what's in an article. They might have just said, "Hey, they have you talking about creationism again," and we didn't talk about that. We talked about intelligent design. Q. So is it your testimony now that people did say to you in June of 2004 that the papers were reporting that you were talking about creationism? Is that your testimony now? A. It's the same as before. I said that on rare occasions they would tell me what was in there, but basically for the most part they didn't, they would just say there's another article in the paper about me or about the school board as a whole. Q. That's not what you told us at your deposition, is it, Mr. Buckingham? A. If you want to show it to me I'll look at it. (Brief pause.) Q. Go to page 40 of your deposition, line 23. A. Page 40? Q. Page 40, line 23. MR. GILLEN: Which one? Q. Of the January 1st deposition. A. January 3rd? Q. January 3rd. Tell me when you're there, Mr. Buckingham. A. I'm there. Q. I asked you, isn't it true that I asked you the followings questions and you gave the following answers? " QUESTION: Let's turn to the next page of this exhibit, June the 10th. By the way, did anybody report to you at the time, did you see any of this in the paper at the time, the things that we've been looking at? ANSWER: I stopped reading that stuff in the paper. It got to be -- I never thought it would get like this, and I just got tired of looking at it. Like I say, I would open the paper, read the obituaries, see how my fighting Phills did, and that was about it. QUESTION: Did anybody come up to you and say in the community, your wife, your friends, anybody come up to you and say, tell you that these things are being written in the paper? ANSWER: Not that I recall, no. QUESTION: Nobody at your church mentioned it to you? ANSWER: Not that I recall." That was your testimony, isn't it, Mr. Buckingham. A. Yes. Q. And then actually you sought to clarify this testimony at your second deposition, didn't you? Do you remember seeking to clarify your testimony at this point at your second deposition? A. No, but we'll go there. Q. Well, turn to page 4 of your deposition on March 31st, 2005. A. I'm there. Q. Mr. Rothschild asked you the following question and you gave the following answer: " QUESTION: Is there anything that you testified during that deposition which was held on January 3rd, 2005 that you would like to change or modify? ANSWER: One thing. There was a question asked about whether or not anyone at my church or any of my acquaintances told me there were articles in the paper and explained what they were to some extent, and I answered no. As I recollect, I was told there were articles in the paper, but I wasn't told what they were. I just want to make that clear, because it kind of even sounded funny to me. People did tell me there were articles in the paper, but I didn't look to see them, and I was just told they were there." That was your testimony on March the 31st, 2005, isn't that correct, Mr. Buckingham? A. That's correct, and I would say that 99 percent of the time they didn't tell me what was there. That's probably why I didn't remember the rare occasions when they did. Q. So you're clarifying your testimony yet again? A. I'm clarifying my testimony, yes. Q. Now, Mr. Buckingham, I'd like to turn to another different board meeting. This is the board meeting that was held on June the 14th of 2004. Do you remember there was a board meeting that day? A. Yes. Q. Now, as to both of the June meetings, with the exception of what we can point out in these articles and jog your memory, you don't recall anything that happened at them, isn't that right? A. I won't say that. I recall things that happened at the meeting. Q. Well -- A. There was some times, the dates I didn't have, you know, in the uppermost of my mind, but I remember some things that happened. Q. Well, do you remember telling me at your deposition on January the 3rd that you don't remember anything about those meetings? A. No. Q. Please turn to page 46 of your deposition on January the 3rd. Line 17. A. I'm there. Q. Isn't it true that I asked you the following questions and you gave the following answers: " QUESTION: Do you remember that there were two meetings in June? ANSWER: Yes. QUESTION: Do you remember what happened at those meeting? ANSWER: No. QUESTION: Do you remember anything what happened at those meetings. ANSWER: Nope." That's your, that was your testimony on January the 3rd, isn't that right, Mr. Buckingham? A. Because of the dates, I wasn't sure what happened on what date. Q. Well, you knew that there were some intense discussions about the biology textbook, right? A. Yes. Q. But you couldn't tell me any of the particulars about those discussions at your deposition on January 3rd even though I asked you for that, isn't that true? A. It could be. Q. Well, I tell you what. Why don't you just look at page 47 of your deposition, line 24. A. I'm there. Q. Isn't it true that I asked you the following questions and you gave the following answers: " QUESTION: Do you remember a meeting in June where there was an intense discussion about the biology curriculum and the biology textbook? ANSWER: Do I remember it specifically? No." A. I'm sorry, I'm on the wrong page or something. It's not where I -- Q. Okay. Do you have the right transcript? Maybe you've got the wrong one. A. I'm at June 3rd. Q. January 3rd. A. January 3rd, I'm sorry. Q. Page 47. A. I'm there. Q. Line 23, begins with the word -- A. Okay. All right. Q. Let's start over. Beginning on line 24, I asked you the following questions and you gave the follow answers: " QUESTION: Do you remember a meeting in June where there was an intense discussion about the biology curriculum and the biology textbook? ANSWER: Do I remember it specifically? No. We had different meetings where there were intense discussions about the textbooks. QUESTION: Which ones do you remember? ANSWER: The particulars of? QUESTION: In general. ANSWER: I can just tell you there were several meetings where we had discussion about the textbooks. QUESTION: What do you remember about those discussions? ANSWER: Pardon? QUESTION: What do you remember about those discussions? ANSWER: I just remember that we had a debate on it. There were questions about the over the 2004 book and vice versa, and the thought that we would like to have other scientific theories brought into the classroom in addition to Darwin's theory of evolution." You gave that testimony, didn't you? A. Yes, I did. Q. And you didn't provide any other information beyond what's stated in that testimony, isn't that right? A. At that time that's what I could recall. Q. Now, it's your testimony that at neither meeting no one on the board ever mentioned creationism, isn't that right? A. That's true. Q. You're very clear on that point, correct? A. Absolutely, because it's just something we didn't do. Q. Okay. Now, about this June 14th meeting, you were present, right? A. Yes. Q. And again all nine members of the board were there? A. Yes. Q. And your wife spoke at the meeting? A. Yes, she did. Q. And she said that teaching evolution was in direct opposition to God's teaching and that the people of Dover could not allow the district to teach anything but creationism. Isn't that true? A. I can't remember exactly what she said, but I know it was pretty biblical. Q. And do you remember that the board of directors had a five minute rule? A. We had a three minute rule, and she went to five. Q. So let me -- in other words, it's your testimony that a board member -- excuse me, a member of the public could speak up to three minutes, and then they'd be asked to stop speaking? A. There were times when they went over the three minutes, but basically the guideline was three minutes, because we didn't want somebody coming up and talking for half an hour to monopolize all of the public comment time. Q. And in fact she went over the time limit, isn't that right? A. By two minutes. Q. She didn't speak for fifteen minutes? A. No, she didn't. I was watching, because I told her before I left the house I didn't know what she was going to say, but I told her, "Make sure you stay within three minutes," and she went over it. She went to five. Q. Well, do you remember that she quoted scripture during her presentation to the board, isn't that right? A. Yes. Q. And at that meeting you said something to the effect that when you were growing up, your generation prayed and read from the Bible and you don't remember it hurting anyone. You said that, didn't you? A. I could have. Q. Well, you could have or you did? A. I don't know if I did or not. I'm saying I could have. Q. Now, you also said at that meeting, "I challenge you, the audience, to trace your roots to the monkey you came from." You said that at that June 14th meeting, didn't you? A. I was speaking to an individual who said something to me. I didn't get it all, but it had to do with a monkey, and my knee jerk reaction was to say what I said. Q. Who was the individual? A. Lonnie Langioni. Q. And also at that meeting you apologized if you offended any resident or teachers at any previous meetings, isn't that right? A. With the tone of my voice, yes. Q. And also at that meeting you said words to the effect of, "Two thousand years ago someone died on a cross for us. Shouldn't we have the courage to stand up for him?" A. What meeting are we talking about here? Q. June the 14th of 2004. A. I didn't say it then. Q. You're sure about that? A. Positive. Q. Actually you know you did say words or those words or words very similar at a board meeting, but it wasn't in June of 2004, correct? A. It was regarding taking "under God" out of the Pledge, and God was already mentioned in the Pledge. Q. So the fact is you did actually say words very similar to that, but it was at an earlier time? A. Yes. Q. And again that was in the discussion over the Pledge in the last part of 2003? A. Yes. MR. HARVEY: Your Honor, we're going to go through some more articles on the board meeting. I'm happy to march through them, but it might be a good time to -- THE COURT: All right. Well, why don't we take our break now? We'll break for about twenty minutes. This will be our morning, mid-morning recess, and we'll reconvene after that point. We'll be in recess. (Recess taken at 10:20 a.m. Trial resumed at 10:45 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 16 (October 27), AM Session, Part 2 THE COURT: Be seated, please. All right Mr. Harvey, you may continue. EXAMINATION CONTINUED BY MR. HARVEY: Q. Mr. Buckingham, just to go back on a few points, we talked about a newsletter. Do you remember looking at that, the February 2005 newsletter that you said you weren't that familiar with, do you remember that? A. Yes. Q. That was discussed at a board meeting, wasn't it? Do you remember that? A. I know the thought of a newsletter being published was discussed. What would be in it I don't think was at that time. Q. You seconded the motion for approval of that newsletter. Isn't that true, Mr. Buckingham? A. I don't remember that. Q. Just to be real clear about this testimony, we talked about a statement to the effect of, "Two thousand years ago a man died on a cross, can't someone take a stand for him?" You remember that, right? A. With regard to taking God out of the Pledge, yes. Q. Let's be very clear about this. It's your contention that that was said at the time of the Pledge, not in June of 2004, correct? A. Yes. Q. And also to be very clear there was a statement about this country not being founded on Muslim beliefs and our being founded on Christianity and the children should be taught as such. Do you remember that? You remember testifying about that, right? A. Yes. Q. And to be very clear about this, it's your contention that that was said at the time of the Pledge, not in June of 2004, right? A. It was actually said after the board meeting in a conversation between myself and Joe Maldonado. Q. At the time of the Pledge? That's your convention that it was at the time of the Pledge that you said that to Mr. Maldonado after a board meeting, correct? A. Yes, that's how I recall it. Q. And very clear, you didn't say that in June of 2004? That's your testimony, isn't it? A. Yes. Q. And with respect to creationism, it's your testimony that creationism was never said by any board member, including you, at any board meeting, isn't that correct? A. That's true. Q. And is it your testimony that creationism was never said to any reporters after any board meeting? A. That's true. Q. And is it your testimony that you never talked about creationism or to your knowledge none of the board members ever talked about creationism among themselves, is that your testimony? A. Yes. Q. Please go to what's been marked as P-54. A. Before I look at this I need to clarify that we talked about that we did not want to have, teach creationism, that aspect, but not in favor of having it in the curriculum or something like that. Q. Please turn to exhibit P-54. A. I'm there. Q. This was an article that was in the York Dispatch on June 15th of 2004, isn't that right? A. Yes. Q. And it's by Ms. Bernhard-Bubb, correct? A. Yes. Q. And I'd like to know whether you read this article at or around June the 15th of 2004. A. No, I did not. Q. If you'd turn to the second page of the article, the fourth full paragraph down, there's this statement, "'Nearly two thousand years ago someone died on a cross for us. Shouldn't we have the courage to stand up for him?' he asked." And that's referring to you? It's your, you claim that this article is just wrong about this, isn't that right? A. That's right. Q. The reporter was just making it up? That's your testimony? A. I'm saying I didn't say it then. Q. The reporter was just making it up. Isn't that what you told us earlier? A. I didn't read the whole article, but if you're saying I said it then, if she's saying I said it then, yes. Q. And how about the next statement? It says, "Board members Allen Bonsell and Noel Renwich agreed with Buckingham, saying creationism should be taught to balance evolution." Was that, is that a true statement there, that was said at the board meeting, Mr. Buckingham? A. No, it's not. Q. And how about the statement after that, "Buckingham apologized for offending any teachers or residents of the community with his remarks, but was unapologetic about his belief that the country was founded on Christianity and not other religions, and that a 'liberal agenda' was chipping away at the rights of Christians in this country." Do you see that? A. Yes. Q. It's true that that was said at the meeting, wasn't it? A. I remember giving an apology. I don't remember saying that whole thing. Q. So it's your testimony then that this, except for the fact of the apology, that what's reported here, that statement I just read, is not correct? That's your testimony? A. I remember apologizing for the tone of my voice at the time. That's the only part of that I remember saying. Q. So but are you saying that for the rest of that statement that I read with the exception of the apology is incorrect? Is that your testimony? A. I'm saying I don't remember it. Q. So you might have said it, you just don't remember it? A. I don't remember it. Q. Please turn to what's been marked as P-53. A. I'm there. Q. And this is an article by Joseph Maldonado dated June 15th, 2004, correct? A. Yes. Q. And it's from the York Daily Record? A. Yes. Q. And did you read this at or around the time it was published? A. No. Q. Now, if you look, I want to ask you about some of the statements that you attributed to you in here. If you go to the third paragraph it says, "'Nowhere in the Constitution does it call for a separation of church and state,' he said," and you see that's referring to you. Do you see that? A. Yes, I do. Q. And is it your testimony that you didn't say that at the June 14th board meeting? A. I said that with regards to taking "under God" out of the Pledge. Q. Okay, so let me see. This statement here "Nowhere in the Constitution does it call for a separation of church and state," you said that at the time of the issue about taking the word "God" out of the Pledge of Allegiance, is that what your testimony is? A. I'm not sure about -- I know this. It could have been that meeting where we had a vote. I'm not sure if that's the meeting. I'm not sure if that's one -- I know that that at one of the meetings when we had our vote and Angie Yeungling changed her vote because Jeff Brown through a temper tantrum and scared her, I asked her, I said, "How could you do that?" She said, "I was afraid." I said, "Of what?" She said, "I thought he was going to have a heart attack," and she said to me, "Separation of church and state, Bill." And Joe Maldonado was standing there, and if that would be the meeting, then I said that then to her, and he overheard it. Q. I think the meeting you're referring to was the one on August the 2nd, not that one -- A. Okay. Q. So what about the statement that says, two paragraph down that says, "Buckingham said while growing up his generation prayed and read from the Bible during school. Then he said liberals in 'black robes' were taking away the rights of Christians." Do you see that? A. I see that. Q. You said that at the June 14th board meeting, isn't that correct? A. No, I didn't. Q. And then the next statement on the page, and this is a different article, it says, "'Two thousand years ago someone died on a cross,' he said. Can't someone take a stand for him?'" Do you see that? A. I see that. Q. That's being attributed to you? A. Yes, it is. Q. And it's your testimony you didn't say that? A. Not at that meeting. Q. And so Mr. Maldonado has this wrong, and Ms. Bernhard-Bubb also has this wrong, correct? A. They sat beside each other at the school board meetings, they look at each other's notes, they talk during the meeting. The same company owns both newspapers. It's not much of a stretch to see how the same story would get in both papers. Q. You've given that some thought, haven't you, Mr. Buckingham? A. I've thought that for years. Q. No, you thought about your answer here today, didn't you, before you testified so you'd have an explanation, isn't that right? A. No, I've said that to different people on different things. When I was a policeman we ran into the same thing. Q. Now, if you look down farther on that page there's a statement that says, "But in reference to its teaching of Darwinism he said, 'I challenge you, the audience, to trace your roots to the monkey you came from.'" Do you see that? A. I see that. Q. And that's something that you in fact said at the June 14th board meeting, didn't you? A. To Lonnie Langioni. Q. Well, you told me the same thing on June the 7th. A. Okay, that was when I said it. That's what I'm saying, I said it when I was talking with Lonnie. Q. But you're telling us you said that one time to Mr. Langioni, right? A. Correct. Q. And that was at a public board meeting, correct? A. Yes, it was. Q. So that other people could hear it, correct? A. Yes. Q. And your testimony is you only said it that one time, not any other time? A. That's true. Q. Then if you turn the page on this article what's been marked as P-53, the third and fourth and fifth full paragraphs, it says, "Also during public comment Buckingham's wife Charlotte Buckingham argued that evolution teaches nothing but lies. After quoting several verses from the Book of Genesis in the Bible she asked, 'How can we allow anything else to be taught in our schools?' During her time she repeated gospel verses telling people how to become born again Christians and said evolution was in direct violation of the teachings of the Bible." Do you see that? A. I see that. Q. And that's an accurate statement about what your wife said at that meeting on June 14th, isn't that correct? A. As I've testified before, she spoke in a biblical way. I can't remember exactly what she said. Q. So you're not saying that this didn't happen. You're just saying you can't remember the exact words she used, correct? A. I'm not going to say it happened if I don't know it did. I'm saying she spoke in a biblical manner, and that's what I remember. Q. Now, if you turn to, continue down that page, there's the eighth and ninth paragraphs down, it says, "During the meeting Buckingham told those in attendance that he has been asked to tone down his Christian remarks, and then, 'But I must be who I am and not politically correct,' he said." You said that at that meeting, didn't you, Mr. Buckingham? A. What I said was I was asked to tone down my voice when I spoke at people, because that was what I apologized for, because sometimes it appeared that things would come out the wrong way. It sounded like I was upset more than I was, and it offended some people, and that's what I apologized for, and I was talked to about that. Q. And but you also said that you had been asked to tone down your Christian remarks. Didn't you say that at -- A. No, sir, I didn't. Q. So it's your testimony that that part of the article that's been marked as P-53 is just wrong, correct? A. Yes. Q. Now, I'd like to show you an article, turn to page P-56. It's not an article, it's a letter. Do you see that? A. Oh, I'm sorry, I'm there. Q. Are you at P-56? That's actually a letter to the editor from one of the plaintiffs in this case, Beth Eveland, dated June the 20th, 2004 that was in the York Sunday News. Do you see that? A. Yes, I do. Q. Did you read this article at or around the time it was in the York Sunday News on June the 20th? A. No, sir, I did not. Q. And if you look at it, Ms. Eveland, if you look at the first paragraph, she says, and she's referring to someone something that she read in the paper, that she was upset with your comments as quoted in Wednesday's York Daily Record, "This country wasn't founded on Muslim beliefs or evolution." MR. GILLEN: Your Honor, just for the record I want to preserve my objection. This is different in time from the newspapers. It's a letter to the editor, and I preserve our standing hearsay objection. THE COURT: Well, it is different, Mr. Harvey. Do you want to respond to that? MR. HARVEY: Yes, Your Honor. It's impeachment. I'm going to ask him if he knew that people in the community were making, were talking about this and were aware of this, and I want to know whether he knew that at the time. It goes to show, it goes directly to voracity. THE COURT: All right. Then the objection is overruled. BY MR. HARVEY: Q. Mr. Buckingham, looking at the first paragraph here, it's Ms. Eveland is talking about something that was quoted in the York Daily Record, and it's the same statement that we talked about before, "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such." Do you see that? A. Yes, I do. Q. Were you aware in or around the time of this newsletter or any time in the summer of that people in the community thought that you had made a statement about Muslims and Christianity and teaching our students Christianity in the summer of 2004? Were you aware of that? A. No, I wasn't, but the way the papers report things, it wouldn't surprise me. Q. Well, I want to look at something else, Mr. Buckingham. Let's look at what's been marked as P-55. A. I'm there. Q. Now, this is a piece that was in the York Sunday News on June the 20th, 2004, the same day as Ms. Eveland's letter. Correct? A. Could you repeat that? I was looking at this. Q. Yes. This is a piece that was in the York Sunday News on June the 20th of 2004, the same day as Ms. Eveland's letter that we just looked at. A. I see that. Q. And I'd like to know whether you read this at or about the time it was published. A. No, I did not. Q. Well, Mr. Buckingham, I'm going to read this article to you, because I want to talk about it for just a couple of minutes. "You have to give Dover area school board member William Buckingham this much, he's not afraid to speak his mind. He doesn't shy away from public controversy even when the limelight could prove uncomfortable. "Earlier this year he said he was taking a leave of absence from the board to check into a drug rehabilitation program. He said he'd become addicted to pain medication prescribed for chronic back illness. That took guts. It would have been easy to say he was being treated for an unspecified medical problem. Instead, he took the opportunity to warn the community about the perils of prescription addiction. "Over the last couple of weeks Mr. Buckingham has garnered headlines for his public contentions that Dover Area High School biology textbooks should present a 'balanced' view of human origin, including both evolution and creationism. It set off a torrent of community debate and criticism, in part because of the stridency of his rhetoric, 'This country wasn't founded on Muslim beliefs or evolution. This country is founded Christianity, and our students should be taught as such. Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Obviously William Buckingham can." End of quotation from P-55. Did I read that correctly? A. Yes. Q. Now, this article is essentially applauding you for having the courage of your convictions. You would agree with me on that, right? A. Appears to be, yes. Q. And yet you didn't know that this was printed in the local newspaper that was delivered to your house at the time, did you? A. No, I didn't. Again, the same publishing company owns the Sunday News. Q. And in fact no one brought this to your attention at any time until your deposition on January the 30, 2005. That's what you're claiming here, isn't it, Mr. Buckingham? A. What was the date of the deposition? Q. January the 3rd of 2005? A. I don't remember knowing about this article and I know I didn't read it. Q. Excuse me? A. I don't remember knowing about this article and I know I didn't read it. Q. Well, I asked about this at your deposition on January 3rd, and you told me you had never heard of it before until I showed it to you at your deposition. You had never heard of any of this before until I showed it to you at your deposition on January 3rd, 2005. Do you remember that? A. No, I don't. Q. Well, let's turn to your deposition. January 3rd, pages 45 and 46. Well, actually we need to start, I'm sorry, at page 43 to get the full context. Line 21. A. I'm there. Q. I asked you the following questions, and did you give the following answers: QUESTION: Let's take a look at that. It's June the 20th, York Sunday News. Please take a moment to read that. Have you had a chance to read that editorial of June 20th, 2004 in the York Sunday News? ANSWER: Yes, I have. QUESTION: Have you read it before today? ANSWER: I don't remember reading this. QUESTION: Did anybody mention this to you? ANSWER: I would have to say no. I remember, I would have to say no. QUESTION: It says here that in addition to applauding you for the forthright way in which you dealt with your personal issues relating to Oxycontin, it says that you had made the following statements, 'This county wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such.' And it also says, 'Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Do you see that? ANSWER: Yes, I do. QUESTION: Did you make either of those statements? ANSWER: Not at this time. QUESTION: So 'This country wasn't founded on Muslim beliefs or evolution, this country was founded on Christianity.' ANSWER: I never said that. QUESTION: You never said that at all? ANSWER: Not to my knowledge. QUESTION: You never said the statement about Muslim beliefs or evolution, you never said that at all? Is that your testimony? ANSWER: I don't recall saying that, no. QUESTION: How about back in 2003 in relation to the Pledge of Allegiance? Did you say then? ANSWER: I don't think I did. QUESTION: The other one, 'Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Did you say that? ANSWER: That goes back to the taking out of the Pledge. QUESTION: So it's your testimony that you didn't make either of these statements at any time in the period of June of 2004? ANSWER: Correct. QUESTION: Did it ever come to your attention that the paper was reporting that you had said these things in June of 2004? ANSWER: Not that I recall. QUESTION: So you were totally unaware, when did you learn -- I mean, you know, sitting here today you know now that the paper was reporting that you said these things in June of 2004. Did you know that before today, before this deposition? ANSWER: I don't think I did. QUESTION: Did you read the complaints in this matter? ANSWER: Yes, I did. QUESTION: It's in there. Did you see it in there? ANSWER: Yes. QUESTION: So you must have known it then, right? ANSWER: Well, I didn't see this until today. I thought you meant this. QUESTION: So that's amazing. Before today you didn't even know that these things were being reported about you, is that correct? ANSWER: That's true. That's true." That was your testimony, wasn't it, Mr. Buckingham? A. Yes. Q. Now I'd like to turn to another article that was reported in the paper. This is what's been marked as Plaintiff's Exhibit 60. A. Pardon me? 60? Q. Six zero. A. I'm there. Q. This is a letter to the editor from Dover area school district board member Heather Gessey, and it's dated June the 27th, 2004, and it was printed in the York Daily Record. Do you see that? A. Yes. Q. Did you read this at or around the time it was printed? A. I did not. Q. It's a response to Ms. Eveland's letter, and in it Ms. Gessey says, "You can teach creationism without it being Christianity." That's in the last paragraph. Do you see that? A. I see it. Q. So as of this time, June the 27th, 2004, there was another board member who was using the word creationism with respect to what the board wanted to do, right? A. I don't read her mail. I don't know about this. Q. And you never heard Ms. Gessey use the word creationism? A. No. Q. In other words, that's what you're saying here today, that you never heard her use the word creationism? A. That's true. Q. And you're sure the board members didn't talk among themselves about promoting creationism? Is that your testimony? A. I'm positive. Q. Now, I'd like to show you what's been identified as Exhibit P-145. You're going to need to look at the monitor, or at the monitor right in front of you, which is the television screen. (Video of television interview shown at 11:10 a.m.) Q. That was you speaking, wasn't it? A. It certainly was. Q. And you were speaking to a reporter for Channel Fox 43, isn't that right? A. That's true. Q. And that was in June of 2004? A. Approximately, yes. Q. And in it you said, "The book that was presented to me was laced with Darwinism from beginning to end." Isn't that what you just said on the -- A. Yes. Q. Do you need to see it again? A. No. Q. Now, that's basically the same statement that was reported in the newspapers, isn't it? A. Pretty close. Q. And at first you told us you couldn't remember making that statement? A. At first -- Q. When we first talked about -- A. Excuse me, when you first talked about that, I forgot about the interview. Q. And -- A. And what happened was when I was walking from my car to the building, here's this lady and here's a cameraman, and I had on my mind all the newspaper articles saying we were talking about creationism, and I had it in my mind to make sure, make double sure nobody talks about creationism, we're talking intelligent design. I had it on my mind, I was like a deer in the headlights of a car, and I misspoke. Pure and simple, I made a human mistake. Q. Freudian slip, right, Mr. Buckingham? A. I won't say a Freudian slip. I'll say I made a human mistake. Q. So, Mr. Buckingham, I guess what you're telling us then is that when you gave that statement that we just looked at on the video monitor, at that time you were aware that the board, that the local press had been reporting that you used the word creationism, isn't that correct? A. Through talking with the board members through our own conversations, yes, but not through reading any of their papers. I knew whenever we said intelligent design, creationism would crop up in the newspaper the next day, and it was a common problem we were having and we didn't know how to overcome it. So we actually stopped talking to the reporters. Q. So it's your testimony now, now you're claiming that in June of 2004 you did know that the papers were reporting that you used the word creationism, isn't that correct, Mr. Buckingham? A. That's not what I said. I said they were reporting that the board was talking about putting creationism into the curriculum. Q. And what I'm saying to you, Mr. Buckingham, is what you're telling me is that in June of you knew there were reports in the newspapers that you and other board members had been talking and using the word creationism, I'm not asking you to admit that you used the word creationism. All I'm saying is that you knew in June of 2004 that it had been reported in the papers. A. I knew that it was reported that the board was using that word when we weren't. Specifically I don't know who they were talking about. I just knew it generically they were talking about the board using the word creationism instead of intelligent design. Q. Now, the second statement you said there on the tape was you said that, he had quoted you saying as, "It's okay to teach Darwin, but you have to balance it with something else, such as creationism." That's a correct statement? A. I thought that's what we were just talking about. Q. That's what you just said? I mean, I just want to confirm that's what you said on the monitor? A. That was me on the monitor. Q. Now, that's actually very similar to what was reported in the newspapers, isn't it? A. That doesn't make it accurate. Q. Well, I'm just asking you if it's very similar to what was reported in the newspapers. A. It's similar. Q. And so what you're telling us is that you made a statement very similar to what's reported in the newspapers, but the newspapers had it wrong when they reported it, and you misspoke when you spoke to the reporter from Fox 43, is that your testimony? A. Because of the situation I was involved in at the time of the interview with Fox 43 -- I said that the atmosphere of the interview with Fox 43 was completely different than the atmosphere of a board meeting, and through kind of, I kind of felt like I was ambushed, I misspoke. Q. So but what I'm asking you is what you're saying is that the local reporters, actually more than one local reporter, had it exactly backwards, that they were reporting that you were saying creationism when you weren't saying creationism, and then you went on 43 and you had it yourself backwards and you said creationism when you didn't mean to say creationism, is that your testimony? A. Due to the different atmosphere I was placed in, I think that was the first time I was ever interviewed by anyone since I had been on the school board, and I think it was a combination of fright, the change in the atmosphere, and I was just like I said I felt like I was a deer in the headlights of a car, and I concentrated so hard on not saying creationism, I made a human mistake and I said it. Q. Let's take a look at the tape again. Matt, would you play that one, P-145 one more time? (Video segment of television played at 11:16 a.m.) Q. You didn't look like you were very pressured to me. Is there something in that tape that suggests to you that you were feeling pressured at the time? A. I can't help how it looks. I'm telling you I felt pressured at the time. Q. Nobody was forcing you to make that statement to the television reporter, were they? A. I was kind of trying to be the nice guy. They were between me and the door. I didn't want to be rude. I tried to do something that probably I wasn't equipped to do, because like I say I think that was the first time I had ever been interviewed, and I misspoke under the pressure and the different atmosphere that I hadn't been in before. I just misspoke, made a human mistake. I'll accept that. Q. Wouldn't you agree with me, Mr. Buckingham, given that you said creationism to the reporter from Fox 43, that you most likely said creationism at the board meetings in June of 2004? A. Absolutely not. Q. Let's test your memory on a different subject. You remember that there was a board meeting on August the 2nd, 2004, isn't that right? A. Yes, sir. Q. And at that board meeting -- actually let's turn to the minutes of that, which is P-67. Now, at that board meeting the board voted on approval of the 2004 edition of Biology by Miller and Levine, right? That's the issue, one of the issues the board took up on August the 7th, 2004? A. Yes. Q. And you and two other board members voted against approval of the biology textbook, isn't that true? A. Yes, sir. Q. And those two other board members were Mrs. Harkins and Mrs. Gessey? A. Well, there were, actually Angie Yeungling did, too, and then when Jeff Brown threw his tantrum, she panicked and asked for a re-vote because she was afraid. Q. So because she was afraid to oppose or not approve the biology textbook, right? A. She was afraid of Jeff Brown. She was afraid he would hurt her or have a heart attack or something, and -- Q. She was unwilling to stand with you and Mrs. Harkins and Mrs. Gessey against approval of the biology textbook, correct? A. She was afraid. Q. I'm just saying she was unwilling to stand with you, take a stand with you and Mrs. Harkins and Mrs. Gessey against the biology textbook? A. Take Jeff Brown out of the mix and she was willing to stand with us. Q. Okay. So if it hadn't been for Mr. Brown she would have been willing to stand with you against approval of the biology textbook by Miller and Levine? A. She actually did that in the first vote. Q. Okay. Now, but just to be clear you were clearly against approval of the biology textbook by Miller and Levine on August the 2nd, 2004, isn't that right, Mr. Buckingham? A. I'm sorry, could you -- I missed the second thing you said. Q. I just want to make it clear, you were, clearly voted against approving the Miller and Levine Biology textbook on August the 2nd, 2004, isn't that right, Mr. Buckingham? A. Yes. Q. But actually at your deposition when I asked you about this, you told me that you voted for the textbook, isn't that correct? A. I think eventually I did. Q. When I first asked you about this, you told me that you voted for the textbook, isn't that right? A. I'm not sure that's right. Q. Please take the January 3rd transcript and go to pages 32 and 33. A. I'm sorry, 32? Q. Yes. Line 16. A. I'm here. Q. I asked you the following questions and you gave the following answers: " QUESTION: Was the purchase of a new biology textbook approved at one of the meetings of the board in June of 2004? ANSWER: It was approved, but I'm not sure when. QUESTION: I think it was approved in August. ANSWER: Could be. QUESTION: We'll get to that, but I'm sure. Did you vote for that? Did you vote for that? ANSWER: In August? QUESTION: Yes. ANSWER: Yeah. QUESTION: You voted for the new biology textbook? ANSWER: Absolutely. To the best of my knowledge I did. It was always our intent to buy that book." That was the testimony that you gave when I asked you these questions on January 3rd, correct? A. Yes. Q. And in fact at the meeting on August the 2nd you told the board that you were not going to vote in favor of approval of the biology textbook by Miller and Levine unless the board also approved a companion text that covered the subject of intelligent design, isn't that correct? A. That's true, and there were two reasons for that. Q. And in fact the biology textbook that you didn't want to approve was the one that had been recommended by the faculty and the staff, isn't that correct? A. Are we talking the 2004 edition now? Q. Yes. A. Yes. Q. Now I'd like you to turn in your notebook to what's been marked as P-795. A. I'm sorry, P what? Q. 795. A. I'm sorry, I can't find anything close to that. Q. It's not in your notebook? A. P-795? Q. Yes. Your Honor, may I approach the witness? THE COURT: You may. A. I'm sorry, I see it now. Q. Mr. Buckingham, I'd like you to take a look at that. That's an article that appeared in the Daily Record Sunday News on August the 4th of 2004, and I'd like to know whether you read it at or around that time. A. No, I didn't. Q. Because you just weren't reading any of these articles at this time, right? A. That's true. Q. If you look at, if you go to the second column in this, the first and second paragraph? It's on the screen, and it's also, if you can read that, it says, "Buckingham then said if he didn't get his book, the district would not get the biology book. Buckingham has been a staunch advocate for the teaching of creationism alongside evolution," and I'd like to know, you did say at that board meeting that if you didn't get your book, the district would not get the biology book. You said that, didn't you? A. Yes, I did. Q. And then if you go to the last column, the second to the last and the third to the last paragraphs, it says, "The board is still considering approving the companion book for use in the classroom. During the meeting Bonsell and Renwich promised Buckingham that the intelligent design book would get a fair review." That's a fair statement of what happened at that board meeting, isn't that right, on that issue? A. I don't remember that. Q. Well, do you see the next line, it says, "'Six votes are not out of the question,' Bonsell said." Do you see that? A. Yes, I do. Q. Do you remember Mr. Bonsell saying that at the board meeting? A. No, I don't. Q. Let's talk about that companion text. The text was Of Pandas and People, right? A. Yes. Q. It's the book we looked at earlier? A. True. Q. And you actually learned about Pandas and People from the Thomas More Law Center, isn't that right? A. Yes. Q. And the person you learned about it from was Mr. Thompson? A. Yes. Q. And in fact Mr. Thompson was the one who recommended Pandas to you? A. He didn't recommend it. He told me there was a book there. I asked him if he knew of any books anywhere that dealt with an alternative scientific theory, and he mentioned the book to me. He didn't recommend it at all. Q. Well, he was the first one to tell you about it, isn't that right? A. Yes, he did. Q. And you bought a copy, right? A. Yes, I did. Q. And you gave your copy to Dr. Nilsen? A. Yes, I did. Q. And the school board asked the teachers what they thought about Pandas, right? A. I'm sorry, I didn't hear the first part of your question. Q. And the school board asked the science teachers what they thought about Pandas? A. I think Dr. Nilsen might have at that point. Q. You didn't know that the school board asked the teachers, the science teachers, what they thought about the book Pandas? A. Eventually that happened, but -- Q. Okay. Well, you know that the teachers, the science teachers at Dover High School were against Pandas. That's true, isn't it? A. Yes. Q. And the board didn't talk to anyone else outside of the board or the science teachers about Pandas such as professional educators or scientists, isn't that right? A. Not to my knowledge. Q. Now, I'd like to talk to you about the specifics of how the curriculum change came about. Earlier today we talked about a curriculum committee meeting that was held in June of 2004. Do you remember that? A. Yes. Q. And the next curriculum committee meeting after that June meeting was on August the 27th. Do you remember that? A. Yes. Q. And the purpose of that meeting on August the 27th of the curriculum committee was to discuss Pandas, right? A. I have a question about whether or not that was the 27th or 24th, but they're in the ballpark one way or the other. Q. Well, let's take a look at what's been marked as P-68. It's in your notebook, and Matt, could you bring it up? A. Okay. Q. Take a look at P-68. Does that refresh your recollection that was meeting was on August the 27th? A. Yes. Q. Okay, and the purpose of that meeting on August the 27th of the curriculum committee was to discuss the textbook Pandas? A. Yes. Q. And the science teachers were present at that meeting? A. Yes. Q. And in addition to you, Mrs. Harkins was present at the meeting? A. Yes. Q. And Casey Brown was present at the meeting? A. Yes. Q. And when I say the science teachers, I mean Bertha Spahr and Jen Miller in particular were there, right? A. I need to tell you I wasn't there for the whole meeting. I had a doctor appointment. I was there for a short while and left. Q. Okay. Now, this is -- and at the meeting what was discussed while you were there was your proposal to have Pandas used as a companion text to the biology textbook by Miller and Levine, correct? A. The proposal at that time I believe was that the Pandas book would be used as a reference book, and -- yes. Q. Well, no, actually the idea of using Pandas as a reference book was a compromise that was adopted at that meeting, isn't that right, Mr. Buckingham? A. I'm not sure. Q. You actually went into that meeting wanting Pandas to be used as a companion text to the biology textbook by Miller and Levine, right? A. I don't recall that that's true. Q. You don't know one way or another? A. I don't think it's true. I don't know. Q. Well, the point is that the teachers were clearly against using Pandas as a companion text, right? A. Yes. Q. But they were agreeable as a compromise to use it as a reference text in the classroom, right? A. Eventually. Q. Now, the next meeting of the curriculum committee was on October the 7th. Do you remember that? A. I can't be sure of the date. Q. Okay. Well, I'll tell you what. Let's look at what's been marked as P-75. A. I see that. Q. Does looking at P-75 help you to remember that the next meeting of the curriculum committee was on October 7th? A. Yes. Q. And actually unlike the previous two meetings, the teachers weren't invited to this meeting, isn't that true? A. I didn't set the meeting up. I know they weren't there. I don't know if they were invited or not. Q. That's fair enough to say they weren't there, right? A. Yes. Q. None of the teachers were there, correct? A. I don't remember any of them being there. Q. And since the teachers worked for the school district, when they're asked to come to a meeting they usually show up or have some good excuse, right? A. I don't know. Makes sense to me. I don't know. Q. Now, I'd like to show you what's been marked as P-81. Do you recognize that document? A. Yes, I do. Q. That actually sets forth the positions on the various constituencies on the subject of the proposed curriculum change as of October 7th, right? A. Yes. Q. And if you turn to page P-82, it's just like P-81, except next to Mr. Bonsell's name there's some handwriting? A. Yes. Q. It says, "Including, but not limited to intelligent design." A. I see that. Q. Now, at this point in time, October the 7th, you wanted the biology curriculum changed to include a reference to intelligent design, isn't that true? A. Yes. Q. And there were other board members who agreed with you about that? A. Yes. Q. In fact, Mrs. Harkins agreed with you? A. Yes. Q. Mrs. Gessey agreed with you? A. Yes. Q. Mrs. Cleaver agreed with you? A. Yes. Q. Angie Yeungling agreed with you? A. Yes. Q. Mr. Renwich agreed with you? A. Yes. Q. And Mr. Bonsell agreed with you? A. As I recall, yes. Q. And as of October the 7th of 2004 all of the board members were in favor of this proposal to include a reference in intelligent design in the biology curriculum except for Casey and Jeff Brown, right? A. I think that's a fair statement. Q. And the matter actually came up for a vote at the next meeting of the board, which was October the 18th of 2004? A. I misspoke. Jeff Brown at this point was in favor of intelligent design being added to the curriculum, and that he said he had a dream and God told him to vote against it. So he changed his mind. Q. That's not what you told us at your deposition, is it, Mr. Buckingham? A. I don't remember what I told you at the deposition. I just know what I'm telling you now. Q. Please turn to page 92 of the January 3rd deposition. A. I'm there. Q. Actually beginning on page 91, line 21, I asked you the following questions and you gave the follows answers: " QUESTION: Now, at least at this point of October 7th you were the one who wanted intelligent design included in the revised curriculum? ANSWER: I was one of the people that did. I wasn't the only one. QUESTION: Who were the others? ANSWER: Sheila Harkins, Janie Cleaver, Heather Gessey. Was Heather Gessey there then? I'm not sure if Heather Gessey was on the board then. I know she wanted it. QUESTION: I believe she was. ANSWER: Okay, she wanted it. Angie Yeungling indicated she did. Noel Renwich wanted it. I guess that's about it. QUESTION: What about Allen Bonsell? ANSWER: Allen wanted it. QUESTION: So that's everybody but the Browns wanted it? ANSWER: I guess so. QUESTION: You just told me that that's at the time of the October 18th, do I understand that correctly? ANSWER: No, we're talking about October the 7th, aren't we?" That was your testimony at that point, Mr. Buckingham? A. At that point, excuse me, Jeff Brown was in favor of intelligent design, and he had his dream and changed his mind. Q. So you're telling me that the testimony we just read is wrong? A. I'm telling you what I remember about why Jeff Brown changed his mind. Q. That means that the testimony that you gave at your deposition on January 3rd on this point was wrong, correct? A. It was as accurate as I could make it with the best of my knowledge, information, and belief at that time. Q. Now, the biology curriculum change was voted on at the board meeting on October the 18th. That's true, isn't it? A. I'm not sure about the date again. Q. Well, Matt, could you pull up what's been marked as P-88? Mr. Buckingham, if you'd look at what's been marked in your book as P-88, that's the minutes of the October 18th board meeting? A. I'm there. Q. And if you go to what has the Bates numbers and 158, 159, and 160, you'll see there's all the voting -- I'm sorry, it begins on page 158, the voting on the curriculum change. A. Yes. Q. Does that help to refresh your recollection? A. Yes, it does. Q. It was in fact October 18th that you voted on that? A. Yes. Q. Now, the standard practice for the Dover area school district board of directors was to have two meetings a month, isn't that true? A. That's true. Q. Would you agree with me that it was the standard practice that the first meeting be a planning meeting and the second meeting to be an action meeting? A. That usually was what took place, yes. Q. Now, but the proposed change to the curriculum was not on the planning meeting agenda for the October 4th meeting that preceded this October 18th meeting, was it? A. No, it was not. Q. So you deviated from the standard practice in the manner in which the curriculum change came up for approval or consideration at the October 18th board meeting, true? A. Yes, we did. Q. And ultimately the resolution to change the biology curriculum passed by a vote of 6 to 3, isn't that right? A. Yes. Q. And the three people who voted against it were Mr. Renwich and Mrs. Brown and Mr. Brown? A. That's true. Q. Now, I'd like you to take a look at what's been marked as P-135. A. Could I clarify my answer? Q. Sure. A. There was a reason why we did that on the 18th the way we did it. We had, it was problematic for us to get a full board there. I was having health problems, Janie Cleaver was in and out of Florida, she was having problems with her house. She was going to move to Florida. Noel Renwich was going to move to Lancaster County to take a job. We didn't want to have to start this at square one again. We wanted to bring this to a vote when the full board was there. That's why we did it that way. Q. Well, actually you wanted to make sure that it would pass while there was still all the people that you had that would support you in changing the biology curriculum, isn't that right? That's what you mean? A. We wanted the full board to be there to exercise their right to vote the way they wanted to, and we had difficulty getting the full board there for a while, and we knew on the 18th we expected everyone to be there. So we brought it up then. Q. And was there something that prevented you from putting it on the planning meeting agenda for October 4th so the public could have been alerted to this? A. I think it had to do with when Mrs. Cleaver was going to be able to get back. She was having trouble, she had storm damage to her house, and because this was such an important issue we felt that with her time on the board, she deserved a right to be able to be there and vote. Q. So because it was such an important issue, you decided to deviate from your standard practice -- A. That's not -- Q. -- to give the public an opportunity to know what was going on and be heard, is that correct? A. We deviated from our standard practice in order to bring this up before a full board. Q. Let's look at what's been marked as P-135, and Matt, if you would turn to page 22, and Mr. Buckingham, that's the Bates number 61646 in your binder. A. P-135? Q. P-132. A. 132? Q. Yes. A. If you recall from my deposition, I have a problem hearing sometimes and I don't pick up everything. Okay, I'm here. Q. If you turn to the page that's marked, that's got a Bates stamp in the right-hand corner that says 1646, the number of pages into this document. I can help you find it if you need me to. A. I don't see it, I'm sorry. Q. Your Honor, may I approach? THE COURT: You may. (Brief pause.) A. Thank you. Q. Now, Mr. Buckingham, if you would look at the language on the bottom of the page? In fact, I'm going to ask Matt to highlight the language on the bottom of page. All the way across if you can do that. This is the, this was what was approved by the board on October 18th. This is the end result, isn't that right? A. Yes. Q. And there's a reference in there to, "Note, the origins of life is not taught." Do you see that? A. Yes, I do. Q. You know what that means, don't you? A. Yes, I do. Q. That means that the school teachers, the science teachers are not permitted to teach that one species came from another species, correct? A. We were talked about origins of life, yes, and that was put there because some of the teachers voiced concern that if we had intelligent design included that that would be, they would be forced to teach intelligent design, and that was put in there to kind of make them feel better about not having to teach intelligent design. We kept telling them we don't want them to teach it, but they kept insisting if it was in the curriculum they had to teach it. So that was put in there for their benefit. Q. But the words, when it says origins of life, I guesses that the only point I want to clarify with you, is that that means, that's a reference to specifically the concept that one, that any species originated or began with a previous species, right? Common ancestor, right? A. Yes. Q. Now, do you know what the district curriculum advisory committee is? A. Yes, I do. Q. And that's a group that's comprised of citizens and others who review curriculum changes and help advise the board on when there's going to be proposed curriculum changes? A. Yes. Q. Now, the district curriculum advisory committee was not given a chance to meet and voice its, have its voice heard on the subject of this biology curriculum change that was approved on October 18th, was it? A. Understand that when I became the chair of the curriculum committee I had almost no experience on the school board. I was put in charge of a curriculum committee, and I didn't understand the process I was supposed to go through. I didn't even know what this committee was until after the fact. Q. Okay, but the fact is it wasn't given a chance to review the proposed curriculum changes like it should have? A. That's correct. Q. But as a matter of fact a couple of members from the board, the curriculum advisory committee did submit comments for consideration of the board on October 18th? Do you need a minute, Mr. Buckingham? Do you need a glass of water? A. I'm just getting a lozenge. I'm okay. Q. As a matter of fact -- tell me when you're ready. You all set? A. Go ahead. Q. As a matter of fact a couple of members of the district curriculum advisory committee did make comment on an individual basis about the proposed curriculum change, is that right? A. I don't even know who was on the committee, so I can't tell you that. Q. Why don't you take a look in your book at what's been marked P-151. A. I'm there. Q. Have you seen this document before? A. I don't remember it. Q. So you didn't know that at least two members of the curriculum advisory committee were against the proposed curriculum change or at least wanted a chance to meet as a committee and consider it. You're telling us you didn't know that? A. I wasn't aware of that. Q. Now, earlier we talked about Mr. Renwich, and you told us that on October 7th Mr. Renwich was in favor of including a reference to intelligent design in the biology curriculum. A. Yes. Q. But actually on October 18th he voted against it, isn't that right? A. Yes, he did. Q. And he voted against it because the teachers were against it, right? A. I don't know why he voted against it. I just know he did. Q. Well, do you remember discussing this at your deposition? A. Actually I don't. Q. Turn to page 122 of your deposition on January 3rd. A. 122? Q. Yes. Line 15, tell me when you're there. A. I'm there. Q. I asked you the following questions and you gave me the following answers -- line 12, I'm sorry. " QUESTION: Do you remember anything else that was said at the meeting? ANSWER: By? QUESTION: Anybody about the board resolution. For example, did Mr. Renwich say why he wanted to take the word intelligent design out? ANSWER: He said he was in favor of the concept of intelligent design, but he didn't like the manner in which we brought it to where it was. He wanted more involvement from the teachers in the process. QUESTION: He was upset that the two school teachers were being disregarded, isn't that correct? ANSWER: In his opinion they were, but they weren't. QUESTION: That's what he was saying at the meeting? ANSWER: That was his perception. QUESTION: Well, in what sense weren't they being disregarded? ANSWER: They weren't being disregarded. That was just his perception that they were. QUESTION: I know, but they didn't want reference to intelligent design, correct? ANSWER: That's true." That was your testimony, wasn't it, Mr. Buckingham? A. Yes. Yes. Q. Now, the sentence about including intelligent design, the reference to intelligent design in the biology curriculum, was added by you and Mr. Bonsell and Mrs. Harkins at a curriculum committee meeting not attended by the teachers, specifically October 7th, correct? A. That's true. Q. And at the October 18th board meeting Mrs. Spahr, who was the head of the science department at the high school, says that the board, the teachers had only agreed to Pandas as a compromise to address your concerns that the students have alternative materials to review. You recall that, don't you? A. I don't remember that. Q. Well, why don't you look -- one second, please. (Brief pause.) Q. So you're not saying she didn't say that. You're just saying you don't remember, you're not disputing that? A. I don't remember hearing that. Q. I'd like you to take a look at what's been marked as P-798. A. I'm sorry, I can't find it again. I'm sorry, I have it. I have it. Q. You have that document? A. Yes, it's at the back. Q. That's an article from the York Daily Record on Wednesday, October 20th, 2004, isn't that right? A. Yes. Q. By Lori Lebo and Joseph Maldonado? A. Yes. Q. Do you remember reading it at the time? A. No, sir. Q. Well, if you look in the last two paragraphs of this article it says, "Both the American Civil liberties Union and the Americans United for the Separation of Church and State, who say they were closely monitoring the situation in Dover, points out that if the school district were to lose a legal battle, its taxpayers could end up footing the cost of legal bills." Do you see that? A. Yes, I do. Q. And do you remember being told that? A. Yes, I do. Q. And in fact you said in response to that, "'My response to that is what price is freedom,' Buckingham said. 'Sometimes you have to take a stand.'" That's what you said, isn't it? A. Yes, it is. Q. And in fact you said that to a reporter? A. I don't remember if I said that to a reporter. If they overheard me saying it, or I don't know -- I remember saying it, but -- Q. But you might have said it to a reporter, right? A. I don't know who I said it to. Q. And that was what you wanted to do, Mr. Buckingham, is with respect to this biology curriculum change, you wanted to take a stand? A. That wasn't the stand I was talking about. The stand was against the ACLU and the Americans United for the Separation of Church and State coming into areas and bullying the municipalities into doing what they want done. Q. Now, Mr. Buckingham, you were advised in this process by two different organizations, one was the Thomas More Law Center, and the other was The Discovery Institute, isn't that right? Right? A. I was advised by the Thomas More Law Center, and I was sent information by The Discovery Institute. Q. Well, there came a time in the process when someone from The Discovery Institute contacted you, right? A. Yes. Q. And that man's name, that was an attorney by name of Seth Cooper, right? A. That's true. Q. And he sent you some materials? A. Yes. Q. With a DVD and a video and a book maybe? A. Sounds right, yes. Q. And then you gave those materials to Dr. Nilsen, who gave them to the science department, right? A. I gave them to Dr. Nilsen and asked him to give them to the science department, yes. Q. And to your knowledge those materials were never reviewed by the board, were they? A. I don't know if anybody else on the board looked at them or not. I think after the science teachers were done with them, some board members did take them and look at them. Q. That's not what you told us at your deposition, is it, Mr. Buckingham? A. I don't know what I told you. Q. Turn to page 101 of your deposition on January the 3rd. A. I'm there. Q. Actually to give context we should probably start on page 100, and I asked you beginning on line 24, and I was referring to the materials from The Discovery Institute: " QUESTION: Where are they now? ANSWER: They were turned over to Dr. Nilsen. He turned them over to someone in the science department. That's the last I saw them. I donated those to the school. QUESTION: Were they ever reviewed by the board? ANSWER: Not to my knowledge." Do you remember giving that testimony then? A. They weren't reviewed by the full board. Individual members, I don't know for sure, but I think a few individual members might have. (Brief pause.) Q. Let's turn to the second deposition, which is marked the 31st, at page 27. A. Page 27? Q. Yes, sir. A. I'm there. Q. I asked you, let's begin on page 26 to give this a little context. Line 22, didn't I ask you the following questions and you gave the follow answers: " QUESTION: What was presented to the board as a group to help them decide how to vote? ANSWER: The books were presented to the board. The information that was sent to us by The Discovery Institute was provided to the board. QUESTION: The materials from The Discovery Institute were not provided directly to the board, correct? ANSWER: I am a board member. They're provided to me and I turn them over to the school. QUESTION to the administration, correct? ANSWER: Yes. QUESTION: You don't know what efforts, if any, other that board members took to review those materials? ANSWER: I can't speak for them. QUESTION: You don't know? ANSWER: True." A. That's true. I don't know that they did. I'm just saying they may have. I don't know that they did. Q. Now, let's talk for just a minute about not the substance but the circumstances of your conversations with Mr. Cooper of The Discovery Institute. After he called you, he introduced himself on the phone, didn't he? A. Yes, he did. Q. And the first thing you said to him was that you wanted legal advice, isn't that true? A. I don't know if that was the first thing I said, because I didn't know who or what he was. Q. Well, if you look again at the March 31st deposition transcript, on page 35? A. I'm there. THE COURT: Mr. Harvey, within about five minutes if we could take a break? MR. HARVEY: Yes, Your Honor, I'll have a logical stopping point. THE COURT: That's what I wanted. That's fine, thank you. BY MR. HARVEY: Q. Let's start on page 34, line 4: " QUESTION: What did you talk about with Mr. Cooper? ANSWER: He explained to me he was an attorney, and I know when I found out he was an attorney I wanted to get legal advice as far as he could provide as far as intelligent design was concerned, and we talked about intelligent design and we talked about the gaps in Darwin's theory of evolution. QUESTION: Did he offer legal advice when he called that first time? ANSWER: Yes, he offered to represent us. QUESTION: Was that the first thing he said? ANSWER: That was not the first thing he said, no. The first thing he said obviously was, 'Hello, my name is Seth Cooper, and I'm an attorney with The Discovery Institute. This is what we're all about.'" ( LAUGHTER FROM SPECTATOR GALLERY.) A. When you started reading I hadn't gotten to the page yet. I'm sorry, I'm lost where, I'm not where you are. Q. Please go to page 34. A. I'm there. I wasn't there when you started reading because -- Q. I apologize. It's disconcerting to hear laughter and not knowing what everyone is laughing about. Page 34, line 4. A. Okay. Q. Didn't I ask, didn't Mr. Rothschild ask you the following questions and you give the following answers: " QUESTION: What did you talk about with Mr. Cooper? ANSWER: He explained that he was an attorney, and I know when I found out he was an attorney, I wanted to get legal advice as far as he could provide as far as intelligent design was concerned, and we talked about intelligent design and we talked about the gaps in Darwin's theories of evolution. QUESTION: Did he offer legal advice when he called that first time? ANSWER: Yes, he offered to represent us. QUESTION: Was that the first thing he said? ANSWER: That was not the first thing he said, no. The first thing he said obviously was you was, 'Hello, may name is Seth Cooper, and I'm an attorney with The Discovery Institute. This is what we are all about.' Don't ask me, I don't remember anymore. I said, 'Great, I could stand to talk to an attorney right now.' I said, 'Here's what's going on,' I see, 'Legally how do you see us?' And he told me at that time that..." And your counsel interjected so that you wouldn't disclose potentially privileged material, and then the next question was. " QUESTION: Was the first thing after the pleasantries, the first thing you said in response to his introduction was, 'I want legal advice'? ANSWER: To that effect, yes." Do you see that? A. Yes, I do. Q. And that was the testimony you gave then on March 31st? A. Yes. Q. And everything you talked about with Mr. Cooper had to do with the legality of intelligent design and the legalities of Darwin's theory and the legalities of teaching the gaps in Darwin's theory, isn't that correct, Mr. Buckingham? A. Would you say that again? Q. Sure. Everything you talked about with Mr. Cooper of The Discovery Institute had to do with the legalities of intelligent design and the legalities of Darwin's theory and the legalities of teaching gaps in Darwin's theory, isn't that true, Mr. Buckingham? A. That was part of it, but he also gave me some background of what intelligent design was. Q. Well, he didn't give you any advice other than legal advice, did he? A. Not that I recall. Q. And you didn't ask him for any kind of advice other than legal advice, isn't that true? A. We got into intelligent design and what it was. How long was that? We didn't talk that long. Q. The question was you didn't ask him for any other advice other than legal advice, isn't that correct? MR. GILLEN: Objection, Your Honor. I simply think the question is unclear in that there's a distinction being posited between the legal advice and the discussion of intelligent design, and it appears to me that they were discussed together. If Mr. Harvey can make that clear, then I think the witness can answer the question. MR. HARVEY: This was the basis for Mr. Gillen's claim of privilege when we sought to inquire of this witness at his deposition about his communications with The Discovery Institute. They claimed that they were seeking legal advice and only legal advice, and they received legal advice and only legal advice, and on that basis they asserted the privilege, and I'm just establishing here that that indeed is the fact. THE COURT: Well, is the privilege being asserted? MR. GILLEN: Yes, that's my purpose here is to ensure that the question is clear so that Mr. Buckingham doesn't -- as they state, it is my understanding that the deposition testimony substantiates that this discussion did take place, there was discussion of intelligent design and the law, but they were inextricably interwoven, and that's -- THE COURT: Well, I don't think the question was unclear, Mr. Gillen. It wasn't unclear to me. Do you want to read it back, Wes, please? (The record was read back by the reporter.) THE COURT: You can answer the question, sir. The objection is overruled. THE WITNESS: Yes. BY MR. HARVEY: Q. In other words, you didn't seek any other type of advice other than legal advice. That's a true statement, correct, what I just said? A. That's true, but also woven there was discussion on intelligent design. Q. Well, he didn't give you any kind of advice other than legal advice, did he? Or are you telling us now that he did give you some other advice other than legal advice? A. I think it was part and parcel legal advice, but intelligent design was part of it. Q. That's what we discussed before, you discussed the legalities of intelligent design, correct? A. Along with what it was. Q. And he didn't give you any kind of advice about that other than legal advice, isn't that correct? A. Well, what contemplates legal advice? I don't understand that. It's -- Q. Well, at your deposition you told us that he didn't give you any kind of advice other than legal advice. Isn't that true, Mr. Buckingham? A. If you include intelligent design in there, yes, that's true. Q. Well, just I guess we should be clear here, let's go to page 35 of your March 31st transcript. A. I'm there. Q. Line 5. Are you there? A. Yes, sir. Q. "Did you ask for any advice other than legal advice?" That was the question. " ANSWER: Everything we talked had to do with legalities of intelligent design and Darwin's theory and the gaps. That was about it. QUESTION: It was only about the legalities of Darwin's theory? ANSWER: That's not what I said. I said the legality of Darwin's theory, gaps, teaching the gaps, and intelligent design being put into the curriculum." That was the testimony you gave on that day, isn't it? A. Yes. Q. And you talked with Mr. Cooper of The Discovery Institute several more times after that? A. We might have had two more, they were real quick discussions. There wasn't much to them. Q. And at least some of those calls were between the June meetings and the October 18th meeting? A. I don't remember when they were. Q. Well, all of the calls that you had with Mr. Cooper concerned legal advice, isn't that true? A. Yes. Q. And he never gave you any kind of educational advice, did he? A. Woven in amongst the legal advice was a discussion of what intelligent design was. Again, what is legal advice? Q. If you'd please go to page 38 of your March 31st transcript? A. I'm there. Q. Beginning on page 38, line 4: " QUESTION: In those subsequent phone calls, were they like the first phone call, always for legal advice? ANSWER: Yes. QUESTION: You were always asking for legal advice? ANSWER: It was my understanding that once we had a legal advice umbrella so to speak, our calls were under that umbrella. QUESTION: Did you understand the actual advice he was giving to be legal advice? ANSWER: Yes. QUESTION: He didn't give you restaurant recommendations? ANSWER: No. QUESTION: And even into the discussion of the curriculum issue you always understood that to be legal advice? ANSWER: Yes. QUESTION: Not educational advice? ANSWER: No." That was your testimony, wasn't it? A. Yes. MY HARVEY: And I just have one or more two questions, Your Honor, before we go to break. THE COURT: Go ahead. BY MR. HARVEY: Q. And you recall that your attorneys at that deposition would not permit us to discover the substance of your communications with The Discovery Institute on the grounds of attorney client privilege between Mr. Cooper of The Discovery Institute and you as a member of the Dover area school district board of directors and head of its curriculum committee, do you remember that? A. Yes. MR. HARVEY: This is a good time to break for lunch, Your Honor. THE COURT: Let's take our lunch break at this point. We will reconvene at 1:30 p.m. this afternoon for our afternoon session. We'll be in recess until then. Thank you. (End of morning session at 12:05 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 16 (October 27), PM Session, Part 1 THE COURT: All right, we continue with Mr. Harvey's cross-examination, or questioning on cross. DIRECT EXAMINATION AS ON CROSS (cont'd.) BY MR. HARVEY: Q. Mr. Buckingham, sometime in the morning session you testified that the board deviated from its normal practice of having a subject covered at a planning meeting before voting at an action meeting, and they did that with respect to the October 18th resolution because the issue was so important. Do you remember giving that testimony? A. Yes. Q. And tell me if you'll agree with me that the issue was so important because of the importance of having the students hear about an alternative to evolution so they wouldn't accept it as a fact. That was what was so important. Isn't that right? A. It was important because a lot of work had been done along this process by the entire board, and I felt that the entire board should be present when we vote on it. Q. But you said it was the issue that was important. Right? A. Well, the issue is part of the process. Q. And the issue that you felt was so important was having students presented with an alternative to evolution so they wouldn't accept evolution as a fact. Isn't that correct? A. I don't believe I said they wouldn't accept it as a fact. I don't believe I said those words. You can correct me if I'm wrong. Q. Well, I'm asking you, the issue that was so important for you was having an alternative presented to evolution. Right? A. The issue that was so important was the alternative, the scientific theory of intelligent design. It was a big vote, and I wanted the whole board there, if we could do that. And that was the one time we could be reasonably certain we'd all be there. Q. And it was important because you wanted an alternative presented to evolution. Correct? A. Yes. Q. And you were concerned that if the students didn't have an alternative presented to evolution, they might accept the correctness of the theory of evolution. Correct? A. They might accept it as fact along with all its flaws and faults. Q. Now, also this morning you testified that every time the reporters, in their reporting on the June board meetings, said that the board was talking about creationism, the board was actually discussing about -- discussing intelligent design and the reporters just had it mixed up. Do you remember giving that testimony? A. I don't know if they had it mixed up or did it on purpose, but that's how it happened. Q. But at your deposition on March 31st, you said that you didn't know when the subject of intelligent design came up. Isn't that right? A. I would have to see the deposition. Q. Well, please turn to your March 31st deposition at Page 44. A. I'm sorry, 44? Q. Yes. A. I'm there. Q. Question -- this is approximately -- Line 11. Question: I'm just trying to use -- trying to have some markers to help refresh your recollection. During these course of events, when did intelligent design come up? Did it come up in the early June meeting, or you just have no memory whatsoever? Answer: I don't know when it came up. I can't tell you. That was your testimony then. Right? A. I wasn't sure which meeting we were talking about. Q. But it's your testimony now that you don't know when the subject of intelligent design came up. Isn't that correct? A. The subject of intelligent design came up during the curriculum board meetings prior to that. Q. Are you saying that it came up in June of 2004, at those board meetings? A. I'm talking about curriculum meetings. Q. You're not talking about the board meetings? A. I'm talking about curriculum meetings. Q. So you're saying that the subject of -- but tell me this, did the subject of intelligent design come up at the board meetings in June of 2004? A. Yes. Q. But we just looked at testimony in which you said you don't remember when it came up. Isn't that correct? A. I wasn't sure of the dates. I was having trouble with dates back then because I had the problem I was dealing with with Oxycontin, and it was close proximity to the time I was at the Caron Foundation. I was still dealing with withdrawal from the prescribed medication I had, and I was having trouble with dates. Q. That was in 2004 you were having trouble with dates. Right? A. I was having trouble with dates then and sometimes I still have trouble with dates. Q. Okay. Now, do you remember there was a board meeting, we talked about it earlier this morning, on June the 7th where you said, in response to something of Barrie Callahan, you said that the biology textbook was laced with Darwinism? A. Yes, I used that phrase. Q. And that was the June 7th meeting. Correct? That's what we established this morning? A. Yes. Q. Now, you're not saying that intelligent design was discussed at that meeting, are you? A. I can't say for sure that it was or wasn't. Q. You just don't know? A. I don't know. Q. And this morning I asked you whether you were the board member who seconded the motion to approve the newsletter that came out in February, 2005. Do you remember that? A. Yes. Q. And you said you didn't remember. Do you remember that? A. I didn't remember seconding it, no. Q. I'm going to show you what's been marked as P821. I'll give you a copy of it, and I'll ask Matt to bring it up. MR. HARVEY: May I approach, Your Honor? THE COURT: You may. BY MR. HARVEY: Q. Mr. Buckingham, I've just handed you what's been marked as P821. It's the minutes of a school board meeting of the Dover Area School District that was held on February 14th. That's correct, isn't it? A. Yes. Q. And if you look at the second item on the first page under Board President's Communication -- do you see that? A. Um-hum. Q. Do you see that that says that you were the one who seconded the motion to approve the newsletter? A. Okay, they're talking about mailing the newsletter. I don't know that I ever approved the newsletter itself. Q. I see. So you just seconded the motion to mail the newsletter. Right? A. The newsletter was shown to us. We saw it. And it was to be mailed out, and we voted to do that. Q. And you seconded that? A. And I did second that, yes. Q. Now, before the lunch break we were talking about the Discovery Institute and your communications with the Discovery Institute. Do you remember that? A. Yes, I do. Q. And we talked about a conversation that you had with Seth Cooper. Do you recall that? A. Yes. Q. And we actually talked about you spoke to Mr. Cooper on several occasions, and we focused for a few minutes on the very first conversation that you had with Mr. Cooper. Correct? A. Yes. Q. And it was after that call with Mr. Cooper that he sent you the videotape and the DVD and maybe a book. Do you remember that? A. Yes. Q. Now, I just want to place the time of that first meeting -- excuse me, telephone call with Mr. Cooper of the Discovery Institute. That was in June of 2004 or earlier. Isn't that true? A. I believe so. Q. Because, in fact, you shared the DVD with the science department, and that was discussed in June with the schoolteachers. Correct? A. I'm not sure. I'm not sure. I know it was discussed with the teachers, but I'm not sure of the exact time when it was. Q. Well, you remember that you shared the DVD or the video with the schoolteachers in or before June of 2004. Correct? A. I gave it to Dr. Nilsen, and he forwarded it on to the science department. Q. But that was -- A. Yes. Q. -- in or before June. Right? A. Yes. Q. And that was the DVD or video that you got from the Discovery Institute. Correct? A. Yes. Q. So that means that your conversation with Mr. Cooper must have been in or before June of 2004. Isn't that correct? A. Yes. Q. Now, I'd like to talk to you about the Thomas More Law Center for just a couple minutes. Unlike the Discovery Institute, which contacted you, you contacted the Thomas More Law Center. Correct? A. Yes, I did. Q. And do you recall when that call was made? A. No, I don't. Q. Well, let's see if we can place the time of that. Thomas More Law Center were the people who first told you about the textbook Of Pandas and People. True? A. Yes. Q. And you knew about the textbook Of Pandas and People in late July of 2005. Isn't that correct? A. Yeah, that would be true. That's this year. Q. I just misspoke, I could hear from the whisperings of counsel behind me. I said late July of -- I meant to say late July of 2004. A. Yes. Q. So since you knew about the textbook Of Pandas and People in late July of 2004, that means that you must have spoken to the Thomas More Law Center before then. Isn't that correct? A. I'm not sure when I spoke to them. Q. Well, you told us earlier that you learned about the textbook Pandas from the Thomas More Law Center. A. Yes. Q. Correct? A. Yes. Q. And you clearly knew about the textbook Pandas in late July of 2004. Correct? A. Yes. Q. And so you must have spoken to the Thomas More Law Center before then. Right? A. Okay. Q. And the person you spoke to at the Thomas More Law Center was Richard Thompson? A. Yes. Q. And all of your calls were with Mr. Thompson? A. Yes. Q. And your purpose in calling Thomas More was to seek legal advice? A. Yes. Q. And you had no other purpose. Correct? A. That's true. Q. And, in fact, you did receive legal advice from the Thomas More Law Center? A. Yes. Q. And you did not receive any other advice, correct, nothing other than legal advice? A. I didn't hear what you said. Q. You received no advice from the Thomas More Law Center other than legal advice. Isn't that true? A. Except for them letting me know that the book -- MR. GILLEN: Excuse me, Your Honor, objection. May I just -- for the witness's benefit, may I make clear that he shouldn't disclose any legal communications in his testimony so he doesn't waive any privilege. And forgive me, Steve, for interrupting you. I just want to make sure that he observes the line. MR. HARVEY: Your Honor, they have asserted the privilege, and we're not challenging the privilege. THE COURT: Well, as the privilege related to the communications with counsel for the Discovery Institute, as I understood it, there was a claim that it was so inextricably intertwined that you couldn't get into any of the nonlegal advice. Now, what's your intention here? MR. HARVEY: Your Honor, I intend to establish that the only advice that they got was legal advice and that they wouldn't let us discover any of their communications except for the fact that he got -- he learned of Pandas. THE COURT: So you're offering it for the same purpose? MR. HARVEY: Yes, Your Honor. MR. GILLEN: And I withdraw the objection then. I didn't mean to slight Steve. I just wanted to make that clear. THE COURT: No, I understand that. And I think in terms of any spontaneous answer that you think gets to or gets into the privilege, you can renew that, or I'll stop the witness at that point. So you can proceed. MR. GILLEN: Thank you, Your Honor. BY MR. HARVEY: Q. Just to be clear, Mr. Buckingham, as we've already established, as we've already established, you learned about the book Pandas from Thomas More Law Center. Right? A. Yes. Q. And other than that, the only other advice that you got from the Thomas More Law Center was legal advice. Correct? A. That's true. Q. And you told the board that you had been in contact with the Thomas More Law Center and that it would represent the board if the board were sued. Isn't that true? A. I don't know that I used those words. I told them that the Thomas More Law Center agreed to assist us free of charge in the event we needed their assistance in this matter. Q. And somewhere early in the process in your conversations with Thomas More Law Center, they told you that they would represent the board if it got sued. Isn't that true? A. Again, they told me they would give us legal help if it became necessary free of charge. I don't know if "got sued" was used. Q. Okay. And you accepted the offer from the Thomas More Law Center on behalf of the board. Isn't that true? A. I gave -- yes, yes. Q. Now, that occurred -- your acceptance of the offer of assistance from the Thomas More Law Center, that occurred very early on in your conversations with the Thomas More Law Center? A. Yes, it did. Q. And then later, in December of 2004, the Thomas More Law Center was formally engaged to be the counsel for the board in this litigation. Correct? A. What time frame did you give us? Q. I said December, 2004. A. December of 2004 I wasn't there. Q. Right, but you know that the board formally engaged the Thomas More Law Center to assist in this litigation in December, 2004. Even though you weren't at that meeting, you knew that. Right? A. I knew it was formally engaged. I didn't know exactly when because I wasn't at any of the meetings in December. Q. And between the time that you first talked to Thomas More Law Center and the time the Thomas More Law Center was formally engaged, you talked to them approximately four to five times? A. Are you saying 45 or four to five? Q. I meant four to five times. A. I'm not sure how many times I talked to them. Q. Well, why don't you -- let me ask you a separate question. Between the first time that you talked to Thomas More Law Center and October 18th, how many times did you talk to Thomas More Law Center? A. Don't know. Q. It was at least several times. Correct? A. I don't know. Q. Well, you said at your deposition that you talked to them two to four times prior to October 18th. Do you recall that? A. No, I don't. Q. Well, take a look at Page 120 of your January 3rd deposition. A. I'm there. Q. And if you look at Page 120, Line 19, Question: How many times prior to October 18th did you talk to anyone from the Thomas More Law Center? And then there was an objection. And the answer: Maybe two, three, three times, maybe four. Do you see that? A. Again, I wasn't sure there either. That's why I answered it that way. Q. But it was two or more times. Correct? A. I'm not sure. Q. And all the calls and all the communications that you had with Thomas More Law Center were about -- were all about seeking legal advice. Correct? A. That's true. Q. And you didn't get any other kind of advice? A. No, sir. Q. And, in fact, your attorneys from the Thomas More Law Center prevented the plaintiffs in this case from discovering the substance of the communications that you and the board had with Thomas More Law Center by asserting the attorney-client privilege. Do you recall that? A. Yes. Q. Okay. Let's just shift to another subject now, Mr. Buckingham. You don't recall, as we just established a few minutes ago, when the subject of intelligent design first came up. Correct? A. At all? Q. No, with respect to the board and the process that we're talking about today. A. Well, the process includes the curriculum committee, and that would have been in, I guess, the spring of 2004. Q. So it's your testimony today that it did come up in the curriculum committee in the spring of 2004? A. I'm just guessing. I don't know. Q. You don't know. And you yourself looked into the subject of intelligent design in the summer of 2004. Correct? A. Yes. Q. And the curriculum committee didn't look into it, you looked into it. Isn't that true? A. I was on the curriculum committee. Q. Right, but the curriculum committee as a whole didn't look into it, you personally looked into it. Isn't that true? A. I don't know if they did or not. I know I did. Q. Well, let's just look at the transcript of your deposition on January 3rd. You told me -- well, let's go to Page 68 of that deposition. Are you at that page? A. Page 60, yes, sir. Q. 68. A. 68. I'm there. Q. And we're talking -- the subject is intelligent design, and I asked you on Line 8, Well, you were on the curriculum committee in the summer of 2004? Answer: Yes. And the curriculum committee looked at it, didn't they? Answer: I won't say the curriculum committee did. I did. Do you see that? A. Yes. Q. So that's what you told us on January the 3rd. Right? A. That's what I said. And if I could clarify my answer, when you talk about curriculum committee, I'm thinking you're talking about the committee as a whole at one time, not individual members of the curriculum committee doing it at their leisure. Q. Well, all you know about is what you did at your leisure? A. That's true. Q. And let's talk about what you did. You looked at the subject of intelligent design on the computer. Correct? A. Yes. Q. You went to some Web sites? A. Yes. Q. You don't remember what Web sites you went to? A. No. Wherever the computer took me. Q. And you ended up discussing the subject with Thomas More Law Center. And I don't want to get into the substance of that, but you ended up discussing it with Thomas More Law Center. Right? A. Yes. Q. And you also talked to the Discovery Institute about intelligent design. Correct? A. Yes. Q. And, again, I don't want to get into the substance of that, but both of those, Thomas More and Discovery Institute, that was legal advice about intelligent design. Right? A. Yes. Q. And you also got yourself a copy of Of Pandas and People. Right? A. Yes. Q. You ordered that from the Internet? A. Yes. Q. And you spent some time glancing through it. Correct? A. A minimal amount of time, yes. Q. Right. You didn't read it? A. Right. Q. You just flipped through the pages to see if there were any religious references in there. Correct? A. I won't say that. I just flipped through the pages to try to get a general idea of what the content of the text was. I wasn't looking for anything religious in it. Q. Well, that's not what you told us at your deposition. If you go to the March 31st deposition at Page 18. A. I'm there. Q. Are you at Page 18, Mr. Buckingham? A. Yes. Q. I asked -- Mr. Rothschild asked you on Line 9, Question: Did you feel, when you reviewed Pandas, you understood it? Answer: I didn't attempt to understand it fully. I wanted to make sure it didn't have a religious overtone. Question: How did you go about doing that? Answer: By reading it. Question: Did you read it cover to cover? Answer: I didn't read every single page. I skimmed through it. I looked for key words, that kind of thing. Question: What kind of key words were you looking for? Answer: God, Christianity, Bible, Creation. It wasn't there. Do you remember giving that testimony? A. That's true, I wanted to make sure it wasn't there. Q. And the things that we just talked about is all that you did to personally educate yourself about intelligent design before October 18th. Right? A. Yes. Q. Now, let's talk about your knowledge of what the rest of the board reviewed before October 18th. You know that some of the board members received copies of Pandas. Correct? A. I know they went and picked them up, if that's what you mean by received them, yes. Q. And surmised that some of them may have read parts or all of Pandas. Right? A. I surmised they opened the book and looked at it. I don't know how much they read or if they read it at all or just skimmed through it. Q. And that's the only material that you're aware of that any board members received, was Pandas? Materials about intelligent design I mean. A. Yes. Q. And no one made any kind of presentation to the board of directors about the subject of intelligent design, did they? A. Not to my knowledge. Q. And you did not participate in any discussions with board members in which you tried to persuade them to vote in favor of including intelligent design in the board curriculum, did you? A. No, I did not. Q. And you never participated in any discussions where any board members described their understanding of intelligent design, did you? A. Could you ask me the question again? Q. Sure. You never participated in any discussions with any members of the board of directors of the Dover Area School District in which any of them described their understanding of the subject of intelligent design. Isn't that true? A. I don't know if it is or not. Q. When I asked you this question at -- or when Mr. Rothschild asked you this at your deposition, you said not that you know of. So you don't know of any discussions in which a board member described his or her understanding of the subject intelligent design, do you? A. I'm sorry, I missed the last part of your question. You kind of dropped off. Q. No, that's fine. I'd be happy to repeat. I'm just saying, you're not saying here today that you know of or you can remember some discussion involving board members in which someone on the board described their understanding of the subject of intelligent design? A. No. Q. And no one from the board ever contacted the National Academy of Sciences to ask about the subject of biology textbooks or teaching biology to high school students. Correct? A. I don't know if they did or not. Q. You don't have any information to suggest that anyone did that. Correct? A. That's true. Q. And you don't have any information to suggest that anyone contacted the American Association for the Advancement of Sciences for the same kind of information? A. Again, I don't know if they did or not. Q. And you're not aware that anybody from the board contacted the American Federation of Biology Teachers to find out about teaching biology to high school students? A. Again, I don't know if they did or not. Q. And you're not aware, in fact, that the board contacted any scientific or educational organizations to find out about teaching biology or evolution or related subjects to high school students, are you? A. I think that's what the Discovery Institute gave me information on. Q. Other than the Discovery Institute, which concerned legal advice, you're not aware of anyone from the board contacting any organizations to seek information -- any educational or scientific organizations to seek information about teaching biology or related subjects to high school students, are you? A. I don't know if they did or not. Q. And you're not familiar with the positions of any of the organizations that I just mentioned -- and that is the National Academy of Sciences or the American Association for the Advancement of Sciences or the American Federation of Biology Teachers -- about whether intelligent design should be presented to students. Right? You're not aware of any of their statements or positions on that subject? A. That's true. THE COURT: Mr. Buckingham, I'm going to ask you to keep your voice up a little bit -- THE WITNESS: I'm sorry. THE COURT: -- or get a little closer to the microphone because I'm having trouble hearing you, and if I am, then certainly counsel is probably having difficulty. So try to keep your voice up or get a little closer to the microphone. THE WITNESS: Understood, Your Honor. Thank you. BY MR. HARVEY: Q. And in the entire process of developing and passing this resolution to include intelligent design in the high school science curriculum, the only organizations that the board ever contacted, to your knowledge, were the Discovery Institute and the Thomas More Law Center. Correct? A. Could you ask me that question again? Q. Sure. During the entire time that the board was considering or discussing in any way the change to the biology curriculum or the approval of the high school biology textbook or Pandas and People, you're not aware that the board or anyone for the board or acting on behalf of the board contacted any organization other than the Thomas More Law Center or the Discovery Institute. Isn't that true? A. Again, I don't know if they did or not. Q. But you don't have any information to suggest that they did. Correct? A. True. Q. Now, you were the board member who was pushing the subject of intelligent design. Isn't that true? A. I was the head of the curriculum committee, and I was put in the position where I was involved in most of the discussions. I won't say I was the board member that pushed it. There were nine people on that board. I couldn't do it all by myself. Q. Well, would you agree with me that you were the one who kept the conversation going about intelligent design? A. I took part in certainly more than one conversation about intelligent design. I won't say I kept it going. Some of the dialogue came from the other side. Q. Well, you were the board member who showed the most interest in the issue and made sure that the board curriculum committee kept addressing the issue of intelligent design. Isn't that true? A. I won't say that's true. It was a collective effort. Q. Well, when I asked you this at your deposition, you told me you were the one who kept the conversation about intelligent design going on the board. Do you remember that? A. No, sir, I don't. Q. Please take a look at Page 95 of your deposition transcript, the one of January 3rd. A. January 3rd? Q. Yes, sir. A. I'm sorry, what was the page again? Q. 95. Please let me know when you're there. A. I'm there. Q. Question, Line 10: Were you the one who was pushing the idea of including intelligent design in the curriculum? Answer: I wouldn't characterize it that way. Question: How would you characterize it? Answer: I was the one that -- I was one that -- I would say I kept the conversation going. Isn't that your testimony? A. That's what it says. And the reason it says that -- may I clarify my answer? Usually when something was directed to the curriculum committee or to the board, it was directed at me with regards to intelligent design. In that respect, I took a part in keeping the conversation going. Q. And, in fact, other members of the board were keeping the conversation going, as well. Right? A. Yes. Q. And other members of the board were pushing the idea of intelligent design? A. I won't say -- I won't use the word "pushing." Intelligent design is something that we felt would be beneficial to the kids because it's a scientific theory, and we thought we'd be doing the kids a good service by including that in their curriculum. Q. And what other board members were helping to keep the conversation going about intelligent design during the -- throughout the process? A. Sheila Harkins, Alan Bonsell, Heather Geesey. Noel Wenrich was for a while. For a while Jeff Brown was and Angie Yingling. Q. Now, it's your position that you wanted other scientific theories taught in addition to the theory of evolution so that the students would have a more well-rounded science education. Correct? A. Well, I focused on intelligent design because I thought I knew at least a little something about that, if not a whole lot, and the other theories I probably knew little or nothing about. Q. And you didn't insist or suggest any alternatives to any scientific theories other than evolution, did you, Mr. Buckingham? A. I'm sorry, could you ask me again? Q. Sure. You didn't suggest alternatives to any scientific theories other than the theory of evolution. Isn't that true? A. The theory of evolution, to my understanding, was flawed and it had gaps in it and I didn't want the students to hear just that because they would accept it as fact when there is another viable scientific theory out there called intelligent design. I wanted them to have more of a well-rounded education. Q. But my point is, you didn't suggest alternatives to any scientific theories that might be covered in the high school biology class other than the scientific theory of evolution, did you? A. I didn't know anything about other theories. You know, I could only deal with what I had a little bit of knowledge of. Q. Well, you didn't suggest any alternatives to any scientific theories in the chemistry class or the physics class, either, did you? A. I don't know anything about chemistry or physics at all. I couldn't do that. Q. Right. You were primarily concerned with evolution? A. Because I knew a little bit about it and I knew a little about intelligent design, and I felt including intelligent design would be beneficial for the students. Q. You don't have any background in science, do you, Mr. Buckingham? A. No, I don't, nothing formal. Q. Excuse me? A. Nothing formal, no, sir. Q. And, in fact, the school district has some paid professionals who are knowledgeable in the area of science education, doesn't it? A. Yes, they do. Q. Those are the science teachers. Right? A. That's true. Q. And the science teachers didn't want to present intelligent design as an alternative, did they? A. That's true. Q. In fact, they didn't even want to mention it. Correct? A. That's true. Q. So you disregarded or the board disregarded the view of the only scientific education advisors that it had. Isn't that correct? A. We did not disregard it. We considered it when we made our decisions. Q. Mr. Buckingham, you don't even know whether intelligent design is considered good science, do you? A. In my opinion, it is, and in the opinion of a lot of scientists, it is. Q. Well, at your deposition, Mr. Rothschild asked you about this, and you said that you didn't even know whether it was good science. Do you remember that? A. No, sir, I don't. Q. Please turn to Page 22 of your February -- excuse me, March 31st deposition. A. Page 22? Q. Yes, sir. Line 3. A. I'm there. Q. Mr. Rothschild asked you the following questions, and you gave the following answers: Is it your understanding that intelligent design is a scientifically sound concept? Answer: I think it is a scientific theory. Question: And if you can just answer my question. Do you have an understanding of whether it is sound science, good science? Answer: I'm not a scientist, I can't answer that. That was your testimony, wasn't it? A. Yes, it was. Q. Now, you wanted the students to hear about the possibility that aspects of the theory of evolution might be wrong. Right? That's what you wanted? A. There were some scientists that said there were some flaws and gaps in Darwin's theory of evolution, and I thought they should be told about it in the normal course of teaching Darwin's theory of evolution. Q. But just to focus on my question, you wanted the students to hear about the possibility that some aspects of the theory of evolution were wrong. Right? A. Yes. Q. And you specifically wanted the students to hear that the concept of common ancestry between humans and other species was wrong. Isn't that true? A. I don't remember saying that. Q. Mr. Buckingham, if you could turn in your notebook to what's been marked as P819. It's the last exhibit in the book. And, Matt, if you could bring that up. A. Okay, I'm there. Q. I'd like you to take a look at this document. It's a news item that was published in the Agape Press on October the 4th, 2004, isn't it? A. I have a York Dispatch. Q. It's the very last thing in your notebook. MR. HARVEY: Your Honor, may I approach to help? THE COURT: You may. THE WITNESS: I have it now, I have it now. BY MR. HARVEY: Q. Isn't that right? It's a news item that was published in the Agape Press on October 4th, 2004. Correct? A. Yes. Q. And are you familiar with the Agape Press? A. I don't know anything about it. Q. You didn't know that it was a religious news organization? A. No, sir. Q. Well, take a look at the third full paragraph here. Matt, if you could highlight that. And there's a statement here that's attributed to you. It says -- and I'm looking at the second sentence of the third full paragraph. Quotes, However, the school district's curriculum chairman, Bill Buckingham, says adding the book will simply provide a balanced presentation that allows students not only to learn about Darwin's theory on the origins of species, but also to hear about the possibility that some of Darwin's suppositions, including the idea that human beings evolved from apes, were wrong, close quotes. Do you see that? A. I see it. Q. Do you remember making a statement like that to a news reporter? A. No, sir, I don't. Q. And does that correctly state your position at the time? A. No, sir. Q. What's incorrect about that? A. I didn't say including the idea that humans -- I don't think I said any of it to a reporter. Did I misunderstand your question? I'm sorry? Q. You can just put that aside for right now, Mr. Buckingham. I'm going to ask you -- that exhibit we're not going to look at again, but we might look at the binder in just a minute. Now, you're aware that a number of copies of Of Pandas and People were donated to the high school? A. Yes. Q. And they were donated to be used in the classroom as reference texts. Correct? A. Yes. Q. And there were approximately 60 copies that were donated. Do you remember that? A. Yes. Q. And Dr. Nilsen, who is the superintendent, accepted that donation? A. Yes. Q. In fact, why don't we take a look just quickly at P78, Page 9. It will come up on your monitor or you can look in your book. P78, if you look at it, is the agenda for the October 4th, 2004 meeting of the Dover Area School District Board of Directors. Correct? A. Yes. Q. And then if you go -- if you look at Page 9, there's a section there under curriculum with your name next to it. A. I'm looking at the monitor. Q. I'm sorry, I told you -- I misled you. I said don't bother looking at the -- you need to look at the exhibit itself just to make sure you've got the right one here. Please look at P78. A. Okay, I have it. Q. That's the agenda for the October 4th meeting of the board of directors. Correct? A. Yes. Q. Now, if you'll look at Page 9 of that, which has also got the Bates Number 135 at the bottom -- A. I have it. Q. That shows that -- and it says, quotes, The superintendent has approved the donation of two classroom sets, 25 each, of Of Pandas and People. The classroom sets will be used as references and will be made available to all students, close quotes. Do you see that? A. Yes. Q. And that, actually, is what happened at the board meeting on October the 4th, that information was provided to the board? A. Yes. Q. Now, let's talk about that donation. Pandas and People was donated to the school district. Right? A. Yes. Q. No taxpayer funds were involved? A. That's true. Q. And, in fact, you took up a collection at your church for Pandas and People. Right? A. Not as such I didn't, no. Q. Well, you did take up a collection at your church. Right? A. Money was donated, but I didn't ask for it. Q. You stood in the front of your church, in the Harmony Grove Community Church, and you made a statement that you were accepting donations for the book Pandas and People. Correct? A. No, I didn't. I'm sorry, I did say that, but there was more to it. Q. In fact, you checked with one of the church elders before getting up to make that statement to see if it was okay if you could make that statement at the front of your church. Correct? A. I spoke to a church elder to ask if I could have about two minutes prior to the church starting to address the congregation, yes. Q. And this was on a Sunday? A. Yes. Q. And you stood not in the pulpit but in the front of the pews while people were actually in the church. Right? A. Yes. Q. And you said that there's a need, we don't want to use taxpayer dollars, and if you feel led to donate, fine. I'm not asking for money, I'm just letting you know there's a need. That's what you said. Right? A. That's true. Q. And you also said that the books were going to be used as a supplement to use with the regular textbook. Correct? A. At that time that might have been the thinking. I'm not sure. I'm not sure about that. Q. Well, you didn't say anything other than what I just said to you to the church, the people in the church, on that Sunday when you were standing there asking them to give if they felt that they wanted to. Correct? A. By "supplement," I meant a reference book to go along supplementing the regular biology book, but that's true. Q. Right. But what I'm saying is, it's your testimony, your claim, that you didn't say anything more than what I just said, and that is specifically that there's a need and we don't want to use taxpayer dollars, if you want to donate, fine, I'm not asking for money, I'm just letting you know there's a need, and the books are going to be used as a supplement with the regular textbook. You didn't say anything more than that to the people in the church. Correct? A. That's true. Q. And the people in the church donated mostly cash but one check totaling $850? A. That's true. Q. And, Mr. Buckingham, isn't it true that you made a reference in that statement to those church members and you told them that it was important they do this for religious reasons? A. Absolutely not. Q. You didn't raise money for Pandas and People anyplace other than your church, did you? MR. GILLEN: Your Honor, objection. To the extent that Mr. Harvey is trying to create an inference that by asking at church, there's some sort of religious plot, I believe the question begins to burden Mr. Buckingham's ability to associate for the purpose of his free exercise. I mean, where he asked -- you know, if he asked the church, if that's where his friends and community is, that's his business. It's improper to try and draw some inference to that. THE COURT: Well, that's argument. That's not an evidentiary objection, is it? MR. GILLEN: Well, I think it's an evidentiary objection to the extent that he's seeking to elicit this information to support the inference proposed by his question. THE COURT: I'm still hearing argument. I'm not hearing an objection -- MR. GILLEN: Well, and I don't wish to argue. THE COURT: -- based on the rules of evidence. I understand your point, and it might be argument, it might be valid argument. Under the circumstances, I think the question is fair. He asked him did he raise money at any other place than his church. MR. GILLEN: Yes. And my purpose is in suggesting that the thrust of the question to create that inference is improper because he's trying to make it look as if there was some sort of religious mission when he asked his friends. THE COURT: Well, that goes to the weight that I'll give it. It's a bench trial. I mean, I still don't hear something that's grounded in the rules of evidence. MR. GILLEN: Well, I guess I'm saying he does have a First Amendment privilege to free exercise, and I think that Mr. Harvey is -- the thrust of his question right now is to burden his ability to associate and ask his co-religionists to support something he thinks is worthwhile. THE COURT: Unless I missed something, though, the First Amendment privilege that he has that you're citing to doesn't act as a bar to answering that question. Do you think it does? MR. GILLEN: Well, I think it does border right on the limit because it is creating this inference that would be a burden on his free exercise right. If people weren't free to do what he's done, to ask, or if it could be used against them later, it would be a burden on their ability to go in front of any congregation and ask support for any number of things. THE COURT: I don't see it, but let's hear from Mr. Harvey. MR. HARVEY: Your Honor, I don't in any way mean to infringe upon this man's religious freedom in any way, but if he's going to take the stand and claim that he had no religious purpose in the actions of the school board and then they took up a donation at a church, I'm entitled to explore that to show that he, indeed, had religious purposes. THE COURT: I think it's a fair question in the context of this case and in the line of questions that Mr. Harvey has already asked, so I overrule the objection. Do you remember the question, sir? THE WITNESS: Yes, I do. THE COURT: All right. You can answer the question. THE WITNESS: I did that. And I was going to ask to clarify my answer, but it's kind of been done by my attorney there. My wife and I are both very active in our church, and the friends that we have in the community basically are the people that go to our church. They're the people we talk to, they're the people we socialize with basically more than, other than family, anyone else. And that was the natural place for me to go to do that. BY MR. HARVEY: Q. So you collected money at the church because the church is your life, is what you're essentially saying. Correct? A. I didn't say the church is my life. I have a family. I have other interests. But the church is an important part of my life. The people that go there are important to me. It's, if you will, an extended family, and that is how I got to make the statement there. It had nothing to do with, look, because we're Christians, I think we ought to do that. It had nothing -- I didn't mention Christianity at all. I talked to them just like they were my friends, which they are. Q. And the direct answer to the question I asked you previously is, you didn't ask for money at any place other than your church. Isn't that true? A. I don't know that I asked for money there. I guess we get -- what does "asked" mean? I said what you said. I said if you want to give money, fine. I'm not asking you for any, I'm not telling you to give any, it's up to you if you see a need and you want to help. Q. Well, you didn't go to any place other than your church to make any kind of a statement and then accept whatever donations people would spontaneously give you. You only did that at your church. Right? A. I don't go to many other places where I would have people like -- a group of people. You know, I did what I could do with the school board. I was active in the church. I had physical limitations. There were limitations to what I could do, and I did the best I could with what I had. Q. You said earlier that a literal reading of the Bible was one of the foundations of your faith? A. True. Q. And that's true for the -- you believe for the people who worship with you at your church, the Harmony Grove Community Church. Correct? A. I won't speak for them. Q. Mr. Buckingham, do you really think that the people at your church would have given money for this book if they didn't think that there was some religious connection to it? A. The people in our church give money to a lot of things. This book was one thing of many that they donated money to, and it's not always because of a religious thing. Q. Do they usually donate money to public schools or, better yet, have they ever donated any money to a public school before? A. I don't know. I've only been going to church there for ten years. Q. Now, let's take a look at what's been marked as P80. Matt, could you put that up. Mr. Buckingham, do you have in front of you what's been marked as P80? A. Yes, I do. Q. That's actually a copy of the check that you wrote to Donald Bonsell for the $850 that you collected at your church. Right? A. Yes. Q. Now, we've whited out any identifying information, any codes or anything like that. I don't know whether you have that check -- your account still open, but I just want to let you know there's no -- hopefully there's no information on there. And if you look at this, the check is dated October the 4th, 2004. Right? A. Yes. Q. And it's drawn on the bank account for you and your wife. Right? A. Yes. Q. And under the "re" line, it says, Of Pandas and People -- I can't read the last word, can you? A. Books. Q. And that's your handwriting. Right? A. I think I printed it, yes. Q. And then that's your signature on the check? A. Yes. Q. And the check is, in fact, for $850. Right? A. Yes. Q. Now, Donald Bonsell is Alan Bonsell's father. Right? A. Yes, he is. Q. And you gave the check to Alan Bonsell to give to his father. Correct? A. Yes. Q. And you made the check out to Alan -- to Donald Bonsell because it was your understanding that he was actually going to be the one who purchased the copies of Of Pandas and People. Right? A. I felt he probably would, but I didn't know if he was going to give it to someone else. Q. And at a board meeting in the fall of 2004, a question was raised by a man named Larry Snoke, who was a former member of the board, about who donated the copies of Pandas to the school district. Right? A. Yes, I remember that. Q. And the board didn't provide any answer to Mr. Snoke's question, did they? A. I don't recall what the response was. Q. Well, you didn't speak up and say that you knew where the money came from, did you? A. No, I didn't. Q. And are you aware that Mr. Alan Bonsell spoke up and said he knew where the money came from? A. I don't remember him saying that. Q. And the reason why you didn't speak up at the board meeting in the fall of 2004 about who donated the money for the donation of Pandas is because you didn't want anybody to know that the money was raised at a church. Isn't that true? A. That's not true. I didn't -- I couldn't say who donated the money because I didn't know where cash came from. We had mailboxes inside the church that the pastor and the elders used to communicate with us from week to week, and envelopes would be placed in there with cash in it. There was no note, there was nothing, it was just cash. I didn't know who gave it to me, I just knew where it came from. Q. So you just knew that it came from members of your church, but you didn't know which specific members of your church. Right? A. As far as the cash goes, that's true. Q. And there was also one check, and you knew who that came from. Right? A. Yes, I do. Q. And you think that because you didn't know the specific names of the people at your church who gave the money, that you shouldn't tell this former board member, this member of the public, where this -- that the money for the donation was collected at your church. You didn't think you should share that information. Right? A. I didn't see where it was relevant. Q. Well, actually, you wanted to hide that information. Isn't that true, Mr. Buckingham? A. No. If someone would have asked me if it came from the church, the people at the church, I would have told them it did, but it never came up. Q. Well, Mr. Buckingham -- A. It was put to us, who donated the money, and I don't know who did. I know there were people in a certain setting that did, but I don't know who they were. Q. If someone had asked you specifically about that, you would have told them. Right? A. Asked me about what? Q. About who donated the money. A. I don't know who donated the money. Q. I'm asking you, if somebody had asked you specifically who donated the money, you're telling us you would have told them. Right? A. As far as the cash goes, yes. Q. Well, as a matter of fact, Mr. Buckingham, I asked you specifically who donated the money, and you didn't tell me at your deposition on January the 3rd, 2005. Isn't that true? A. The cash are you talking about? Q. I asked -- let's review your testimony. Please go to Page 57, Line 9. A. Of the March or -- Q. This is January 3rd. A. 57, Line 9? Q. Yes, sir. A. I'm there. Q. I asked you the following questions, and you gave the following answers: Question: The school district received a number of copies of the book Of Pandas and People. Correct? Answer: Yes. Question: Do you know how many copies? Answer: I've been told there were 60. I haven't seen them. Question: Do you know where that came from, who donated the money? Answer: No, I don't. Question: You have no idea? Answer: I have thoughts, but I don't know. Question: What are your thoughts? Answer: I think it could have a tie to Alan Bonsell, who was board president at the time. Question: Why do you think -- I know you're not saying it was, but why do you think it might have ties to Mr. Bonsell? Answer: Because he was the president of the board at the time, and I just deduced from that that. That was the testimony that you gave on January the 3rd of 2005. Isn't that true? A. Doesn't that reference the books, not the money? Q. Isn't that the testimony that you gave on January the 3rd, 2005? A. Yes. Q. And then if you'll turn, Mr. Buckingham, to -- or, actually, go down the page to Line 24 on Page 58. Didn't I ask you the following questions and you give the following answers: Question: Were you ever at a board meeting where someone asked who donated the book to the school, in fact, Larry Snoke, a former board member asking who donated it? Answer: I think he expressed a wonder-type thing over where they came from. I don't think -- I don't remember anybody asking directly where they came from. Question: Were you curious to know where it came from? Answer: I know they came from someone in the public sector. I know we didn't use taxpayer funds to pay for them. Question: Did you ask where it came from? Answer: No. Question: Why didn't you ask? Answer: Didn't want to know. Question: Why didn't you want to know? Answer: Well, what purpose would it serve? Question: Well, because you're a board member and the school district is part of your responsibility as a board member and maybe where these books came from would be something that you should know. Answer: No, I think it was a wonderful gesture, and I didn't concern myself with where they came from. That was your testimony, wasn't it, Mr. Buckingham? A. I believe Larry Snoke was asking where the money came from, not where the books came from, and that was why I answered that that way. And the rest of it is my testimony, yes. Q. Well, when I asked you, why didn't you ask where it came from, and you said, didn't want to know, what you really meant to say was that you knew where it came from. That was the right answer there, wasn't it? That was the correct answer? A. I didn't know who donated the cash. I knew they were in a certain building when they put it in the box, but I don't know who put the cash in the box. Q. You knew that I was seeking that -- A. In the mailbox. Q. You knew that I was seeking that information when I asked you those questions on January 3rd, and you didn't give me the -- you didn't tell me anything about donations being taken -- a collection being taken at your church. Isn't that correct? A. I didn't consider it a collection. I didn't ask for it. They just did it because there was a need there. I didn't ask them for it. Q. Mr. Buckingham, you lied to me at your deposition on January 3rd, 2005. Isn't that true? A. How so? Q. By not telling me, when I asked you those questions, that you knew that a collection had been taken at your church for the book Of Pandas and People. A. I did not take a collection. Q. Well, you wrote the check to Donald Bonsell, didn't you? A. Yes, I did. Q. And you didn't tell me that you knew that -- anything about Mr. Bonsell, did you? A. I don't recall if I did or not. Q. Well, we just read your testimony. You didn't say anything about Donald Bonsell in that testimony, did you? Do you want to go back and look at it? A. Well, there's more testimony than that. I don't know if I referenced him anyplace else in it or not. Q. Well, when I was asking you about where the donation of Of Pandas and People came from, you didn't mention anything about Donald Bonsell, did you? Do we need to relook at your testimony again? A. I'd like to, yes. Q. Okay. Let's do that. January 3, Page 57, Line 9. Let me read it to you again, Mr. Buckingham, and you tell me if I've got it right. Question: The school district received a number of copies of the book Pandas and People. Correct? Answer: Yes. Question: Do you know how many copies? Answer: I've been told there were 60. I haven't seen them. Question: Do you know where that came from, who donated them? Answer: No, I don't. Question: You have no idea? Answer: I have thoughts, but I don't know. Question: What are your thoughts? Answer: I think it could have a tie to Alan Bonsell who was board president at the time. Question: Why do you think -- I know you're not saying it was, but why do you think it might have ties to Mr. Bonsell? Answer: Because he was the president of the board at that time, and I just deduced from that that. Did I read that correctly? A. Yes, you did. Q. No reference to Donald Bonsell in there. Right? A. No, there wasn't. Q. You should have told me about that at the time, shouldn't you, to be truthful? A. I thought I answered the question the way you asked it. Money was given to Alan Bonsell to forward to someone, turning out to be his father, that it was going to go someplace else. I don't -- Q. Well, you knew that it was being given to Donald Bonsell because you wrote his name on the check? A. That's true. THE COURT: Mr. Harvey, why don't you move to the next area. I get the point, and you've made the point very effectively, and I don't think you need to stay in this area. I'll give you some more latitude if you want, a little bit, but -- MR. HARVEY: Your honor, I'm done. THE COURT: -- I get the point effectively. MR. HARVEY: No further questions at this time. THE COURT: All right. Mr. Gillen. MR. GILLEN: Thank you, Your Honor. CROSS-EXAMINATION BY MR. GILLEN: Q. Good afternoon, Bill. A. Good afternoon. Q. Mr. Harvey has covered a great deal of ground this morning, and I've got a few questions that I want to ask you. There was some mention of a moment of silence or prayer in 2003. Let me ask you, while you were on the Dover Area School District board, did you ever contemplate requiring mandatory prayer for students? A. Never. Q. Did you ever discuss mandatory prayer for students with anyone on the Dover Area School District school board? A. No. Q. Mr. Harvey has directed your attention to certain portions of your deposition taken on March 31st, 2005. I'd ask you to look at Page 22. A. I'm sorry, page -- Q. 22. And the portion of the deposition that you were questioned about had to do with whether you understood intelligent design was a scientific theory. Something that was not noticed was your testimony on the remainder of that page. And I'd like to ask you, Bill, when you considered intelligent design as a scientific theory, where did you get that idea? That's a fair question. Where did you get that idea? A. I first heard the term "intelligent design" right after I came on the school board. And when I was appointed to the chair of the curriculum committee right prior -- or right after, I researched intelligent design on the computer to some extent, not exhaustive, to try to familiarize myself with it. Q. And did you encounter information about scientists who you believe supported the theory? A. Yes, I did. I came across one Web site that said there were like 300 scientists that supported it. Q. At any time during this process relating to the biology text and the change to the biology curriculum did you believe that intelligent design was a religious theory? A. No, sir. Q. Did you believe that intelligent design was creationism? A. No, sir. Q. I want to ask you a few questions about the statement given by your wife without causing undue marital discord. I want to ask you, did she discuss the content of what she was going to say with you prior to attending the board meeting? A. No, sir, she did not. Q. Did she tell you what issue she was going to address? A. No, she did not. Q. Did you talk to her afterwards about what she had said? A. I did talk to her afterwards about what she said, and I told her that we weren't -- that her remarks were biblical and that we weren't talking about creationism, we were talking about intelligent design, and intelligent design is not a biblical theory, it's a scientific theory, and that she was way off base when she made her remarks. Q. There's this notion you've expressed here today about the myth of separation of church and state or separation of church and state being a myth. You've said that you mentioned that statement at some of these board meetings. And I want to ask you, how did that come up, the separation of church and state? A. It came up in reference to things said by people in the public, and on one occasion Angie Yingling uttered those words to me. And my response was, in my opinion, the separation of church and state is a myth. I don't think it's in the Constitution anyway. Q. Yeah, but what was your point? I mean, was your point separation of -- A. We weren't teaching -- I'm sorry. Q. What was your point? You need to explain that so it's not misunderstood. Was your point that separation of church and state is a myth, so we can teach creationism? MR. HARVEY: Your Honor, objection. Leading. MR. GILLEN: I'm asking what his point was. THE COURT: Well, you can ask him what his point was, but not the second part of the question, so the objection is sustained. You can rephrase. MR. GILLEN: Okay. BY MR. GILLEN: Q. What was your point when you're raising this notion that -- A. Well, when the separation of church and state issue was raised, the point was that we were not talking about creationism, we were talking about intelligent design, which had nothing to do with the church at all. Q. There's been discussion, too, about a mural. And I want you to explain, what was the significance of the mural to you? A. The science teachers told us they didn't feel comfortable teaching the origins of life. And I found out after that that there had been a teaching aid in a biology classroom aiding in the teaching of just that, the origins of life. And I felt like I was kind of sandbagged, and I just felt I wasn't being dealt with fairly. Q. What do you mean by that? A. Because I wasn't being told the truth. Q. By whom? A. By the teachers in the science department. Q. There's been some discussion of Mr. Reeser. During this period, the June, July, the summer of 2004, did you know that Mr. Reeser had destroyed that mural? A. I didn't even know there was a mural until after we had this -- we talked about the teachers didn't want to teach the origins of life, and we walked out of the meeting, and Mrs. Harkins says, that's funny, that doesn't go along with the mural that was the teaching aid in the biology room. I said, what mural are you talking about? I'd like to see it. And she said, it's not there anymore. So I left, and I knew that Larry Reeser was a long-time employee of this school district. I thought, well, if anybody saw it, he did. So I went to his house, and I asked him if he had ever seen anything like that. And he said, I not only saw it, I have pictures of it. And he gave me two pictures of it. Q. And what was the significance of the pictures? Why did you take them? A. I took them because they were given to me, and, to me, they helped to substantiate that I didn't think I was being dealt with fairly. I felt like I was being sandbagged, because on one hand they're saying they don't want to teach origins of life, but on the other hand, they have a mural in the biology class as a teaching aid for origins of life. Q. Well, let me ask you about the mural. Did you tell Jen Miller that you danced with glee or laughed with glee when the mural was destroyed? A. I didn't know anything about that mural until after I got on the curriculum committee and we talked to the science department and Sheila Harkins told me that it existed. I had never heard of it. Q. Mr. Harvey has asked you some questions about putting the proposed curriculum change on the agenda for the October 18th, 2004 meeting despite the fact that it had not been placed on the agenda for the prior meeting. Had items been placed on the agenda for a second board meeting without consideration at a prior board meeting on other occasions? A. As I recall they had, if they had to be expedited for some reason. Q. Bill, when you voted for this curriculum change on October 18th, 2004, did you believe intelligent design was creationism? A. Absolutely not. Q. Let me ask you about conversations with Casey Brown. Did you ever ask Casey Brown if she was born again? A. No, I did not. Q. Did Casey Brown ever discuss her religious beliefs with you? A. Yes, she did. Q. Did you ever question Casey Brown about her religious beliefs? A. No, I didn't. Q. Did you ever pressure Angie Yingling to vote on any measure of the Dover Area School District school board that was up for review, up for consideration by the board saying that she had to do so to be a good Christian? A. No, sir, I did not. Q. Well, let me ask you this. When you voted for this curriculum change, did you believe that you were putting in place an illegal curriculum change? A. No, sir, I did not. Q. Was it your purpose to permanently prevent the purchase of the biology textbook recommended by the science faculty of Dover Area School District at any time while you were on the board? A. No, sir. MR. HARVEY: Objection, Your Honor. I'm willing not to object to a certain amount of leading because it's sometimes helpful to develop the testimony and keep things moving, but we're now exclusively into leading, and I object to the question. THE COURT: Well, he answered that question. Mr. Gillen, I'll ask you to try to lead only in those areas that are likely not going to be problematic, and these go to the heart of the case, so use some caution. MR. GILLEN: I will attempt to do so, Your Honor. BY MR. GILLEN: Q. Did you ever intend to prevent the teaching of evolutionary theory at Dover Area School District? MR. HARVEY: Objection, leading. MR. GILLEN: That's did, did you ever intend. How else can I ask him, I guess is the question? THE COURT: I'm going to allow the question because we've got to keep moving. I'll allow that particular question, and I'll overrule the objection. You can answer the question, sir. THE WITNESS: Could you ask me again, please? BY MR. GILLEN: Q. Did you ever have as your purpose to prevent the teaching of evolutionary theory at Dover Area School District? A. Never. Q. What was your purpose in supporting the proposed curriculum change on October 18th, 2004? A. We were doing it for the students, to give them an alternative scientific theory to go along with their biology class. We thought we were doing something good for them. MR. GILLEN: No further questions, Your Honor. THE COURT: All right. I'll give one more round to Mr. Harvey. Now, let me just ask, are you going to be fairly brief? MR. HARVEY: Extremely, Your Honor. THE COURT: Okay, because -- MR. HARVEY: In fact, it's over. THE COURT: You don't have any questions? MR. HARVEY: I don't have any questions. THE COURT: Because I think this would be an appropriate time to take a break. I know you want to get the reporters' testimony in today, do we not? I see Mr. Benn standing patiently in the back. So why don't we take a break at this point for about 15 minutes and -- or 20 minutes, let's say, and then we will pick up. And I think that should give us enough time, plenty of time to get the reporters' testimony in before we close the record for today. We'll be in recess for 20 minutes. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 16 (October 27), PM Session, Part 2 THE COURT: All right, our next witness. MR. WALCZAK: Plaintiffs call Heidi Bernhard-Bubb. MR. WHITE: Your Honor, just for the record, we continue our objection to the limited discovery and the limited inquiry we're allowed to have with the reporters per your orders, especially the one on September 28th of 2005. THE COURT: Well, your objection is preserved, I'm sure, but we'll note that for the record. MR. WHITE: Thank you, Your Honor. THE COURT: You may take the stand, ma'am. HEIDI BERNHARD-BUBB, called as a witness, having been duly sworn or affirmed, testified as follows: THE COURT: Before we start the questioning, Mr. Benn, do you want to enter your appearance specially for the purpose of this examination? Are you going to go on the record? MR. BENN: Yes. THE COURT: Why don't you do that. MR. BENN: Thank you. My name is Niles Benn, and I'm here on behalf of Heidi Bernhard-Bubb, as well as Mr. Maldonado, who is going to be testifying after Ms. Bernhard-Bubb. I'm representing both reporters with respect to this matter and have represented them through this process, including the court order referred to by Mr. White. THE COURT: And it's the Court's understanding and I want to make sure that we're all clear, and I mean all counsel, that Mr. Benn is appearing specially in the capacity as just stated and that Mr. Benn will be allowed to interpose an objection pursuant to his limited representation of the reporters. Is that acceptable or understood, at least, by all counsel? MR. WHITE: Yes, Your Honor. MR. BENN: Thank you, Your Honor. MR. WALCZAK: Yes, Your Honor. THE COURT: You may proceed. DIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning -- or afternoon. Would you please state your name. A. Heidi Bernhard-Bubb. Q. And what do you do, Ms. Bernhard-Bubb? A. I'm a stay-at-home mother, and I freelance for the York Dispatch. Q. And do you work part time for the newspaper? A. That's correct. Q. And that is a newspaper in York County? A. Yes, that's correct. Q. Do you work for any other newspaper? A. No, just the York Dispatch. Q. And how long have you been working for the newspaper? A. For four years. Q. And are you assigned certain beats? A. Yeah. I -- excuse me, I have several general assignments. Q. And are you assigned to two municipal boards and one school board? A. Right, that's what I have currently. Q. And is one of those school board assignments the Dover Area School District? A. It isn't currently, but it was previously. Q. When did you cover the Dover Area School District? A. From September of 2001 through July of this year. Q. And I want to focus your testimony today on 2004. Do you recall whether you attended all of the Dover Area School Board's public meetings during that year? A. Yes, I believe I did. Q. And might you have missed one on October the 18th? A. Yes, I did. Q. Other than that, your recollection is that you attended all of their public school board meetings? A. Yes, that's correct. Q. I want to go through a series of questions that will apply to all of the articles before we focus on the eight articles today. When you attend Dover area school board meetings, you generally sit in the same place? A. Yes, near the front of the room. Q. Why do you do that? A. So I can hear and see. Q. And do you leave meetings in the middle? A. No, not usually. Q. And when we look at a newspaper article, which we'll do very shortly, do you write the titles to the articles? A. No. That is done by the editors. Q. And there's also usually a sub -- is it called a title or a heading? A. Subheadings. Q. And you don't write those? A. Right, that's correct, I don't write those. Q. But the text in the article, that is your work product? A. Yes. Q. And do sometimes editors add text to your articles? A. No. Q. When you go to these meetings, do you typically take notes? A. Yes, I do. Q. And is it your practice to take accurate notes? A. Yes, absolutely. Q. And do you occasionally write down quotes? A. Yes, that's right. Q. And do you have a practice as to how you do that in your notes? A. I write them out longhand, and I always put them in quotation marks if it's a direct or exact verbatim quote. Q. And you attempt to write down exactly what it is you heard? A. That's correct. Q. And when you go to write your articles, do you refer to your notes? A. Yes. Q. Is that the primary source that you use for writing the article? A. Yes. Q. And when it comes to the articles about the Dover Area School Board district meetings, typically when do you write those articles in relation to when the meeting occurred? A. Typically the evening of the meeting, right after the meeting, and sometimes maybe the day or two after depending on the nature of whatever I'm writing. Q. So it may depend on the deadline that you have? A. That's correct. Q. But usually it's written within a few hours or, at most, a day of the actual meeting? A. Yes, that's right. Q. So the meeting is still fresh in your mind when you're writing the story? A. Yes. Q. Is there another newspaper in York County? A. Yes, there is. Q. And what is that newspaper? A. That's the Daily Record. Q. And do you cooperate on stories with reporters from the Daily Record? A. Absolutely not. The Daily Record is our competition. Q. So you don't have, like, joint ventures, joint articles? A. No. Q. Do you know a reporter named Joseph Maldonado? A. Yes. Q. And who is he? A. He is a freelancer for the Daily Record, and he also covered the Dover Area School District. Q. And was he covering the school board meetings in 2004 at the same time you were covering them? A. Yes, that's right. Q. So typically you would both be at the same meetings? A. Yes. Q. And did you ever discuss with him a story before you actually wrote it? A. Never. Q. Have you ever discussed a story with him, period? A. Never. Q. Now, I'm going to discuss with you eight articles that you wrote between June and November of 2004. And let me just ask you a couple of general questions that will apply to all eight of these articles. These are all articles about which you were questioned in your deposition a couple of weeks ago. Do you testify here today knowing that you're under oath, that those articles accurately depict what happened at Dover School Board meetings? A. Absolutely. Q. And that the quotes attributed by you to people are accurate based on you having actually heard them say the respective comments? A. Yes. Q. And that when you wrote that someone, quote, said something, even though it's not in quotes, your characterization was, to the best of your ability, true and accurate? A. Yes. MR. WALCZAK: May I approach the witness, Your Honor? THE COURT: You may. MR. WALCZAK: Matt, could you put up Plaintiffs' Exhibit 804, please. BY MR. WALCZAK: Q. Now, Ms. Bubb, since you have not been in the courtroom before -- let me just establish, you have not listened to any of the testimony in this case? A. That's correct. Q. This is your first day you've been in court? A. Yes. Q. You did not hear Mr. Buckingham's testimony today? A. No. Q. And nobody reported to you what he said? A. No. Q. Let me just tell you that you can look at the exhibit in two places. You can either look at the hard copy, we also project it up on the screen, which is the same thing that's on the monitor in front of you, whatever is easier for you. Do you recognize what's been marked as Plaintiffs' Exhibit 804? A. Yes. Q. And what is that? A. It's an article that I wrote that ran June 8th, 2004. Q. And did you write this after attending the Dover Area School District board meeting on June the 7th? A. Yes. Q. As you sit here today, do you have any independent recollection of what happened at that meeting? A. Yes, I do. Q. Have you had an opportunity to review this article before you came in here today? A. Yes, I have. Q. Is what you wrote in this article an accurate description of what you personally heard and observed on June 7th, 2004? A. Yes. Q. Now, I want to take a little bit more time in going through this article to help explain your writing style. The articles after this we'll go through more quickly. Let me ask you, the practice that you applied in writing this article, is that your general practice that you use for all articles? A. I'm sorry, can you be more specific? Q. Well, you know what, let's go through this, and I'll come back and ask you that question later. A. Okay. Q. Matt, if you could highlight the first highlighted passage beginning with the third paragraph. At the very top of the highlighted passage it reads, William Buckingham, board member and head of the curriculum committee, said he is unhappy with the proposed ninth-grade biology textbook because it teaches evolution and not creationism. Did I read that correctly? A. Yes. Q. Now, there are no quotes in this paragraph. Is that correct? A. Right. Q. But it does say, in the middle of that paragraph, that Mr. Buckingham said he is unhappy with the proposed ninth-grade textbook. Could you explain to us how you wrote that, when you put quotes in and when you don't put quotes in? A. Yes, I can do that. Primarily in this situation where I'm paraphrasing, paraphrasing is primarily used for the sake of concision and for the sake of accuracy. A lot of times, for instance, during a meeting a dialogue might go on for over an hour. A person may say a number of things. Their position may become clear in response to questions, to dialogue with other board members, et cetera. And so primarily paraphrasing is used to accurately reflect their position based on the content of the entire conversation and based on what they said. But whether I'm quoting something verbatim or whether I'm just attributing to them or paraphrasing a quote, it always comes directly from what they said. Q. So, for instance, in that first paragraph that I just read to you, there are no quotes, but to your recollection, are there things that you could have put in quotes? A. I don't know the exact language, but certainly it was something that he said, that he was unhappy with the textbook, et cetera. Q. Now, let's look at the second paragraph there. Matt, if you could highlight that quote. And that reads, quote, It is inexcusable to have a book that says man descends from apes with nothing to counterbalance it, Buckingham said of the book. And he's referring to Miller and Levine. So, now, that is in quotes and attributed to William Buckingham. So what does that mean that it's in quotes? A. That means that it was taken verbatim from what he said and nothing was omitted, there was -- all of the language was his. Q. And as you described your practice earlier, what you would have done is written down exactly those words in your notes? A. That's correct. Q. And do you put quotes around that? A. Yes, I do, so I'll know that that's a direct quote. Q. So when you go back to write the story a few hours later or the next day, you can look back and recall that that was a quote? A. That's correct. Q. And is that the practice you applied to that particular quote? A. Yes. Q. And is that the practice you apply to all the quotes that you write in your articles? A. Yes. Q. Let's look at the third paragraph there. And it says that Mr. Buckingham had not read the current text, current biology text. He said that the committee would be looking for another textbook. Again, there are no quotes in that paragraph. Correct? A. Right. Q. But you do say that he, quote, said that the committee will be looking for another textbook. So do I understand that at some point in the course of the meeting, that is, he said words to that effect? A. That's correct. Q. Let's look at the fourth paragraph there. And it reads, He said he had no objection to evolution being presented as a theory but believes it should not be presented as the only one to explain human existence. Now, again, there are no quotes in that paragraph? A. Right, that's correct. Q. And are there some things that could have been in quotes in that paragraph? A. I believe so. I think "no objection to evolution being presented as a theory" could have been put into quotes and "human existence" could have been put into quotes. Q. Matt, if you could highlight the next paragraph. Now, here you have a quote attributed to a Noel Wenrich. Who is Noel Wenrich? A. Noel Wenrich was a board member at the time. Q. And, Matt, if you could highlight the quote. And if you could read that quote, please. A. (Reading:) In science, there are competing theories. When you cease to present both, the remaining one becomes fact. Q. So that would have been something that you heard him say, and what you wrote there was verbatim what you heard? A. That's correct. Q. Matt, if you could highlight the next set of passages, please. Now, starting at the bottom of the first column there and going down to about the middle of the second column, is that something you wrote? A. No, that was put in by the editors the following morning. Q. So that was not something that was discussed at the meeting? A. No. Q. So that was given to provide some additional context? A. Yes, that's correct. Q. Matt, if you could now highlight the next set of passages, please. Looking at the second column about halfway down, it talks about Superintendent Richard Nilsen. Now, are these comments that Dr. Nilsen made during the board meeting? A. I believe these comments were made after, directly after the board meeting. Q. And do you, on occasion, stay and ask questions of board members and administrators? A. Almost every meeting, yes. Q. And can you give us context about where you -- when and where this conversation took place? A. Yes. This would be directly after the meeting. Dr. Nilsen sits at the front of the room at the table with the school board members. I typically go up to the front of the table and ask my questions there, try to catch him before he leaves. Q. And let's look at the second paragraph there. It says, quote, The teachers cannot teach from a book that is not board-adopted. Is that an exact quote that you heard Dr. Nilsen make? A. Yes, that's correct. Q. And then in the next paragraph it says, The district, quote, will always look for textbooks that give a balanced approach to all topics, end quote. Again, is that you directly quoting Dr. Nilsen? A. Yes. Q. And he said this to you at the end of the June 7th board meeting? A. Yes. Q. Now, in the last paragraph of the amplified passage there, it says, When asked what this means for the evolution versus creationism debate, Nilsen said, Dover will, quote, present all options and theories, end quote. Now, the part that's in quotes, I presume, is what he said directly? A. Right, that's correct. Q. Now, just above that you say, What that means for the evolution versus creationism debate. Where did that term "creationism" come from? A. From the content of the discussion during the meeting. Q. Did that have anything to do with the question you asked Dr. Nilsen? A. Yes. I asked him a question -- oh, I see what you're asking. Yeah, the sentence above that is putting into context his answer, and that was the question that I was asking him. Q. And do you recall what that question was? A. Probably something very similar. I don't remember exactly, but it was, you know, what does that mean when you're talking about evolution versus creationism, something along those lines. Q. And do you recall asking him specifically about creationism? A. Yes. Q. So that is a word you would have used on June the 7th? A. Yes. That's what I understood them to be talking about. Q. Matt, if we could go to the next set of highlighted passages. Now, starting at the bottom of the second column on Exhibit 804 down through the middle of the third column, there's a quote from an ACLU staff attorney, Paula Knudsen. Is that something that happened on the evening of June 7th? A. No, that would have happened the next morning, and, again, that was written by the editors. Q. And at the end of that passage it says, Nilsen said he is not concerned about exposing the district to a possible lawsuit. When did he say that? A. I believe I asked him a question to that effect at the meeting that evening, after the meeting. Q. Let's go to the next passage. Now, here's a passage referencing Board President Alan Bonsell. And you write in there that he said the board would look for a book that teachers and board members could approve, one that presents a fair and balanced approach. Do you know what he was talking about there? A. I can only say that he was -- that was in relation to the discussion brought up about the book that was being discussed. Q. And, again, there are no quotes in that paragraph. Do you have a recollection of whether any of those words could have been in quotes? A. I believe "fair and balanced approach" could have been in quotations. Q. So that's something you remember Mr. Bonsell saying, "fair and balanced"? A. Yes, that's correct. Q. And he was talking about the biology curriculum? A. Yes, that's correct. Q. And the teaching of evolution? A. Specifically the discussion about the biology textbook. Q. And, Matt, if you could highlight the next passage, the last two paragraphs in the third column. Now, in that first paragraph it talks about Barrie Callahan. Now, she's a former board member? A. Yes. Q. And it says, Since last year, when she was still a member of the board, Barrie Callahan has been questioning the board as to why the new book was not approved. A. Yes. Q. So you had heard Ms. Callahan raise the issue of the need for a new biology book before that meeting? A. Yes. Q. And she raised it again at this meeting? A. Yes. Q. And then in the next paragraph it says, Buckingham said, although the book had been available for review since May, 2003, he had just recently reviewed the book himself and was disturbed the book was laced with Darwinism. I think I read that correctly. A. Yes. Q. Does that look right? A. Yes. Q. Now, again, there are no quotes in that paragraph. Do you have a recollection as to whether any part of that statement attributed to Mr. Buckingham could have been in quotes? A. Yes. "Laced with Darwinism" could have been put into quotations and maybe the part about him being disturbed. Q. So you remember him saying that he was, quote, disturbed, and remember him saying, laced with Darwinism? A. Yes. Q. And if you would turn the page now, please. Matt, if you could highlight the next passage, please. The first two paragraphs there refer to a resident named Max Pell. A. Yes. Q. Now, is this Mr. Pell speaking during the public comment portion of the meeting? A. Yes. Q. Now, you've attributed to him a quote that reads, quote, Creationism is a religious theory, he said, why does it have to be taught in biology class, end quote. Did I read that correctly? A. Yes. Q. Does that mean you heard Max Pell say those exact words? A. Yes, I did. Q. And that's what you wrote in your notes? A. Yes, that's right. Q. So he mentioned the word "creationism" as he stood up to make his comments to the school board? A. Yes, he did. Q. And if you could go down to the third paragraph. Matt, if you could highlight. Now, that paragraph talks about Mr. Buckingham believing that the separation of church and state is mythical and not something he supports. Now, is that something that Mr. Buckingham said during the meeting? A. No, he said that after the meeting. Q. And what was the context of you hearing that? A. I was asking him questions about whether he was concerned that he would be in danger of violating the separation of church and state. Q. Now, again, there's nothing in quotes in that paragraph, but are there things that you distinctly remember him saying? A. Yes. He did use the word "mythical," and he did say that it was not something he supports. Q. And when you say not supports, that's the separation of church and state? A. That's correct. Q. And the last passage that I want to direct your attention to in this article are the last two paragraphs in that column. And here you are attributing statements to Michael Baksa? A. Yes. Q. And who is he? A. He's the assistant superintendent of Dover Area School District. Q. And when did you hear these statements? A. Again, after the meeting, I asked him questions. Q. Now, in that last paragraph, it says, quote, He said that he would present options to the curriculum committee and give the committee more information about how the district teaches evolution and creationism. Now, did he use the term "creationism"? A. I can't recall if he used the term exactly, but I asked the question with the term "creationism" in it, asking him how the district teaches evolution and how it addresses creationism if it comes up in the class. Q. So your question to him would have contained the word "creationism"? A. That's correct. Q. And did he object to that terminology? A. No, he did not. Q. Matt, if you could highlight the term "creationism" in this article. Now, Ms. Bernhard-Bubb, the term "creationism" appears throughout this article. Matt, if you could put the second page up there, as well. And we've highlighted all the times that "creationism" appears here in orange. But the only time that I believe it appears in this article in quotes is when Mr. Pell was using it. A. Okay, yes. Q. And yet it appears, I believe, nine or ten times in this article. A. Yes. Q. Why did you use the term "creationism" throughout this article? A. Because that's what I heard the board members talking about. Q. So you, that evening, heard board members use the term "creationism"? A. Yes. Q. And who do you recall saying the word "creationism"? A. Mr. Buckingham made reference to it specifically, and I believe Mr. Wenrich and Mr. Bonsell. Q. And in what context did they use the word "creationism"? A. They were talking about the biology book. It was in the context of the conversation about the biology book, about presenting another theory, an alternative to evolution. Q. And you also -- you yourself used the word "creationism" in questions that you posed to Mr. Buckingham, Mr. Nilsen, and Mr. Baksa? A. That's correct. Q. And in their response, they didn't correct you in your phraseology? A. No. Q. And, now, you wrote the article that evening after the board meeting? A. Yes. Q. So this would have been 10, 11 o'clock on Monday night, June the 7th? A. Yes. Q. And then you e-mailed the article to your editors that evening? A. Yes. Q. And the York Dispatch is an afternoon publication? A. That's correct. Q. So it would come out on Tuesday afternoon? A. Yes. Q. And I think you mentioned that your editors may have added some passages? A. They did to this one, yes, the following morning. Q. And do they change or add to what you have reported? A. No. Q. Now, did you receive any complaints about this article, about whether it was accurate? A. No, I did not. Q. So no board member came and told you that your reporting was inaccurate? A. No. Q. Did any administrator tell you that? A. No. Q. Did anybody tell you that? A. No. Q. Did anyone from the school district ask you to print a correction or retraction? A. No. Q. Let's just cover all the articles at this point. Did you ever receive a complaint or concern about the accuracy of any of your articles about the school board in 2004? A. No, not specifically. Q. You say "not specifically." Let's hold that for a minute. We'll come back to that. To your knowledge, did your editors receive any complaints about your reporting on the Dover Area School Board? A. No, not to my knowledge. Q. And to your knowledge, did your editors receive any requests for corrections or retractions about any of the Dover Area School District articles? A. No. Q. And would you have known if they had gotten complaints about your reporting? A. Yes, I would have known. Q. Now, you said that you didn't hear -- you didn't receive any complaints from Dover Area School District board members or administrators specifically. A. Yes. Q. Did you hear complaints not specifically? A. In general, starting mostly I think in November when -- Q. I'm sorry, this would be November of 2004? A. Excuse me, November, 2004, there were general comments made during board meetings about the media in general, but no specific comments. Q. And was this after the board had already passed the policy? A. Yes. Q. And did you have, for instance, national -- representatives from national media outlets attending these meetings? A. Yes, that's correct. Q. And do you recall what national media reporters were there? A. I believe that was during the time that Nightline was there doing a piece on the district. I believe Time Magazine had been there. I think reporters from the Associated Press, Washington Post, and I think maybe The New York Times had been there. Q. And do you know whether the board members knew that these reporters were there? A. I can't speak to that. Q. And when you say that they made complaints, this was during the public board meetings? A. Yes. Q. And do you recall what kind of complaints they made? A. General complaints that the media had gotten it wrong or, you know, blown it out of proportion, that kind of thing. Q. But did any representative of the Dover Area School District ever talk to you specifically about something you had written and claimed that it was wrong? A. No. Q. Matt, if you could pull up Plaintiffs' Exhibit 805, please. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as Plaintiffs' Exhibit 805. Do you recognize this? A. Yes, I do. Q. Is this about a particular board meeting? A. This is in reference to the June 7th board meeting. Q. And the date of this article is June the 9th? A. That's correct. Q. Is this a follow-up article to explore issues raised by the June 7th meeting? A. Yes. Q. And your editors asked you to work on this piece? A. Yes, they did. Q. Matt, if you could highlight the first three paragraphs. In that first paragraph, it says, The quest of several Dover Area School Board members to find a high school biology textbook that teaches both evolution and creationism could put the district at odds with the U.S. Supreme Court and at risk of a lawsuit. Is that based on what you had observed on June the 7th? A. Yes, that's based on the discussion at the meeting on the 7th. Q. And in that next paragraph, you talk about William Buckingham and say that he was disturbed by a proposed high school biology textbook because it was laced with Darwinism? A. Yes. Q. Again, there are no quotes in that paragraph, but as I believe you testified before, "disturbed" and "laced with Darwinism" could have been in quotes? A. That's correct. Q. And those are things that you recall Mr. Buckingham actually saying? A. Yes. Q. Matt, if you could highlight the second set of passages. If you'll look down, I think it's the fifth paragraph, it starts with, A recommendation. It says, A recommendation on the book will come from the curriculum committee, which also includes board members Sheila Harkins, Casey Brown, Buckingham -- and Casey Brown. Buckingham said the committee would look for a book that presented both creationism and evolution. Do you recall Bill Buckingham saying that they were looking for a book that presented both creationism and evolution? A. I don't know -- he didn't say that exact sentence. He said -- that goes back to the discussion, though, where he was talking about wanting to look for a book that might contain creationism and looking for a balance to the theory of evolution. Q. But you did hear him say that he was looking for a book that presented creationism? A. Yes. Q. And the next set of paragraphs at the bottom of column one going over to the first paragraph of column two, it talks about a Robert Boston, spokesman for Americans United for Separation of Church and State. A. Yes. Q. Did you talk to Mr. Boston? A. I did. Q. And when was that? A. I had called him -- I believe it would have been on Tuesday, June 8th. Q. And you wrote in there that the district will be inviting a lawsuit if it chooses a textbook that teaches creationism? A. Yes. Q. And, again, there are no quotes, but could any of that have been in quotes? A. I can't recall exactly, but that's based on what Mr. Boston told me. Q. If you could, Matt, highlight the next set of passages. If you look at the bottom of the second column and over onto the first paragraph on the next page, you say, But Buckingham said he is unconcerned about violating the separation of church and state. A. Yes. Q. When did he say that? A. That's going back to the questions that I asked him after the June 7th meeting. Q. And then on the next page, at the top, you write, Although he swore to uphold the Constitution when he became a school board member, Buckingham said he didn't come to uphold the separation of church and state, which he sees as a myth, and the Supreme Court's interpretation. A. Yes. Q. Is that, again, something he said to you on -- after the board meeting? A. Yes. Q. And, again, there are no quotes there, but is what you wrote there the essence of what he said? A. Yes. And some of that is his language, again, saying that it was a myth, the Supreme Court's interpretation. Q. And one last set of passages here. If you would look at the last two-thirds of that column, first column on the second page, you're talking about Assistant Superintendent Baksa? A. Yes. Q. And when did you have that conversation with him? A. I called him -- again, that would have been on Tuesday, the 8th. Q. And in the third highlighted passage, you wrote, However, he said teachers may make reference to creationism in class, and the district would not prevent students from pursuing other theories. Now, is "creationism" a term he used with you on June the 8th? A. Yes, specifically in response to a question I was asking him about how they dealt with it if creationism comes up in class. Q. And then in that next paragraph you said, Baksa said -- The district has not rejected the proposed new textbook, Baksa said, but it will continue to look for a book that will make everyone happy. Again, is that something he said to you on Tuesday, June the 8th? A. Yes. Q. And that's after you discussed with him the reference to creationism? A. Yes, that's correct. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. MR. WALCZAK: Matt, if you could highlight Plaintiffs' Exhibit 806, please. BY MR. WALCZAK: Q. Do you recognize this article? A. Yes. Q. And is this something that you wrote about the June 14th Dover Area School District board meeting? A. Yes, it is. Q. And when did you write this? A. The evening of the 14th after the meeting. Q. And do you have an independent memory as you sit here today of what happened at that board meeting? A. Yes, I do. Q. And prior to your testimony here today, did you review this article? A. Yes, I did. Q. And is what you wrote in this article accurate? A. Yes. Q. And the quotes that you attribute to people in this article, are they based on what you actually heard? A. Yes. Q. Now, the title here says, Church/state issue divides, and then the subtitle is, Creationism draws 100 to Dover meeting. Now, is that something you wrote? A. No, that's not. Q. That's something added by the editors? A. Yes, that's correct. Q. And there's a picture here. A. Yes. Q. And that's taken by somebody from the newspaper? A. Yes, that's right. Q. And did the -- so that would be the photographer? A. Yes, John Pavoncello. Q. And do you know if Mr. Pavoncello attended the meeting? A. Yes, he was there. Q. And do you know who wrote the caption under the photograph? A. John wrote that. Q. And did you consult with him about that? A. No. Q. Matt, if you could highlight the first several paragraphs. Now, in that first paragraph, it says -- it's pretty hard to read there, but I think it says, Nearly a hundred people -- can you make it out on the copy you have? A. I can't, but I believe it's something to -- nearly a hundred residents, students, and teachers attended, either residents or parents. Q. To continue debating whether creationism should be taught alongside evolution in the high school biology curriculum. So there were nearly a hundred people at that meeting? A. Yes, that's right. Q. And is that a relatively large number for the Dover School Board? A. Yes. Q. What do average meetings draw, if there's an average? A. Maybe 10, 15 people. Q. Matt, if you could highlight the next set of passages. If you look at the bottom, the very last two-line paragraph over to the top of the next page, it talks about Board Member and Curriculum Committee Member Casey Brown said it is her duty as a board member to uphold her oath to support the Constitution and the school code, which she said is clear about the separation of church and state. A. Yes. Q. And you say Casey Brown said that? A. Yes, she did. Q. And so you remember her talking about living up to her oath to maintain the separation of church and state? A. Yes, that's what I wrote. Q. Matt, if you could highlight the last few passages on that first column on the second page. There's a subheading there. Is that the proper term? A. Yes. Q. It says, The least offensive option. A. Yes. Q. And it reads that Trudy Peterman, who is the principal at Dover Area School District? A. She was at the time. Q. And Bertha Spahr, who is the head of the science department? A. Yes. Q. It says that they said the faculty considered that Dover was a religious community when they selected the book which they believed was the least offensive option? A. Yes. Q. And that's something that they said during the public comment portion of the meeting? A. Yes. Q. So they talked about how Dover was a religious community? A. That's what they said, yes. Q. And that they believed that the Miller and Levine book was the least offensive option? A. Yes. Q. Now, if you go to the third paragraph among those that are highlighted, it says, Brown quoted. And there were two Browns on the school board then. Correct? A. Yes, there were. Q. And do you know which Brown -- A. That was Casey Brown. Q. And the other Brown was her husband, Jeff? A. Yes, that's right. Q. And you write, Brown quoted from the teacher's edition that the purpose of the section on evolution was to, quote, help students understand the evolutionary world view and promote understanding without compelling belief, end quote. A. Yes. Q. And so, in fact, that is a verbatim quote of what Casey Brown said at the meeting? A. Yes, that's right. Q. And in the last two paragraphs of the ones we've highlighted here, Bertha Spahr is talking about the state standards do not include creationism? A. Yes. Q. And do you recall her using the word "creationism"? A. I do. Q. Now, I want to go to the first four paragraphs at the top of the second column on the second page of Plaintiffs' Exhibit 806. And I believe the subtitle is, Opponents' position. Can you tell what that says? A. Yeah, I believe so. Q. Matt, if you could highlight the second paragraph there, please. Could you read the quote there, please, Ms. Bernhard-Bubb? A. (Reading:) Nearly 2,000 years ago someone died on a Cross for us, shouldn't we have the courage to stand up for Him, he asked. Q. Now, that's in quotes? A. Yes. Q. So does that mean it's verbatim what you heard? A. Yes. Q. So you wrote down, as best you could, exactly what you heard and you put quotes around it in your notes? A. Yes. Q. In the next paragraph down, it says, Board Members Alan Bonsell and Noel Wenrich agreed with Buckingham saying creationism should be taught to balance evolution. Now, again, there's nothing in quotes. Was that written based on you hearing Mr. Bonsell say that creationism should be taught? A. That was based on the content of the conversation, primarily what Mr. Buckingham was saying and Mr. Bonsell and Mr. Wenrich agreeing. Q. So they agreed with Mr. Buckingham's statement that creationism should be included in the curriculum? A. Yeah. Yes, they were agreeing with Mr. Buckingham's position. Q. Now, in that next paragraph it says, Buckingham apologized for offending any teachers or residents of the community with his remarks but was unapologetic about his belief that the country was founded on Christianity and not other religions and that a, quote, liberal agenda was chipping away at the rights of Christians in this country. Did I read that accurately? A. Yes. Q. Now, you wrote, The country was founded on Christianity. A. Yes. That was something he said. Q. And you remember him saying that? A. Yes, something to that effect. Q. And then you have a quote, Liberal agenda was chipping away at the rights of Christians in the country. A. Yes. Q. And that's in quotes, so that's verbatim what Mr. Buckingham said? A. Yes. Q. Now, there's been some significant dispute in this case about whether Mr. Buckingham said the quote, Nearly 2,000 years ago someone died on a Cross for us, shouldn't we have the courage to stand up for Him. Is there any doubt, as you sit here today, that you heard him make that statement at the June 14th, 2004 Dover Area School Board meeting? A. I have no doubt that he said that. Q. And he made that statement during the public portion of the meeting? A. Yes, during -- it wasn't during public comment, it was during the board discussion, but it was made in public. Q. And that would have been where? A. In the -- where the meeting was held, he was sitting at the front of the room at the board table. Q. Matt, if you could highlight the next paragraphs. In that middle paragraph on the second column you say, His remarks, referring to Mr. Buckingham, were echoed by his wife, Charlotte Buckingham, who said that teaching evolution was in direct opposition to God's teachings and that the people of Dover could not, in good conscience, allow the district to teach anything but creationism. Do you recall Charlotte Buckingham using the word "creationism"? A. Yes, I do. Q. And then in the next set of paragraphs, beginning with "the minister's view" going to the top of that third column, who is Warren Eshbach? A. He's a resident of the district, retired minister. Q. He is a minister? A. Yes. Q. And you wrote there that -- in that first paragraph that he said he was concerned that the issue was polarizing the district? A. Yes. Q. And is "polarizing" a word he used? A. I believe it was. Q. And then in that next paragraph you said that he said that he believes people might believe in both God and evolution, adding that while public schools should have values, religious beliefs should be taught at home and church. Eshbach also said he was concerned that compelling the staff to teach creationism might expose the district to legal ramifications that could impact the taxpayers. Now, there are two aspects to that. The first one was that he expressed concern that religious beliefs should be taught at home and church? A. Yes, he said something to that effect. Q. And he said that during the public comment portion of the meeting? A. That's correct. Q. And then he expressed concerns about the teaching of creationism? A. Yes, he did. Q. And do you recall him using the term "creationism"? A. Yes, he did. Q. And then one last passage here, the next paragraph down, again, we're back to a Mr. Robert Boston from Americans United for Separation of Church and State. Now, was he at the meeting? A. No, he was not. Q. And so are you referring back to when you had spoken to him the week before? A. I'm making reference -- I say, has said, making reference to the previous article. Q. And at the very end of that paragraph it reads, quote, Buckingham said he did not believe the members of AU know what it means to be American. A. Yes. Q. So he said words to that effect? A. That's correct. Q. So he was disparaging the organization? A. That's what he said. Q. And did he say that during the meeting? A. Yes, he did. Q. So it was while the meeting was going on and not afterwards privately to you? A. Right. Q. Now, Matt, if you could highlight the uses of creationism. Now, in looking at this June 15th article, creationism is used in the subheading. A. Yes. Q. Is that right? A. Yes. Sorry. Q. And creationism is used in the caption of the photograph? A. Yes. Q. And creationism is used many times in the article? A. That's correct. Q. And I know you said that you've heard Mr. Buckingham or had heard Mr. Buckingham use the term "creationism"? A. Yes. Q. And Ms. Spahr used the term "creationism"? A. She did. Q. And Mr. Bonsell? A. I don't believe Mr. Bonsell used the term at this meeting. I just believe he was saying something else should be taught to balance evolution. He was agreeing with Mr. Buckingham saying it. Q. Do you recall Mr. Bonsell using "creationism" at the June 7th meeting? A. That's the only time, yes. Q. But you do remember him using it on June 7th? A. Yes. Q. And Mr. Wenrich used the term "creationism"? A. Again, I believe at this -- in reference to this article the only person on the board who used that term was Mr. Buckingham. Q. But you remember Mr. Wenrich using that term on June the 7th? A. Yes, and then agreeing with him during the discussion about creationism at this meeting. Q. And you heard Charlotte Buckingham use creationism? A. Yes. Q. And Reverend Eshbach used creationism in his comments? A. Yes, he did. Q. Matt, if you could pull up Exhibit 807, please. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as Plaintiffs' Exhibit 807. Do you recognize this document? A. Yes, I do. Q. And this is an August 3rd article that you wrote? A. Yes, that's correct. Q. And you're reporting on a Dover Area School Board meeting that occurred on August the 2nd? A. Yes. Q. Matt, if you could highlight the creationism and intelligent design. Now, we've highlighted in orange here the uses of creationism and then highlighted in blue the uses of intelligent design. Is this -- is the August 2nd meeting the first time you heard school board members mention intelligent design? A. Yes, it is. Q. So you do not recall any board members using the term "intelligent design" before August 2nd at a school board meeting? A. No, that was the first time that I heard it, at a board meeting. Q. Matt, if you could highlight the paragraphs under the subheading "companion." Now, in that first paragraph under the subheading "companion," you wrote, William Buckingham, the head of the school board curriculum committee, who brought up the issue of teaching creationism in June, said he would approve the biology textbook, the 2004 edition of Prentice Hall Biology, only in conjunction with a companion text that teaches intelligent design. Did I read that correctly? A. Yes. Q. Now, intelligent design is in quotes. Is that a phrase that Bill Buckingham used? A. Yes, it is. Q. And he said that he would only approve the biology text in conjunction with that companion text? A. Yes, he did. Q. Now, in that next paragraph it says, Buckingham proposed a book titled Of Pandas and People: The Central Question of Biological Origins. Is this the first reference that you heard at a school board meeting to the book Of Pandas and People? A. Yes, it is. Q. And then later on in the highlighted passage it talks about how there was a tie vote on the biology book. A. Yes, there was. Q. Matt, if you could highlight the second set of passages. And under deadline it says, Buckingham proposed waiting to approve the Prentice Hall Biology until the other book had been reviewed. However, a delayed vote would have meant that the students and teachers would not have a biology text for the new year. Is that something that became clear during that meeting? A. Yes, it is. Q. So both Mr. Buckingham proposed waiting, that was clear? A. Yes, he did. Q. And it was clear that if, in fact, they didn't approve that biology book, the students would not have it in time for the new school year? A. Yes, I believe that was a concern. Q. Now, in that next paragraph there's a quote attributed to Jeff Brown. And it reads, quote, I don't like blackmail, I don't like it that if we don't approve this other book, then that means no book, end quote, said a visibly upset Jeff Brown. Now, the fact that that passage is in quotation marks, does that mean that's a verbatim quote of what he said at that meeting? A. That's correct. Q. And then in the next two paragraphs there's reference to a Joshua Rowland? A. That's a typo. Yeah, Joshua Rowand. Q. And who is he? A. He's the student board representative. Q. And he spoke at that meeting? A. Yes, he did. Q. And in the next paragraph there's a quote that says, In 90 days of class, we only spent one day on evolution, so because of this one issue they don't get new books, end quote. Is that something that he said at that meeting? A. Yes, it is. Q. And do you recall if he spoke during the public comment section? A. No, I believe he spoke during the board discussion, but it was in public. Q. So do the student representatives to the board get an opportunity to present their views? A. Not typically, but in this case they did allow it. Actually, I think they always -- they don't typically speak, but I think they always allow them to if they have a comment. Q. And in the next paragraph it says, Buckingham maintained that the books should only be approved together, saying, quote, We have an opportunity to level the playing field, what is everyone so afraid of, end quote. And that quote, again, is verbatim for what you heard Mr. Buckingham say? A. Yes, that's correct. Q. Now, in that next paragraph it refers to Casey Brown and indicates that she said that as a member of the curriculum committee, she had read the proposed supplemental text from cover to cover and that she didn't believe it fit with the district's curriculum, was not sure about the concept of intelligent design, and was sure that it contained, quote, bad science, end quote. You recall her saying "bad science"? A. Yes, I do. Q. And you recall her saying that she had reviewed the entire Pandas book? A. That's correct. Q. And then in that last set of highlighted paragraphs there it talks about a heated exchange between Yingling -- and who is Yingling? A. Angie Zeigler Yingling. She was a school board member at the time. Q. And it says that she decided to change her vote to move the process forward. And then in that last highlighted paragraph it says, The Prentice Hall Biology book was approved five to three. So it was approved because Angie Yingling changed her vote? A. That's correct. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as Plaintiffs' Exhibit 808. Do you recognize this? A. I do. Q. And what is it? A. It's an article that I wrote regarding the August 2nd board meeting that ran on August 3rd, 2004. Q. And did this run as a companion piece to the article we just looked at? A. It did. Q. Now, Matt, if you could highlight that second paragraph. Now, again, it makes reference to Robert Boston at Americans United for Separation of Church and State and says that they're inviting a lawsuit. Now, did you talk to Mr. Boston again, or is this -- A. It's creating a context for the next sentence. So I did not speak to him again. Q. In the next sentence there you say, William Buckingham said he has received a letter from Americans United threatening to sue? A. Yes. Q. And did he say that during the public meeting? A. I can't recall that, to be honest. It was either during the public meeting or directly after when I was asking him questions. Q. But he made reference to a letter that he had received from Americans United threatening to sue? A. Yes, he did. Q. And did you ever see that letter? A. No, I didn't. Q. So he didn't share that letter with you after the meeting? A. No, he didn't. Q. If you could look at the second -- middle of the second column, the paragraph says, Buckingham said that the Thomas More Law Center had recommended the text Of Pandas and People. Do you see that? A. Yes. Q. Is that something he said during the meeting? A. After the meeting. Q. So he said that to you? A. Yes. Q. And he identified the Thomas More Law Center? A. Yes, he made reference to some sort of counsel during the meeting but didn't say specifically who it was, so I went up to him after the meeting to ask him more questions. Q. And he did, at that time, disclose to you the identity of this other counsel? A. Yes, he did. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you an exhibit marked as Plaintiffs' Exhibit 809. Do you recognize this? A. I do. Q. Is this a September 8th article that you wrote about the September 7th Dover board meeting? A. It is. Q. Matt, if you could highlight the paragraph beginning at the bottom of the first column going down the second column. Now, in the middle of that second column you have, Mr. Buckingham said it is important to distinguish between the concept of creationism, which refers to God, and the creation story in the Bible and intelligent design, which states that some being caused life to begin somehow. He said the distinction is important because intelligent design is not specific to one religion. A. Yes. Q. So Mr. Buckingham, sometime during that meeting, made those comments? A. Yes, he did, specifically to me after the meeting. Q. So it was not during the meeting? A. No. Q. And do you recall him using the term "creationism"? A. Yes. Q. And then in the third column there's a subheading, Residents speak out. Is that you reporting on what residents said during the public comment portion of the meeting? A. Yes, it is. Q. And there's a quote attributed to an Andrea Heilman, identifies her as a resident, and it says, quote, I am responsible for my children's religious education, not some public educator. And then it continues, We need to let educators educate and let parents and religious leaders nurture, end quote. Did I read that correctly? A. Yes, you did. Q. And since that's in quotes, that's verbatim what you heard somebody get up and say? A. Yes, that's correct. Q. And that would have been an Andrea Heilman? A. Yes. Q. And how did you know her name was Andrea Heilman? A. She identified herself for the record, but I also went up to her after the meeting to verify her name and the spelling of her name. Q. So she specifically talked to the board about her children's religious education? A. Yes. Q. And how she should -- she's the one who should be responsible for her children's religious upbringing? A. That's what she said, what I wrote. Q. And then you have a quote attributed to another woman there, Irene Jurvale-Austen. Is that somebody who also made comments during the public comment portion of the meeting? A. Yes, she did. Q. And it says that she is a biology teacher for 35 years at the high school level and at York College and Millersville University, and then it reads that she said in all her years of teaching evolution, she had never seen a student or adult lose faith in God after learning about Darwin and the theory of natural selection. Is that something she said during her comments? A. Yes. Q. And then you have a quote from her. It reads, I wonder what the motivation in bringing in the Pandas book; if it is evangelism in the public schools, then it is inappropriate, she said. It's a faith issue. To teach it as science is a perversion, end quote. Again, that's a direct quote of what she said to the board? A. Yes. Q. And she said that during the public comment portion of the meeting? A. That's correct. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I'm sorry, I'm going to direct you to another exhibit, 813. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as Plaintiffs' Exhibit 813. Is this something you wrote? A. Yes, it is. Q. Now, I believe you testified earlier that you were not able to attend the October 18th board meeting? A. That's correct. Q. And do you recall why that was? A. I had another -- I don't remember who it was, but I had another school board or municipality that had a meeting on the same night, and the editor decided to send me to the other meeting. Q. And did they then, the next morning, ask you to write an article? A. Yes, they did. Q. So you tried contacting some people on the morning of the 19th? A. That's correct. Q. And in the first five or six paragraphs, you make reference to Casey Brown. Did you speak with Ms. Brown on the morning of the 19th? A. I did. Q. And you have a quote attributed to her about halfway down that first column, and it reads, quote, There seems to be a determination among some board members to have our district serve as an example to flout the legal rulings of the Supreme Court, to flout the law of the land. They don't seem to care. I think they need to ask the taxpayers if they want to be guinea pigs, end quote, Casey Brown said this morning. Is that something she said to you? A. It is. Q. And that's a verbatim quote? A. Yes. Q. And then towards the bottom of that column you have another quote attributed to her. Quote, It's a waste of money, how do we answer to the taxpayers, we are committing the district and taxpayers to a no-win fight. I believe if you want to make a change, you go to the legislature, end quote, she said. Again, is that a direct quote attributed to her? A. It is. Q. At the bottom of the second column you make reference to William Baksa. A. Yes. Q. And then in there you say that the administration and teachers offered an alternative curriculum recommendation that did not make specific reference to intelligent design. Is that correct? A. Yes. Q. And is that something Mr. Baksa told you the next morning, the morning after the board meeting? A. That's correct. Q. And then if you'll turn the page, in the first two paragraphs there, you make reference to Nilsen and Baksa. Did you speak with both of them? A. I did. Q. That would have been the morning of the 19th? A. Yes. Q. And there it says that they told you that they were not sure how the new wording would be applied. Is that correct? A. Yes, that's correct. Q. And that they would be meeting with the high school science department to develop specific language that would be used in each class to introduce the curriculum. Is that correct? A. Yes, that's correct. Q. And then there's a quote attributed to Mr. Baksa: Of Pandas and People would still be used only as a reference text, and added that the teachers would not spend a lot of class time teaching intelligent design but would only introduce the theory. A. Yes. Q. Actually, I guess the only thing that's in quotes is the book. Is that right? A. Right, that's just something he said, yeah. Q. But he said the teachers would not spend a lot of class time teaching intelligent design? A. Right, he said something to that effect. Q. And do you recall him talking about teaching intelligent design? A. I don't know whether he used that word or if my question was to him, how are you going to teach this if you've made it part of the curriculum. But it would have been either him saying that or in response to my question. Q. Now let's turn to Exhibit 810, which I believe I gave you just a moment ago. Do you recognize this exhibit? A. I do. Q. And this is an article you wrote about the November 1st Dover School Board? A. Yes. Q. Matt, if you could highlight the first paragraph. In that first paragraph you write that Dover Area School Board's decision two weeks ago requiring intelligent design theory to be included as a high school biology reference text dominated last night's board meeting with former board members criticizing the move and one denouncing others on the panel and quitting the meeting. Is that an accurate characterization of what happened that night? A. Yes, it is. Q. So most of the meeting was, in fact, dominated by a discussion of intelligent design? A. That's correct. Q. Now, the next two paragraphs there, it refers to Noel Wenrich. A. Yes. Q. And he made comments during the public comment section of the meeting? A. Yes, he did. Q. So he had resigned already? A. He had resigned, but this would have been his last meeting as a board member. Q. And when he made these comments, do you recall whether he made them while sitting as a board member or did he make them from somewhere else? A. He made them from the podium where the public makes their comments. Q. And was that unusual for a board member to make comments from there? A. Yes. Q. And you write there that Wenrich said that he and residents in the audience have been personally attacked and insulted at the last meeting by Buckingham and by the board. Did he say words to that effect? A. Yes, he did. Q. So that's an accurate characterization of what he said? A. Yes, it is. Q. And then you have a quote attributed to him. Could you read that quote, please? A. (Reading:) I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for 11 years and six years on this board. Seventeen years of my life have been devoted to public service, and my religion is personal. It's between me, God, and my pastor. Q. And that's in quotes? A. Yes. Q. So that would have been a verbatim quote of what Mr. Wenrich said? A. That's correct. Q. Now, there's some ellipses in there? A. Yes. Q. Did you leave some things out? A. Yes, I did. Q. Was there anything pertinent you left out? A. I believe it was repetitious, so no. Q. And if you could look at the first two paragraphs in the second column. It says, Board President Alan Bonsell told Wenrich he was out of line in making comments of a personal nature which he had asked the public to avoid at the beginning of the meeting, saying that he was disappointed in the conduct of some board members and residents at the meeting two weeks ago. Is that an accurate paraphrasing of what Mr. Bonsell said? A. Yes, it is. Q. And then it says, Mr. Wenrich was asked to leave the podium? A. Yes. Q. Who asked him to leave the podium? A. Mr. Bonsell. Q. And Mr. Bonsell was the board president at the time? A. Yes, he was. Q. And then you have a quote that you write that Mr. Wenrich shouted from the front of the room that he had enjoyed his service but could, quote, no longer sit with these people, end quote. That's a verbatim quote? A. Yes. Q. And when you say that he shouted from the front of the room, is that where the exit would have been? A. No, the exit was at the back of the room. Q. So he went back to his seat at the table, or did he leave the meeting? A. He went back to his seat at the table, and I believe he got his coat and then said what he said and then left the meeting. Q. And then at the bottom of that second column you make reference to Casey Brown and Larry Snoke. We've talked about Casey Brown. Who is Larry Snoke? A. He is also a former school board member that attends most of the meetings. Q. And in that first paragraph in the third column you write that Snoke said the board was dividing the community. A. Yes. Q. And do you remember Mr. Snoke using the word "dividing"? A. Yes, I believe he did. Q. And then in that next paragraph you wrote that Brown suggested that the board rescind its decision on intelligent design but offer an elective class on religions of the world so that students could be exposed to all of the world's faiths. Is that correct? A. Yes. Q. And she was no longer on the board at this time? A. That's correct. Q. So she stood up as a resident and made this during public comment? A. Yes, she did. Q. If you could look down two paragraphs from there, and it says, The decision. Do you see where I'm at? A. Yes. Q. And the decision you're referring to, the decision to add intelligent design theory to the curriculum? A. Yes. Q. And it reads, The decision could make Dover a national test case over what can be taught in public schools. Did somebody say that? A. That's my -- that's my writing, but that's in reference to things that were said by board members. Casey Brown had said something to that effect. I'm not sure of the order of this, but in another article I had interviewed some people from the National Science Center for Education in Oakland. They had said something to that effect. Q. So this is not your commentary on -- A. It's based on the content of other conversations I had had. Q. Pretty prescient comment, wouldn't you agree? A. Yeah. MR. WHITE: Objection. MR. WALCZAK: I have no further questions. THE COURT: We'll sustain the objection to the last question, strike that last answer, and you may cross. I don't know, I'll just interject at this point, I'm willing to stay until 5:00 to get as much as we can in, but I don't know if we're going to get both reporters done. I trust that doesn't present a problem if we have to come back, unless you want to break now, Counsel. But I'll stay -- we typically, as you know, have ended our days at 4:30, but -- MR. WHITE: Your Honor, since we will be coming back for Maldonado tomorrow, it might be a good idea to get it all done tomorrow. THE COURT: Mr. Benn, does that present a problem for you? MR. BENN: That will be fine. THE COURT: Why don't we then end our trial day here. It's probably an opportune time to do that to give you the time that you need without compressing it at the end of the day today, and we will reconvene and pick up your cross-examination at 9:00 a.m. tomorrow. Anything else for today? MR. BENN: No, Your Honor. THE COURT: All right. We'll be in recess until 9:00 a.m. tomorrow. (Whereupon, the proceedings were adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 17 (October 28), AM Session, Part 1 (9:00 a.m., convene.) THE COURT: Good morning to all, and we continue with testimony of our last witness yesterday, and she may retake the stand. MR. BENN: Your Honor, excuse me, I was a little remiss yesterday when I introduced myself as counsel on behalf of the reporters. I would also like to introduce my two co-counsel, put them on the record as well, Terence Barna -- THE COURT: Ma'am, you can take the stand while he's doing this. MR. BENN: Terence Barna and Traci McPate, both from my office. THE COURT: Very well, we'll note their appearances. And you may commence your cross examination. CROSS EXAMINATION BY MR. WHITE: Q. Good morning. A Good morning. MR. WHITE: I'm sorry, Your Honor, but the screws just popped out of your microphone. THE COURT: Technical malfunction. We could ask Mr. Thompson to hold the microphone, but that would probably be beyond the call of duty. (Pause.) MR. WHITE: Job for GSA. Maybe if I can just rest it. THE COURT: That will probably work. We're all set. After that auspicious start to our Friday, you may proceed. MR. WHITE: I promise I won't touch anything else. THE COURT: All right. BY MR. WHITE: Q. This is a continuation from your testimony yesterday; you're still under oath. Your full-time job is stay-at-home mom, correct? A That's correct. Q. And you have two young children, a three and a half year old and an eight month old. A Right. Q. And your freelance writing is a way to supplement your income. A That's correct. Q. The Dispatch pays you about 40 or $50 per story? A That's correct. Q. And you write about six to ten articles a week? A Yes. Q. Now, you read the editorial page of the York Dispatch, correct? A Yes. Q. So you understand the position the Dispatch takes on various issues? A It would depend on the editorial but, yes, and on the writer. Q. So the answer is yes? A I would say that I understand positions taken by the various writers, the various editorial writers. Q. You get your assignments from the editors of the York Dispatch also, correct? A In a sense. I have general assignments wherein I cover the meetings of, like I said yesterday, two municipalities and a school board. It's been varying amounts of school boards and municipalities. So in that sense I have the general assignment I go to the meetings and report on what happened. Sometimes I will be assigned particular things by the editors. Those are usually features. For instance, I did a story on a girl that was doing a motorcycle ride for Cystic Fibrosis that she put together in honor of her father who just died, that kind of thing. Q. But sometimes the editors tell you what they re interested and what they're not interested in as it relates to stories, correct? A Only in the sense that -- like, for instance, after a meeting, I'm call them and say hey, this is what happened at meeting, and they'll tell me what they're interested in, what they have space for the next day in the paper, what I can wait to write the next day; in that sense they do. So that's more of an issue of planning and how much space they have in the paper, that kind of thing. Q. And then you write the stories that are of interest to the editors as a result of that. MR. BENN: Objection, Your Honor. I think the nature of your Court order relates to the fact that we re supposed to be asking questions as it pertains to the articles in issue, and not in terms as to what the editors think, what the newspaper's position is, but rather what it is that Ms. Bernard-Bubb wrote. MR. WHITE: Yesterday there was some questioning about her assignments and her beat, that's why I was asking these questions. THE COURT: Well, you're right on the line, Mr. White, as it relates to my order and the parameters of your permissible areas of inquiry. I'll allow that question, but I think colorably you're getting into what I think may be a bias type of examination. And I'm going to sustain objections if it goes much farther. But I'll overrule that objection, I'll allow an answer. BY MR. WHITE: Q. So the answer -- the question was then that you sometimes write -- you write stories that are sometimes of interest to the editors after you ve had these meetings with the editors, correct? A I wouldn't say that would be a correct characterization. I would just say that I call them, they tell me what they're interested in for the next day. Like I said, it's more an issue of how much space they have in the paper, what can wait a few days, what they would like for the story -- what stories they would like for the next day s paper. Q. Now, although yesterday you were asked a question that you haven't been in the courtroom here previously, but you ve been following this case in the papers? A Yes. Q. Now, when you go to these meetings of the Dover School Board, in particular, I know you have other beats, but that's all I'm concerned about so when I talk about school board meetings I'm talking just about Dover. A Okay. Q. You don't tape record the meetings, do you? A I do not. Q. You don't video record the meetings, do you? A No, I do not. Q. So when you go to these meetings, you're just taking handwritten notes of what's taking place, right? A That's correct. Q. And you don't write down everything that was said at the meetings, do you, in these notes? A No, not everything that's said. Q. Okay. You don't write down verbatim statements of everything that was said at the meetings either, do you? A I try to as much as possible. That gives me the most accurate picture for writing later, but obviously I don't get down every single word. Q. In other words you sometimes have to summarize in your notes what's taking place at these meetings? A I sometimes -- can you rephrase the question? I m not sure I understand what you're asking. Q. You said that you can't take down verbatim everything that's said in these meetings. A Right. Q. So sometimes you have to summarize in your notes what's taking place. A I wouldn't say I summarize. Sometimes the statements that I write down may not be complete statements but it's still a pretty specific reference to what was said or words that were used, that kind of thing, but I might not get every single word of a statement, particularly if it's a lengthy statement or if it's repetitious. Q. And you don't have any of the people who you re quoting in your notes verify the accuracy of the quotes you ve attributed to them in your notes, do you? A That's correct. The only time I would follow up with someone is if I was confused by what they said, I didn't hear it correctly, if I wanted to verify to make sure I understood. But if it's something that is repeated numerous times or that I ve heard clearly, I don't feel any need to check for accuracy because I ve heard it. Q. And you still have your notes from the 2004 school board meetings, right? A That's correct. Q. But the defendants have been prevented from seeing those notes, right? A That's correct, by order of the Court. Q. Now, the Dover Area School Board meetings, they generally last a couple of hours? A Yeah, two to three hours I would say. Q. Now, sometimes do you step out of the meetings to go to the bathroom? A I usually try to only do that during breaks, sometimes they would take breaks, particularly if it was a lengthy meeting. Q. You sometimes go out of a meeting to conduct an interview with someone who had spoken during the meeting while the meeting is going on? A Occasionally, but usually I try to do that after the meeting's been completed so that I'm not missing any of the business that's going on. Sometimes if someone has spoken, if it's a resident or someone, I might step away during a fairly benign, like if they're going through the hirings and firings and people who are taking leaves of absence, that kind of thing, I might step away to make sure I ve got someone's name and where they're from, that kind of thing. Q. So the answer to my question is sometimes you do step out of the meeting. A Infrequently. Q. Now, during the school board meetings there are several topics that are usually discussed, correct? A That's correct. Q. And many people speak at these school board meetings? A Can you clarify what you mean by that? Q. Well, school board members are talking, people from the public are talking when it's their time to talk, correct? A That's correct, it's primarily school board members, but sometimes there's a lot of residents depending on what's going on. Q. And when the school board members are speaking or the residents are speaking, they're not under oath or anything, are they? A No. Q. And sometimes after meetings you go up to people and you speak to them as well, correct? A Yes. Q. Okay. And these people aren't under oath either when you're talking to them? A No, I don't ask them to take an oath. Q. Now, the articles you write about school board meetings, they don't describe everything that took place during those two to three hour meetings, do they? A No. Q. And the articles you write about the school board meetings sometimes don't include all the statements that were made by people at those meetings either? A That's correct, I'm not a court reporter. Q. The articles you write about school board meetings don't include all of the comments then that people made while the various topics were being discussed at the meetings, correct? A That's correct. Q. And your articles also that you write, including the ones we talked about yesterday, or that I didn t, but you did with the plaintiff's attorney, those sometimes include statements made to you by people after the meetings have ended, correct? A That's correct. Q. And these statements made to you are in response to your questions? A Yes, usually. Q. The articles you write about school board meetings, they capture part then of what happened at these meetings? A I would say that when you say part of what happened, for instance at a school board meeting you might have policy change come up, school budget be approved, et cetera. I treat each topic separately, and I try to be as comprehensive about the content of the discussion, the positions that were taken, within each subject area, but certainly it doesn't contain everything that happened at the meeting. Q. So then you're the person who then selects what part of the school board meeting you want to feature in your article. A Yes, I have to use my judgment. Q. And you then also select which quotes from your notes that you want to include in your articles as well, correct? A That's correct. Q. And you also are the one who decides what statements you want to summarize or paraphrase in your articles as well, correct? A Right. Q. And the summaries and these statements that you re putting in the articles, this is again your interpretation of what you heard at these meetings? A No, I wouldn't say it's interpretation. It s always, in essence, what they ve said. Like I said yesterday, paraphrasing is mostly a tool to allow you to be concise, and really to make sure that you're accurate. Someone might make a number of comments, and if you were to pick out any one quote, it would be taken out of context and it wouldn't really encompass their entire position. In that case paraphrasing is a really good tool because you can encompass the position that was taken throughout the entire meeting through comments they made, dialogues they had, and questions they answered from residents. Q. But that's your paraphrasing, right? A That's right. Q. Now, so then in your articles then you re attributing statements of people that are in response to your questions, right? A Excuse me, could you repeat that? Q. You're attributing statements to people that are in response to your questions? A Sometimes it's in response to my questions and sometimes it's just what they ve said. Q. So sometimes you can ask a question, and if it's a yes or no question, the answer or the statement in the article wouldn't just say yes, it would be an affirmance of your question? A Do you have a specific -- that's difficult to say. Most of the time when I ask people questions, it's not just a yes or no answer. And usually when I ask a question I try to create the context within the article to say, you know, in response to or kind of like a lead in to it so that the reader knows what the issue is. Q. That's the -- that's based on your writing style and how you're trying to make an article flow? A Yes, that's correct. Q. Now, after you write an article, you don't have the person you quoted in the article verify the accuracy of the quote, do you? A No, not unless I have any question about it, but no. Q. And after you write an article, you don't have the person you quote in the article verify the accuracy of the context in which you ve placed that quote, do you? A No, that's correct. Q. And after the article is written, you don't have the person whose statements you ve paraphrased or summarized verify the accuracy of that paraphrasing? A No, again, it comes directly from the meeting, so I don't feel I need to. Q. After you write an article you don't have the person whose statements you summarized or paraphrased verify the context in which you ve used that paraphrased statement, right? A No. Q. So these articles you're writing, again, they are filtered through you, your perceptions of what's happening at the meeting, correct? As you said, you're not a court reporter. A Sure, in a sense they -- in a sense you can say that. I mean what -- I'm reporting on what happens, though, and what the conversation is. Q. But as any reporter, you're reporting it from your own perspective, correct? A Sure. Q. Now, after you write an article you submit it to editors for your paper. A Yes. Q. And you don't necessarily know which editor is going to edit the paper, correct? A No, I don't know. Q. You e-mail it to a group of editors and whoever is on the staff or on call that night, whatever is the correct term, is the one who reviews the article, right? A Right. Q. Now, the editor who edits your paper, that person wasn't at the school board meeting, was he? A No. Q. And editors can make changes to your articles, correct? A In my experience they make very few changes. Sometimes, as we looked at in the June 8 article, they might add something to create context. If they -- they very -- I ve never had an experience of them editing content. If they ever have a question, maybe I wrote a sentence that was awkward or confusing, they'd call me the next morning and say, hey, this is confusing or too long, how can we say it better, and we work on it together so that I make sure that the content is -- accurately reflects what I heard and what I saw at the meeting the day before. Q. Now, maybe I misunderstood you, but at the start of your testimony yesterday, and I don't have a copy of your transcript, but I thought you had said that editors don t add anything to your articles? A No, they don't add anything content wise. Like I said, there are instances -- and let me be more specific about it, maybe I wasn't articulating myself well. Things that I ve actually written, they're not adding to or changing without my knowledge and without basically they call me up and say, hey, this is awkward and long and, again, it usually has nothing to do with content. Occasionally they'll call and say, hey, you forgot the date, or are you sure this is the right spelling. It's usually that kind of thing. Occasionally it's more of a stylistic issue, but I might write a sentence that is long or awkward, and they might say, hey, what's a shorter way we can say this, this is too long. It would be something of that nature, but I think I was accurate in saying that they don't change the content of what I wrote. Q. So the editor expects you to have the content correctly, correct? A That's right. Q. Now, based upon the content of your article, then the editor writes the title for the article. A Right. Q. And then the editor also, based upon how you ve described what occurred, writes the subtitles? A Yes, that's correct. Q. And then based upon the content of the article, how you wrote it, for example on exhibit 804, the article we talked about yesterday, an editor would then add the paragraph about the Supreme Court decision, and then interview over the phone the ACLU attorney, correct? A Yes, they chose to do that. Q. Now, exhibit 804, do you have that handy? A I do. Q. That's the article that deals with the June 7 , 2004 school board meeting? A That's correct. Q. Now, according to the article, the debate was over a textbook that involved the subject of creationism, right? A No, that's not exactly correct. It was a debate over a biology text that contained evolution, and creationism was brought up at the meeting. Q. Creationism was brought up as something that was missing then, according to you, from this biology textbook. A I'm sorry, are you looking at a particular statement? Q. I'm looking at the -- right now I'm looking at the title where it says, "Dover Debates Evolution and Biology TextBook; book on hold because it doesn't address creationism." A I didn't write that, but based on the content of the article, they were looking for something else to balance evolution, and creationism was the thing that was mentioned at the meeting. Q. Now, this -- this debate dealing with the textbook on June 7 , that lasted a while, didn't it? A Yes, it did. Q. And several people spoke about the subject, according to your article? A Yes. Q. And also according to your article, school board members spoken about the article? A Spoken about the article or -- Q. Excuse me, spoke about the subject of the textbook? A Yes. Q. And also according to your article, school officials such as Mr. Nilsen and Baksa also spoke on the subject? A That's correct. Q. And as well, did people in the public speak about it? A That's correct. Q. Now, in the first page, column three, that's the quote from Paula Knudsen, I believe you pronounce her name, that the editor added to your article? A That's correct. Q. And that was an interview the editor had with a Paula Knudsen? A Yes. Q. And in that section of this article, in quotes, is a statement from her where the word creationism is quoted, right; second paragraph on the third column? A Yes. Q. And the editor had conducted the interview with her, Paula Knudsen, after receiving your draft article, right? A That's correct. Q. And -- A That's my understanding. Q. Now, on the second page of your article, you have a quote at the top from resident Max Pell, who was at the school board meeting, right? A Yes, that's correct. Q. And quoted in that statement you have the word creationism, right? A Yes. Q. Okay. A That's the word he used. Q. And that's how you wrote the statement down in your notes? A Yes. Q. Now, the quotes dealing with -- and you can review the article -- the quotes dealing with Knudsen and Pell, those are the only two quotes in the article that include the word creationism, am I right? A Let me review that. Q. Sure. A Yeah, I believe those are the only direct quotes. Q. And you include a statement in quotes when you re sure about the accuracy of the quotes, right? A No, that wouldn't be accurate to say. I include quotation marks when I'm sure that I ve gotten it down verbatim. But whether or not I'm attributing it to them with paraphrasing or through a direct quote, I'm sure about the accuracy. Q. Well, my question is then, when something is in quotation marks in your article, you're sure about the accuracy of that statement? A Yes. Q. Word for word? A Yes. Q. There's not a word missing or anything like that, right? A Right. Q. Okay. And then if the statement isn't quoted then it's a summary of what went on at the meeting, right? A It's based on the content of the conversation. Q. Now, also on page two of this article, you interviewed after the meeting then Bill Buckingham and Mike Baksa -- A That's correct. Q. -- correct? And on page one of the article, you have quotes -- in quotation marks from Bill Buckingham and Noll Weinrich in the first column? A Yes, that's correct. Q. And those are statements dealing with evolution that they had made at the June 7, 2004 meeting? A Yes, that's correct. Q. So having reviewed the article now, just now, exhibit 804, the only time the term creationism is attributed to a school board member or a school official is only in a summary statement that you ve made, right? A Yes, that's correct, based on the content of the discussion. Q. Again, it's not in quotes, it's a summary, right? A It's what was said at the meeting, but it's a summary of what was said at the meeting. Q. So nowhere in the article do you have quoted a statement from a school board member where the word creationism is used in quotation marks. A Right, not a direct quote. Q. And nowhere in the article do you have quoted a statement from a school official where the word creationism is used in that quote, correct? A Right, not a direct quote, but it -- Q. And this is true even though one of the big subjects of discussion at this meeting was the use of the term creationism, right? A That's correct. Q. Okay. And now, you didn't verify the accuracy of any quotes with the people you quoted in this article, correct, after you -- or before you drafted the article? A I didn't need to. I heard them say the things they said. Q. Did you -- I didn't get the answer. A Oh, okay, I'm sorry. I said I didn't need to, I heard the things that I wrote. Q. And you didn't verify the accuracy of any statement, whether it's quoted or not, with the person to whom you attributed the statement to, correct? A I'm sorry, can you rephrase that? Q. You didn't verify the accuracy of any statement, whether it was quoted or not in your article, in quotation marks, with the person to whom you attributed that statement, correct? A Right. Q. Okay. Nor did you verify the accuracy of the context in which you placed the statement with the person who you say made the statement, correct? A I didn't need to because I heard it. Q. I just asked you a yes or no; you didn't verify context with people, did you? A No, I didn't need to. Q. If you can turn to the next exhibit, please, it was 805. This is a follow-up article to the June 7 , 2004 school meeting? A That's correct. Q. And since it's a follow-up article, is this something that the editors would have asked you to do? A Yes, they did. Q. Now, the point of this article is a possible lawsuit over a textbook that teaches both evolution and creationism, is that correct, as stated in the first column? A Yes. Q. And the article, since it's June 7 , the date it's -- or excuse me, June 9 , the date it's published, this article is based on notes that you took from the June 7 , 2004 meeting? A It's based on both notes from the June 7 meeting and then also a few interviews that I conducted on June 8 . Q. The day after the meeting? A That's correct. Q. And in your article, page one, column one and two, you have quotes and summaries from statements made by Robert Boston of Americans United, the separation of church and state? A Yes, that's correct. Q. And in his quote you attribute to him at the top of the second column on page one, in the quote is the word creationism, correct? A Yes, that's correct. Q. And you conducted this interview with Mr. Boston over the telephone? A Yes. Q. And he wasn't at the June 7 school board meeting? A No, he wasn t. Q. So Mr. Boston is responding to questions you re posing to him during the interview? A Right, that's correct. Q. In your article you referred to, on page one, Bill Buckingham and Noll Weinrich, correct? A Yes. Q. But you don't have anything in direct quotes from those people in this article. A No, I'm paraphrasing. Q. And also in your article on page two, column one, you have a quote attributed to Michael Baksa talking about the origins of life, right? A That's correct. Q. And that was in an interview you conducted with him on the 8 of June. A Yes, that's right, over the phone. Q. And also on page two, column two, you have references to Casey Brown, Sheila Harkins and Rich Nilsen, as well, correct? A I know I do Casey Brown. Oh yes, I do, and Richard Nilsen. Q. And those, again, were interviews conducted after the school board meeting of June 7 ? A That's correct. Q. And again in this article, and you can review it, nowhere in the article do you have a quote attributed to any school board member where the word creationism is used in the quote, correct? A That's correct, in this article. Q. And that same holds true with regard to any quotes you have attributed to school officials. A Just a moment. I believe Mr. Baksa -- I'm looking at the second page in the first column -- we discussed briefly what would happen if creationism -- Q. I didn't ask you that question. I asked you do you have in this article any quotes, direct quotes that you attribute to a school official where the word creationism is in quotes? A I'm sorry, no, no direct quotes. Q. And that's true even though the focus of the article dealt with the subject of creationism in a textbook, right? A Right, that's correct, it was -- Q. All right, and -- A -- it was coming from the meeting on the 7 . Q. And -- MR. WALCZAK: Your Honor, objection, she's trying to answer the question. This is the third time she's being cut off. MR. WHITE: Your Honor, I'm asking her direct questions for yes or no answers. She's editorializing. If Mr. -- THE COURT: I don't find it to be necessarily editorializing. I think you are stepping on her answers. I'll throw the flag if I think she's editorializing. Let her finish her answers. MR. WHITE: Okay. BY MR. WHITE: Q. In reviewing this article then, the only time the word creationism is in a quote is then with regard to Mr. Boston of Americans United, in response to a question you posed to him during your interview? A That's correct. Q. And the only other times creationism is mentioned in this article is part of your summaries or your paraphrasing of what took place at the June 7 meeting according to you? A Right, from the discussion on June 7 . Q. And also you didn't verify the accuracy of any of these summaries with the people who you attribute these statements to, did you? A No. Q. Nor did you verify the accuracy of any context of these statements with these people within the article? A No. Q. Can you turn to exhibit 806, please. Now, according to the title, and I understand you don't write the title, but at least the subtitle it says, "Creationism Draws 100 People to Dover Meeting." That would have been written by the editor of the newspaper, correct? A That's correct. Q. How many years have you been covering school board meetings at Dover? A Four years. Q. Four years. Have other times there been -- have there been other times where a hundred or so people show up for a meeting? A On a few occasions. Q. One of those would have been about the firing of a football coach; do you recall that one? A Yes. Q. So occasionally people show up in numbers to school board meetings, correct? A Yes, that's true. Q. Now, the debate on June 14 , again, this is your article, exhibit 806, is dealing with the June 14 meeting, right? A That's correct. Q. And the debate that went on at this meeting lasted for a while, is that right? A Yes, I believe it was about an hour, hour and a half. Q. And several people spoke on the subjects, especially, as you say, of creationism, according to your article? A Yes, that's correct. Q. That would be the focus of this meeting, according to your article, correct? A The focus of the meeting is on creationism and on the textbook; that would be the focus of the article. Q. If you can review this article, 806, point to any place where you have the word creationism included in a direct quote, not a paraphrasing but a direct quote, that you can attribute to a school board member or to a school official. A I don't believe I do have -- I don't believe I do have one. Q. So nowhere in the article is there a direct quote attributed to a school official where the word creationism is used? A No, I certainly have paraphrased sentences because it was repeated throughout the discussion but . . . Q. But even though the subject of the meeting, which went on for an hour and a half, dealt with creationism, you didn't have any occasion to include a verbatim quote from a school official or school board member where the use of the word creationism occurred? A That's correct. Q. Now, column two, on page two, you were -- which was referred to yesterday, you have a quote from Bill Buckingham, "Nearly 2,000 years (sic) someone died on a cross for us, shouldn't we have the courage to stand up for him?" Now, according to you, Bill Buckingham made that statement at the June 14 , 2004 meeting. A Yes, he did. Q. Did he make that statement only once during the June 14 , 2004 meeting? A Yes, only once. Q. And you ve been covering the school board for, you say, four years? A Yes. Q. Do you remember him ever saying that statement previously? A No. Q. Now, since you have the statement in the second column of page two in quotes, then you're positive of the accuracy word for word of that statement, correct? A Yes. Q. Okay. So if that statement is quoted any differently, that would be inaccurate, correct? A I'm sorry, I don't think I understand your question. Q. If this statement you attribute to Bill Buckingham is quoted differently, that would be inaccurate? A I can't speak to that, but that's what I heard. Q. But you said that whenever you have something quoted word for word, you're positive that's how it was said, right? A That's what I have written down in my notes, and whenever I quote something verbatim I have it in its entirety in my notes. Q. So my question then is, if it's stated differently, that would be not an accurate quote, right? MR. BENN: Your Honor, I think she's already indicated that what she's written is what she's heard. She can't testify in terms as to what somebody else has heard. MR. WHITE: But she can testify if something differs from her statement. THE COURT: I think it was asked and answered, so I'll sustain the objection on that basis. BY MR. WHITE: Q. And you didn't verify the accuracy of any quotes with the people who you quoted in this article? A Again, no, I heard them and didn't have any confusion. Q. Did you verify with them about the accuracy of the context in which it's quoted? A No. Q. Now, the next article, 807 -- well, one question. At these meetings then, you're in attendance and other people are in the attendance, right? A That's correct. Q. And the people who are in attendance, especially the ones you quote in the article, they're residents of Dover as far as you know, right? A Yes. Q. They're people who are available, aren't they? A Excuse me? Q. Available in the sense you can call them up the next day if you wanted to and double-check a statement they made? A Yes. Q. So these are not people who are just flying in from another country for these meetings, right? A To my knowledge. Q. So they're people who are in the area. A To my knowledge, again, I don't poll everyone that's there, but they have to sign in and put their address at the front of the meeting. Q. So if someone had to find those people, if they ve signed in the book as far as your knowledge and what you ve seen at these meetings, you could track them down? A I believe so. Q. Now, article 807 -- excuse me, exhibit 807, that s an article dealing with the August 2 , 2004 school meeting, right? A Yes. Q. And that's a school meeting that, according to the title, deals with, A Minority Also Wants Book on, quote, Intelligent Design, end quote. A Yes. Q. Okay. So this is talking about a book dealing with intelligent design at this meeting, right? A Yes, and the Biology text was the primary part of the article. Q. The Biology text, the Prentice Hall Biology book? A Right, the vote taken to approve that. Q. Now, intelligent design had been mentioned at previous school board meetings, hadn't it? A I had never heard it mentioned before this meeting. Q. So the first time you ever heard it was at the August 2 , 2004 meeting? A That's correct. Q. And in this article, exhibit 807, you quote the term intelligent design a few times, right? A Yes. Q. Okay. And again, although you mention a few times in the article as well the term creationism, you don't have any -- you don't have that word in any quote, a direct quote that you can attribute to any school board member or school official, right? A No, it's in reference to the ongoing debate about the book and creationism was what had been talked about in the previous meetings, creating a context. Q. But now at this particular meeting the conversation is about intelligent design? A That's correct. Q. So you are adding the term creationism to this article, correct? A Again, it's creating a context for what had gone before. And also at this meeting it wasn't clear that they had abandoned creationism. It was just that they were introducing intelligent design. Q. Now, in the article, column one, page one, you have comments by Bill Buckingham about the approval of the book Biology, in conjunction with a companion text Of Pandas and People, that that teaches intelligent design. So Bill Buckingham at this particular meeting would have said Of Pandas and People teaches intelligent design? A Yes. Q. Bill Buckingham didn't say at this particular meeting that Of Pandas and People teaches creationism, did he? A No, he didn t. Q. And according to your article, column one, page one, Of Pandas and People is a book published by Foundation for Thought and Ethics, and questions the science behind Darwin's theory of evolution, is that correct? A Yes. Q. Now, that's something you had conducted your own research on or was that discussed at the meeting? A No, I conducted my own research on that. Q. But at the August 2 meeting then, as far as what was being discussed then, it was the book Biology, Prentice Hall, and then the companion book Of Pandas and People, which teaches intelligent design, right? A That's correct. Q. Now, the next article that you can look at is 808. Now, this article I believe you said yesterday was written at the same time you wrote exhibit 807, right? A Yes, that's correct. Q. And this article, again, you didn't write the title of it, is that right? A Right. Q. So you didn't write, "Michigan Law Center Offers a Defense of Creationism." A No, I didn t. Q. That would have been the editor writing it based upon whatever he or she viewed was the point of your article, correct? A I guess, yes. Q. And in this article, again you point to a previous conversation you had with Robert Boston of American United? A That's correct. Q. And about a threatened lawsuit from American United, is that right? A Yes, that's correct. Q. And that threatened lawsuit from American United was if a -- the school had adopted a textbook that taught both creationism and evolution, is that right? A Right, that's what that quote was in reference to. Q. But the textbook that had been adopted on August 2 was the Prentice Hall Biology book, right? A That's right. Q. And also in the article it talks about Bill Buckingham mentioning that the Thomas More Center would offer legal -- free legal assistance to the school district, right? A Yes. Q. Did he make those comments at the August 2 meeting? A Yes, he did. Let me clarify, he made reference to a law firm offering service, but didn't go into detail. So I did go up and question him. So he didn't use the name Thomas More or go into very much detail during the meeting. I questioned him after the meeting. Q. And it was after the meeting that he gave you a copy of a letter from the Thomas More Law Center to him and the district? A That's correct. Q. And you were able to keep that letter? A Yes. Q. And quoted in your article is from that letter, so I would take it you had picked the most relevant part of the letter, am I right on that? A Yes. Q. And that quote says, from the Thomas More Law Center letter, "A textbook adopted by the school board that presents an alternative theory to evolution does not violate the constitution as long as the alternative theory is appropriately presented." Correct? A Yes. Q. And that quote doesn't mention teaching of creationism, does it? A No. Q. And also the article says that, in column two, that Buckingham had said to you -- I take it this would have been after the meeting? A Yes. Q. That the Thomas More Law Center had referred to him or had recommended to him the book Of Pandas and People? A Yes. Q. And Of Pandas and People is the book that Buckingham had mentioned on August 2 that teaches intelligent design? A Yes, that's correct. Q. But -- and that's the same meeting where he never said Of Pandas and People teaches creationism, right? A No, he never said Of Pandas and People teaches creationism. Q. Now, if you can look at the next article, exhibit 809. So now this is dealing with the September 6 , 2004 meeting, correct? A Yes, that's correct. Q. And again the title of this article, that's done by the editor? A That's correct. Q. And have you ever -- when you submit your draft articles, do you put a title on the article? A I don t. Q. And the purpose of a title is to, what, catch the attention of the reader, right? A Yes. Q. Now, in the first paragraph of this article you say that the school board is considering purchase of a companion textbook to teach creationism as part of the curriculum. That's your statement, right? A Right. Q. Now, the book they're talking about though, at this particular time, since they ve already adopted the Biology book from Prentice Hall, is Of Pandas and People. A That's correct. Q. And Of Pandas and People had been referred to at the meetings as a book on intelligent design, correct? A That's correct. Q. And you had done some research on the book to find out the background of the book, correct? A Yeah, just limited research at that time. Q. And what you found out from your limited research according to your article is that Foundation for Thought and Ethics had prepared the book, and it just questions the science behind the theory of evolution, correct? A That's correct. Q. And there's nothing to indicate from what your research data and what was mentioned at these meetings, that the book Of Pandas and People is a creationism book, right? A That's true. Q. Okay. Now, in the second -- second column of exhibit 809, you have a paraphrasing of comments by Bill Buckingham and his attempt to distinguish creationism and intelligent design. A Yes, that's correct. Q. Were those comments made at the September 6 meeting? A That was made after the meeting. Q. In response to questions by you? A No, he came up to me. Q. He came up to you? A Yes. Q. And was anyone else around when -- A There were other people around, they might have heard the conversation, but it was between the two of us. Q. And did you verify with Mr. Buckingham the accuracy of your paraphrasing? A Again, I didn't need to, I heard it. I wasn t confused about what he said. Q. Now, the next article -- again, this was after the meeting you say when he made these comments to you? A Yes. Q. Him coming up to you and talking to you. A Yes. Q. So people sometimes talk to you even though you re a reporter, people -- people are friendly to you? A Sometimes they are, sometimes they're not. Q. Well, that is true with everybody. The next article, exhibit 80 -- excuse me, 813. One thing, one thing though. If you can go back to 809, please. A Yes. Q. I'm sorry. The third column, one, two, three, four, five paragraphs down, you have, and I apologize if I can t pronounce this correctly, Irene Kavala Austine? A Austin. Q. Okay, Austin, sorry. A Yeah. Q. Was she at the September 6 meeting? A Yes, she was. Q. And the comments that you have summarized here about the teaching of evolution has never caused her to see someone lose their faith in God; were those comments that she had made during the public comment portion of the meeting? A Yes, that's correct. Q. Did you walk up to her afterwards and ask her any further questions about those statements? A No, I believe I went up to her afterwards. She had said her name, but I didn't get the spelling of it correctly, so I did go up to her, get the spelling of her name, and she -- I asked her, you know -- she had made reference to being a teacher, so I asked her for a little bit more detail on that. Q. But these were just her own just comments, not based upon any, like, scientific study she had done or anything like that, right? A I can't speak to that. Q. Exhibit 813. This is the October 18 , 2004 meeting? A The -- yes, the article comes from that. But again, I wasn't in attendance. Q. Okay. Well, that was my question to you. You weren't there that day. A That's right. Q. So this article is a follow-up article the editors had asked you to do? A That's correct. Q. So you're writing this article based upon interviews you had conducted the day after the October 18 meeting? A That's correct. Q. So the article is not based upon any firsthand observations you had made during the school board meeting? A Right, not during the meeting, just during my interviews. Q. So the article is just based on secondhand information? A It's based on firsthand information from the people that I interviewed. Q. Who told you what happened at the meeting? A That's correct, and their positions. Q. And as your normal practice is, any of the statements that you quote people in or that you paraphrase people in this article, you never verify with them the accuracy of these statements? A Not unless I need to. Q. Or the context or anything like that. The next article is, I believe it would be 817, is that right? A I might be missing one. I ve got up to 813. Q. I may have it misnumbered. It could be 814. 810, I'm sorry. A 810? Okay, I ve got it. Q. There was a question yesterday about the quote you have from Mr. Weinrich there with the eclipses or ellipses. A Yes. Q. When he was talking, and what you quoted here, this was based upon a two to five minute speech he was giving? A Yes. Q. Okay. So out of that two to five minutes of speaking you were able to condense it to, in effect, two sentences? A I wouldn't say I condensed it. I would say that I picked out this quote as capturing the essence of what he was saying during that two to five minute speech. Q. But you chose what to include as far as his statements for your article, right? A This seemed to be the most representative of his position, yes. Q. Just based upon your -- what you find to be the appropriate thing to put in the article, right? A Yeah, based on what he said. Q. Now, during the school board meetings, school board members had commented about inaccuracies in reporting, isn t that true? A Yes, starting mostly in November. Q. You don't remember anything back in June of comments being made? A I don't remember a comment being made, no. Q. And school board members have come up to you personally and commented about inaccurate statements in your articles? A No, not specifically. I ve had two off-the-record conversations with Dr. Nilsen and with Mr. Bonsell, but they asked for those to be off the record, so I wouldn't speak to that. And then the only other instance would be Bill Buckingham coming up to me, and I included that in the article, in reference to when he said you have to distinguish between -- in the September whatever that article is, September 9th, I think, 3rd. MR. WHITE: I have no further questions. THE COURT: All right. Any redirect? MR. WALCZAK: Just a couple, Your Honor. REDIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning. Mr. White asked you several times whether you verify the accuracy of your quotes or the context of the quotes after you write them down. And then I think you responded to all of those questions that you don t. Why not? A Again, because I ve heard them, they're in my notes, I remember them saying them, I'm writing the articles almost -- in most cases, specifically talking about these articles, right after the meeting. The only time I would verify is if I didn't understand what was said, if I didn t hear it correctly, if there was some confusion. Otherwise I just assume that people can read the articles and go through the proper channels if they felt like something was inaccurate. Q. And Mr. White asked you about the quote that you attributed to Mr. Buckingham about "2,000 years ago someone died on the cross." And he asked you if you had ever -- if he made that quote just once, and I think you answered that he did. A Yes. Q. So he made that quote just once in June? A That's correct, in June. Q. And I believe you testified yesterday that you ve been covering the school board meetings, Dover Area School Board meetings for about four years? A That's correct. Q. And have you heard Mr. Buckingham make that same comment "2,000 years ago someone died on the cross" before June 2004? A No. MR. WALCZAK: I have no further questions. THE COURT: Any recross? MR. WHITE: No. THE COURT: All right, ma am, thank you. You may step down. That completes your testimony. MR. BENN: Is she excused, Your Honor? May she leave? THE COURT: No need to recall her in my opinion. You're excused. MR. WALCZAK: Your Honor, plaintiffs call Joseph Maldonado. He's been sequestered. THE COURT: All right. MR. WALCZAK: Your Honor, I would propose that we discuss the exhibits after we ve completed Mr. Maldonado s testimony, since I think it's going to be the same fight. THE COURT: Yeah, I just came to the same conclusion. I think rather than interrupt the reporter s testimony, we'll hold it, keep moving, and we'll hold that until later. MR. WALCZAK: Your Honor, it was also suggested to me that there is some overlap with the articles testified to -- about the articles testified to by Mr. Stough, which we have not resolved yet. And it might be an appropriate time to include those articles in the discussion that we have about these. THE COURT: All right. JOSEPH SCOTT MALDONADO, called as a witness on behalf of the plaintiffs, having been duly sworn or affirmed according to law, testified as follows: THE DEPUTY CLERK: State your name and spell your name for the record, please. THE WITNESS: My name is Joseph Scott Maldonado. Joseph is J-O-S-E-P-H, Scott is S-C-O-T-T, Maldonado is M-A-L-D-O-N-A-D-O. DIRECT EXAMINATION BY MR. WALCZAK: Q. Good morning, Mr. Maldonado. A Good morning. Q. You are a part-time freelance writer for the York Daily Record? A That is correct. Q. And you have not attended any of the trial prior to stepping into this courtroom a few minutes ago? A We had stepped in momentarily, and then we were informed to leave, so we were here about two minutes or so. Q. So you have not sat through any of the testimony? A No, sir. Q. Prior to becoming a freelance writer, you were in the military? A I was in the United States Air Force from 1987 to 1994. Q. And what do you do now? A I am a freelance writer for the York Daily Record, and I also own a small sandwich shop in York, Pennsylvania, called PBJs in the Central Market House. Q. You don't write for any other newspapers? A No, I do not. Q. And you ve been a freelance writer for the York Daily Record for four years? A It will be four years in January. Q. And one of your steady assignments is the Dover Area School Board? A It had been up until August of 2005. Q. And so between late 2003 and until August 2005, that was what we might term your steady beat? A Yes, sir. Q. And during that time did you cover most of the meetings of the Dover board? A That is correct. Q. And when I say the Dover board, you didn't cover committee meetings? A No. Q. So these would be the board meetings that are held open to the public? A That is correct. Q. And in 2004, do you recall whether you attended all of the Dover Area School Board meetings? A I covered a large majority of them. I cannot remember if I made every single one, but an overwhelming majority of them, yes. Q. I want to ask you some general questions that will apply to all of the articles that you wrote between June of 2004 and November of 2004. When you attend these meetings you sit in the front row? A I usually sit somewhere near the front, yes. Q. And why do you do that? A So that I have a clear line of sight of the board and the best opportunity to hear what's being said. Q. And on the articles that were discussed in your deposition, which are going to be the same ones we talk about today, there are titles and subtitles on those articles? A Yes, there are. Q. Do you write those? A No, I do not. Q. Who writes those? A Whoever the editor is, I guess, that's reviewing the story. Q. But the rest of the text in there is your work product? A That is correct. Q. When you go to these meetings do you take notes? A Yes, I do. Q. How do you take those notes? A They are written notes. Q. Is it your practice to take accurate notes? A Yes, it is. Q. And do you take quotes down in a certain way in your notes? A Yes, I do. Q. How do you do that? A I write them down verbatim. Q. And do you put little quote marks around them in your notes? A Yes, I do. Q. And when you go to write your articles, do you rely on your notes? A Yes, I do. Q. What do you do, you compare your notes or you read your notes and then you write your article? A Umm, yes. Q. The York Daily Record is a morning paper? A That is correct. Q. And the Dover Area School Board meetings occur in the evening? A That is correct. Q. And do they usually end about the same time? A Typically between eight and ten. Q. So when do you write the articles? A It depends on the -- it depends on what news comes out of the meeting. For the most part I usually write them the next day for Wednesday's paper, but sometimes I will write them that night. Q. So if you or the editors think there is something particularly noteworthy, they want to get it in the paper the next day? A Yes. Q. So you would have to write it immediately after the board meeting? A That is correct. Q. Now, the York Daily Record is separate from the York Dispatch? A Yes, it is. Q. It's a different newspaper? A Yes. Q. Do you know Heidi Bernard-Bubb? A I know that she is the correspondent from the York Dispatch. Q. And does she regularly cover the same Dover board meetings you cover? A Yes. Q. Do you see her there? A Yes, I do. Q. Have you ever worked on an article together with her? A No, sir. Q. Have you ever discussed an article with her? A No. Q. Have you ever talked about what happened before you write the article? A I'm sorry, can you say that again? Q. Have you ever discussed with her what you might have seen before you sit down to write an article? A I think we ve talked about meetings in general, but not for the sake of writing articles. Q. Now, we're going to discuss eight articles that you wrote between June and December of 2004. And I just -- I want -- it's the same articles that you were asked about by Mr. White at your deposition a couple of weeks ago. Do you sit here today under oath and say that the articles you wrote accurately depict what happened at Dover School Board meetings? A Yes, I do, however I would like to note that these are Heidi's articles, not mine, that are up here. Q. And do you testify today that the quotes you attributed to the people are accurate to the best of your knowledge based upon what you heard them say? A Yes. Q. And that when you wrote in your articles that somebody said something, and even though it's not in quotes, that your characterization was to the best of your ability true and accurate? A Those words are paraphrased from things that the subject said. MR. WALCZAK: Your Honor, may I approach? THE COURT: You may. BY MR. WALCZAK: Q. Mr. Maldonado, I show you what's been marked as plaintiff's exhibit 790. Do you recognize this? A Yes, I do. Q. And is this an article you wrote reporting on the June 7, 2004, Dover School Board meeting? A Yes, it is. MR. WALCZAK: Matt, if you could highlight the second column there. BY MR. WALCZAK: Q. In that second column, it says, "Board member William Buckingham, who sits on the curriculum committee, said a book had been under consideration, but was declined because of its one-sided references to evolution." Did I read that correctly? A Yes. Q. And then there is a quote attributed to him, "It s inexcusable to teach from a book that says man descended from apes and monkeys. He said we want to book that gives balance to education." Did I read that correctly? A Yes, you did. Q. Is that an exact quote of what you heard Mr. Buckingham say that evening? A Yes, sir. Q. Now, in that next paragraph it says, "Buckingham and other board members are looking for a book that teaches creationism and evolution." Now, there's no quotes in that paragraph, is that correct? A That is correct. Q. You used the term, "looking for a book that teaches creationism and evolution." Are those words that you heard Buckingham and other board members say? A That is correct. Q. So you heard Bill Buckingham use the word creationism at that June 7 meeting? A Yes, sir. Q. And it says, "Buckingham and other board members." What other board members do you recall using the word creationism? A May I have a moment to review the article? Q. Please. (Pause.) A In the paragraph that follows, it says, "Board president Allen Bonsell disagreed, saying there were only two theories, creationism and evolution." Once the word creationism was introduced into this discussion, it was a word that all the board members would have used during the course of that discussion. Q. So this wasn't a meeting where the word creationism was used just once? A No, this was an ongoing discussion. Q. And there were people who spoke at the meeting during the public comment section, correct? A That is correct. Q. And some of those people used the word creationism? A That is correct. Q. But I just want to be clear, you distinctly remember Dover Area School Board members at that June meeting using the term creationism? A Yes, sir. Q. There's a quote down at the bottom of the -- starting at the bottom of the third column, attributed to Mr. Buckingham. Quote, Have you ever heard of brainwashing. If students are taught only evolution, it stops becoming theory and becomes fact. Did I read that correctly? A Yes. Q. And is that exactly what you heard Mr. Buckingham say that evening? A Yes. Q. And he's responding to something that somebody had said during the public comment period. A He was responding to Mr. Max Pell, a former student. Q. Now, in that first full paragraph on the first -- I'm sorry, on the fourth column, it says, "After the meeting Buckingham said." Do you remember when and where that conversation with Mr. Buckingham took place? A That would have took place near his seat on the board as the meeting ended. Q. And did you approach him to ask a question? A Yes, I did. Q. Is that unusual? A No. Q. So you often speak with board members after the meeting? A Yes. Q. And it -- the paragraph reads, "After the meeting Buckingham said all he wants is a book that offers balance between what he said are Christian views of creationism and evolution." Now, again there's no quotes in that paragraph. Why is that? A It's based on a quote that's in the next paragraph. "This country was founded on Christianity and our students should be taught as such." Q. And let's look at that next paragraph. It said, "He said there needn't be consideration of the beliefs of Hindus, Buddhists, Muslims or other faiths and views." Now, is that something he said or was that a question you posed to him? A That was a question that was posed to him that made mention of Hindus, Buddhists, Muslims or people of other faiths. Q. So -- A It was phrased that way to him. Q. And who phrased that question? A I did. Q. That was your question? A Yes, sir. Q. So you would have asked him, something like -- do you remember what question you asked him? A I probably would have said something, Do you believe -- do you believe that the people of other faiths in your district, Buddhists, Muslims, people of other faiths, that they need to be considered in this matter? Q. And then you have a quote attributed to him, "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such." And that's in quotes, so is that verbatim what he said? A Yes, sir. Q. Would you have been taking notes during that time? A Yes, sir. Q. And so he's answering and you're -- you were writing down? A Yes, sir. Q. And you were trying to be as accurate as you could? A Yes, sir. MR. WHITE: Objection, leading. THE COURT: Why don't you rephrase. I'll sustain the objection. THE WITNESS: I was trying to be accurate, yes. BY MR. WALCZAK: Q. In that last paragraph in plaintiff's exhibit 790, there is a reference to Assistant Superintendent Michael Baksa. Did you speak with him the next day? A That is correct, on Tuesday. Q. So you contacted him? A Yes. Q. And at the bottom of that paragraph it says -- attributes to him saying, "Teachers, administrators, curriculum committee members will work together to find a book that is agreeable to all." A Yes, sir. Q. Do you know whether any of that could be in quotes? A I don't remember, sir. Q. But that is an accurate summary of what he said to you? A That would have been an accurate paraphrase of what was said to me. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. Show you what's been marked as plaintiff's exhibit 791. Do you recognize this? A Yes, I do. Q. Is this an article you wrote that was published on June the 10th? A Yes, sir. Well, it wasn't written on June the 10th , it probably would have been written on June the 9t, or somewhere in that area. Q. It ran in the York Daily Record on June the 10 ? A Yes. Q. And what is this piece in relation to the -- this isn't reporting on a school board meeting? A It's to get reaction to an issue. We do that frequently after different government meetings, school board meetings, to find out what the person on the street is feeling about certain issues. Q. And is it fair to characterize this as man on the street interviews to gauge people's reactions? A Yes, sir. Q. And were you the one going out and interviewing people in the community? A Yes, I was. Q. Direct your attention to the bottom of the first column at the top, it says, "During this past Monday night s board meeting" -- and then going over to the second column, you say, "During this past Monday night's board meeting," that would have been the June 7 board meeting? A That is correct. Q. It said, "Board members, Alan Bonsell, Noll Weinrich and Buckingham spoke aggressively in favor of having a biology book that includes the theories of creation as part of the text." Now, you mention three board members who spoke, quote, aggressively in favor of having a biology book that includes the theories of creation as part of the text. So you remember those three individuals talking about having an evolution book that -- or biology book that includes discussion of creationism? A Yes. Q. And then you have a quote in the next paragraph attributed to Bill Buckingham, All I'm asking for is balance, end quote. Is that something you recall Bill Buckingham saying directly? A Yes. Q. And then in that next paragraph you have written, "Asked if he thought this might violate the separation of church and state, Buckingham called the law" -- and then you have in quotes, "a myth." So, again, that's a quote of what Mr. Buckingham said? A Yes. Q. And he was talking about the separation of church and state? A Yes. Q. Now, at the bottom of the exhibit, plaintiff's 791, it appears you had a telephone conversation with Noll Weinrich. A Yes. Q. And Mr. Weinrich was a Dover board member at the time? A Yes. Q. And if you could look from the second column, where it says, "Regardless of its potential legal ramifications;" you were discussing a reaction you got from a Mr. Bowman. Do you see that? A Yes, sir. Q. And was your call to Mr. Weinrich to ask for reaction? A Yes, it was. Q. And in those last three paragraphs in the last column at the bottom of the page, you wrote, "On Wednesday afternoon Noll Weinrich, a member of the Dover Area School Board said, students needn't worry about that." And what are you referring to there, when you say "about that"? A It refers to the previous paragraph, "Once these types of religious themes are introduced into a classroom, it puts a lot of pressure;" that paragraph. Q. "So students needn't worry about that." And then you say that Mr. Weinrich said, "Because the board's goal is not to say that students must believe in creationism or the existence of a creator, but he also said that creationism does not imply the existence of an intelligent life force ultimately responsible" -- I'm sorry, "does imply the existence of an intelligent life force ultimately responsible for all life." Is that correct? A Yes. Q. Is that something he said to you on that Wednesday afternoon? A Yes. Q. And was that phone conversation by telephone? A Yes. Q. Then in that second to last paragraph in the third column, you wrote, "Then he stressed again that no one will be required to believe in creationism or a creator, any more than they are currently required to believe in evolution." So when you say "he stressed again," is that something he said to you more than once? A Yes. Q. He said that the school wasn't going to force students to believe in creationism. A Yes. Q. And then you have a direct quote attributed to him in that last paragraph, and it reads, quote, What I am saying is that when you teach only one theory -- and then in parenthesis -- evolution, that theory becomes a fact. I m not saying that students must believe in creation, but I do believe they must consider the possibility." Is that a verbatim quote? A Yes, sir. MR. WALCZAK: Your Honor, I'm not going to take him through the rest of these articles in as much detail as I did with Ms. Bubb, but we can break any time Your Honor feels appropriate. THE COURT: Why don't we take a break now. I think that would be appropriate before you get into the next area. We'll take a 20 minute break, and then we'll reconvene after that and you can pick up your direct again. We'll be in recess. THE DEPUTY CLERK: All rise. (Whereupon, a recess was taken from 10:23 a.m. to 10:46 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 17 (October 28), AM Session, Part 2 THE COURT: All right, Mr. Walczak, you may continue. BY MR. WALCZAK: Q. Mr. Maldonado, during the break we took the opportunity to put the rest of the articles in front of you that I'm going to ask you about. Do you see plaintiff s exhibit 792 in front of you there? A Yes, I do. Q. And is this something you wrote? A Yes, it is. Q. And the date on it is June the 14 . Was that the date of a board meeting? A Yes, sir. Q. And what is this article? I'm sorry, is this a piece that you wrote to prepare people for the board meeting that evening? A In anticipation of the meeting, yes. Q. And if you look at the first couple of paragraphs there, you say, "Nearly a week after the Dover Area School Board's controversial comments about teaching creation along with evolution in biology class, people across the county are pondering the potential benefits and repercussions." Did I read that correctly? A Yes, you did. Q. And then in the next paragraph you talk about, "William Buckingham said as part of a search for a new biology book, he and others are looking for one that offers balance between the Christian views of creation and Darwin s theory of evolution." Is that in the second paragraph there? A Yes. Q. And then in the third and fourth paragraphs there, it appears that you repeat what you had written previously about Mr. Buckingham's comments that this country was founded on Christianity. A That is correct. Q. So that's not something he said to you again? A That is correct. Q. You're just going back and reminding readers of what he had said to you a couple -- I guess it was a week earlier? A The previous Monday, yes. Q. And in the middle of that second column, there are -- there's a quote from Mr. Weinrich, says, "On Thursday school board member Noll Weinrich." A Yes, sir. Q. And again, that's referring back to what he had told you the week before? A That is correct. Q. So those aren't new quotes? A That is correct. MR. WALCZAK: Matt, if you could highlight the uses of the word creation. BY MR. WALCZAK: Q. Now, the use of the word creation or creationism is through -- used throughout your article, correct? A Yes, it is. Q. And you even say, "Christian views of creation," you repeat Mr. Buckingham s, "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such." Did anybody ever contact you to print a correction or retraction? A No, sir. Q. Did Mr. Buckingham contact you? A No, sir. Q. Mr. Weinrich? A No. Q. Anybody in the administration? A No, sir. Q. Are you aware of whether anybody contacted your editors or your publisher? A To the best of my knowledge no one contacted myself or anyone at the York Daily Record. Q. Now, in the middle of that article there's a -- an inset box captioned, "If You Go." Is that something you wrote? A I don't believe that I wrote that, no. Q. And do you know why that's there? A I think it's just to tell people that there's a public meeting that night of the Dover Area School Board, where and when it is. Q. And it says, "The public will have a chance to speak on the issue of teaching evolution and creationism in Dover schools at the school board meeting at 7 p.m." A That is correct. Q. If you could turn to the next article, which is plaintiff's exhibit 793. And this is titled, "Book is Focus of More Debate." Again, is this an article you wrote? A Yes, it is. Q. And it was written on June 15 . A This article would have been written late Monday evening, June 14 . Q. And it was published on the 15 ? A That is correct. Q. And you attended that meeting? A Yes, I did. Q. And what you wrote in here is accurate? A Yes, it is. Q. Now, in the first couple of paragraphs you say that, "At Monday evening's Dover Area School Board meeting William Buckingham apologized to anyone he may have offended with the comments he made at last week's board meeting." Is that correct? A Yes. Q. And then in the next paragraph you say, "But then the school board member reiterated one of his statements to the roughly 90 in attendance, that the separation of church and state is a myth." And then you have this quote attributed to Mr. Buckingham. Nowhere in the constitution does it call for separation of church and state, end quote. A Yes. Q. And that's -- you heard Mr. Buckingham say those words? A Yes. Q. Now, I just want to clarify, because my recollection is that he said words to that effect, or you reported that he said words to that effect at the June 7 meeting. A That is correct. Q. So this is -- this is not referring back to June 7 , this is a second time that he made these comments? A That is correct. Q. And then going down to the last two paragraphs in the first column, you write, "Buckingham said while growing up his generation prayed and read from the Bible during school. Then he said liberals, in quote, black robes, end quote, were taking away the rights of Christians." Now did you write that based on what you heard Mr. Buckingham say? A Yes, I did. Q. And then in the next paragraph, the last one in the first column, you attribute a quote to Mr. Buckingham, 2,000 years ago someone died on a cross, he said, can't someone take a stand for him, end quote. Is that a verbatim quote of what you heard Mr. Buckingham say? A Yes, it is. Q. Now, you said earlier that you had been covering the Dover Area School Board since late fall of 2003. A Yes, sir. Q. Had you ever heard Mr. Buckingham say words to this effect before? A I can only answer questions that pertain to the articles in front of me. Q. That's fine, I'll withdraw that question. In the next column, second full paragraph, again, I believe you're attributing to Mr. Buckingham, you have a quote, I challenge you, in parenthesis, the audience, to trace your roots from the monkey you came from -- to the monkey you came from, end quote. Did I read that correctly? A "I challenge you, the audience, to trace your roots to the monkey you came from." Q. And again, is that something you heard Mr. Buckingham say on the evening of Tuesday, June 14 ? A Yes, sir. Q. And then further down in that column you talk about a Charlotte Buckingham. A Yes, sir. Q. And did she get up and speak during the public comment period? A Yes, sir. Q. And you say, "After quoting several verses from the book of Genesis in the Bible she asked, how can we allow anything else to be taught in our schools?" Is that correct? A That is correct. Q. And do you recall how long Mrs. Buckingham spoke? A Not exactly, no. Q. Was it more than -- I believe they allow three minutes for people to speak. A I believe it was longer than what was typically allowed at the time, although I can't remember the exact time. Q. And then in that next paragraph you wrote, "During her time she repeated gospel verses telling people how to become born-again Christians and said evolution was in direct violation of the teachings of the Bible." A Yes. Q. Is that based on words you heard her say? A Yes, it is. Q. And then in the next paragraph you refer to a Reverend Warren Eshbach, retired? A Yes, sir. Q. And do you know who he is? A I do not know him personally, no, I only recognize him from the meetings. Q. And you write that he said, "The book of Genesis was not written as a science book but rather as a statement of faith," and then you have a quote. "It's the place of the church to teach on matters of faith, he said, not public schools." Now, is that a direct quote? A Yes, it is. Q. So that's something you would have written -- that's something you would have written in your notes? A Yes, it is. Q. And in the -- that next paragraph, you wrote, "He also said the creationism versus evolution issue was polarizing the community." Now, you don't have any quotes in that paragraph. A That is correct. Q. Do you recall him using the word creationism? A Yes, I do. Q. And how about the word polarizing? A Yes, I do. Q. And then at the top of column three, you wrote, "During the meeting Buckingham told those in attendance that he had been asked to tone down his Christian remarks." Again, there's no quotes there, is that correct? A That is correct. Q. Do you recall him saying "Christian remarks"? A Yes, I do. Q. And then you have a quote attributed to him, But I must be who I am and not politically correct, end quote. A That is correct. Q. And so that's a direct quote of what he said? A Yes, sir. Q. If you could turn to the next article, please. Actually let me just -- a couple of last questions on plaintiff's exhibit 793. There's been some dispute about whether Mr. Buckingham said the quote, "2,000 years ago someone died on a cross, can't someone take a stand for him." I mean, do you have a distinct recollection of Mr. Buckingham saying those words? MR. WHITE: Objection, asked and answered. THE WITNESS: Yes, I do. MR. WALCZAK: Your Honor, this has been a matter of some dispute, and I just want to make perfectly clear what this witness's recollection is. THE COURT: I'll allow the answer. I don't think it's exactly the same question. And you did answer the question, I think, did you not? THE WITNESS: Yes, sir. THE COURT: All right. The answer will stand. Objection is overruled. THE WITNESS: My recollection is he said exactly the words that are in those quotes. BY MR. WALCZAK: Q. Let's go to the next exhibit now, which is plaintiff's exhibit 794. I'm sorry, my co-counsel whispered. And you recall him saying that at the June 14 meeting? A It was at that meeting on Monday, June 14 . Q. Now let's try plaintiff's exhibit 794. Now, this is entitled -- I'm sorry, this is -- yeah, this is entitled, "Bio Book Might be Approved." Is this an article that you wrote? A Yes, it was. Q. And it was published on Wednesday, July the 14 ? A That is correct. Q. And this is about what? A May I have a moment with the article, please? Q. Please. (Pause.) A This article would have been written to report the news of the Monday, July 12 meeting. Q. And that's the meeting you attended? A Yes. Q. And halfway down that first column you attribute some things to Assistant Superintendent Michael Baksa? A Yes. Q. And were those things he said at that meeting? A Because this article was published on Wednesday, I cannot say for certain whether or not I would have talked with him Monday at the meeting or as a follow up on Tuesday. I believe that because I do not say in the article that I talked to him on Tuesday, that it would have come out of that meeting. Q. You don't remember whether that was said during the meeting -- public portion of the meeting or outside the meeting? A No, I don t. Q. You say in that paragraph that begins, "Assistant Superintendent Michael Baksa said the new edition still meets state standards and teaches evolution. There are no references to creationism, he said." Again, there's no quotes in that paragraph. Do you recall Mr. Baksa using the term creationism? A In this particular box I do not remember if I -- if he had said that or if I had phrased the question to Mr. Baksa saying, sir, are there any references to creationism in this book. Q. But it was either Mr. Baksa using the term or you using the term creationism in your question to him? A That is correct. Q. And then in that last paragraph, beginning at the bottom of the first column, you wrote, "He said neither creation nor intelligent design were a part of any books that were reviewed." Again, do you recall him using the term intelligent design? A Yes. Q. And is that the -- do you recall whether that's the first time you had heard that term used? A I cannot remember the time that the phrase intelligent design was introduced into these meetings or conversations. Q. If you could turn to the next exhibit, which is plaintiff's exhibit 795. Do you have that? A Yes, sir. Q. And this is titled, "Biology Book Squeaked By." Is this something that you wrote? A I wrote the article, yes. Q. And this is about the August 2 board meeting? A That is correct. Q. Now, about halfway down the first column -- let me backup. You talk about, in the second paragraph, that there was a tie four-four vote for approving the new Biology textbook by Prentice Hall. A Yes. Q. And then in that third paragraph you say, After that vote Buckingham said he would approve the book if the board would also approve a, quote, companion, end quote, book, Pandas and People, which advocates intelligent design theory. You have "companion" in quotes? A That is correct. Q. So you distinctly -- that would have been a verbatim quote of what he said? A Yes. Q. And "he" being Mr. Buckingham? And then in that last paragraph beginning at the bottom of page -- of the first column, you wrote "Jeff Brown." Who is Jeff Brown? A Jeff Brown is a former -- a former board member on the Dover Area School Board. He would have been an active member at the time of this article. Q. You said, "Jeff Brown accused the four board members voting no of blackmailing the board and holding the students hostage." Again, there's no quotes. Do you remember Jeff Brown using the term "blackmailing"? A That is an accurate paraphrase that included the word "blackmailing," yes. Q. And then in the next two paragraph, you come back to Mr. Buckingham, and you write, "Buckingham then said if he didn't get his book, the district would not get the Biology book. Buckingham has been a staunch advocate for the teaching of creationism alongside of evolution." And then have you a quote attributed to Mr. Buckingham, and it s, quote, If we don't get our book, you don't get yours, end quote. So, again, that's something you would have written in your notes as a direct quote from Mr. Buckingham? A That is correct. Q. And then two paragraphs down from there, you say "Buckingham said the intelligent design book would, quote, level the playing field in reference to the state s evolution requirement." So again, is that -- "level the playing field" is something Mr. Buckingham said? A Yes. Q. And then further down it said, "Harkins said she supported Buckingham." A Yes. Q. So she made some indication that she supported what Mr. Buckingham was saying? A Yes. Q. Now, near the bottom of the third column there is -- paragraph starts, "After the meeting Yingling said she couldn't say why she changed her mind." So now this is -- you're now reporting on something that happened after the meeting formally ended? A That is correct. Q. And you're still in the meeting location? A I am standing in front of -- if she's sitting here, I'm on the other side of the table in front of her. Q. And you wrote, But as Buckingham approached her, he said, quote, I can't believe you did that, do you know what you ve done, end quote. So were you talking to Ms. Yingling and Mr. Buckingham came up to the two of you? A That is correct. Q. And those are the words he said to her? A That is correct. Q. And then you quote Ms. Yingling as replying, quote, I feel you were blackmailing them. I just want the kids to have their books, end quote. That was her reply to Mr. Buckingham? A Yes, it was. Q. If you could turn to the next exhibit, which is plaintiff's exhibit 797. Do you have that? A I wrote this article. Q. And this is -- this was published on October 19 ? A Yes, sir. Q. And this is about the October 18 , Dover board meeting? A That is correct. Q. And this is the meeting where they were discussing the curriculum change? A That is correct. Q. Now, in the second paragraph, in the second column, you wrote, "At the end of the meeting a tearful Carol Brown read a statement before resigning from the board." And then, "She said that on more than one occasion she had been asked if she were, quote, born again, referring to the Christian term for salvation." So do you recall her using the term "born again"? A Yes, I do. Q. And then you have a quote attributed to her, quote, No one has nor should have the right to ask that of a fellow board member, she read. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, end quote. A That is correct. Q. Again, that's a direct quote of what Ms. Brown said at the meeting? A Yes, it is. Q. And this was part of her resignation statement? A Yes. Q. Now, at the top of the third column, you have Carol Brown speaking again about a law firm representing the school district if they got sued. A Yes. Q. And then at the end of that first paragraph, at the top of the third column you wrote, "She said, if faculty asked they would be entitled to representation from the district solicitor, Stock and Leader." Are those words -- or words to that effect that Ms. Brown said? A That is a paraphrase of words that she said. Q. And then you have a quote attributed to a Heather Geesey. Who is Heather Geesey? A Heather Geesey is a current board member and a board member at the time of this meeting. Q. And the quote you have attributed to her is, quote, If they requested Stock and Leader, they, in paren, the faculty, close paren, should be fired. They agreed to the book and the changes in the curriculum, end quote. Do you recall Ms. Geesey saying those words? A Yes, I do. Q. And who is Stock and Leader? A Stock and Leader is a law firm in York, Pennsylvania that occasionally represents the Dover Area School Board as their solicitor. Q. And then in the next paragraph you wrote, "but Miller" -- and who are you referring to there? A I believe that would have been Jenn Miller. Q. And she's a biology teacher in the Dover School District? A That is correct. Q. And you wrote, "But Miller and science department head Bertha Spahr said Geesey's statement wasn't true." And then you say, "Spahr said the faculty only agreed to the Pandas book as a compromise to address Buckingham's concern that students have alternate materials to study in addition to their regular text." And those are words that Ms. Spahr said during the public meeting? A That is correct. Q. And is that during the public comment portion of the meeting or was that in response to what Ms. Geesey had said about the teachers should be fired if they asked for representation? A I believe she said this during the public comments portion of the meeting. Q. And then you say, "Spahr also said that not only did her department not approve the new wording, they were not invited to help write it." And then you have a quote, We didn't know you were going to do this, end quote. So, again, that's something Ms. Spahr said at the October 18 meeting? A That is correct. Q. All right. If you could turn to the next exhibit, plaintiff's exhibit 798. This is the last article we re going to look at. Is this something you wrote? A Along with Lori Liebo, yes. Q. And this is a -- again, a follow-up to the October 18 meeting? A Yes, it is. Q. I want to direct your attention to the bottom two paragraphs of the third column. And you wrote, "Both the American Civil Liberties Union and Americans United for Separation of Church and State, who say they are closely monitoring the situation in Dover, point out that if the school district were to lose a legal battle, its taxpayers could end up footing the plaintiffs costly legal bills." And then you have a quote attributed to Bill Buckingham, quote, My response is that is what -- I'm sorry, can you read that? Do you know what's written there? A "My response to that is what price is freedom, Buckingham said. Sometimes you have to take a" -- I cannot read the last word. Q. Could -- A I'm not -- to be honest, I'm not completely sure which portions of this article I'm responsible for, and which parts Lori Liebo -- this quote that you're reading, I'm not sure if that's something she would have included in the article or if that's something I would have talked to Mr. Buckingham about. Q. That's fine. Did any Dover School Board member ever speak to you personally about correcting something you wrote? A No, sir. Q. Did any board member ever complain directly to you about something you wrote about a meeting? A Nothing specific, no. Q. So you never had an interaction with, for instance, Ms. Geesey? A I do remember speaking with Ms. Geesey, yes, I do. Q. And did you speak with her about a complaint she had? A It was about a different article. She was upset that the people were requesting tapes but, again, she didn t ask me for a correction. Q. And did she specify what her complaint was? MR. BENN: Your Honor, I object. I think Mr. Maldonado has indicated that it's a different article. It's nothing he testified about this morning. MR. WALCZAK: Your Honor, that's fine, I ll withdraw the question. THE COURT: All right. BY MR. WALCZAK: Q. So you never got specific complaints about articles you wrote about the Dover Area School District? A I was never asked to make a correction. Q. And are you aware of whether your editors or publishers were ever asked to make a retraction about any of the articles you wrote about the school board? A They were not asked to make any corrections. MR. WALCZAK: I have no further questions. THE COURT: Thank you, Mr. Walczak. Mr. White. We'll ask you not to tear the microphone from its moorings before you commence your cross examination. MR. WHITE: I can break things, I just can't fix them. THE COURT: You may proceed when ready. MR. WHITE: Thank you. Your Honor, I -- THE COURT: You tried that again, did you? MR. WHITE: This would be one of these things that shows up in a Bar Journal article. Yeah. THE COURT: Either that or America's Funniest Home Videos. MR. WHITE: I apologize. THE COURT: Mr. Thompson, please don't let Mr. White touch anything at counsel table for the rest of the day. MR. WHITE: Well, at least the reporters have their lead story. THE COURT: That remains to be seen. CROSS EXAMINATION BY MR. WHITE: Q. Back to being serious now. Mr. Maldonado, your primary occupation is running the sandwich shop? A It's pretty much a tie between my writing and running the sandwich shop. Q. And you're -- you don't have any formal journalism training though, correct? A No, sir. Q. And freelancing, I know you love to write, but it s also a way to supplement your income, correct? A That is correct. Q. And depending on where the article appears in the paper, determines the amount of money you're paid per article, right? A Yes. Q. So a front page story gets you about $65? A Six -- a story that runs right on the front page, 1A, as it's called, is $67.50. Q. And then if it runs on a cover of one of the sections, the local sections, it's about $60? A $62.50. Q. And then just your average story is around $50, right? A Somewhere in that ball park, yes. Q. And it's the editors who decide where in the newspaper your stories will run, correct? A That is correct. Q. Now, although you haven't been in the courtroom previously, you ve been following this case through the newspapers? A I had read some of it earlier as the trial got off the ground, but in the last couple weeks I ve made an effort not to follow the trial. Q. And during the break before you testified, did you speak to Heidi Bubb about her testimony? A No, sir. Q. Did anyone speak to you about her testimony? A No, sir. Q. And you read the editorial page of your newspaper? A I have read the editorial pages, yes. Q. So you understand the position the newspaper takes on various subjects? MR. BENN: Your Honor, I would put the same objection that I did with Ms. Bubb's testimony. MR. WHITE: That was my last question. THE COURT: I'll allow that question. I ll overrule the objection. THE WITNESS: I understand that people take different positions on different issues in our paper. BY MR. WHITE: Q. So you understand the position the editorial page will take on certain issues, correct? A Could you be more specific, sir? Q. Well, your newspaper has an editorial page, correct? A Yes. Q. Editorial pages are generally the position of the newspaper? THE COURT: I'm going to consider that that's a continuing objection. I'll sustain the objection. And I think he answered that question with his last answer, so let's move on. MR. WHITE: I'll move on. BY MR. WHITE: Q. Now, when you attend Dover Area School Board meetings -- when I refer to a school board meeting, that s what I'm talking about, Dover School Board meetings. A Yes. Q. You don't tape record the meetings, do you? A No, I do not. Q. You don't videotape record them either? A No, I do not. Q. So you just take handwritten notes? A That is correct. Q. And you don't write down everything that was said during the meeting, do you? A No, sir. Q. And you don't write down verbatim statements of everything that was said in the meeting either, do you? A Not of everything, no. Q. So you sometimes have to summarize in your notes what was being said? A I have to paraphrase to the best of my ability. Q. And paraphrasing would be just your interpretation of what someone said, correct? A A paraphrase means that those words were said but not necessarily in the form that I placed them in the paper. Q. And do you ever have the person who you ve quoted in your notes verify the accuracy of those quotes? A No, I do not. Q. Do you have the person who you are paraphrasing verify the accuracy of your paraphrasing of what they said? A No, sir. Q. Do you have the person, when you do eventually write the article, do you have the person verify the accuracy of a quotation you attribute to that person in the article? A No, sir. Q. Do you have the person verify a paraphrasing that you attribute to that person in the article? A No, sir. Q. Do you have the person verify the context in which you ve set forth their quotation in an article you write? A No, sir. Q. Do you have the person verify the context of the summary of the paraphrasing that you ve attributed to that person in the context of the article? A I write the articles and send it to my editor. Q. Now, the notes -- so, in other words, the answer is no? A No. Q. The notes that you take at these meetings, you destroy those as a matter of practice roughly 30 days or so after? A That is correct. Q. And you don't have any notes from the 2004 school board meetings, do you? A No, sir. Q. So the defendants, we haven't been able to look at your notes, have we? A No. Q. Now, school board meetings for the Dover School Board, they generally last a couple of hours? A If I had to average it out I would say anywhere from two to three hours. Q. And you sit in the front row of those meetings? A Yes. Q. And Heidi Bubb also sits in the front row generally? A I can't tell you where Heidi sits from meeting to meeting. Q. Do you ever compare your notes with Heidi during meetings? A No, I do not. Q. Do you ever step out of a school board meeting to go to the bathroom, for example? A Yes, I do. Q. When you come back in do you ask people what you missed? A No. Q. Do you also step out of meetings to conduct interviews? A Yes, I do. Q. So you're not always in the school board meeting? A Sometimes if a person I need to interview is leaving before the meeting ends and I need to catch that person, yes, I will step out and do an interview. Q. So the answer to my question is yes, you're not always in the -- A I am not always in the room, that is correct. Q. And during these school board meetings there are several topics that are generally discussed? A Yes. Q. So there's usually more than just one item on the agenda? A Yes. Q. And during the meeting several people are speaking, for example, you'll have school board members who will talk, correct? A Yes. Q. And then you'll have members of the public who get a chance to speak, correct? A Yes. Q. And when these people are speaking during school board meetings, are they under oath? A Not that I know of. Q. And sometimes you speak to people after meetings, correct? A Yes. Q. Are those people under oath when you're speaking to them? A Do I make them raise their hand and swear on the Bible to tell me the truth, the whole truth, and nothing but the truth? No, I don't do that, so if that is your definition of being under oath. Q. So as far as you know these people aren't under oath either in the meeting or after the meeting? A Well, I'm certainly hoping they are telling me the truth. Q. That wasn't my question. They're not under oath, correct? A They are not under oath, no. Q. Now, when you write these articles for the school board meetings, you're not describing everything that took place during the meeting, of course. A No, I'm not. Q. And when you write the articles about the school board meetings, you're not including all the statements made during those meetings either, are you? A No, I'm not. Q. And in writing these articles about the school board meetings, in particular the Dover School Board, you re not including all the topics discussed during the meeting either. A That is correct. Q. And in writing the articles about the school board, you don't include all of the comments people are making about the various topics discussed. A No, sir. Q. Now, your articles that you ve gone over with plaintiff's counsel today, they include statements that you attribute to school board members in particular that occurred during the meeting, correct? A During and after the meeting, yes. Q. So after -- A Or on a phone call if -- Q. Well, right now I'm just asking you about statements that occurred during the meeting. A Okay. Q. That's correct, right? A I'm sorry, could you repeat your question? Q. Your articles are attributing statements or summaries paraphrasing of school board members that took place during the public meeting. A Some of the articles paraphrase or quote people after the meetings, some of them paraphrase or quote them the next day via phone calls or trips that I might have made to the district. Q. That in addition to what took place in the meeting? A In addition to what took place at the meeting. Q. It took us a while but we finally got it. So when you're writing these articles about the school board meetings, you're just capturing only part of what happened during the meeting, correct? A Yes. Q. And you're the one who selects what part of the school board meeting you're going to write about in that article, correct? A Yes. Q. And you select which quotes that you want to put into the articles about those meetings? A Yes, I do. Q. And you're the one who decides when to paraphrase or summarize statements made by people during meetings? A Yes, I am. Q. And that's also counting both my questions, other statements you ve heard from people after a meeting on the telephone, et cetera? A Yes. Q. Now, when you're attributing these summaries or paraphrasing, again, that's just your interpretation of what the people were saying, correct? A It's -- it's a summary of the words that were spoken. Q. But based on how you perceived the statements, correct? A It is a summary of the words that were spoken. Q. Based upon your perceptions though, right? A I will not -- MR. BENN: Your Honor, we're not dealing with perceptions. I think he's answered the question. It s based upon his understanding of what people have stated. THE COURT: Mr. White. MR. WHITE: As Mr. Benn just said, it's based upon your understanding of what people said, correct? THE WITNESS: That is correct. MR. WHITE: That is just another way of saying perception then. THE COURT: I'm not sure that's true, and that may be inconsistent with the order. The second question is not objectionable. The first question I think was. I'll note that. BY MR. WHITE: Q. You sometimes, in your articles, attribute statements to people based on the questions you ve asked them, correct? A Yes. MR. WHITE: I apologize, Your Honor. BY MR. WHITE: Q. Articles you write include statements school board members that occurred after the meeting, had telephone conversations with them, things like that? A Could you repeat that, please? Q. Some of the statements, as we talked about, are statements made to you by school board or school official members after -- after a meeting? A Yes, sir. Q. Now, when you write your articles, you don't have the people -- and we went over this before, but just to make clear -- when you write an article you don't have the person you quoted in the article verify the accuracy of that quote, right? A No, sir. Q. Nor do you have the person verify the accuracy of the context of the quote in your particular article? A No, sir. Q. Nor do you have the person who you're summarizing or paraphrasing verify the accuracy of that paraphrasing, correct? A We do not allow our subjects to editorialize our stories, no, sir. Q. I'm asking about verifying. A No. Q. After you write your articles you submit the article to the editors of your paper. A Yes. Q. And you just send it by e-mail to a number of editors, and whoever happens to be on the shift that day reviews and edits the article, is that right? A That is correct. Q. And it's the editor who writes the title of the article. A Yes. Q. And any subtitles, also is the editor who writes them? A Yes. Q. And now, you're not aware of the amount of editing that goes into your articles, correct, as we went over during your deposition? A When I write my articles, typically when I read them in the paper, there's not much. Typically what I write ends up in the paper? Q. My question was, but you're not aware of the amount of editing that goes into it, though? A No, once they end up in the newsroom, no. Q. Also, and after the article is edited, you don t review it again before it's published in the paper, right? A No. Q. If you can look at exhibit 790, please. This exhibit is dealing with the June 7 , 2004 school board meeting, correct? A Yes, it is. Q. And the subtitle that says, "A Board Member said a Book was Rejected Because it Didn't Offer Creationism," that was written by the editor? A It says "A Board Member said a Book was Rejected Because it Didn't Offer Creationism," yes, that would have been written by an editor. Q. The debate that was taking place at this June 7 meeting, that was about which textbook to use in the classroom for the biology students, is that right? A Yes. Q. And you're saying that the word creationism was mentioned by some board members, in particular, Mr. Bonsell and Mr. Buckingham? A Once the word creationism was introduced into discussion, all of the board members would have used it, whoever spoke at that meeting. Q. Now, in your article the board members you referred to are Mr. Bonsell and Mr. Buckingham, correct? A That is correct. Q. So you don't have any references to any other board members in your article, especially with regard to the use of the word creationism, correct? A No, sir. Q. Now, your article here, you have some quotes that are attributed to board members, right? A Yes. Q. So, for example, you have a quote attributed in the second column to Mr. Buckingham, correct? A Yes. Q. And quotes then are verbatim statements of what the person said, right? A Yes. Q. So when you have it in quotes, that means it's a word-for-word accurate statement, correct? A Yes. Q. In this article the only time you use the word creationism, apart from the subtitle, is in circumstances where the word is not in quotations, correct? You want to look at the article? A That is correct. Q. Now, you're saying that there were several board members who -- or I think you said all the board members were using the word creationism during this meeting, is that right? A Whoever would have participated in this part of the discussion. Not all the board members necessarily chime in, but all of them who would have spoke on it. Q. And then there were -- were there any members of the public who spoke during this meeting? A The only one I had in my article was Max Pell, but there may have been others. Q. Now, in your article though, nowhere is the word creationism used in a quoted statement attributed to a school board member, correct? A That is correct. Q. And that's true even though part of the discussion at this meeting, according to you, dealt with creationism as it relates to a textbook, is that right? A Yes. Q. Now, when you don't have statements in this particular article that are in quotes, you're saying that s a summary or a paraphrasing? A A paraphrasing, yes. Q. If you can look to the next article, which I believe is 791, exhibit 791. Now, I'm correct that this would be a follow-up article to the June 7, 2004 meeting? A Yes. Q. And I believe you had earlier said that this is a -- to get a feel for the man-on-the-street type of an article? A Yes. Q. And that man-on-the-street reaction, that's based upon the article you had written which we just discussed, exhibit 790? A And any other knowledge they may have. Q. The people in the public who you spoke to, these are people you just randomly selected? A That is correct. Q. And these were people in the community of Dover? A Yes. Q. Dover has about what, 20,000 residents? A I don't know that. I'm not a census taker. Q. But it has thousands of residents as far as you know? A I don't know. Q. Didn't you grow up in the York area? A Yes, but I don't count the people that live there. Q. But you cover the Dover area for the newspaper, right? A Yes, I do. Q. But you don't have any knowledge as far as number of people who live in the area? A No, sir. Q. Okay. So assume to say that there are more than a handful of people. All in your article there you just spoke to a couple of people to gather their reaction to your article or any other information they may have, correct? A Well, I spoke with more than a couple. I would have been there about two hours and spoke with a lot of people. Q. So if you spoke to a lot of people then, all you mentioned in your article are a couple of the people, right? A I only had so much space, so, yes. Q. So with that you selected, because you don't have a lot of space, which people you would quote in this article, right? A Yes. Q. And which people whose statements you would paraphrase, is that right? A Yes. Q. So you selected how this article would be structured, right? A Yes. Q. Now, in this article, again, you had mentioned that at the June 7 , 2004 meeting, that in particular Mr. Buckingham and Mr. Bonsell had mentioned the words creation or creationism. And this is a follow up to that June 7 meeting, correct? A Yes. Q. And again, with regard to those two individuals, in this follow-up piece, do you have any statements that you have quoted from them, direct quotes, where the word creationism or creation is included? I'm talking about Mr. Bonsell and Mr. Buckingham. A I'm sorry, could you rephrase that question? Q. I'm saying with regard to Mr. Bonsell and Mr. Buckingham, in this article, exhibit 791, which is a follow up to the June 7 meeting, do you have any direct quotes that you can attribute to those two men where the word creationism or creation is stated within those quotes? A Within this article? Q. Yes. A I don't believe so. Q. Now, your conversation with Mr. Weinrich that is the bottom part of this article, that was a conversation that you had after the June 7 , 2004 meeting, correct? A That is correct. Q. And was that a conversation over the phone, do you recall? A I believe it was over the phone. Q. So that's a -- a give and take conversation you had with him, right? A It was a conversation that I had with him. Q. On this -- on this exhibit there's a box in the middle that says, "On the web, Pennsylvania's academic standards for science and technology which allow for teaching of creationism can be found at," and then it gives a web site for the Commonwealth of Pennsylvania s, looks like, education department. Did you prepare that box? A No. Q. That's prepared by whom? A Whichever editor would have worked on this story. Q. When you speak to these people who -- for the man-on-the-street, how do you confirm that they're actually residents of Dover? A I ask them. Q. You ask them. You don't check their driver s license or anything like that? A No, I don't go that far. Q. Please look at the next exhibit, which is 792. 792 is an article that appeared June 14 , 2004 in your York Daily Record, correct? A June 14th, 2004, yes. Q. And this is another follow-up article of the June 7 , 2004 meeting? A That is correct. Q. And with these follow-up pieces, is it that the editors ask you to write the follow-up articles? A I believe in this case it was, yes. Q. And again, it's the editor who writes the heading and the -- or the title and the subheading, correct? A That is correct. Q. And does that also apply to the small box that's in the middle that says "If You Go"? A Yes. Q. Now, you relied on your notes and memory from the June 7 , 2004 meeting in preparing this article? A That is correct. Q. And some of the -- for example, you also did in this article another man-on-the-street interview, you interviewed a few teenagers, it looks to me, like Mike Johnson, David Storms, on column three? A Yes. Q. And you just picked them out randomly? A That is correct. Q. Had you spoken to other men on the street besides Mr. Storms and Mr. Johnson? A I can't recall how many people I spoke to but, yes, I spoke to more than them. Q. But those are the ones you focussed on in your article? A Yes. Q. And also in this article, as it relates to comments made at the June 7, 2004 school board meeting by school board members, you don't have any direct quotes from that meeting attributed to school board members where the word creationism is part of the quote. A That is correct. Q. And that's true also even though the focus of the June 7 meeting, according to your articles, was the discussion of creationism -- A Yes. Q. -- as it relates to the textbook, right? A Yes. Q. If you can turn back to exhibit 790, please. On the far right column, I believe that's column four, you have the quote -- direct quote you attribute to Mr. Buckingham dealing with Muslim beliefs. Again, that was after the meeting in a conversation you had with him? A At his chair after the meeting, yes. Q. So those are responding to questions you were posing to him? A That is correct. Q. Please go to exhibit 793. This article was published on June 15 , 2004, so this is dealing with the meeting the day before the school board, June 14 , 2004? A Yes. Q. And according to the subtitle, which the editor would have written, correct? A Yes. Q. Says, "Teaching of Creationism or Evolution was the Topic Again at the Dover Area School Board Meeting." Now, when you send in your articles, do you put a proposed title on the article? A No. Q. So the editor is writing the title based upon what your article talks about, right? A Yes. Q. And they're writing the title to get the attention of the reader, right? A Yes. Q. Now, according to this article there were roughly 90 people who were in attendance. And after -- after meetings -- well, let me ask you this. The center column, it talks about Charlotte Buckingham and statements you attribute to her. She made these statements during the public comment portion of the meeting? A Yes. Q. And this is a time when anyone from the public can get up and say anything? A Yes. Q. And she's not a member of the school board, is she? A No. Q. And you have a quote at the bottom of the first column from Mr. Buckingham, quote, 2,000 years ago someone died on a cross, end quote. Quote, Can't someone take a stand for him. Now, Mr. Buckingham made the comment at the June 14 meeting? A Yes. Q. And did he only make that comment once during the June 14 meeting? A I can't recall. Sometimes they repeated themselves, sometimes they didn t. Q. So you don't recall whether he did or didn t? A I don't know whether he said this once, twice, three times, I just know that he said it. Q. With this article that we're talking about, exhibit 793, and the other ones we ve talked about today so far, after you write the article you don't verify with anyone the quotes that you attribute to them, correct? A No. Q. And you don't verify the accuracy of any statements, whether quoted or not, with the person whom you ve attributed those statements? A No. Q. And also you don't verify the accuracy of the context of any statements with the person to whom you ve attributed those statements, correct? A No. Q. These articles you write, this is again what you think would make the best story, correct? A I try to pick the most newsworthy material to present to our readers. Q. Based upon your selection of the events that occurred at the meeting, correct? A Based on the information that is presented at the meetings, I try to pick the most newsworthy items for our newspaper. Q. The next exhibit, 794. This is with regard to the July -- July 12 , 2004 meeting. A Yes. Q. And again -- well, let me go back. Let's go back to 793, I'm sorry. 793 deals with the June 14 , 2004 meeting, okay. And according to the article, at least the title of the article, "Teaching of Creationism was Again a Topic of Discussion at the Meeting," right? A Yes. Q. Do you have any quotes from school board members with the inclusion of the word creation or creationism in those verbatim quotes from the meeting? A I would like a moment to read the article, please. (Pause.) No. Q. Do you have any -- in the articles -- nowhere in the article does there appear a quoted statement from a school board member where the word creationism is used in the quote, correct? A No. Q. Nowhere in this article is there a quoted statement from a school official where the word creationism appears in a quote either, is there? A No. Q. And this is true even though the teaching of creationism, according to this subtitle, was a topic at the school board meeting, right? A Creationism was a topic of discussion during the school board meeting. Q. My answer -- my question though was, even though that is the topic of the meeting, in your article you don t have any direct quotes from school board members or school officials where the word creationism is part of the quote. A There is no quote that includes the word creation, however, creationism was a part of that discussion that evening, and that would be an accurate description of what took place. Q. So at this meeting -- how long did this meeting last, do you remember? A I don't recall. Q. You said usually it lasts a couple -- couple, three hours? A I don't recall how long this meeting was. Q. As a general rule you said earlier that they last, you know, two or so hours, right? A That is correct. Q. And you're taking notes throughout the entire meeting, correct? A At most meetings, yes. Q. I'm talking, do you remember the June 14 meeting? A Yes. Q. Okay. And you're taking notes during this time, is that correct? A That is correct. Q. And you said you're trying to put in your notes the most newsworthy items, right? A I ve said that repeatedly, yes. Q. And you're trying to also quote verbatimly any of the key statements made by the people who were speaking at the meeting, right? A Yes. Q. Just like for Mr. Buckingham you have the quote, 2,000 years ago, et cetera, that's in quotes, right? A Yes. Q. So you put that in the article because you consider that newsworthy, right? A Yes. Q. But, again, you don't have any of those newsworthy quotes in this article dealing with a statement -- quoted statement by a school board member or official where the word creationism is part of the quote, right? A That is correct. Q. 794, please. If you could look at that. This is again -- right, so we're talking about -- I'm having a hard time with my vision today. If -- were we going over 793 previously? Is that . . . A We were on 793. Q. 794, please. This is the July 12 , 2004 meeting, and in this article you're talking about the term intelligent design, correct? A Just give me a moment. Yes. Q. And so intelligent design is mentioned at the July 12 , 2004 meeting, is that right? A Yes. Q. And that's mentioned by school board members, correct? A Well, according to my article it says that, "There were several reasons why others were not selected, Baksa said including readability, layout, content, as it relates to the curriculum." He said -- I'm sorry. "There were several reasons why the others were not selected, Baksa said, including readability, layout, and content as it is related to curriculum. He said neither creation nor intelligent design were a part of any books that he reviewed." Q. But at the meeting, July 12 meeting, the term intelligent design had been used, is that right? A I believe so. Q. And also at this July 12 meeting, where they re discussing textbooks and books, you don't have any direct quotes from any school board member/official that includes the word creationism in a verbatim quote, is that right? A That is correct. Q. Number exhibit 795, please. 795 is the -- dealing with the August 2 , 2004 meeting, correct? A That is correct. Q. And at the -- at the 8 -- August 2 , 2004 meeting, intelligent design and Pandas and People are being discussed according to your article, correct? A That is correct. Q. And in the first column of the article, after the quote, you have Mr. Buckingham talking about approval Of Pandas and People, which advocates, quote, intelligent design theory, end quote. So that's what Mr. Buckingham had said? A I'm sorry, could you repeat your question? Q. Mr. Buckingham had referred to Pandas and People as an intelligent design book? A Yes. Q. Mr. Buckingham had not referred to Pandas and People as a creationist book, correct? A Not that I can recall, no. Q. Now, during this meeting, the school board members were debating the adoption of the textbook Biology by Prentice Hall, correct? A Yes. Q. And that's the primary textbook for the students as far as you know from these meetings? A Yes. Q. And again, during this meeting based on your notes in your article here, you don't have any direct quotations from people talking about creationism, correct? A That is correct. Q. The next exhibit you were directed to earlier was exhibit 797. This is an article dealing with the October 18 , 2004 school board meeting, correct? A Yes. Q. Now, at this school board meeting, did you attend the entire meeting? A I don't recall. Q. You don't remember whether you were there for the entire meeting, right? A I do not recall. Q. At the October 18 , 2004 meeting, the discussion dealt with intelligent design being placed into the biology curriculum, correct? A Yes. Q. And creationism was not mentioned at this meeting, according to this article, right? A Not that I can recall. Q. And this last article, exhibit 798, it was Lori Liebo, who's also on the byline, she's the one who wrote the bulk of the article. A In reading this article I believe this is mostly her work. Q. Now, during -- during school board meetings, school board members would publicly accuse you and the media of lying in their reporting? A They would make statements to say that the media had been inaccurate in its reporting. Q. Do you remember them making statements about the media having an agenda? MR. BENN: Are we talking about any particular school board meeting? MR. WHITE: Talking about during the meetings that he had attended during 2004 as related to these articles. THE WITNESS: I cannot recall if the school board began making those comments before this final article on October 20 or not, I do not recall. BY MR. WHITE: Q. You do recall at the meetings criticism about the reporting, correct? A I do not know if they took place during the timeframe of the stories that are in front of me. Q. You remember such criticism being made, correct? A I do remember those criticisms being made, but I do not know if they took place during the timeframe of these articles. Q. And during the timeframe of these articles, board members had come up to you individually and complained about your reporting? A They had complained about the media in general. Q. Had any of them come up to you and said to you that they wanted a correction? A No, they did not. Q. Had any of them come up to you and said to you, you got the story wrong, Joe? A No. Well, they were saying that we got the story wrong, but they would not mention any specifics that they wanted corrections of. MR. WHITE: Nothing further, Your Honor. MR. WALCZAK: I have nothing further. THE COURT: No redirect. All right, can we excuse this witness by agreement of counsel? MR. WHITE: That's fine by me. THE COURT: Sir, you are free to go, that completes your testimony. All right, let's take up some exhibits. We -- did you talk to them about Nilsen? MR. WHITE: Your Honor, is it possible, I don t mean to stall the day, but is it possible to do this afternoon lunch because I know Mr. Gillen wanted to be here for that. THE COURT: Well, that's fine, and -- on Dr. Nilsen's testimony? MR. WHITE: On Nilsen's testimony and all of the exhibits. THE COURT: All of the -- well, let's talk about how we're going to do it just as a precursor, that's fine. But on Dr. Nilsen's testimony what I had asked Liz to mention previously, and I'll just reiterate, we have quite a few exhibits relating to Dr. Nilsen. If you would be kind enough to take some time over the lunch hour, and if you haven't done this already, and somehow highlight for me the exhibits that can be stipulated based on the master list that we have circulated. And then we can argue only about those exhibits that are controversial as they relate to Dr. Nilsen. With respect to Mr. Buckingham's testimony, there are fewer exhibits. You might -- we do have a master list here. Have you distributed that to counsel? THE DEPUTY CLERK: Yes. THE COURT: You might want to do the same thing so that we can catch up with Mr. Buckingham's exhibits as well. MR. WHITE: Does Mr. Gillen have that? THE DEPUTY CLERK: It's on your desk there. MR. WHITE: Thank you. THE COURT: So I'll ask you to coalesce and see if you could work that out. Now, I want to talk for a minute about the -- as a precursor to argument on the news articles, it appears to me, and I direct this first to the plaintiffs, it appears to me that we have newspaper articles that are being introduced or attempt to introduce newspaper articles for two purposes, mainly, one is the truth of the contents, some of the contents of the articles, in particular as that goes to certain statements that are in dispute, mainly it appears statements by Mr. Buckingham, but possibly statements by others. The second purpose appears to be to introduce the newspaper articles under the effect prong and the Lemon test. And it was argued previously that -- and controverted by the defendants that because it -- because the articles are introduced on the effect prong, if I understood your argument, that the truth is not at issue. Do I have that right from the plaintiffs standpoint? MR. WALCZAK: Your Honor, yes, we believe they come in both for the truth of what's asserted in the articles, that in fact it's non-hearsay under Rule 801, but even if it was hearsay, if there's ever a situation that meets the 807 residual hearsay exception, I mean this is certainly it. I'm happy to argue that. THE COURT: Well, I don't -- you know, I want to refrain, consistent with what I said to Mr. White and I think Mr. Gillen wants to be a party to this argument, so I'm not pressing you necessarily to argue it, I'm just trying to get squared away before we start to argue. Where in 801 though, by the way, are you hanging your hat? MR. WALCZAK: I am hanging my hat, so to speak, on 801(d)(1)(B), prior statement by a witness where the declarant testifies at the trial or hearing, is subject to cross examination concerning this statement, and the statement is -- and I'm going down to (B), consistent with the declarant's testimony; and it's offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. THE COURT: And you're arguing in the alternative 807, is that correct? MR. WALCZAK: That's correct, Your Honor. But coming back to the original question, yes, I mean we are offering these 14 articles that -- I believe it's 16 articles that were testified to by Ms. Bernard-Bubb and Mr. Maldonado. We are offering those for the truth of the matter asserted. We are offering all of the articles and the letters and the editorials under the effects prong as this is kind of the historical record that's out there. And regardless of whether it's true or not, that's what was reported, that's what the public would have read. And -- THE COURT: Well, let me ask you this, can you identify in the -- now, you have articles -- those articles in particular that go to the disputed statements, you can do that? MR. WALCZAK: I certainly can do that after lunch. THE COURT: No, I don't mean now, but it's possible for you to do that. I'm sure that I can go over the testimony and do it as well, but I would put that burden on you because I think that we need to argue them in two classifications. And I say this to the defendants as well. I think to the extent that there are certain articles that contain statements that are either disputed in whole or in part by defendants witnesses and in the main it appears Mr. Buckingham, but there may be others, I think we need to take those and identify those and understand what it is that we're talking about. And then I recognize that there's an overlap, and that those same articles you might seek to introduce under the effect prong. And I'm not sure under the endorsement prong, but I frankly don't know how that would work with newspaper articles, and that's an argument we'll leave for another day. But I think we should be clear what it is that we're doing. Are you taking the position -- are the plaintiffs taking the position that those articles that are not being introduced to controvert denials by witnesses as they relate to statements made, that the truth of those articles or other parts of the articles, the truth is not at issue in those articles? Are you saying they're not hearsay because they don't go to the truth as they relate to the effect prong? MR. WALCZAK: Your Honor, we would argue that if -- of the 16 articles about which we heard testimony in the last day, the entire article comes in for the truth of the matter asserted. I mean this is, frankly, the best historical record that we have. It's based on notes taken contemporaneously by people who were there, who listened, who wrote it down. And they have testified that what they wrote down was truthful, it was accurate. There is a great degree of reliability here and, frankly, you know, I'm not sure why we would exclude what is clearly the best contemporaneous historical account of what happened in this situation. So we would offer it not just to rebut the statements of the defendants, but we would offer these 16 articles in their entirety. THE COURT: Well, I think you have to have a purpose. I think to simply introduce them into the record without a purpose, I will tell that you now, and I think you're going to have to hone that argument a little bit so to simply say they're the best historical record. Record of what? I mean we have -- we have other testimony in as to what happened at these meetings. And I want to be careful how we approach this. I fully recognize that you re, at least in part, attempting to introduce the articles as they relate to these disputed statements. But I think we need to have something more than these are historical records of -- or the best historical records of these events. I will tell you that now, and you should think about what the balance of the contents of these articles go to other than simply that they're historical records. I'm not entirely sure about that. And I'm not entirely sure of the relevance, although I'm not forestalling an argument on that basis. MR. WALCZAK: Just, let me just observe, Your Honor, that there are -- that the direct quotes are relatively few in these articles. If -- if you actually look at the articles, virtually every paragraph in there that doesn't have a direct quote, indicates that Mr. Buckingham said or reported. And so I don't think it s difficult to distinguish the direct quotes from the paraphrases. And there also have been disputes by the defendants and will be more disputes I'm quite sure as to what happened at these meetings, not just what was said. THE COURT: And I -- I understand that. And so that -- that is entirely consistent with -- what you just said is entirely consistent with my -- and is in fact is in answer to my question. If you're introducing the articles for disputed facts, in order to assist the Court in resolving certain disputed facts, that's fine, but I -- and I'd have to go and review these articles one by one, but arguably there are extraneous things in those articles that would not go to disputed facts, and I -- I want to be cautious about how we approach this. And to simply say that the articles are a historical record generally of what took place, I'm not so sure that that is a -- that that convinces me about the admissibility. I think you just need to hone that. And by saying this, I put the defendants on notice, and these are some of the areas that I think we need to touch on as we look at the -- as we look at the articles. So we'll reserve further argument on the articles until after the lunch hour. Now, let me ask you, what do you have in mind for testimony this afternoon? We're going to go back to defendants case and -- MR. WHITE: I believe Mr. Gillen will call Heather Geesey, that's my understanding. THE COURT: We're going to finish -- are we finishing Mr. Baksa at some point or not today? MR. WHITE: As I understand it, Your Honor, Mr. Gillen intends to call Heather Geesey as the next witness, and then we're going to come back with Mr. Baksa after that. THE COURT: All right. So we'll pick up -- now, I guess we can pick up with argument after lunch. What is your pleasure? You want to -- you want to deal with this now or do you want to keep going with witnesses? MR. ROTHSCHILD: I think, given what is left, we ought to keep pressing forward with witnesses in order to get this case completed by -- MR. THOMPSON: Your Honor, I think you ve raised some very crucial evidentiary points here. And I think a part of that will really deal with the substantive aspects of the law. We're talking about the effects prong. So I think it's a matter that we should spend some time on to give the Court our best opinion -- THE COURT: I would tend to agree with that. Why don't we do this, taking into consideration what Mr. Rothchild said and what you're saying, Mr. Thompson, I m concerned that we're going to get too far behind and have such an accumulation of exhibits that it will take us half a day to get them in. Let me ask your indulgence, other than the articles that were rendered for Mr. Buckingham and Dr. Nilsen, which remain in dispute, obviously, that's what we just talked about, I would ask that you deal with Dr. Nilsen and Dr. -- or Dr. Nilsen and Mr. Buckingham over the lunch hour. Let s try to get that done -- those two done, because I don t think they're particularly controversial. Some may, but let's argue the non-article exhibits after lunch. We will reserve arguments, which obviously will be a longer argument and could take quite some time on the newspaper articles based on the intellectual discussion that we ve had here and my telegraphing what my concerns are, and we'll have to do it next week. I would just as soon accept Mr. Rothchild's suggestion that we keep plowing through testimony in the available time. MR. THOMPSON: So that I understand it correctly, Your Honor, you're holding in reserve until next week the arguments on the articles and the effect it has on the -- the effects prong aspect of it and the truth for the matter asserted in the articles? THE COURT: Yeah, consistent with my preview, if you will, I think we can tackle that next week. I don t think there's any impediment to continuing with witnesses and handling that next week, because it does really weave into argument that I want -- I'm going to want to hear at the end of the case as we get into the effect prong, the endorsement test, and things like that. So these all combine at some point. And I don't think there's any reason to wait. If you -- or to do it today, and we can wait. If you want to discuss among yourselves what you think an appropriate intermezzo is next week that we can have some extended argument on that, that's fine with me, I'll take it whenever you want to -- whenever you want to address it. Monday, if that works for everybody, but I understand there is issues of witness availability, and we want to keep going and keep taking testimony. So we will do Buckingham and we will do Dr. Nilsen after lunch, non-articles only; we'll reserve the articles. MR. THOMPSON: Thank you. THE COURT: Do you have a question? MR. WHITE: My only question was, Your Honor, was next week, is trial days Monday, Wednesday, Thursday, Friday? THE COURT: That's correct. MR. WHITE: One of those days -- because I was going back to Michigan. We'll talk about the best day. THE COURT: Yeah, if you want -- you going to be here? MR. WHITE: Yeah, I just have to make arrangements to come back, that's why if we had a particular day then I can make the arrangements. THE COURT: That's what I said, if you can reach an agreement among yourselves, that's perfectly fine with me, so that you're not inconvenienced. All right? MR. WHITE: Yes, thank you, Judge. THE COURT: Anything else before we recess? MR. WALCZAK: No. THE COURT: Why don't we recess until, let's say 1:30, and we'll pick up the testimony at 1:30, I guess with Ms. Geesey this afternoon. We'll be in recess. THE DEPUTY CLERK: All rise. (Whereupon, a luncheon recess was taken from 12:15 p.m. to 1:39 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 17 (October 28), PM Session, Part 1 THE COURT: Be seated, please. All right, based on our discussion before lunch, we want to take some exhibits, I guess, first things first. Taking them in order of presentation, we would have first Dr. Nilsen's exhibits. Now, have you had an opportunity to look at that? MR. ROTHSCHILD: We have, Your Honor. MR. GILLEN: We have. THE COURT: Do you want to -- do you have them marked up or do you want to read off what you can agree to? MR. GILLEN: Yes, Your Honor. We ve got agreement, we're moving in everything except defendant's 84, which is the Atlanta Journal article. I would ask your indulgence with respect to 172 -- oh, actually Eric helped me, and I'm only moving in from defendant's 172, the documents with Bates pages 359, 360 and 341. THE COURT: Okay. MR. ROTHSCHILD: And, Your Honor, I have no objection to any of the exhibits. I just wanted to make sure the record was clear on D-153, transcript of the October 18 meeting, that that transcript is not a complete transcript even of the portion of the meeting that was reported. I think we are in agreement on that. MR. GILLEN: We are. THE COURT: Say that again, Mr. Rothchild. MR. ROTHSCHILD: The transcript of the October 18 , 2004 meeting, which is defendant's 153, is only a portion of what was actually record -- there was some that was not recorded. THE COURT: I recall that, that was the secretary transcribed partial transcript. MR. ROTHSCHILD: That's right. And just to be clear, it's a partial transcript even of what was properly recorded. THE COURT: I understand. And I did understand that. But as far as it's marked and what I get, your comment goes to what it's labeled, not what I'm going to get. MR. ROTHSCHILD: Correct. THE COURT: All right. So let's just -- let's just review then. It appears then on the defendant's side -- well, let me backup. How about on cross, we have a number of exhibits on the master list here on cross and then one on recross. MR. ROTHSCHILD: On the list for cross, Your Honor, we are moving in P-1 -- P-26. We will move in P-44, 53, 54, which are articles, and I think they're reserved for your later ruling. THE COURT: Right. MR. ROTHSCHILD: We're moving in P-70, P-109, P-120, P-752, P-753 and P-758, and P-81. We are not moving in at this time P-757, which was on Liz's list. And I withdrew P-785, so we're not moving that in. THE COURT: And there's no objection to the exhibits as named then? MR. GILLEN: Correct, Your Honor. THE COURT: All right. And I don't think under the -- under Dr. Nilsen's defendants exhibits there were no articles referenced that I can see. So we'll admit then by agreement of counsel, and check me on this so you make sure that I have it, D-1 -- this is as to Dr. Nilsen, D-1, D-2, D-3, D-6, D-8, D-14, D-15, D-22, D-23, D-26, D-28, D-30, D-45, D-48, D-51, D-65, D-67, D-63, D-70, D-71, D-81, D-83. D-84 is in controversy, is that correct? MR. GILLEN: It's not being moved, Your Honor. THE COURT: It's not moved -- not being moved then at all? All right, so we're not going to argue that. D-101, D-102, D-103, D-105, D-106, D-127, D-133, D-134, D-135, D-137, D-138, D-139, D-142, D-153, D-172 Bates 359, 360 and 341 only. MR. GILLEN: Correct, Your Honor. THE COURT: Is that correct? D-193, D-283 and D-288. Those are defendants exhibits and they are admitted. On cross, plaintiffs exhibits P-26, P-70. We re reserving argument and we will not admit at this time P-44, P-53, P-54. As I noted, P-70 is in. P-109, P-120, P-752, P-753 and P-758 and P-81, all are admitted without objection. Does that cover all of Dr. Nilsen's exhibits? MR. ROTHSCHILD: Yes, Your Honor. THE COURT: And, again, we'll reserve the issue of the admissibility of the articles. Now, with respect to Mr. Buckingham, if we take out the articles, do we have an agreement on the other exhibits for Mr. Buckingham? MR. HARVEY: We do, Your Honor, with one exception. The defendants are objecting to the admission of the Fox 43 clip. And it's our position that it's clearly authentic, as no issue of authenticity was raised prior to trial, although we listed it. Further, Mr. Buckingham admitted that was him on the tape speaking, and he admitted that he was speaking to a television reporter from Fox 43, and therefore it's an admission as well. So there's no basis to exclude that from evidence. THE COURT: Well, let's take the other ones and we'll come back to that then. P-43 would be the minutes. Then the articles follow; we'll hold back on the articles. P-67, P-68, P-80, P-81, P-88, we're going to argue P-145; P-821, P-819 -- no, that's an article as well, so we ll reserve that. So the listed exhibits, am I correct? MR. HARVEY: Your Honor, you missed P-82, which was a second copy of the October 7 document. THE COURT: Yeah, I didn't have that on my master list. P-82 is the second copy of what, again? MR. HARVEY: It's actually just the second copy of P-81 with some handwriting on it. THE COURT: All right. So with the addition of P-82, the other named exhibits will be admitted without objection now, and not the articles, and I did not name the article exhibit numbers, there's no need to do that at this point. All right, Mr. Gillen what's your argument then on P-145? MR. GILLEN: On the news clips, simply, I don t think there's any limitation on my ability to raise the authenticity objection. I mean, it is a tape. I don't know if it's a complete tape. Mr. Buckingham says that he did talk to the reporter, but it's -- it's obviously edited and cut. All of his comments are not on it, and therefore it s a hearsay statement, it's out of court, the filming is, and it's incomplete, so we object to it. THE COURT: Well, your -- let me ask you this. You had the ability, or have had the ability to get the whole tape, is that correct? MR. GILLEN: Conceivably, Your Honor, although our efforts to get the materials from the reporters, you know, met with little success. So -- THE COURT: Well, I think this is a little different. You know, the materials you wanted from the reporters were notes and e-mail transmissions. This is something that was broadcast over the air. And if stations have this material, they typically give it to you. I mean, it's the same as getting a news article, as far as I m concerned. MR. GILLEN: It's -- it's incomplete, though. His voice has been cut off. They only selected -- there's the same editing -- it's evident from looking at it that there's -- he's speaking and they're not giving him the sound, so you don't know everything he said. This whole point is that -- THE COURT: Are you saying the comment was taken out of context? MR. GILLEN: Yes. MR. HARVEY: Your Honor, to be clear, the entire portion that was on the news was not played in evidence here. We just played a portion of it. And that entire portion is in the exhibit, if they want to look at it. And furthermore, he testified at his deposition that that was everything he said. And they had an opportunity to ask him if he said anything else that wasn't played, and they didn t. THE COURT: See, I don't think there's any authenticity argument that you can make, unless you try to tell me that the pixels were scrambled and it's not a fair depiction of Mr. Buckingham. MR. GILLEN: No. THE COURT: I know you're not. And he admitted -- I heard nary a peep from Mr. Buckingham yesterday as far as whether or not that was -- MR. GILLEN: Not at all, you're quite right, Your Honor. THE COURT: -- Mr. Buckingham on the video, and nor did I hear him controvert it, and in fact he admitted that he said it. So, you know, under the circumstances, this is a bench trial. You'll have to give me something better to not have that admitted. I mean, he attempted during his testimony to explain, of course, why he said it, but he didn't deny that he said it. And I'm wondering why we shouldn't let it in on that basis. MR. GILLEN: Well, I mean, his point was he was ambushed. And if you look at the clip, the sound is suppressed from his voice. He's speaking but you can't hear what he's saying. That was his whole -- THE COURT: Well, the purpose of the tape in the context of the presentation made was that he referenced the word creationism, we all know that; he said that. He admitted that he said that. You know, whatever else he said is not particularly helpful -- or not helpful to me, unless you're telling me that if there was an expanded version of the tape that, as Mr. Harvey said, exists, that he said some qualifying statement that was omitted; and if he did, you re certainly free to provide that to me. But I didn't hear that. MR. GILLEN: No, no, not at all. My objection is to point to the lack of completeness, because he's talking on the tape. His statements yesterday are to the effect that I did say that, but that's not what I meant, that's not all I said. And so -- and what I'm trying to get at is the tape shows him talking but you're not getting the sound of his voice. THE COURT: I guess I'm confused by what that means. What do you mean, you're not getting the sound of his voice? MR. GILLEN: If your look at the clip, his -- THE COURT: You mean there's a cutaway? MR. GILLEN: Yes, there's a cutaway. THE COURT: Well -- MR. GILLEN: There's a cutaway where the narrator narrates while Mr. Buckingham is still talking. What he was trying to get at is that's not all I said. THE COURT: Well, I accept that. I understand that. And I guess the remedy for that is, if there was something that was not presented, that's preserved, and you want to show that to the Court, I'll not prevent you from doing that, to take the statement in context. But I think this, a common sensible approach is that he said that the -- the portion presented was precisely what he said; that was what his testimony was, and then he explained why he said it. And, you know, I take it as that. And I think we re splitting hairs, you know, under the rather liberal, as you know, Federal Rules of Evidence, particularly as it goes to these types of presentations. I just can't -- unless you have a technical argument, and I know you don t, as to the fact that it was doctored or it doesn't represent his voice or his picture or something like that. And it sounds absurd when I say that, but if you had that argument, I would hear it. But not once did I hear him say that that excerpted portion wasn't precisely what he said. Now, to be sure, he may have said more. But he had the opportunity, and you had the opportunity during your examination to elicit from him what more he said, to the extent that he recalls it. MR. GILLEN: No, squarely it was taken out of context as he recalls. That's the nature of his objection to the clip. THE COURT: Well, I don't know that he said -- I didn't take his testimony to say that it was taken out of context, necessarily; I hear you saying that now. I took his testimony to say I said it, but the word I think he used was that I ambushed and I misspoke. I think that s something different than taken out of context. But it may be a distinction without a difference, I'm not sure, but I m inclined to admit 145, just to cut to the chase. And, you know, subject to your objection, and I understand your objection, so we'll admit 145. I think that covers then Mr. Buckingham and Dr. Nilsen, save for the articles, and we ll, as we said, reserve argument on that. Have we missed any exhibits up to this point, other than the articles, for any other witnesses? MR. HARVEY: We also have the four compilations of letters and editorials, but I assume that you -- THE COURT: Yeah, and I note that I just received a written memorandum from the plaintiffs on that point. And you probably haven't even had an opportunity to read it yet. MR. GILLEN: No. THE COURT: And I think that's why we need to reserve this for next week. And certainly you should feel free if you want to, although you're not required to, if you want to submit something in writing, an argument on that Mr. Gillen or Mr. White, you're free to do that after you ve had the opportunity to look at, having spent the week in trial I'm sure you'll want to spend the weekend looking at the plaintiffs submission -- MR. GILLEN: Oh, joy. THE COURT: -- trying to craft an appropriate response. All right. Are you prepared to present then your first witness? MR. GILLEN: Yes, Your Honor. The defense would call Heather Geesey. HEATHER GEESEY, called as a witness on behalf of the defendants, having been duly sworn or affirmed according to law, testified as follows: THE DEPUTY CLERK: State your name and spell your last name for the record. THE WITNESS: Heather Geesey, H-E-A-T-H-E-R, G-E-E-S-E-Y. DIRECT EXAMINATION BY MR. GILLEN: Q. Good afternoon, Ms. Geesey. How are you? A Nervous. Q. I understand. Well, let's discuss a few preliminary matters to try and make you less nervous. Are you employed? A Yes. Q. Are you married? A Yes. Q. What's your job? A Full-time mommy. Q. So you have children? A Yes. Q. How many? A Three. Q. And what grades are they in? A Eighth, third and kindergarten. Q. Do they attend Dover Area schools? A Yes. Q. And am I right in understanding that you're a school board member? A Yes. Q. When did you join the board? A I was elected in November of 03. Q. You say you were elected. When did you run? A I first started December of 03. Q. Okay. Did you have a platform when you ran? A Yes. Q. What was that? A That I was an elementary mother. Q. What did you mean by that? A That I was -- I knew their concerns, I was the only one at the time with young children. Q. Were you endorsed by anyone when you ran for office? A Yes. Q. Who was that? A Jeff Brown. Q. You say you were elected in November 2003. When did you actually join the board as a working member? A December of 03. Q. So what was your first full year of work on the board? A 2004. Q. Do you have -- A Did I miss the question? Q. Don't be nervous, it's really just your chance to tell your part of the story here. A Okay. Q. Does the board have a policy for training new members? A No. Q. Did you have a mentor for your first year? A Yes. Q. Who was that? A Casey Brown. Q. How was your relationship with Mrs. Brown? A Difficult. Q. And why was that? A She had strong opinions, and if you disagreed with her, it was just her way or no way. Q. And did you disagree with her at times? A Yes. Q. And what was the result? A She ignored me, didn't return my calls, didn't give me advice. Q. Can you give a specific example of a disagreement? A Yes. Q. Please do so. A Once, as President Allen asked before the summer if we could only have one board meeting instead of two. And I agreed with him and I voted yes, and she was mad and she stormed out. Q. And what was your relationship with Mrs. Brown like after that? A Not good. Q. And how did you know that? A She wouldn't return my phone calls. Q. Did she advise you as a mentor after that time? A No. Q. Were you on any committees in 2004? A Yes. Q. Which ones? A Policy and LIU. Q. How did you get on these committees? A I was appointed. I believe I just filled in for Mrs. Callahan. Q. You referenced filling in for Mrs. Callahan. Did you replace her on the board? A Yes. Q. Did you ever speak with Mrs. Callahan about that? A Yes. Q. Based on that conversation, did you have an understanding concerning her assessment of your character? A I understood it to be that she thought I was dishonest. Q. And why was that? A Because I said I was running by myself, and I was endorsed by Jeff Brown. Q. Did you have a conversation with Mr. Brown about why he endorsed you? A Yes. Q. What was your understanding of Mr. Brown's purpose in endorsing you? A I -- it was my understanding that he did not want Mrs. Callahan back on the board. Q. You referenced a conversation with Mrs. Callahan. What was the tone of that conversation? A It was rude. Q. Well, later on as you were serving as a school board member, were there occasions when Mrs. Callahan addressed the board? A Yes. Q. And what were your thoughts in the matter when she addressed the board? A Starting trouble. Q. Well, let me ask you this. You mentioned some committees you were on in your first year. You mentioned the policy committee. What is the purpose of the policy committee? A To set the policies for the school district. Q. Did you work on policies during the 2004 school year? A Yes. Q. Give us some examples. A Dress code, cellphone, Internet usage. Q. Does the policy committee deal with curriculum? A No. Q. Were you appointed to the board curriculum committee during 2004? A No. Q. You ve referenced LIU, what is that? A It's Lincoln Intermediate Unit, it's the special education. Q. Did you do any work in that committee in 2004? A No, we shared a seat with another school district and it was their turn. Q. All right. Since 2004 was your first year, let s take a look at that year as it unfolds from your perspective and as it relates to the issues in this case. If we take the first part of the year from January through, say, the end of May, did any issues relating to the biology text or biology curriculum come to your attention during that period? A No. Q. Let's look at June. Do you remember the biology text being discussed at board meetings during the June period? A Yes. Q. Do you have a specific recollection of two meetings in June or one? A They all run together to me. They're all blurry. Q. Okay. Well, let me ask you this. Do you remember discussion of the biology text and other theories in the June meetings? A Yes. Q. Tell us what you can recall. A I remember Mrs. Callahan coming up and saying that students need their books. Q. And did that observation on her part illicit a response from anyone on the board? A Yes. Yes. Q. Tell us what you recall about that. A Mr. Buckingham and Mrs. Callahan then were arguing. Q. Do you recall any specifics of their arguments? A No. Q. Well, when Mrs. Callahan came up and said students needed books, what was your reaction? A It wasn't true, I knew that they had books. Q. Do you remember anything else about the exchanges with Mrs. Callahan and Mr. Buckingham? A No. Q. Do you remember them arguing? A Yes. Q. Did you pay attention to the exchanges? A No. Q. And why not? A I was reading, I was preparing to move onto the next motion. Q. Do you remember the term "creationism" being used during these June meetings by board members? A No. Q. How about, do you remember the term "creationism" being used by members of the public during these June board meetings? A Yes. Q. Do you remember anything specific? A I know the teachers brought it up. I know Mrs. Buckingham brought it up. Q. Okay. Well, we're going to talk a little about that. Let me ask you though first, did you read the daily papers during this period of 2004? A No. Q. Do you get them? A No. Q. Do you get any paper? A The Sunday, I buy the Sunday paper. Q. And do you read that? A Yes. Q. Do you remember any discussion of reporting among board members during this June period? A Yes, I remember board members discussing that the newspapers were inaccurate and they couldn't believe how inaccurate they were. Q. Do you remember any specific observations? A No. Q. You ve mentioned Charlotte Buckingham. Do you understand that she's related to Bill Buckingham? A Yes. Q. You remember her speaking at a board meeting? A Yes. Q. Tell us what you remember Mrs. Buckingham saying. A She was talking about creationism, Genesis 1 of the Bible. Q. And what was your reaction when Mrs. Buckingham made those statements? A I tuned her out because I didn't see the point. We weren't -- we weren't discussing that so I started reading and. . . Q. When she mentioned creationism, what is creationism to you? A Genesis 1. Q. And at any time during your tenure as a school board member did you understand the purpose of the board to provide for the teaching of creationism? A No. Q. If we look at this period here in the summer of 2004, did you believe that intelligent design was creationism? A No. Q. Why not? A Because when you talk about intelligent design they don't bring up the Bible. Q. Did you have any other information you were relying on during this period? A Yes. Q. What was that? A Bill and Allen, they said it was a scientific theory. Q. Did you have an understanding based on what they said about whether scientists supported it? A Yes, that's what they said, other scientists -- a lot of other scientists believed this. Q. Did you yourself ever do any research on intelligent design? A No. Q. Why not? A It wasn't my committee; wasn't my job. Q. Well, what do you mean by that? How does the board operate, from your perspective? A Everybody is assigned to committees. It's their responsibility to do the work and then bring it back to the full board; and that wasn't my committee. Q. Do you rely on other committee members? A Yes. Q. Okay. Now, Heather, a letter that you directed to the editor of a newspaper has been raised in this litigation, so I'm going to ask you a few questions about that. MR. GILLEN: Your Honor, may I approach? THE COURT: You may. MR. GILLEN: Thank you. BY MR. GILLEN: Q. Heather, I ve just handed you two documents that have been marked plaintiffs exhibit 56 and plaintiffs exhibit 60. I'd ask you to direct your attention to plaintiff's exhibit 56. Do you have it? A Yes. Q. Do you recognize that document? A Yes. Q. What is it? A It's a letter to the editor from Beth Eveland. Q. And editor of what paper? A York Sunday News. Q. And what is the date? A June 20 . Q. Did you read this letter? A Yes. Q. Did you do anything as a result of reading the letter? A Yes, I did. Q. What did you do? A I wrote a letter -- a letter to the editor as well. Q. With that in mind, I'd ask you to look at plaintiffs exhibit 60. Do you have it? A Yes. Q. Do you recognize that document? A Yes. Q. What is it? A It's my letter to the editor. Q. Editor of what paper? A York Sunday News. Q. And what is the date? A June 27 . Q. I know that you wrote this letter now, but before we begin talking about it let me ask you this. When you wrote this letter, did you have an understanding concerning whether you were speaking for the Dover Area School Board? A Yes. Q. What was that understanding? A That I was not speaking for the Dover Area School Board. Q. And why do you say that? How does the board speak? A We didn't vote on it. They speak through votes, resolutions, and we did not do any of that official stuff. Q. But look at how you signed the letter. Read how you signed it for the record. A "Dover Area School Board director." Q. And why did you sign it that way? A Because I wanted it printed. Q. And was it printed? A Yes. Q. Let me ask you, why did you write this letter? A She was attacking Bill, attacking the board, saying we were going against our mission statement; and I knew we were not. Q. Okay. And what do you mean by "we"? A The board. Q. And against the mission statement, explain a little more what you mean by that. Well -- A She was saying that we were doing -- going against our mission statement. And I knew we were not doing that. Q. All right. Well, let's take a look at it this way. If you would, I would ask you to look at the first paragraph of Ms. Eveland's letter and read that for the record. A Okay. "As a parent in the Dover Area School District I must convey my shock and utter dismay at William Buckingham's comments regarding the search for a new biology textbook for the high school. I am especially upset with Mr. Buckingham's comments as quoted in Wednesday's York Daily Record. This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught at such. " Q. There's a statement there that's been attributed to Mr. Buckingham. Do you remember Mr. Buckingham making that statement? A No. Q. Why did you respond to this letter? A She was saying how Bill was making these outrageous statements, and I was just telling her that it wasn't so outrageous. Q. Did you see -- I'm sorry. Did you see the letter as an attack on you as well? A Yes. Q. Okay. Let me ask you this. Was there a specific portion of your letter designed to respond to the part of Mrs. Eveland's letter that you just read for the record? A Yes. Q. If you would, please read the portion of your letter to which you're referring, for the record. A "This letter is in regard to the comments made by Beth Eveland from York Township in the June 20 , York Sunday News. I assure you that the Dover Area School Board is not going against its mission statement. In fact, if you read the statement, it says, To educate our students so that they can be contributing members of society. I do not believe in teaching revisionist history. Our country was founded on Christian beliefs and principles. We are not looking for a book that is teaching students that this is a wrong thing or a right thing, it is just the facts." Q. So Heather, what was your point in writing that text? A Again, she was attacking Bill saying he was outrageous, and I was just showing her that it wasn't that outrageous because our country did have a lot of Christian influences. Q. Well, what is this part here about revisionist history; what's your point there? A That that's not what we were doing. We weren t looking for a history book; that's beside the point. Q. Were you trying to say anything else in the paragraph you ve just read? A No. Q. Now, let me ask you to direct your attention to the second paragraph of Ms. Eveland's letter, and if you would read that for the record. A "This statement is in direct contradiction to the mission statement for Dover schools. In partnership with family and community, to educate students, we emphasize sound basic skills and nurture the diverse needs of our students as they strive to become lifelong learners and contributing members of our global society. What a slap in the face to many of the parents and taxpayers of the Dover area. How sad that a member of our own school board would be so closed minded and not want to carry on the mission of Dover schools. His ignorance will not only hold back children attending Dover Area schools, but also reinforce other communities views that Dover is a backwards, closed-minded community." Q. Was there a specific portion of your letter designed to respond to the portion of Mrs. Eveland's letter which you just read? A Yes. Q. If you would please read the portion of your letter to which you're referring, for the record. A "All we are trying to accomplish with this task is to choose a biology book that teaches the most prevalent theories. The definition of theory is merely a speculative or an ideal circumstance. To present only one theory or to give one option would be directly contradicting our mission statement." Q. Okay. What was your point in writing that text? A I was just telling her what we are doing, we are choosing a biology book that teaches the most prevalent theories. Q. Now, this letter is dated June 27, 2004. Do you remember discussions of other theories at the board meetings in June? A Yes. Q. What theory do you remember? A Intelligent design. Q. Did you believe that intelligent design was a scientific theory? A Yes. Q. How did you know that? How did you come by that belief? A Bill and Allen. Q. When you wrote this portion of the text here that deals with "to present only one theory would be directly contradicting our mission statement," what was your point there? A Our mission statement is to educate our students. And I thought by giving them more than one theory, that that was making them aware; so that, to me, was educating them. If we didn't do that, then we would be contradicting ourselves. Q. Does that kind of sum up the point of that paragraph of your letter? A Yes. Q. Let's look at the last paragraph of Ms. Eveland s letter and I'd ask you to read that for the record. A "If this was simply a matter of selecting a text that gives two contradicting scientific theories equal time, that would be an entirely different matter. But it's not. Creationism is religion, plain and simple. Mr. Buckingham s comments offend me not because they are religious in nature, but because it is my duty to teach my children about religion as I see fit, not the Dover Area School District during a biology class." Q. Now, when you read this paragraph of this letter, did you believe that the board was contemplating teaching creationism? A No. Q. When you read this paragraph of this letter did you believe that the board was contemplating teaching religion? A No. Q. Was there a portion of your letter that was designed to respond to the claim that you were -- the board was contemplating teaching creationism or religion? A Yes. Q. Which part was that? A In the third paragraph where I tell her what we were doing, that we were choosing a biology book that teaches the most prevalent theories. Q. Was there any other part of your letter that was designed to respond to this last paragraph of Ms. Eveland s letter? A Yes. Q. I would ask you to read the part to which you re referring for the record. A "You can teach creationism without it being Christianity. It can be presented as a higher power. That is where another part of Dover's mission statement comes into play. That part would be In partnership with family and community. You, as a parent, can teach your child your family's ideology." Q. This was written on -- your letter that is, was written on June 27 , 2004. Do you remember any other developments in June relating to the biology text? A (No response.) Q. How about July? Do you remember any developments in July relating to the Biology text? A They were able to get a newer version of the book for the same price. I believe that was July. Q. Do you remember the board -- the Biology text recommended by the science teachers was approved in July? A No. Q. Well, let's look at August. Do you remember any board meetings in August of 2004? A Yes. Q. Do you remember the Biology text coming up on the agenda at that time? A Yes. Q. Well, do you remember the text Of Pandas coming up in connection with the board meeting in August? A Yes. Q. Tell us what you remember about Of Pandas? A That it was not on the agenda, and Bill was upset that it wasn't there. Q. Did he say why? A He just wanted both books together. Q. When you say he wanted both books together, how were the books on the agenda? Do you remember what the issue was relating to the Biology text? A He wanted them to balance each other out. He just -- he wanted them together. Q. Do you -- did you vote to approve the Biology text recommended by the science faculty at the August 2004 board meeting? A No. Q. Why not? A There were still unresolved issues. Q. And what do you mean by that? A Well, Bill was unhappy because of the Panda book. The teachers were unhappy. And this was my first book purchase and, to me, that was a lot of money; now I know better. Q. Well, when you voted not to approve the Biology text recommended by the science faculty for purchase in August of 2004, was it your intent not to approve that text at any time? A No. Q. What was your purpose? A Just to hold it up for a while to get the issues resolved. Q. Do you remember anything else that happened in connection with the voting on approval of the Biology text recommended by the science faculty at that meeting? A In August? Q. Yes. How about other board members, do you remember their reaction or voting? A Yes. Jeff Brown was upset, and Angie changed her mind, and that's how it got approved. Q. Okay. When you say it got approved, what do you mean? A The textbook. Q. Okay. And when you say text, what text are you referring to? A The Biology book. Q. And is that the Miller and Levine 2004 edition? A Yes. Q. Now, this meeting we're talking about now is in early August, it's actually August 2 , 2004. Let me ask you, from that date, August 2 , 2004, through October, were you personally involved in any developments that related to the Biology text or biology curriculum? A No. Q. Did there come a time when issues relating to the biology curriculum came to your attention as a board member? A October. Q. Okay. And can you be more specific? A When it came time to vote. Q. Okay. And are you referring to the October 18, 2004 board meeting? A Yes. Q. Let's look at what you recall about that board meeting. Starting with the public comment, can you tell us anything you remember from that meeting? A Bert Spahr came up to the podium, Jenn Miller -- Q. Do you remember anything that either of them said? A Bert Spahr was afraid that we were going to make her teach religion. She wasn't happy with intelligent design. She -- there was a lot. Q. How about the role of the teachers in the process, did she address that? A Right, right. Yes, she said they weren't a part of the process, right. Q. And as you sat there as a board member, what was your reaction to her statement? A I didn't believe her because I knew that they were a part of the process, and that -- I knew intelligent design wasn't creationism, and I knew we weren't making them teach that. So I -- I didn't -- Q. Let's look at that piece by piece. You say you knew teachers were part of the process. How did you come to understand that teachers had been involved, if you yourself weren't involved? A I was told that they were. Q. Who gave you that information? A Administration. Q. How about the notion that intelligent design was not religion, how did you come by that understanding? A I knew that it wasn t. Bill and Allen would have told me. You know, that was their committee, they would have come back and said that it wasn t. Q. How about the threat of liability; how did you come to know teachers had that concern? A Bert Spahr had said. Q. Do you remember anything that Jenn Miller said? A No, but I knew she was in agreement. Q. Do you remember anything else that was said by way of public comment at the outset of the meeting? A After the vote there was something that I do -- Q. Okay. Well, let's take it piece by piece for the sake of making a logical story. Is that all you remember about public comment at the beginning of the meeting? A At the beginning, yes. Q. Okay. What's the next thing you remember about the meeting that bears on this biology curriculum issue? A Taking the vote and Noll changing it about a dozen times. Q. Say that again. A We took the vote, and Noll changed it about a dozen times. Q. Did you have a sense for the purpose of Noll s parliamentary maneuvers? A That he didn't want it to pass. Q. And what was your reaction to that? A That surprised me because I thought he was for intelligent design. Q. Do you remember any motions being made by Mr. Bonsell? A Yes. Q. Tell us what you remember about that. A He took the one part from the teachers proposal, the origins of life will not be taught, and he added it to what the board had come up with, and combined it. Q. And is that the final version that was approved by the board? A Yes. Q. Did you understand or have an understanding concerning Mr. Bonsell's purpose in offering that amendment? A Yes, that -- Q. What was that? A So they wouldn't be sued, that's why he added that. Q. Did you vote to support the amended curriculum change proposed by Mr. Bonsell? A Yes. Q. And why did you do that? A I agreed with it. It goes with our mission statement to educate the students, it made them aware of something else. Q. When you voted for the proposed curriculum change, did you do so because you believed that you would be teaching religion? A No. Q. Is there anything else that happened at this meeting that affected you personally? A Yes. Q. That's come up before also, so tell us about that from your perspective. A I was misquoted. Q. Okay. Give us the background for the misquoting you're referencing. A I had said they should be fired, and everyone misunderstood. Jeff Brown was saying, if "they," meaning the teachers, are sued, then "they" should be able to use our lawyers. So then I had said well, if "they" are sued, meaning the teachers, then "they" should be fired, meaning the solicitors, because they had told us, the solicitors had told us what we were doing was okay. Q. Let's not get too much into that because I don t want to get bogged down in claims that might be privileged. But was your statement misunderstood? A Yes. Q. How did that come to the attention of -- your attention? A The next morning people were telling me, did you see the paper. It was just a frenzy with, you know, my friends. Q. And did you look at the article they were referencing as a result of these calls? A Yes, I did. Q. And what did you see? A I saw it said that they should be fired, and in like brackets, he wrote, the faculty; he added to my quote. Q. So when you read the quote in the paper, what was its thrust? A Excuse me? Q. When you read the quote in the paper, what was its thrust? A That meaning I said they should fire the teachers. Q. And is that what you had said or meant, at least? A No. Q. Okay. Did you look at who wrote the article you re referencing? A Yes. Q. And who was that? A Joe Maldonado. Q. Did you do anything as a result of this article? A Yes. Q. Tell us what you did. A I called Dr. Nilsen and asked him to send an e-mail to the teachers from me saying I didn't say it. I asked him for a transcript of the meeting to prove that I didn't say it. Q. Did you do anything with respect to the author of the article? A Yes. Q. What did you do? A I did speak with Joe. And I told him I did not say that, and he knew -- knows I didn't say that. Q. And did you have any sense for whether Mr. Maldonado was concerned by the inaccuracy of the reporting? A He did not care. And I got the sense that he knew, but he didn't care. Q. There's a few other, what should I say, high points in this controversy here, and I just want to see whether you have anything to do with those for the record. There was a press release that was put out by the district on November 19 , 2004. Did you have any significant role in drafting that press release? A No. Q. How about the donation of the books Of Pandas, did you have any knowledge about that? A No. Q. There was a newsletter that was subsequently put out that related to this controversy, did you have any role in formulating that newsletter? A Nothing meaningful, no. Q. And there were some books that were donated by another group, Debunk Creation. Did you have any role in reviewing those books? A No. Q. When we started here you indicated that your kids attend schools in Dover. A Yes. Q. And why do you send your children to the schools in Dover Area School District? A When it was time to send my oldest to school, I checked into a private Christian school, and at the time they still were not teaching everything. They still had a narrow-minded view, and I wanted to give them more exposure to other things. Q. Is evolutionary theory among the things you want your kids to be exposed to? A Yes. MR. GILLEN: I have no further questions, Your Honor. THE COURT: Thank you, Mr. Gillen. Who will conduct cross examination. Mr. Walczak? CROSS EXAMINATION BY MR. WALCZAK: Q. Good afternoon, Mrs. Geesey. A Hello. MR. WALCZAK: May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. Mrs. Geesey, I ve just handed you a copy of your deposition transcript from I believe it was March the 10 . A Yes. Q. And you recall that deposition? A Yes. Q. I just handed it to you now because we might be referring to it. I'm not sure I heard the last point you made. You say you did not want your children being exposed to evolution? A No, I do. Q. You do want them? A Um-hum. Q. And what was it about the Christian school that you didn't like as much as you like about the Dover schools? A At the time that -- he's in eighth grade now, so when he was going to kindergarten they did not teach everything, they didn't teach different views. Q. What do you mean "everything" and "different views"? A They didn't teach evolution, you know, it was Christian, they just taught one thing. Q. What was the one thing they taught? A Genesis, you know, Genesis. Q. And you don't have a background in science, do you? A No. Q. And your educational background involves finishing high school? A Yes. Q. And you haven't had any science courses since then? A No. Q. You attended all of the board meetings in March -- I'm sorry, in 2004 except one? A I believe it was two; I was certain of one. Q. And you were not on the curriculum committee in 2004? A No. Q. And you weren't involved in curriculum committee discussions? A No. Q. So you wouldn't have been involved in any of the curriculum committee discussions about the Miller and Levine textbook? A No. Q. And you weren't involved in the committee discussions about Pandas? A No. Q. And you weren't involved in the committee discussions about changing the curriculum to include intelligent design? A No. Q. Now, in the summer of 2004, you didn't do anything to learn more about the Miller and Levine textbook, did you? A No. Q. And you didn't take any steps to learn more about the whole concept of intelligent design? A No. Q. Now, you testified earlier that intelligent design was discussed by the board in June. A Yes. Q. And you're saying that that was a theory that was identified at a board meeting? A Yes. Q. And that was identified by whom? A It would have been Allen or Bill. Q. So you're saying that they raised -- they actually said intelligent design at a board meeting in June? A I believe so, yes. Q. And you're saying that they said that, that intelligent design would be a good alternative theory to teach along with evolution? A Yes. Q. So they specifically identified the theory that would be taught to balance evolution? A Yes. Q. If you could turn to page 31 of your transcript there, please. Do you have that, Ms. Geesey? A Yes. Q. And actually if you go back to the 30 , page 30, they're talking about the June 7 -- A Okay. Q. -- meeting there. Then beginning on page seven you were asked -- I believe Mr. Schmidt handled your deposition, is that correct? A Yes. Q. And starting on line seven of page 31 -- actually let me go back. Ms. Schmidt asked you, "Do you recall him saying that the textbook that was under consideration was laced with Darwinism?" And you replied "No." Correct? A Correct. Q. And as you sit here today do you remember Mr. Buckingham saying that the Miller and Levine textbook, I guess it was the 2002 then, was laced Darwinism? A Yes. Q. Do you remember him saying that? A Yes. Q. And -- A Wait a minute, wait, wait, no, laced with Darwin -- no, no. I was jumping ahead. But laced with Darwinism, no. Q. Are you saying he didn't say it or you just don t remember? A I don't remember. Q. And then it goes on and says, "What did he say he wanted to balance Darwinism with at that meeting?" And then your answer on line nine is, "At that meeting I don't know. He wanted another theory at that time. At that time I don t think he knew." "Question. Did he say any theory would do, it just has to be another one or something to that effect? "Answer. No. "Question. What did he say? "Answer. Just another theory, another scientific theory. "Question. What was your understanding of what he was talking about at that meeting at June 7? "Answer. That they were going to continue looking for another book until they found one that had more than one theory. "Question. What was your understanding of what the candidates were for another theory? "Answer. I didn t. It wasn't my -- that is not my committee, so I didn't have to understand. "Question. Did you ask any questions? "No." Was that your testimony in March of 2005, this year? A In March, yes, it was. Q. And you were under oath then? A Yes. Q. And you swore to tell the truth? A Yes. Q. And you did tell the truth? A Yes. Q. So in March you didn't know what theory he wanted to introduce to balance evolution, but today you do? A I believe I was saying that I could not tell the meetings apart. But in preparing, I read both articles that I wrote, and mine is June 27 , and then I -- I must have known, it must have come up because I wrote that. Then I was telling -- that's what I had remembered. Q. So you didn't know in March what he was talking about, but you know now what he was talking about? A Because of reading the article, yes, I would have had to. Q. Could you turn to page 49, please. Are you there? A Yes. Q. Could you look at line 20. Do you see it? A Yes. Q. Okay, the question there is, "Do you recall a discussion by anyone or a statement by anyone at the June 14 meeting involving the words intelligent design? "Answer. No." Did I read that correctly? A Yes. Q. So in March you testified under oath again that you did not recall any statement at the June 14 meeting about intelligent design. A Yes, because it says June 14 , and I -- meetings run together. Q. So in March your testimony was that intelligent design was not used at the June 7 meeting, and it was also that intelligent design was not used at the June 14 meeting. Were there any other meetings -- board meetings in June? A Not that I -- no, no. Q. Now, you said you voted for the October 18 curriculum change because you liked it. A Yes. Q. You supported the change. A Yes. Q. It -- because it gave a balanced view of evolution. A Yes, I mean . . . Q. It presented an alternative theory? A Yes. Q. And the policy talks about gaps and problems with evolution? A Yes. Q. Yes. You don't know what those gaps and problems refer to, do you? A No. Q. But it's good to teach about those gaps and problems? A That -- yes, that's our mission statement, yes. Q. But you have no idea what they are? A It's not my job, no. Q. Is it fair to say that you didn't know much about intelligent design in October of 2004? A Yes. Q. And you didn't know much about the book Of Pandas and People either, did you? A Correct. Q. So you had never participated in any discussions of the book? A No. Q. And you made no effort independently to find out about the book? A No. Q. And the administration had made copies of the book available to board members. A Yes. Q. But you never read the book. A No. Q. And no one ever explained to you what intelligent design was about. A No. Q. And you never got any instructional materials or tapes about intelligent design. A No. Q. And you never viewed any or read any books about intelligent design. A No. Q. And you didn't study it independently. A No. Q. You didn't go on the Internet and look it up. A No. Q. So you didn't really think too much about intelligent design. A No. Q. You just knew it was something else that the kids were going to learn? A Yes. Q. And it was a theory that was different from Darwin's view. A Yes. Q. And what you testified earlier is that you were relying on the recommendation of the curriculum committee. A Yes. Q. And that was their job. A Yes. Q. And because they were recommending the introduction of intelligent design, you were going to go along with that. A Yes. Q. And you thought it was a good idea to introduce an alternative to evolution. A Yes. Q. Now, it wasn't the entire curriculum committee that was recommending this change, correct? A I don't know. Q. Well, who was on the curriculum committee? A Bill, Allen, and I can't remember the other one. Q. Was Sheila Harkins on it? A I don't know. Q. Do you know if Sheila Harkins was supportive of intelligent design? A I don't know that. I don't know. I never really thought about it. Q. So the two people you were really listening to and talking to about this were Bill Buckingham and Allen Bonsell. A Yes. Q. And Casey Brown, I'll just tell you, Casey Brown was the last member of the curriculum committee. Does that sound right? A Yes. Q. And she was not supportive of this change. A No. Q. In fact, she was adamantly opposed to introducing intelligent design into the curriculum. A Yes. Q. But you weren't listening to her, were you? A She wasn't -- she was ignoring me, she wasn t mentoring me, so . . . Q. But she was there advocating against introduction of intelligent design, so it wasn't like the curriculum committee was unified? A Right. Q. But you chose to listen to Mr. Buckingham and Mr. Bonsell? A Correct. Q. Now, I know you said you don't have any background in science, correct? A Correct. Q. And do you know whether Mr. Buckingham has a background in science? A No, I do not. Q. Do you know that in fact he doesn't have a background in science? A I don't know. He's law enforcement, so I would assume he had to take something along the way. Q. Did he ever tell you he knew something about biology? A No. Q. How about Mr. Bonsell, do you know what his background is? A No. Q. Do you know what he does for a living? A He's a business owner, I believe. Q. He's not a scientist, to your knowledge? A Not to my knowledge, no. Q. He's not a science teacher? A No. Q. Now, there are people employed by the school district who do know a little something about science, correct? A Correct. Q. And that would be the teachers. A Yes. Q. And you know Ms. Bertha Spahr? A Yes. Q. And she's been with the school district a long time. A Yes. Q. And she's head of the science department. A Yes. Q. And you know Ms. Miller. A Yes. Q. And you know Mr. Eshbach. A Yes. Q. And you know Mr. Lanker? A I don't -- I wouldn't be able to place him, but I know the name, I know he's a teacher. Q. And he's a science teacher? A Yes. Q. And you knew that the science teachers were all opposed to introducing intelligent design? A Correct. Q. And the teachers had in fact told you that they were concerned about introducing intelligent design because they were worried that they would get sued. A Correct. Q. And specifically they were worried about teaching from the Pandas book, correct? A I don't -- I don't know. Q. Do you recall in August of 2004 you had a discussion about approving the new Biology book? A Yes. Q. And at that time Mr. Buckingham did not want to vote to approve the Biology book unless Of Pandas and People was approved? A Correct. Q. And do you recall Ms. Spahr making any comments about Of Pandas and People? A No. No. Q. Could you look at page 63 of your deposition, please. Are you there? A Yes. Q. Let me read to you starting on line seven, and this is Mr. Schmidt asking a question. "And I understand that the afraid of being sued referred to something that she said about teaching religion in the science curriculum. "Answer" -- that's you -- "correct." "Question. Can you tell me any more about your understanding of what she meant when she said that? "Answer. She thought we were going to make them teach religion. "Question. Again, what did you understand her to be referring to when she said that? "Answer. I don't know because we weren t, we weren't doing that, so to me it was an unfounded statement. "Question. What do you think she was referring to? "Answer. The Pandas book." Now, did I read that accurately? A Yes. Q. So your understanding in March, when you were deposed, was that in fact they were concerned that teaching the Pandas book would be teaching religion? A It says "at some point during the summer of 2004," and right now, I answered the way I did because I'm thinking that she did all this in October. Q. So does this refresh your recollection? A It does, I know she said that. I would have to sit here and really think to see when she said it, but that was -- that's how it happened. Q. But you're not disputing now, after you ve looked at this, that in fact the teachers were concerned about teaching Pandas because they thought it was religion? A No, I was just -- I was thinking it was October, that's why I answered your question the way I did. Q. And you didn't frankly agree with the teachers that Pandas was teaching religion, right? A No, no, I did not agree with the teachers, no. Q. And you thought their position that Pandas taught religion was unfounded? A Right. Q. But you never read Pandas, right? A No. Q. Now, prior to the October 18 vote to change the curriculum, do you recall the science teachers explaining that intelligent design was not science? A Yes. Q. And you never asked them any more questions about their position why they didn't think this was science? A No. Q. And you will recall also that Ms. Spahr expressed concerns that she thought intelligent design was religious? A Yes. Q. And you knew that the teachers were opposed to introducing this intelligent design change because they were afraid they were going to get sued for teaching religion? A Yes. Q. And so the only people in the school district that you're aware of that have a science background were opposed to introducing intelligent design; they thought it wasn t science, they thought it was religion, and you ignored that? A Yes. Q. And you voted for the proposal because Mr. Buckingham and Mr. Bonsell encouraged you to do so? A I agreed with them, that's why I voted for the proposal. MR. WALCZAK: Your Honor, I have about ten more minutes, but if we want to take a break, we could do that now or we could finish up. THE COURT: Why don't you finish up. Why don't we push on. Maybe we can conclude this witness before we break, if you don't mind. BY MR. WALCZAK: Q. I want to direct your attention to the two exhibits that Mr. Gillen handed you during your direct testimony. One is plaintiffs exhibit 56, and that would be Ms. Eveland's letter, and plaintiffs 60, which is your reply. Now, when you wrote your response letter, you didn't consult with anyone before you wrote it, did you? A No. Q. You didn't talk to the administration. A No. Q. You didn't talk to the -- your fellow board members. A No. Q. But you did sign it as a member of the Dover Area -- as a Dover Area School Board director. A Yes. Q. Now, to the best of your knowledge, what was printed is what you submitted to the paper. A To the best of my knowledge; I know the title wasn t. Q. They put the title on? A Right. Q. But the text of the letter is what you actually sent. A To the best of my knowledge, yes, it was. Q. Now, let's look at the second paragraph of your letter, and could you read that, please; that's plaintiffs exhibit 60. A "I do not believe in teaching revisionist history. Our country was founded on Christian beliefs and principles. We are not looking for a book that is teaching students that this is a wrong thing or a right thing, it is just a fact." Q. And that paragraph was responding primarily to Ms. Eveland's first paragraph, correct? A Yes. Q. And you were upset that your colleague Bill Buckingham had been attacked, I believe was the word that you used in direct testimony. A Part of it, yes. Q. And you didn't at any time say that wasn't said, right, you were simply expressing support for Mr. Buckingham's views? MR. GILLEN: Objection, Your Honor, it mischaracterizes her testimony. MR. WALCZAK: She can answer that; she can deny that, Your Honor. THE COURT: I think it's fair cross. I'll overrule the objection. I don't know if it's a mischaracterization. She'll tell us if it is. THE WITNESS: I didn't understand the question, so you'll have to repeat it. THE COURT: Joan, do you want to read the question back, please. (Question read.) THE WITNESS: No, that's -- in my letter? I don t understand. BY MR. WALCZAK: Q. You were upset that Ms. Eveland had apparently attacked your colleague, correct? A Yes. Q. And you were coming to his defense. A Yes. Q. Because you -- you didn't want to teach revisionist history. A Correct. Q. Right. This, as you say, our country was founded on Christian beliefs and principles. A Correct. Q. And you were not looking for a book to contradict that. A Well, we weren't looking for a history book. It was all besides the point what she was saying. That has nothing to do with anything else. Q. But here in this letter you're talking about creationism. A Yes. Q. Yes? A Yes. I mean in the -- I'll agree, she was so I referred to what she was saying, I was answering her questions. Q. Now, in that last paragraph you used the word creationism. A Yes. Q. You say you can teach creationism without its being Christianity? A Correct. Q. And I believe you testified that in your religion creationism refers to the first book of Genesis? A Yes. Q. But you're not aware of any use of the term creationism that isn't associated with some religion? A Correct. Q. And you didn't use the term intelligent design in this letter either, did you? A No. Q. Now, you also talked about being misquoted at the October 18 board meeting? A Yes. Q. And I believe you said that Mr. Maldonado had written something implying that you had said that if the teachers asked for legal representation they should be sued, correct? A Something -- Q. And you -- you deny that you meant the teachers. A Correct. Q. So you were really upset by that? A Oh, of being misquoted, yes. Q. And so you didn't want to let that stand, you wanted to correct the record. A Yes. Q. And so in fact you contacted the administration. A Yes. Q. And at least you claim you talked to Mr. Maldonado. A Yes. Q. You didn't seek him out, did you; you didn't call him in his office? A I had planned to at the next meeting, but I ended up seeing him before then. Q. So you didn't -- it wasn't like the next day you re on the phone calling the York Daily Record? A It was that day or the day after that I had seen him at school. Q. So you happened to run into him somewhere when you were out and about town? A I saw him, and I turned around and went back and talked to him, yes. Q. So you were really upset, so you wanted to make a point that in fact he had misquoted you and that the newspaper was wrong. A Yes. Q. You didn't do that any other time, did you, specifically speak to a reporter about being misquoted? A I'm trying to think if that was the first time. It's like an ongoing thing. I don't know if that was the first time or not. I mean, it's with Joe and everyone, it s like, hi Joe, you misquoted me, yes. MR. WALCZAK: Thank you. No further questions. THE COURT: All right. Redirect. MR. GILLEN: Thank you, Your Honor. REDIRECT EXAMINATION BY MR. GILLEN: Q. Heather, I ve just got a few questions by way of follow up on the questions that Mr. Walczak has asked you. He asked you whether in your letter you were talking about creationism, and I'm not sure what was your response to that question. Were you talking about creationism? A At the bottom when I was referring to her. But at the beginning when I was telling her what we were doing, no, I was not. Q. Okay. And at the beginning what were you talking about? A What we were doing, intelligent design, prevalent theories. Q. And then you say at the bottom you were talking about creationism; what do you mean by that? A She had said that we were teaching religion or creationism, whatever, and I was telling her we were not, the school does not teach that, but you can, you can do it, that's part of our mission statement, that in partnership with family. So I was telling her what she could do. Q. What -- let me ask you this. There's -- you know, it's hard to remember, there's been some back and forth about the dates, and Mr. Walczak asked you a few questions about your deposition testimony. Did you understand that the text Of Pandas addressed intelligent design? A Yes. Q. With that in mind, I would ask you to look at your deposition testimony, page 56. And I would ask you to review your testimony there beginning on line six, and I m just going to make sure that this is understood. Mr. Schmidt asked you, "Have you heard of the book Of Pandas and People in connection with your being a member of the school board?" And what was your answer? A "Yes." Q. And then Mr. Schmidt asked you, "How did you hear it?" And what was your answer? A "That is a book that Bill brought up so we can use it as a reference book to balance the curriculum." Q. And Mr. Schmidt asked you, "When did he bring it up?" MR. WALCZAK: Your Honor, I'm going to object. This is hearsay. I don't believe -- MR. GILLEN: It's a prior consistent statement which is being used to rebut a charge. She's just offered an inconsistent statement. THE COURT: The question -- the question was, and Mr. Schmidt asked you, "When did he bring it up?" Your objection? MR. WALCZAK: Your Honor, I'm not sure why she s testifying from her deposition here. I mean, if it's to complete context for something I did on impeachment, that s one thing, but I'm not sure how this is completing the context. MR. GILLEN: That's precisely the purpose. There has been an inference created that Mrs. Geesey has offered inconsistent testimony based on her deposition. What I m trying to do is demonstrate right here that her deposition testimony is in fact consistent. THE COURT: All right, I'll allow it for that purpose. The objection is overruled. BY MR. GILLEN: Q. Mr. Schmidt asked you, "When did he bring it up?" And what did you respond? A "I don't know." Q. And then you said -- Mr. Schmidt asked you, "Well, did he bring it up at a board meeting or in some other context?" And how did you answer? A "A board meeting." Q. And Mr. Schmidt quite carefully asked you, "I m just trying to put it together, so far we have had two meetings in June and one in July. Did he discuss the book Of Pandas and People at any of those three board meetings?" And what was your answer? A "Yes." Q. Today when you were discussing intelligent design being brought up, when do you recall it being brought up? A In June. Q. Is there anything that has come to your attention in connection with your preparation that has allowed you, has refreshed your recollection and allowed you to date with somewhat more precision when you first heard the term intelligent design being used? A Yes. Q. Please explain what that is. A These two letters, one is dated June 20th, one is June 27; mine is June 27 . So, you know, by reading it I know that I knew. MR. GILLEN: No further questions, Your Honor. THE COURT: Any recross, Mr. Walczak? RECROSS EXAMINATION BY MR. WALCZAK: Q. Ms. Geesey, if you could look on page 56 again, and Mr. Gillen was reading to you about -- asking you about Pandas being discussed at those meetings. And you said, two meetings in June and one in July. He said, did he discuss the book Of Pandas at any of those three meetings, and your answer was yes, is that correct? A That's what it says there, yes. Q. And just reading on three more lines, Mr. Schmidt asked you, "Do you remember which one?" And your answer was "No." A Correct. MR. WALCZAK: Thank you. No further questions. THE COURT: I have a question before you step down, Mrs. Geesey, because I'm confused. THE WITNESS: So am I. EXAMINATION BY THE COURT: Q. Well, it's more important that I'm not confused than you're not confused. But the question is this: I read your deposition testimony as it was presented, and it appears to me that your deposition testimony -- I'm reading it as clearly as I can -- indicates that you answered in the negative, that is you said no, that intelligent design was not mentioned at either of the June meetings. Is that what happened or not? A No. By refreshing my memory with my article, it was June 27 . Q. But you use the word article. Are you talking about the two letters, the letter and the letter by -- is it Mrs. Eveland? MR. WALCZAK: Eveland. THE COURT: What is it? MR. WALCZAK: Mrs. Eveland, is one of the plaintiffs. BY THE COURT: Q. Are you talking about Mrs. Eveland's letter and your letter in response? That refreshes your recollection, how? A Because I read it and, I mean, I know that -- Q. What in those letters -- what particular area of either of those letters, or both, leads you to believe that intelligent design was discussed at the June meeting? A I just -- Q. What? Point me to what in the letter, not generally, but specifically. A That I thought -- Q. I asked you that question because I don't see the words intelligent design. A Right. The part where it says "what we are doing." I -- since all the meetings run together, I didn't realize back then that I knew everything that was going on because it's not my committee. But by me saying that what we were doing was to choose a book that teaches the most prevalent theories, I mean that -- that's what I was talking about. I mean, I already knew that they were doing something, and before I couldn't tell the meetings apart. So I kept saying, no, I don't remember, because I couldn t tell them apart when they would say did it happen then, and I wasn't sure of when it happened. Q. I don't recall prior testimony that Of Pandas and People was discussed at the June meetings. I'll stand corrected if it was. Is it your testimony that Of Pandas and People was raised at the, either or both of the June school board meetings; is that what you're saying? A It was raised some time, but again -- Q. Well, we know that; I'm asking when. A I know it was August because I know Bill was upset that it wasn't on the agenda. So I'm for sure that it was by then. But I don't know. Q. You don't know when it was before August? A Right, it all runs together. I just know that is what his concern was in August, that's why it sticks out then, because it wasn't on the agenda with the other book. THE COURT: All right. MR. WALCZAK: Your Honor, if I might just ask -- THE COURT: I'm going to allow both in fairness, I'm going to allow both counsel. Let's start with, since I asked the question, if you have a follow up to my question, it's your witness, do you have any follow up to my question? MR. GILLEN: Sure. REDIRECT EXAMINATION BY MR. GILLEN: Q. Heather, the Judge's questions are fair, but I mean, it's hard to put it together, but do you as you sit here today believe that intelligent design was brought up at the June -- during the June meetings? A Yes. MR. GILLEN: No further questions, Your Honor. RECROSS EXAMINATION BY MR. WALCZAK: Q. Ms. Geesey, at your deposition in March of 2005. A Yes. Q. That was closer to the events in question than we are now, correct? A Yes. Q. You were shown both of Ms. Eveland's letter and your letter, correct? A I was shown mine. I -- I don't know if I was shown hers. I don't know. Q. But you were shown your letter? A I believe so, yes. Q. And in fact Mr. Schmidt asked you numerous questions about your letter. A He did ask me questions, yes. Q. And at that time you didn't say anything about it prompting your memory that intelligent design was taught (sic) in June or July. A No, it was four or five hours and no, everything was all together, so I could not separate it for him. MR. WALCZAK: Thank you. MR. GILLEN: One question. Redirect. Judge, one question, please. THE COURT: I don't know what you could possibly hope to achieve, but I'm going to give you one question and one only. MR. GILLEN: Thank you. REDIRECT EXAMINATION BY MR. GILLEN: Q. Heather, do you recall whether you were shown that letter before or after the testimony that Mr. Walczak focussed on? A I would believe after, because that's how it works. MR. GILLEN: No further questions, Your Honor. THE COURT: You get one more to be fair, and this is the last round. MR. WALCZAK: I guess I have to be very careful about how I use my one question. THE COURT: Choose carefully. MR. WALCZAK: Wish for more wishes. RECROSS EXAMINATION BY MR. WALCZAK: Q. Mrs. Eveland (sic), in preparation for your deposition you looked at both Ms. Eveland's letter and your letter? A I don't know. THE COURT: Nice try. All that time, you get an "I don't know." All right, that will complete your testimony, ma am, you may step down. THE WITNESS: Thank you. THE COURT: Do we have any exhibits with this witness? THE DEPUTY CLERK: No exhibits, they would -- THE COURT: I think the exhibits referred to are already in. Now, we're going to take a break. After we return from the break, are we going to resume Mr. Baksa's testimony or what is your pleasure? What do you want to do? MR. GILLEN: Judge, given the hour, my preference would be not to break him again. I would like to just get him moving and finish it when I do put him on. I ve got someone coming in from Florida on Monday I want to get done, and then Mr. Bonsell, so I would prefer to wrap it up. MR. ROTHSCHILD: I'm going to be a strong advocate for the other position. I think -- THE COURT: Why don't you approach, counsel, please. (Whereupon, sidebar conference held between Court and counsel off the record.) THE COURT: All right, what we're going to do is we'll take a 15 minute break, and now a little bit shorter break, and we will resume with another portion of Mr. Baksa's testimony on direct. We will not finish the direct examination today, but we'll spend some remaining time. I would guess that we'll go approximately no later than 4:15, let's say, this afternoon. We'll -- and if you see a break point earlier than that, you can finish earlier than that, but I think we should spend the time, as we said at sidebar, to pick up a little bit more of Mr. Baksa s testimony and then we'll break for the weekend. So we ll take a 15 minute break. THE DEPUTY CLERK: All rise. (Whereupon, a recess was taken from 3:09 p.m. to 3:28 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 17 (October 28), PM Session, Part 2 THE COURT: All right. By agreement we're going to have a brief resumption of, relatively brief resumption of Mr. Baksa's testimony. Mr. Baksa, you may take the witness stand. And we'll allow, when he does so, you remain under oath, sir, and Mr. Gillen you can pick up where you left off. (Witness Michael Baksa resumes witness stand.) MR. GILLEN: Thank you, Your Honor. DIRECT EXAMINATION (Cont'd.) BY MR. GILLEN: Q. Mike, when we left off we were leaving the July meeting where the 2004 edition of Miller and Levine had come to the attention of the teachers. And I want to capture your mind set now as we begin to move forward. As you sit here today looking back at events in 2004, did you remember Bill Buckingham using the term creationism in his discussions with you up until this point right now, which is July 12 , 2004? A No. Q. Had any other board member discussed teaching creationism with you in the classes of Dover High School up until this point in 2004? A No. Q. Do you remember Barrie Callahan -- let me ask you first. Do you remember Mr. Buckingham using the term creationism at a board meeting up -- sometime prior to this point? A Yes. Q. Okay. And do you remember Barrie Callahan calling you with a question about a text which addressed creationism? A Yes. Q. What did you tell Mrs. Callahan in response to her call? A That we're not going to find a text that has creationism for teaching in the public schools. Q. Okay. And I want you to explain that answer, because it could be subject to a number of understandings. Were you looking for a text that included creationism? A No. Q. Well, when Mr. Buckingham used the term creationism at the board meetings, did you have an understanding or did you act on it? A No. Q. And why is that? A First, I was surprised to hear Mr. Buckingham say creationism. I hadn't heard that before from him. My understanding is our search for textbooks continues to be, and continued to be, that we were looking for a treatment of Darwin in textbooks that the board would be satisfied with. And just board members saying something, their wishes or desires at a board meeting, that would not cause me to take any formal action. Q. Well, let's look at that because that is plainly important here. From your standpoint as an administrator for the school district, if we look at what you understand is a sign of action, something that's going to make you take serious steps, how do you look at that process, what does it take? A For me to pursue any type of research or action, a board member would -- or more than one board member would have to sit down with me and ask me to specifically explore an area, and then I would follow up on that. But if -- you know, if there's just comments made at the general board meeting, that's not directing me to take any formal action. Q. Okay. We left off with you learning that there was a 2004 edition of the Biology text by Miller and Levine. What happened next that related to the Biology text? A I reviewed the new 2004 edition with the 2002 edition with Mrs. Spahr and Ms. Miller. Q. Okay. And with that in mind, Mike, I would ask you to look at defendant's exhibit 24. Do you have it, Mike? A Okay. Q. Okay. Do you recognize that document? A Yes. Q. What is it? A These are my notes from my meeting with Mrs. Miller and Mrs. Spahr. Q. Well, tell us about that meeting. A What we did is we -- Jenn was sitting next to me and one of us had the old edition, one of us had the new edition, and we went through the chapters dealing with evolution, and we compared the text side by side, line for line, and then noted any changes. And the teachers, for the most part, explained the science of the changes to me and what was different. Q. Did you derive a general understanding about nature -- the nature of changes in the text from the 2002 to the 2004 edition as a result of this meeting? A Yes. We thought that they definitely had softened some of the language for the evidence from species to species. It seemed to address a lot of the same pages that -- or areas that Mr. Buckingham had concerns with. Q. Well, from your standpoint as an administrator looking at some of the complaints that Buckingham had made about the text, were there any other specific changes that seemed to address those concerns? I mean, look at your notes and just see if it refreshes your recollection. A This section included -- yeah, the one -- the one -- another area is gaps. There was -- there actually was language that talked about gaps, and there was like a paragraph that talked about the strengths and weaknesses of evolution. Q. Do you recall any discussion with the teachers about the nature of the changes and whether it made the book more desirable? A Well, there's two questions I asked. One was did they feel that any of the changes left out any critical information that they felt necessary to teach, and they didn't feel that happened. But they did feel that knowing the concerns of Mr. Buckingham, that these changes did address them. Q. Did the board curriculum committee meet as a committee to discuss these changes? A No. Q. Did you meet with any committee members to discuss the changes? A I met with Mr. Buckingham. Q. And tell us what you told Mr. Buckingham. A I brought this with me and reviewed these changes with Mr. Buckingham, and said that I thought that this text -- the new edition really did address his concerns, that it didn't make so strong a case for evidence from species to species and it talked about gaps. And tried to point through all of these pages where we noted changes, I showed all of those to Mr. Buckingham. Q. Did you have an impression as to Mr. Buckingham s response to this information? A He didn't respond at the meeting. He took my notes and the new edition home with him. But at the meeting he just listened to me. Q. Did you hear from him subsequently? A Yes, later he called me. Q. And what did you learn as a result of that conversation? A Bill called me and said he still couldn't approve the book. Q. And what did you do in response to his objection -- continued objection? A The -- well, we went forward placing the book on the August agenda. And shortly after this I think I received a note from him about including Pandas. Q. Okay. Let's look at this process as it unfolds. I'd ask you to look at exhibit -- defendants exhibit 25. A Okay. Q. Do you recognize that document, Mike? A Yes. Q. What is it? A That's a note to Dr. Nilsen's secretary to place Miller and Levine on the agenda for approval and purchase. Q. You say you went forward despite Mr. Buckingham s objection. Why did you do that? A I was still trying to address Mr. Buckingham s concerns, but we needed to -- August was late in the day if we were going to get a book in the student's hands. So we needed to continue to move forward to get that book approved and purchased in August. Q. Did you put it on the agenda despite his objection? A Yes. Q. Did there come a time -- you mentioned Of Pandas, did there come a time when he brought another text to your attention? A Of Pandas and People. Q. Okay, with that in mind, I would ask you to look at defendants exhibit 26. And do you recognize that document, Mike? A Yes. Q. What is it? A This is a note from Mr. Buckingham asking Of Pandas and People to be placed on the August agenda along with Miller and Levine. Q. Did you do anything in response to this document? A Yes. Q. Tell us what you did. A I shared this with Dr. Nilsen, and then Dr. Nilsen and I set up a meeting with Bill in Dr. Nilsen's office. Q. Did you have an understanding concerning the purpose of that meeting? A For -- well, two. One, we wanted to make sure that we kept moving forward for the purchase of the Miller and Levine. And the second, in talking with Dr. Nilsen, Dr. Nilsen was not going to approve the purchase of an individual book for -- Of Pandas and People for all of the students. Q. Let's -- let me ask you, did the meeting with Mr. Buckingham occur? A Yes. Q. Who was in attendance? A Mr. Buckingham, myself and Dr. Nilsen. Q. And tell us what you can recall about that meeting. A Dr. Nilsen ran that meeting. I remember him telling Bill and making it clear that he is not going to recommend the purchase Of Pandas and People, which meant that for a book to be approved, it would need six votes instead of five, you're overriding the superintendent s recommendation. Q. Well, what about Bill's position, did he come to this position -- this meeting with a position that he articulated? A I think Bill wanted the students to have the Miller-Levine book alongside Of Pandas and People, and he wanted the teachers to be teaching out of both, side by side. Q. Okay. Well, did either you or Rich Nilsen respond to that request on Bill's part? A Dr. Nilsen offered a compromise position that -- that the -- instead of purchasing books for individual students, that we would simply have a classroom set available to students. Q. Mike, if you'd push that mike away a little bit. A Sorry. Q. Don't break it, push it by the stem, push it by the stem back a little, you'll probably get a little less puh. Did you come away with the sense that this meeting had produced results? A It was our -- our understanding at the end of this meeting that we would approve the Miller-Levine book at the August meeting, that we would wait for teachers to take a look at Of Pandas and People, consider its use, and possibly that would be as a classroom set. And it's our understanding that if we did do that and did have some consideration Of Pandas and People that Bill would approve Miller and Levine. Q. And you say some consideration Of Pandas and People, be more specific, what did you have in mind? A Well, originally when we got Of Pandas and People, I remember Dr. Nilsen and I thinking at the first that we could possibly purchase these for the teachers and they could have them just as a personal reference. When Bill was suggesting, you know, kind of a more rigorous use of the book in instruction, then Dr. Nilsen suggested a compromise position, just being in the classroom. But at this point we hadn't had any discussion with the teachers on, you know, what they would find acceptable for the use Of Pandas, and we were asking for time to be able to have those discussions. Q. Well, defendants exhibit 26 is dated -- that is defendants exhibit 26 is dated July 25, 2004. What happened next for you? A I went on vacation. Q. And it was too short I know, but -- A Yes. Q. -- do you know if Dr. Nilsen took any steps for you relating to the discussion you ve just described while you were on vacation? A Dr. Nilsen scheduled the meeting with the board curriculum committee and the science teachers for the end of August to discuss the use Of Pandas and People. Q. Were you in attendance then for the August 2 , 2004 meeting? A Yes. Q. August 2 , 2004 -- A No, I'm sorry. Q. -- meeting of the board. A No. Q. Okay. Let me ask you to look at defendants exhibit 30. A Okay. Q. Did this document greet you on your return? A Yes. Q. And you recognize it? A Yes. Q. What is it? A It's a memo that talks about a meeting that will be held on August 27 to discuss Of Pandas and People. Q. And what was the subject of that meeting? A How we might -- sitting down with the teachers and the board curriculum committee, how we might make use of Of Pandas and People. Q. Did that meeting occur? A Yes. Q. Did you take notes of that meeting? A Yes. Q. And I would ask you to look at defendants exhibit 31. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A These are my notes from that meeting. Q. Do you recall if there was anything handed out at this meeting on August 27 , 2004? A Dr. Nilsen handed out an e-mail from our solicitor, Steve Russell, and he handed out a draft of the biology curriculum. Q. There's been some discussion of the e-mail. How about the draft curriculum, do you know -- do you recall anything specifically about that document? A I do remember when Dr. Nilsen passed it out, that Mrs. Spahr reacted, was very upset with it saying we never agreed to ID being in the curriculum, and they weren t involved in the creation of this. MR. ROTHSCHILD: Your Honor, I just want to clarify for the record. I don't think this is a document, speaking about the draft curriculum, that's ever been produced. MR. GILLEN: Mr. Rothschild is quite correct. The document no longer exists. MR. ROTHSCHILD: Thank you. THE COURT: All right. BY MR. GILLEN: Q. Well let's see, you ve said that Bert said we didn't agree to this. What was she getting at? What can you recall? A Well, it was my understanding from the end of the June meeting that that was language that we talked about, Mr. Buckingham and the teachers were agreeable to, you know, from what I remember of the meeting I thought I read that back and we were in agreement with that. I don't know why Dr. Nilsen brought that to the meeting, but once it was out there, then at the end of the meeting I remember Mr. Bonsell directing me to work with the teachers then to come up with language that they would agree to. Q. Let's look at -- who said what, to the extent you can remember it. Do you remember any of the teachers expressing any concerns about litigation? A Mrs. Spahr -- I don't specifically remember, but almost every instance Mrs. Spahr did feel that intelligent design was the same as creationism and might lead to litigation. Q. How about Mr. Bonsell, do you recall him making any comments at this meeting? A In talking about Of Pandas and People, there was requests by board members that we pursue its use in the schools to see if there's ever been any litigation involving the book, if there's ever been any litigation involving intelligent design, and -- Q. How about in terms of evolutionary theory, did he articulate anything specifically? A Mr. Bonsell wanted to make sure that in the curriculum language that we were going to develop for the biology curriculum, that the teachers pointed out not only that it has flaws or gaps, but also to show what those are. Q. How about Mr. Buckingham, the meeting was about Of Pandas, did he articulate a position at this meeting? A Again, Mr. Buckingham wanted to move quicker than we wanted to, so we were asking him to wait, give us some time here that we might be able to take some action with the book in October. And I think I remember him wanting to move quicker than that -- Q. Did he? A -- do something in September. Q. I'm sorry, Mike. Did you get an understanding of what Mr. Buckingham regarded as the desirable use of the text during this August 27 meeting? A I think he was -- I don't remember specifically, but I think he was still advocating individual students use them. I know Mrs. Spahr recommended that the books be placed in the library. But we didn't -- at the end of the meeting, I don't remember us coming up with a clear direction exactly what we're going to do with the books. Q. Let's look at the end of the meeting. When you came away from this meeting were there any results? A Yes. Q. Tell us what they were. A I was going to work with the teachers to develop curriculum language, and then I was to -- once they developed that, I was to send that to the full board for their review. Q. How about with respect to any duties you had about Of Pandas, did you come away with tasks? A I don't -- I don't remember doing anything Of Pandas other than continuing to talk to teachers about its possible use. Q. Well, let me ask you this, Mike. There's some documents here I just want you to explain. Look at 32, 33, 34, 35. A Okay. Q. 36, 37, 38, 39, 40, 41, 42. There's one more in there, it's an outline which I believe is in that other folder you have. Do you recognize these documents I ve just drawn your attention to, Mike? A Yes. Q. What are they? A Umm, these are all my notes from my research on Of Pandas and People, its use, and any litigation that was involved. Q. Let me, if you would, also take a look at 116, which is in that little auxiliary folder. A 116? Q. Yes. A I don't see 116 in here. Q. That's unfortunate, hold on a second. You know what, look at volume two, Mike. A Okay. Q. Do you have it? A Yep. Q. Do you recognize that? A Yes. Q. All right. And I didn't want to belabor this process, so if you can, having looked at them, just tell us generally what these documents relate to and what you learned as a result of the process that created these documents. A Just 116 or all that you referenced before? Q. All of them generally. A 116 is a result of an inquiry about the book from the publisher, and then they sent this information back. I had learned from the Foundation for Thought and Ethics that the book was used in Tomball, Texas, and Dr. Gillen was there and used the book in that district, and I did call and talked to Dr. Gillen about the use of its book. Q. Let's go through them real quick, just for the sake of, you know, explaining them for the record. That's 116. What's defendants exhibit 32? A That's just information on the title and the publisher of Pandas and People. Q. And then defendants exhibit 33, do you recognize that? A Right, that's just a -- getting information on the cover and where we might -- where we might seek purchasing it. Q. Okay. And there's a Post-it on there. What does that Post-it note describe, Mike? A Haughton Publishing Company and their address. Q. Next is defendants exhibit 34. If you would just tell us briefly what that document is. A I believe this is from my conversation with Foundation for Thought and Ethics where they gave me information about Dr. Gillen and how I might contact him. Q. Defendants exhibit 35, what is that? A Again, that looks like an on-line service where you might purchase Of Pandas and People. Q. Defendants exhibit 36, what is that? A Those are my notes from an administrator in Tomball, Texas. Q. And you say Tomball, Texas, what is Tomball? A A high school. Q. Did you have an understanding concerning whether the text was being used at that high school? A Currently when I talked to Melony Windows she did not know -- she didn't think the text was being used and didn't believe that they even had them anymore. Q. Had it been used at one time? A Yes, by Dr. Gillen. Q. Defendants exhibit 37. A Again, that's just my notes for the phone number for Melony Windows. Q. In the lower right-hand portion of that document there's a notation 12.2 or higher. Can you tell us what that relates to? A I asked Dr. Butterfield, our language arts supervisor, to do a readability study on Of Pandas and People. Q. And why did you do that? A To determine the appropriateness for ninth grade students. Q. And defendants exhibit 38, if you would just briefly describe that. A Those are my notes from my conversation with Dr. Gillen. Q. And, again, just briefly summarize the information you received as a result of your discussion with Dr. Gillen -- no relation. A Dr. Gillen said that he had used Of Pandas and People in his AP biology class as reference material that students could use and even respond in test with some of those materials. That he had initiated that use on his own and the board agreed with it. That he had the books donated to him. And then when I asked him about the appropriateness, he thought the overview section of the book would be appropriate for ninth graders, but he did think the later sections that went into more detail might be a little difficult for them. Q. And, again, I don't want to belabor this process. Were these documents all the result of your background checks, so to speak, into Of Pandas? A Yes. Q. Let me ask you, you mentioned some discussion of making students aware of intelligent design at this August meeting. Did you have any -- anything concrete in mind at that time, in August? Did you come away from this August meeting with a sense that the teachers were open to at least some reference to intelligent design? A From the August meeting where we discussed Of Pandas and People? Q. Yes. A No, Bert was pretty insistent that she didn't like intelligent design in the curriculum. Q. Okay. How about the text Of Pandas, what was your sense for how that might be used? A Well, it wasn't settled at that meeting. You know, Bert was recommending the library, but we really didn t decide exactly how it was going to be used. Q. Do you recall Dr. Nilsen offering any response to Bert's suggestion? A Bert's suggestion that they be in the library? Q. Yes. A I don't remember him responding to that. Q. Was there any discussion of other uses of the text at that August 27 meeting? A Of Pandas and People? Q. Yes. A I think Bill still wanted it for individual students and taught side by side. Q. All right. There was some discussion of the curriculum change at the August 27 meeting or potential curriculum change, is that correct? A Yes. Q. Would you look at defendants exhibit 54. A Okay. Q. Do you recognize that, Mike? A Yes. Q. What is it? A It's the curriculum for the biology course. Q. Okay. A No, I'm sorry. This is -- this is the Pennsylvania Academic Standards for teaching the biological sciences. Q. Are these the standards that were in place at the time of this discussion? A Yes. Q. Let's look at the standards. They speak to teaching to the standards, and there's some discussion here of making students aware. Did you see a distinction in your mind between teaching to the standards and making students aware of other concepts? A Yeah, I don't see making students aware of something as teaching, I see that as distinct. Q. And why is that? A Well, when you take this specific content of academic standards, there's a number of things you do to teach it. First, you know, you secure instructional materials that have that content in it, then you develop instructional strategies to deliver that content to the students and activities that they might use to gain an understanding and learn the material. Then you assess that content. And then you, from those assessments, you get feedback from students on how well they did and re-teach it if you have to. And all of that I believe is teaching. When you just mention something, you don't do any of those. Q. Well, let's look at the information you had about the teaching of biology in Dover Area High School as of this time in August. Did you understand that the teachers taught evolutionary theory as you have used that term here? A Yes. Q. Did you understand that the teachers mentioned anything else during biology classes? A My understanding what the teachers did prior to teaching evolution is that they would preface -- before they began instruction on evolution, they would preface their teaching with an explanation to students -- MR. ROTHSCHILD: Objection. His answer is going to be, again, back door hearsay, similar to what we dealt with before. MR. GILLEN: And the answer is of the same nature, Judge, as you ve said throughout, he can testify to his understanding of what the teachers were doing. MR. ROTHSCHILD: His -- the answer that's going to be elicited is the statements of out-of-court declarants, the teachers, about what they were doing for the truth of what they were doing. And we ve had one of those teachers up on the stand. There was an opportunity to ask about this, and she was asked about it, and the other biology teachers are under subpoena so they can be asked about it. THE COURT: Well, but that's not the issue, I don t think, Mr. Rothschild. I think it's his understanding. Certainly they can, and their understanding or their testimony about what their understanding was might be better evidence than what his understanding is, but that doesn t mean he can't say what his understanding is. And he did answer the question. So I understand the point, but I ll overrule the objection and the answer will stand. BY MR. GILLEN: Q. Well, let me ask you again for your understanding of this situation today. Contrast here the situation as it exists in Dover Area School District as a result of the curriculum change that was adopted by the board on October 18 , 2004. Is it your understanding that they teach intelligent design in biology classes at Dover Area High School? A No. Q. And why is that? A Because my understanding is that all they're doing is making students aware, mentioning intelligent design, just as they had mentioned creationism and students having other beliefs -- MR. ROTHSCHILD: Objection, Your Honor. MR. GILLEN: He's testifying to his understanding, Your Honor. It may be that the teachers were lying to Mr. Baksa when they talked to him, but it's what he understood. THE COURT: Well, but that's not what he just answered, he said they had mentioned. And on that basis the objection is valid and I'll sustain the objection. You know, we ve transcended the area of his understanding into a recitation of what somebody said. MR. GILLEN: Okay. And I don't intend to offer that. I agree, and see what counsel is getting at to the extent if someone would offer that out-of-court statement for the truth of the matter asserted, and that's not what I'm doing. THE COURT: What is it for? MR. GILLEN: It's to establish what understanding the board administration was operating on. And I fully acknowledge that, you know, I don't think any of them checked what was going on in the classroom, and I'm not offering it for that purpose. MR. ROTHSCHILD: And I further object to the implication that the teachers were lying about what they were doing in the classroom. I think that mischaracterizes the events and is unfair to the teachers. MR. GILLEN: Yeah, and I'm not saying that. I m just saying they did not check -- they did not go out and monitor the classrooms, but they did have an understanding, and they did act on it, and that's my only purpose here. THE COURT: Yeah, but perhaps it's late in the week, and this has become too abstract for me, but I don t know how you -- how you get to what the teachers said, and that it doesn't go to the truth of the matter. I -- I can t understand that. MR. GILLEN: Well, Judge. THE COURT: I can understand that he can testify as to what his understanding is. We ve crossed that bridge. We understand that. We ve -- we ve dealt with that. But as it gets to statements collectively or singly by teachers, that could only be -- that could only go to the truth or at least partially at least to the truth in my view, and I think that's hearsay. MR. GILLEN: If it were offered for the truth, it would be hearsay, and that is not my purpose. I'm just trying to establish these -- the board administration proceeded on a certain path. THE COURT: Well, you'll have to do that, in my view, and obviously my view controls, you're going to have to do it by -- by his understanding, without reference to what they said. MR. GILLEN: Okay. THE COURT: And that's the only way we can do it, so I'll sustain the objection on that basis. BY MR. GILLEN: Q. Okay, let me ask you this, Mike. We're talking about an August 27 2004 meeting. Did you leave that meeting with a to do? A Yes. Q. And tell me what you had in mind to do as a result of this meeting? A To research Of Pandas and People, and to work with the teachers on developing curriculum language. Q. You talked about working on the curriculum. What happened next in that area? A I believe I -- I believe I initiated, I started, wrote some draft language, and I sent it to the teachers for them to review, and afterwards I received back their recommendation in curriculum language. Q. Okay. With that in mind I would ask you to look at defendants exhibit 43. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A This is a memo from me to the board curriculum committee with the draft from the teachers attached. Q. Is this a result of the process you ve described of talking to the teachers? A Yes. Q. I'd ask you to direct your attention to the portion of exhibit 43 with the Bate stamp number 29, in the lower right-hand corner. A Yes. Q. And I'd ask you to explain, Mike, the ways in which you see this document as reflecting the process you ve described. A I had originally created a draft, sent it to the teachers, and the teachers sent back this draft that included language, "the students will be made aware of gaps in Darwin's theory and of other theories of evolution." MR. ROTHSCHILD: Your Honor, again, I'm not sure what document Mr. Baksa is referring to that was sent to the teachers. It was not this. I don't know that we ve been produced. MR. GILLEN: You have defendants exhibit 43. MR. ROTHSCHILD: I understand that. But Mr. Baksa suggested that he prepared something and sent it to the teachers, and that they then prepared the page 29. And I m trying to understand whether there's two different documents, or whether this is what Mr. Baksa created and, as the memo says, the teachers reviewed it. THE COURT: Are we talking about the same document or is there something different? THE WITNESS: I don't remember if there was anything, if the original draft that I sent them was different than what they returned to me. I just don t remember that. MR. GILLEN: I think Mr. Rothschild's question may be who created this page. THE WITNESS: The teachers. MR. GILLEN: Okay. MR. ROTHSCHILD: Then I'm trying to understand then he's describing a draft. THE COURT: Well, no, I think the question is, are there two separate documents. MR. ROTHSCHILD: Correct. THE COURT: And is there something missing that you don't have, isn't that -- MR. ROTHSCHILD: That is correct. THE COURT: -- the essence of your point? Do you understand his point? Is there a document that you're referring to that isn't this? THE WITNESS: Yeah, I don't have the -- the curriculum was written over each time it was edited, so what I originally sent to the teachers, I don't have that document. THE COURT: Is that the document that Mr. Gillen previously said does not exist, or is that yet another document that doesn't exist? Are we talking about two different documents now that don't exist? THE WITNESS: I think we're talking about two now. MR. ROTHSCHILD: I don't have another document, and it's not here. THE COURT: I understand. You don't have it because they don't exist apparently, is that the point? Do you have an objection? MR. ROTHSCHILD: I'll save my questions for cross. Thank you. THE COURT: I think that's what you have to do. If it doesn't exist, it doesn't exist. You may proceed. BY MR. GILLEN: Q. Mike, again, is this draft here a document that you generated in response or as a result of the process of discussion with the teachers you ve described? A Right, that Bate stamped 29 -- Q. Yes. A -- is the teachers recommendation. Q. Okay. And let me ask you, based on your discussions with them, what was your understanding of the basis for this recommendation? A That if there was going to be language that was going to be board approved and changed, that the teachers recommended that this be the language that the board adopt. Q. Let's look at defendants exhibit 44. Do you recognize this? A Yes. Q. And what is it? A September 21 , 2004. Q. Okay, and who is it directed to? A The board of directors. Q. Okay. And let me ask you, Mike, are you generating these documents in your capacity as the assistant superintendent? A Yes. Q. And what is your purpose in generating them? A To try to come to some agreement between language that the board would like to see included in and language that the teachers would agree to. Q. Okay. And 44 is directed to whom? A The school board, all the school board members. Q. Okay. And what was the purpose in doing that? A So that they could see -- well, this is what came out of the August meeting. I was working with the teachers to develop language and then send it on to the full board for their review. Q. All right. Did there come a time when you received some input from board members? A Yes. Q. And I would ask you to look at defendants exhibit 45. A Okay. Q. Do you recognize this document? A Yes. Q. What is it? A This is a note from Casey Brown that has two suggestions of language that could be included that s different from the teachers. Q. And in terms of trying to build consensus, did you see this document as representing any progress? Did you notice points of convergence? A Well, there were some -- there were some points that were the same, you know, making students aware of gaps. There were two problems I saw with this document is they talked about origins of life in both of Mrs. Brown s suggestions, and the teachers weren't teaching origins of life, so I didn't think that would be acceptable to them. Q. Tell us what happened next in terms of this proposed curriculum change that's being talked about? A I did get feedback from Bill Buckingham on what language he thought should be included in that, and then also Dr. Nilsen gave me some language from Mr. Bonsell to include in there. Q. Did you take notes as a result of your conversation with Mr. Buckingham? A Yes. MR. GILLEN: Let me see, I think I have those. BY MR. GILLEN: Q. I ask you to look at defendants exhibit 31 at the page Bate stamped 59. A Okay. Q. Do you recognize that document? A Yes, these are notes that I took after speaking with Mr. Buckingham. Q. And looking at the notes, can you recall what Mr. Buckingham said to you? A Again, he's still talking about using Of Pandas and People side by side with Miller-Levine. The next note is that he's okay with mentioning intelligent design. That was the draft that was produced by Dr. Nilsen at the August meeting with the teachers. And then the last note is that he felt those that donated to purchase the books, that their expectation is that we would use these books in an instructional manner. Q. Did you -- you ve mentioned receiving information from Rich Nilsen concerning Allen Bonsell's input. Can you tell us what you recall about that? A Mr. Bonsell just wanted next to gaps, slash, problems added, so he was adding the word "problems" to that statement. Q. What happened next in this process relating to the curriculum change? A Well, I didn't have consensus of what -- I had the teachers version what they wanted, but I didn't have any agreement from the board curriculum committee, or the full board on the language. So I called the board curriculum committee together so that they could try to come to some consensus on the curriculum language. Q. And with that in mind, I would ask you to look at defendants exhibit 46. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A It's a memo to the board curriculum committee about a meeting on October 7th to discuss the curriculum language. Q. And do you have reason to believe that meeting occurred? A Yes. Q. And I'd ask you to look at exhibit 50. A Okay. Q. Do you have that, Rich? A Yes. Q. Mike, I'm sorry. There's two pages to this document. I want you to look at each of them separately. The first page of defendants exhibit 50 has the Bate stamp number 35 in the lower right-hand corner. Tell us what that is. A I prepared this document for the meeting. It has the various drafts of language from the administration and the staff, from the school board members, and I simply listed the concerns that had been communicated to me from the board that the language should address. Q. Okay. And is this your understanding of the various positions of the parties at this time? A Yes. Q. And under "concerns to be addressed," is this your understanding of the concerns that you needed to address in order to build a consensus? A Yes. Q. Well, let's look at the portion of exhibit 50 which has the Bate stamp number 36 in the lower right-hand corner. A Okay. Q. Do you recognize that document? A Yes. Q. What is it? A This is the -- my notes on what the agreement was with the board curriculum committee on what language we should include. Q. Okay. And what did you understand the board curriculum committee's position to be? A That they were adding language to include the mention of intelligent design. Q. And I see it's a handwritten note. Was it worked out during this meeting? A Yes. Q. And do you recall any specific discussion at the meeting? A It was a short meeting. Really, I just remember Mr. Buckingham wanting intelligent design in there. And so we took -- I don't remember Mrs. Harkins suggesting any additional language. So really what happened is, we simply married Mr. Buckingham's language with Mr. Bonsell s. Q. There s, under the "concerns to be addressed" there is an item four. I want to ask you, did you know why that item was there? A Because we were still wrestling with how we were going to use Of Pandas and People -- oh, while that wasn t decided, but earlier on when Of Pandas and People came up and us thinking about how we might use it, Dr. Nilsen asked me to check in the curriculum guides for areas that we might reference materials. In other words, Dr. Nilsen suggested that if we do use Of Pandas and People, that it be referenced so that it would be a board approved book in the curriculum so that teachers -- MR. ROTHSCHILD: Objection, Your Honor, this answer is hearsay, move to strike. MR. GILLEN: He's just -- Judge, how can he testify except what he's doing and why. That's his -- he s generating these documents as assistant superintendent. He's trying to explain why. THE COURT: Using that excuse, hearsay would always come in. MR. GILLEN: Well -- THE COURT: You ve got to do a little better. MR. GILLEN: Well, no. THE COURT: He's repeating what Dr. Nilsen said -- MR. GILLEN: Well -- THE COURT: -- that looks like hearsay to me. MR. GILLEN: Let me ask it a different way. THE COURT: So I'll sustain the objection. I ll strike the passages that represent direct quotes from Dr. Nilsen because they appear to be hearsay. BY MR. GILLEN: Q. Did -- Mike -- THE COURT: Any time you want to complete this line of questioning consistent with our agreement to finish up, however, or if you see a point where you want to break, Mr. Gillen. MR. GILLEN: I'll wrap it up here. Thank you, Your Honor. BY MR. GILLEN: Q. Mike, just looking at this item four under "concerns to be addressed," did you do anything in your capacity as assistant superintendent related to this item? A I put Of Pandas and People later in a draft in the reference. Q. And why did you do that? A So that teachers would be protected because they would have a board approved book so there's no liability there for teachers if anybody challenged it or objected to it. MR. GILLEN: That is a good breaking point, Your Honor. THE COURT: All right. Then we will call an end to the proceedings for this week. Mr. Rothschild, do you have something you want to say before we go? MR. ROTHSCHILD: I just want to clarify witness order. I understand that there's a witness coming from out of town, he'll start on Monday, and I am assuming Mr. Baksa will continue after that? MR. GILLEN: Actually, I think I'll put on Mr. Bonsell and get him through, so we'll have another board member done. THE COURT: Starting first thing Monday? MR. GILLEN: Mrs. Cleaver is coming from Florida, she'll go on first. Then I'll put on Mr. Bonsell, and I think he'll take a good part of the day, probably the whole day. If there is more time for Mike, I'll put him on towards the end. MR. ROTHSCHILD: I guess -- it just seems like it s getting broken up more than is necessary to accommodate witnesses, but I'll leave that to your discretion, Your Honor. THE COURT: Well, it's his case, and we ve all tried to work collaboratively to do it that way. Poor Mr. Baksa has his testimony broken up in at least three pieces and now -- MR. ROTHSCHILD: I'll do my cross straight. THE COURT: Yeah, probably -- MR. GILLEN: Could I break up his cross? THE COURT: There's probably not going to be any time for that, but so it goes. All right. Then we'll start with another witness, a separate witness, not with Mr. Baksa, and we'll return to Mr. Baksa at a point probably after Monday, to answer your question, is what it appears to me. MR. GILLEN: That's my guess. THE COURT: All right, I wish you all a pleasant weekend. I will see you Monday. We'll resume the trial on Monday at 9 a.m. Our trial days next week, just to revisit this, so we're all on the same page, will be Monday, Wednesday, Thursday and Friday. All right, we'll be in recess until Monday. THE DEPUTY CLERK: All rise. (4:20 p.m., court adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 18 (October 31), AM Session, Part 1 THE COURT: Be seated, please. Good morning to all. And we continue the defendant's case, I believe, Mr. Gillen? MR. GILLEN: Thank you, Your Honor. The defense has called Jane Cleaver. (Jane Cleaver was called to testify and was sworn by the courtroom deputy.) THE COURT: You may proceed. COURTROOM DEPUTY: Please state your full name and spell your name for the record. THE WITNESS: My name is Jane cleaver. J-A-N-E. C-L-E-A-V-E-R. DIRECT EXAMINATION BY MR. GILLEN: Q. Good morning, Jane. A. Good morning. Q. As you know, I've asked you to come here and give testimony in this case, and it's customary to introduce yourself a little to the jury. Can you hear me? A. I'm having a little problem. Q. Okay, I'm sorry. This is, it's customary to give a little introduction as to who you are appearing here to testify before the court, and so I want to ask you first of all, do you live in Dover now, Jane? A. No, sir. Q. But did you? A. Yes, sir. Q. And for how long did you live in Dover? A. For 56 years. Q. And are you married currently? A. I'm widowed. Q. Were you married? A. Yes, sir. Q. Did you have children? A. Two children. Q. Do you have grandchildren? A. Four grandchildren. Q. Do you have great-grandchildren? A. Four great-grandchildren. Q. Give us a sense of your educational background, Jane. What was your education? A. My education was two weeks in the ninth greed at Dover High School. Q. Just give us an idea of why you cut off then. A. Well, at that time that was back in the 30's, there really weren't school buses to take us, take children to the school, and I was from a large family, and if there would have been buses my parents couldn't gave afforded that. For two weeks I walked back and forth to school about two and a half miles every day, and I would have loved to have, to graduate, but it was impossible. Q. Okay. Well, nonetheless did you work while you were in Dover? A. Yes, sir. Q. And what did you do? A. I operated several businesses and rented houses, and I just loved our community and the people in our community. It was just an honor for me to be in that community. Q. All right. Well, give us a sense of your business endeavors. What businesses did you run while you were in Dover? A. I ran and operated the Dover Department Store and two other department stores. Q. Okay. A. And rented homes there. Q. How about the five and ten? I've heard you ran the five and ten. A. It was originally called a five and ten, and then later changed to the Dover Department Store. Q. Okay, and has your lack of formal education hampered you in life or have you done pretty well? A. Not at all, sir. I've done very well. Q. All right. Now, there was a time when you were on the Dover area school district board, is that correct? A. Pardon me, sir? Q. That's all right. There was a time when you joined the Dover area school district school board? A. Yes, sir. Q. And about when was that? A. That was about June or July of 2002. Q. Okay. Were you elected or appointed? A. Appointed. Q. And who appointed you? A. The board. Q. Do you know why there was need for the board to appoint you? A. Because there were two resignations. Q. Do you know who resigned? A. Mr. Snook and Mr. Langioni. Q. Why did you apply to fill one of those vacancies? A. Well, sir, I attended many board meetings before I ever applied for this position, and I observed what was being said by Mr. Snook and by Mr. Langioni and all the other board members as far as that. Q. You said you observed what was said. Was there a big issue in the community at this time related to the schools? A. Yes, sir. Q. Tell us what that was. A. The issue was the building project was in, was looming large, and I had great concerns and questions about how the old board was handling this project. And so I was, I had concerns if they were handling it in a responsible manner. Q. Well, was there anything about your personal background that made you think you could add value to the process? A. Yes, sir. Q. Tell us what it was. A. My personal background being in business for 33 and a half years, I thought maybe that I could contribute something to this project. Q. Okay. You've mentioned that in the period prior to your joining the board there was discussion of the building project. Did you observe Mr. Snook and Mr. Langioni discussing the building project? A. Yes, sir. Q. And did you arrive at an opinion concerning how they were conducting themselves? Were they serving the community? A. Yes, sir. Q. And what did you think? A. Neither Mr. Snook nor Mr. Langioni made a good impression as far as my concerns, not to me. Q. And did that opinion you formed sort of influence the way you viewed them later when they came to board meetings? A. Yes. Q. And in what way, what was your thought? A. Well, I could not, I did not put no value in their opinions or in their judgment. They did not use good judgment. Q. Well, let me ask you this. When you were appointed to the board, were you approved unanimously? A. No, sir. Q. Do you recall who voted against you? A. Ms. Callahan. Q. Did she ever tell you why? A. No, sir. Q. Okay. If you're looking at the board and their attitude towards the building project, you mentioned Mr. Snook and Mr. Langioni. Did you see Mrs. Callahan as agreeing with them or differing with them on the building project? A. She agreed with Mr. Snook and Mr. Langioni. Q. Did that affect your relationship with her on the board? A. Yes. Q. And tell us how. A. Truthfully again I can put no value on her opinions or her comments. Q. Well, what's your point there? Where do you differ in judgment? A. They really didn't care of how much money they were spending and how much it was really costing the taxpayers. Q. All right. Let's look at your involvement, if any, with the Dover area school district prior to coming to the board. Were you involved with the schools prior to being appointed to the board? A. Yes, sir. Q. Well, tell us how you were involved with the schools. A. Well, first after 9/11 I heard President Bush speak on the television one evening and ask that our American children would take one dollar out of their piggy bank and send it to the Iraqi children, the children in Iraq. So I went to each of our schools and approached our principals and asked if they would make this a school project, in which they agreed, and quite a bit of money was collected and sent to our president. Q. All right. That's one project. Was there another? A. Yes, sir. Q. Tell us about that. A. Well, I felt after 9/11 I felt that our nation needed to get back to the basics. When I was a kid and went to school we had, we said prayer every morning, and I felt it started our day off very nicely. But I realized in this day and age prayer would be unlawful, would be against the law to be, to be said in the schools today, but I had heard that a moment of silence would be allowed. So I encouraged that. Q. Did anything happen as a result of these efforts on your part? A. Yes, sir. Q. Tell us what happened. A. The Dover schools adopted a policy allowing a moment of silence to begin each day. Q. Now, you've mentioned coming to the board. Were you appointed to any committees when you came to the board? A. Yes, sir. Q. Tell us what they were. A. Community education and policy. Q. Okay. You mentioned, let's talk about the policy committee. Did you do a lot of work while you were on the policy committee? A. Not really. Q. And why was that? A. Because Casey Brown was head of the policy committee, and she did mostly whatever she wanted to and had no consideration for what the rest of us thought. Q. Well, does the policy committee deal with curriculum? A. No, sir. Q. What about community ed? What does that community deal with? A. Community ed is mostly for the adults to take bus trips and activities that the adults are involved in. Q. Okay. Did you do a lot of work on that community while you were on the school district? A. There was not too much work involved in that, sir. Q. Okay. All right, let's look at the period from when you first joined the board up until January of 2004. Do you recall any discussion of the biology text or biology curriculum during that period from when you first joined the board up until 2004? A. No, sir. Q. How about let's look at 2004, from January through the end of May 2004. Do you remember any discussion of the biology text or biology curriculum during that period? A. Not that I recall, sir. Q. Okay. Well, that brings us to June, and I want to ask you do you remember school board meetings during the June period? A. Yes. Q. Do you have a specific recollection of two different meetings, or do they blur together? A. Truthfully those two meetings are kind of a blur. They run together. I couldn't really separate the two. Q. Well, I understand. Let me ask you this, during this June 2004 period do you recall any mention of intelligent design? A. Yes, sir. Q. Do you recall anything specific? A. No, sir. Q. Did you ask any questions about it during this period? A. No, sir. Q. Do you remember anything else that was said during these board meetings in June? Do you remember any discussion of the biology text? A. No, sir. Q. How about do you recall issues about whether the texts would to be purchased or a newer text would be purchased? A. Yes. Q. Well, do you recall Bert Spahr addressing the biology textbook? A. Yes, sir. Q. All right. Tell us what you recall Bert saying. A. I recall Ms. Spahr wanted a new biology book. They were not satisfied with the book they had. She wanted a new one. But at that time we, the book was, we were going to buy this book for the school, we found out that there was a new edition, a later edition coming out. So I think that our approval was put on hold at that time. Q. Okay. How about Charlotte Buckingham. She's been mentioned here during these proceedings as speaking at a board meeting. Do you remember Charlotte Buckingham speaking? A. Yes, sir. Q. Tell us what you recall about that. A. I remember Ms. Buckingham quoting the Book of Genesis and mentioning creationism. Q. And sitting as a board member, what was your reaction to Charlotte's comments? A. Truthfully I felt that this was the wrong time and the wrong place. Q. And what do you mean by that? A. Well, I share in Ms. Buckingham's faith, but I do not want religion taught in our schools. There's a time and a place for that. Q. Okay. Did you know Charlotte Buckingham? A. I knew Charlotte Buckingham. Q. Were you friends with her? A. Yes, I became friends with Charlotte back when I was trying to, when I was in the process of getting a moment of silence into our schools. She was a secretary at one of the churches, and that's where I first met her. Q. You say you didn't want religion taught in the public schools. How about creationism? A. No, sir, I don't want creationism taught the schools. Q. Well, and explain why not. A. Because I think creationism should be taught in churches and in the homes, but not in schools. Q. At the time that Charlotte Buckingham addressed the board, did you believe that any member was considering a policy that would require the teaching of creationism in Dover schools? A. No, sir. Q. While you've been on the board has the Dover area school district ever sought to require the teaching of creationism? A. Not that I recall, sir. Q. Well, how about intelligent design? When you heard that term mentioned, did you think that was creationism? A. No, sir. Q. And why is that? A. Because I heard a lot of talk about intelligent design, and as far as intelligent design I don't think there's ever anything that's mentioned about creationism, not that I know of. Q. Did you read the paper during the June, July 2004 period, Jane? A. No, sir. Q. And why was that? A. Because I didn't get it. Q. And why didn't you get it? A. Because of the reporter Joe. Q. Well, explain that. A. Well, when I got on the board and Joe would come to me, whatever I told Joe, Joe put the opposite in the paper. Joe doesn't know how to tell the truth. He only knows how to tell a lie. Q. Did you ever speak to Joe -- is this Joe Maldonado? Is it Joe Maldonado you're referring to? A. Yes, sir. Q. Did you ever speak to Joe and voice objection? A. Yes, I did. Q. And did Joe's reporting change in your opinion as a result? A. No, sir. Q. How about Mrs. Bubb? Did you speak with her? A. No, sir. Q. And why was that? A. Because Ms. Bubb and Joe sat together at the meetings and shared notes, and I was afraid that whatever I told Ms. Bubb she would share with Joe, and I did not trust Joe. Q. Just in your opinion how about the reporting by Ms. Bubb? Was that more accurate, or did you have problems with that? A. About ditto. About ditto with Joe. Q. Would you explain that again, Jane? I didn't quite get you. A. Well, as Ms. Bubb's reporting was about the same as what Joe's was, so I didn't want any of the reporters close to me. In fact, I told Joe to stay away from me, don't get near me, you don't know how to tell the truth. You only know how the tell the untruth. Q. Let me ask you this. This is the July 2004 period, were there any developments in your personal life that would affect your participation on the Dover area school district school board? A. Yes, sir. Q. Tell us about those. A. I had decided to move to Florida, and I bought my home July 21st in Florida. And I lived in Florida until August the 2nd -- or August the 11th, pardon me, and I came home to Pennsylvania to avoid the Hurricane Charlie. Q. Is that why you remember the dates so well, Jane? A. Very well. Q. Go ahead. A. Charlie hit on August the 13th. And after I heard about the damage that Charlie had done to my home, I returned to Florida August the 15th and then I did not return to Dover until October the 2nd. Q. Okay. You say you returned in October. I just want to be sure, did you attend any board meetings in August of 2004? A. No, sir. Q. How about September of 2004? A. No, sir. Q. When you returned to Dover were you prepared to attend the board meetings in October of 2004? A. Pardon me, sir? Q. When you returned in October did you attend board meetings there? A. Yes, sir. Q. Did there come a time when the textbook Of Pandas came to your attention? A. Yes, sir. Q. How did that text come to your attention? A. When I returned to Dover October the 2nd I called my sister-in-law to tell her I was home and to chat with her, and she said to me there's a big controversy about Dover, a book called Pandas and People, and she doesn't know what it's all about, but the paper has been stating that Dover schools are going to be teaching creationism. Q. Well, let me ask you, prior to that time had you ever heard of the text Of Pandas? A. No, sir. Q. Did you go to the board meeting on October 4th? A. Yes, sir. Q. And did the book come to your attention in connection with that meeting? A. It was on the agenda, sir. Q. Did you do anything when you saw it on the agenda? A. Yes, sir. Q. Tell us what you did. A. I asked Mr. Buckingham. Q. You asked him for what? A. About the book Of Pandas. Q. And? A. And he stated that it spoke about intelligent design, and Mr. Buckingham thought that, or his feelings were that our students, this book should be available so that our students could refer to it. Q. Well, you were on the school board. Did you do anything yourself as a result of what Mr. Buckingham told you? A. Yes, sir. Q. Tell us what you did. A. I asked Mr. Buckingham for a copy of that book. Q. And did you read it? A. I read parts of it. Most of it. Q. Based on what you read did you think intelligent design was creationism? A. No, sir. Q. And again why is that, Jane? A. Because in the book Of Pandas and People there is no mention of the Bible or of God or creationism. Q. Well, if the book wasn't about creationism, what did you think the book was about? A. I think this book is just another theory, intelligent design to me is just another scientific text or another theory. Q. Now, did there come a time when a proposed change to the biology curriculum came to your attention? A. Yes, sir. Q. And when was that? A. I think that was October the 18th. Q. Okay. That would be the second board meeting in October? Is that the meeting you're thinking of? A. Yes. Q. Okay, and when did it come to your attention, Jane? A. I think if I can recall, that may have been the first meeting that there was going to be a change in October, and then I think the 18th is when we voted on it. Q. Okay. Let's look at that 18th and try and fix your mind again on the public comments. Do you remember anything in terms of public comment at that meeting? A. Yes, sir. Q. Tell us what you remember. A. I remember again Ms. Spahr getting up, and her comments were that they did not want to teach intelligent design because she felt intelligent design was creationism. Q. Well, what was your reaction to that statement? A. I disagreed. Q. And why was that, Jane? A. Well, because they were at that time Alan Bonsell was president of the board, and Alan Bonsell and Dr. Nilsen had also stated that the teachers would not be made to teach intelligent design. Q. Do you remember any other public comment during this meeting? A. Yes, sir. Q. Tell us what you remember. A. I remember Noel Renwich -- Q. Okay. A. -- making some amendments about this policy in quite a few amendments, but to me it did not make a point to me. Q. What do you mean by that, Jane? A. Well, it made no sense to me. I felt that it was not the right time and place for this. Q. Do you remember any board members saying anything when the voting started and these motions were made? A. There were other members, there were other people that made, that talked about this, but I don't really know who they were. Q. Okay. Did you vote for the curriculum change? A. Yes, sir. Q. And why did you do so? What information were you relying on? A. Well, sir, I felt that there's our children, our students should be made aware of other theories that are out there in biology. Q. Well, let me ask you, did you understand that the curriculum change would require the teachers to teach intelligent design? A. The teachers were not -- give me that again sir, please. Q. Certainly. Did you think that the curriculum change would require teaches to teach intelligent design? A. No, sir. Q. And again why is that, Jane? What put hat idea in your mind when you voted? A. Because at the time Alan Bonsell was president, and they were told definitely they did not have to teach creationism or intelligent design. Q. Prior to this meeting had you had any discussion with board members about the curriculum change? A. No, sir. Q. So what you heard at the meeting was really all you were relying on? A. Yes, sir. Q. When you voted for the curriculum change, Jane, did you believe it would result in making students aware of creationism or something different? A. No, sir. Q. And why was that? A. I voted in favor of the change because I wanted to, I wanted our students just to be made aware of other theories that are out there, and I thought it would be good for education. Q. When you voted for the curriculum change did you think intelligent design was religious? A. No, sir. Q. What did you think intelligent design was? A. To me intelligent design is just another scientific text or another theory. Q. Okay. And for that -- well, let me ask you, did you vote for the curriculum change for religious reasons, Jane? A. No, sir. Q. Again just explain what's your purpose in voting for it then. A. Because again the purpose for me voting for a change is because I felt that there are to be more than one theory that these students should be made aware of. There are so many theories out there, but the student does not have to be taught but that the student be made aware, and I think it makes for a better education. MR. GILLEN: I have no further questions, Your Honor. THE COURT: Thank you, Mr. Gillen. Cross examination by Mr. Schmidt? CROSS EXAMINATION BY MR. SCHMIDT: Q. Good morning, Mrs. Cleaver. Can you hear me all right? A. I can hear you. Q. I understand you've come back from Florida to be with us today, is that right? A. Yes, sir. Q. I hope one of your former colleagues was good enough to put you up. A. I'm staying with my daughter. Q. Good. When did you sell your home in Dover? A. I didn't sell my home. Q. How often do you come back? A. How often do I come back? Q. To the Dover area. A. About twice a year. Q. You purchased your house in Florida in July of 2004, is that right? A. Yes, sir. Q. Just to be clear about the dates, you spent July after the closing and most of August except for the hurricane, and all of September in Florida? A. I came home August the 11th to get away from Hurricane Charlie, and went back August the 15th. Q. And then returned I think you said on October 2nd? A. Correct. Q. Okay. Let me ask you a little bit about your service on the Dover board. You told us this morning that you obtained an appointment to the board in the summer of 2002, is that right? A. Yes, sir. Q. Isn't it true that there were other candidates that were being considered by the board for appointment at that time? A. Yes, sir. Q. Wasn't one of the candidates who was appointed Mr. Buckingham? A. Yes, sir. Q. And wasn't there a candidate who was a fellow with an engineering degree who was also interested like you were in the construction issue? A. I don't know what his background was, sir. Q. Okay, but there was another candidate who was interested -- A. Yes, there was another candidate. Q. Also interested in the school issue, is that right? A. Yes, sir. Q. And he was an engineer, wasn't he? A. I have no idea. Q. Isn't it true that during the summer of Mr. and Mrs. Brown approached you several times to try to persuade you to join the Dover area school board? A. Yes, sir. Q. Made a couple of visits to your house? A. Yes, sir. Q. You didn't agree with them when they first approached you about joining the board, did you? A. On many opinions I did not agree. Q. Well, I'm just asking about one, they wanted you to join the board, and you didn't agree when Jeff and Casey Brown approached you about joining the board in the summer of 2002, isn't that right? A. Yes. Q. Now, later on in that time period Alan Bonsell approached you and asked you to join the board, isn't that right? A. He did not ask me. Q. Did he try to persuade you? A. Sir, I've known Alan Bonsell since he was a child, and his parents, and one evening Allen Bonsell had called me, not concerning the school board, about something, but we did get into the conversation of the school board, and up until that time when the Browns approached me I could not give them an answer. I just did not. I attended all those board meetings, but I could not give them an answer, but it was like a light bulb went off in my head and I said to Alan yes, I'm going to apply, Alan. Q. Okay. A. That's when I gave my answer to Alan. Q. He told you he was pleased, didn't he? A. And he was pleased. Q. You've known him as you said since he was a little boy? A. Yes, sir. Q. And you have a very high regard for him, don't you? A. Yes, sir. Q. You think he's a clear thinking person? A. I have the deepest respect for Alan. Q. And you would tend to accept his judgment about things, isn't that right, Mrs. Cleaver? A. Yes, sir. Q. And I think it's fair to say you were guided in your work on the school board often by what Mr. Bonsell had to say or the positions that he took, isn't that right? A. Let me say this to you, sir. I'm an independent person, and I'm not a rubber stamp for anyone, and I respect Alan Bonsell very, very much. I still have my own opinion. Q. You told me a minute ago that Mr. Buckingham was the other person who was appointed there in mid 2002, is that right? A. Yes, sir. Q. And you had met Mr. Buckingham's wife earlier in that year, is that right? A. Yes, sir. Q. I think you answered a question or two by Mr. Gillen about a project you undertook involving having the board approve a moment of silence before school every morning. A. Yes, sir. Q. And I think that the other part of that project was to have the Pledge of Allegiance said in the Dover school district? A. Yes, sir. Q. I think as part of your effort in that project you went from church to church in the Dover area, is that right? A. Yes, sir. Q. And I think it was in one of those visits to a church that you met Mrs. Buckingham, who was a financial secretary I think for the Harmony Grove Church, is that right? A. Yes, sir. Q. And you told her what you were up to, and she came out to the board meeting in February of to support your effort, isn't that right? A. Yes, sir. Q. I think you said, at least my notes indicates that you thought something was lost when prayer stopped being said in school, isn't that right? A. That was my opinion, sir, because as I was growing up as a kid we had prayer, and I felt that when prayer was taken out of school there was something lost. But that was only my opinion. Q. Well, isn't that an opinion that you shared with Mr. Buckingham and Alan Bonsell and Heather Geesey as far as you know? A. Not as far as getting prayer back into school. Q. Well, let me be clear about my question. My question was only isn't it your understanding that Mr. Buckingham and Mr. Bonsell and Heather Geesey, who was also on the school board, shared your view that something valuable was lost when prayer was taken out of the school? A. Yes. Q. Now, you said you were appointed in the summer of 2002. You then ran for election, didn't you? A. Yes, sir. Q. You ran in the fall of 2003 and you were elected and took your seat as an elected member in December of 2003, is that right? A. Yes, sir. Q. I think you expressed yourself very vigorously about your views of Mr. Maldonado, but let me ask you a few questions about your approach to learning what's happening at the school. Isn't it true that when you got on the school board you stopped taking the local paper? A. After a few weeks of being on the school board I did stop getting the paper. Q. Okay. And you stopped reading the paper? A. Absolutely. Q. But you didn't lack for information about goings on in the Dover community, did you? You were able to find out what was going on? A. Yes, sir. Q. And what was being discussed in the Dover community, is that right? A. Yes. Q. But you had not only your own social and business life, but you would attend borough meetings and township meetings, isn't that right? A. Yes. Q. So you had a pretty good sense of what was under discussion -- A. Yes. Q. -- in Dover all the time you were on the board, right? A. Yes. Q. I have another question about how you collected information about what happened at the school board. You said that you were on the community education committee? A. Yes, sir. Q. And on the policy committee? A. Yes. Q. And of course you attended board meetings at least up until the time you purchased your house in Florida, is that right? A. Yes, sir. Q. Isn't it true that you didn't review minutes of board meetings after they were issued? A. At first I did, the first couple of meetings, but after that I may have skipped through them, but not really read them all. Q. Did you review minutes before you came to testify today? A. No, I did not. Q. Did you review the transcript of your deposition last June? A. Yes, I did. Q. Now, I understand that your sense of the discussion of a new biology book was first something that you paid attention to in June of 2004. A. Yes, sir. Q. Is that right? A. Yes, sir. Q. Isn't it your understanding that the issue before the board at that time was whether to spend the money? A. Correct. Q. Not about anything else, was it? Just spending the money? A. No, that's not true either, sir. The issue was that the biology book that Ms. Spahr wanted, first Mr. Bonsell wanted to do some research and check to see how much difference it was in the new biology book compared to the book that they had already had. Q. Now, let me get a couple of things straight with you if I could. You were not on the curriculum committee, were you? A. No, sir. Q. And do you know that the 2004 biology book was something reviewed by the school administration in the middle part of July in 2004? Are you aware of that? A. No, sir. Q. Did you know that there was a 2004 edition of the biology textbook before it was reviewed by superintendent Nilsen and assistant superintendent Baksa and Bert Spahr and Jen Miller in July of 2004? A. No, sir. Q. Did you ever look at the biology textbook yourself? A. No, sir. Q. You relied entirely on the curriculum committee? A. Yes, sir. Q. And you knew that Mr. Buckingham was the chair of the curriculum committee? A. Yes. Q. Now, you said in a candid answer to Mr. Gillen's question that the June meetings kind of blurred together in your mind, but I gather you remember a couple of things. You remember that Bert Spahr made a statement about the need for new biology books, right? A. Give me that again, sir. Q. You remember at the June meetings, and I'm not asking you to separate them because they run together, that Bert Spahr made a statement in support of the new biology textbook? A. Yes. Q. You didn't have much use for Mrs. Spahr's opinions about things, did you? A. I had, I valued some of her opinions, but not all of them. I didn't agree with her on all of them. Q. What kind of opinions didn't you agree about? A. Well, as far as education and wanting the new biology book, if there was a great change in that biology book then I felt that we should get the book. But up until that point I wanted to wait and see what the new edition was like and what was new. Q. But in June you didn't know there was a new edition, did you? A. No, I did not. Q. The other thing you remember about the June meeting was a statement made by Charlotte Buckingham, whom you had known for almost two years? A. Uh-huh. Q. And her statement had some references to Genesis and was in support of teaching creationism in the Dover High School, correct? A. I remember her comments, yes. Q. And as I heard your testimony this morning the only other thing you remember about the June meeting on this issue was that the words intelligent design were used? A. Yes. Q. That's it? A. That's it. Q. Do you remember Mr. Buckingham saying anything about a textbook being laced with Darwinism? A. No, sir. Q. Do you remember anything that Mr. Buckingham said about someone died on the cross two thousand years ago? A. I do not recall of any statement. Q. Just intelligent design, that's all you remember on that subject? A. Yes, sir. Q. Who used the phrase intelligent design, Mrs. Cleaver, do you recall? A. When I first heard about this with the book Of Pandas, when I came back in October I heard about this intelligent design mentioned, I think that was in July the last meeting. But I didn't know anything about intelligent design at that point. Q. I want to be clear about where at that point was. Let's take it step by step. Isn't it true that in June you didn't know anything about intelligent design? A. No, I did not. Q. And isn't it true that in June you didn't hear anybody mention intelligent design? A. No, I don't recall that I did. Q. Okay, and you think now that you may have heard someone mention intelligent design in July? A. I may have, but I don't -- I'm not sure on that. Q. Isn't it your testimony this morning that the first contact you had with the book Of Pandas and People was after you returned home on October 2nd? A. Correct. Q. You were given a copy of that by Bill Buckingham, right? A. I asked Mr. Buckingham for a copy of it, yes. Q. You said you didn't read all of it, but I gather you kind of paged through it, is that a fair description? A. Yes. Q. And when you paged through it, were you looking at anything in particular? For instance were you looking for a use of the term God or creationism? A. Yes, I did look for that. Q. How did you do that, with the index? A. I went through page per page. Q. But skimmed it, right? A. But skipped some of it, but there was no mention of God or the Bible in the book Of Pandas and People. Q. Now, I gather, and this is only relying on testimony you gave earlier that you found Of Pandas and People a little hard to read, is that right? A. Yes. Q. And I take it that you didn't really think it was an appropriate textbook for younger high school students, am I right about that? A. This is only my opinion, sir. Q. That's all I'm asking for. A. But I feel that the book Of Pandas and People are like from the 9th grade through the 12th, not for younger people. Q. So you would say if a kid is below the 9th grade it would be okay, but high school it might be all right? A. Yes. Q. Did anybody on the board ever tell you that they had done a study for whether Of Pandas and People was an appropriate high school textbook? A. No, sir. Q. You never did any research on your own about whether Pandas and People was a good book, right? A. No, sir. Q. You never did any research to see whether it was current science, did you? A. No, sir. Q. I think you said that you came back on October 2nd and your sister told you there was a controversy, or did I get that wrong? A. I came back October the 2nd, and it was a day after whenever I called my sister-in-law to say hello and tell her I was home, and in the course of our conversation she said there's quite a big controversy in Dover about the book called Pandas and People, whatever that's about, and that Dover is going to be teaching creationism. Q. Okay. A. And then I went to our meeting October the 4th, and that book was on our agenda. Q. Now, you said that the book was on the agenda on October the 4th. A. Right. Q. What action if you recall was to be taken by the board on the book of Pandas and People on October 4th? Do you recall anything about that? A. Well, as far as the action being taken the teachers would not, were told that they were not going to teach Pandas, anything out of the book Of Pandas and People, that the book was only to be there that the students can use as a reference, but the teachers would not be teaching. Q. Isn't it true, Mrs. Cleaver, that the subject of the curriculum change and the use of the book Of Pandas and People didn't come up on October 4th, but came up on the October 18th meeting agenda? A. On the October the 18th -- Q. Isn't that when you voted on whether there should be a change in the curriculum? A. On the 18th is when we voted on that. Q. That's when the decision was made to list Of Pandas and People as a reference book, isn't that right? A. That may have been. Q. And I know you had a planning meeting on the 4th, but you didn't consider the curriculum change or how to use Of Pandas and People on October 4th, did you? A. Would you say that again? Q. Isn't it true that at the planning meeting of the board on October the 4th, you didn't really consider a curriculum change or how Of Pandas and People would be used in the biology class? A. I think that was, that change was made on the 18th of October. Q. All right, thank you. Now, at the meeting on the 18th Bert Spahr made another statement, didn't she? A. Yes. Q. And she said at that statement that she thought intelligent design should not be taught in the high school, isn't that right? A. Right. Q. And she said that Of Pandas and People was not a good science book, isn't that right? A. I think she did. Q. She's the only person that you ever heard express an opinion who had some scientific training about teaching intelligent design or using Of Pandas and People, isn't she? A. I heard others, but Bert Spahr took the floor and she's the one that I recall the most. Q. Okay. A. There was other people that spoke, but I don't recall what they said. Q. Let me say my question again in a slightly different way. Isn't it true that all of the people that spoke at the October 18th meeting who had some scientific background who were teachers at the high school spoke against the changed in the curriculum and using Of Pandas and People? A. They did speak against it. Q. And the only people who were for it were Alan Bonsell and Mr. Buckingham, isn't that right? A. I don't think so. I don't recall that at all. Q. At the October 18th meeting isn't it true that no board member explained or expressed the reason why or how the change in the curriculum would improve education at the Dover High School, isn't that true? A. Would you please state that again? Q. Isn't it true that at the October 18th meeting no one from the board explained or expressed how the change in curriculum would improve education at the Dover High School, isn't that true? It was the series of folks, wasn't it, Mrs. Cleaver? A. Yes. Q. And you voted with Mr. Buckingham every time, isn't that right? A. I voted in my opinion what I thought was right. Q. Okay, let me put it a different way. You said a few moments ago that Noel Renwich made a series of amendments to the proposed change in the curriculum, isn't that right? A. Correct. Q. And you recall that process, don't you? A. Yes, I do recall. Q. The whole series of votes, I thought there were seven or eight or more, right? A. Right. Q. And those votes required you to either support the change in the curriculum or to fend off an amendment by Mr. Renwich, isn't that right? A. Yes. Q. And in all of those votes you voted with Mr. Buckingham, isn't that right? A. I voted for them. If Mr. Buckingham voted for them when I voted, yes. Q. And in the end you voted to include Of Pandas and People as a reference book? A. Yes. Q. And you voted to include a requirement that intelligent design be mentioned or referred to as part of the curriculum, isn't that right? A. What I voted for is intelligent design that our students could refer to it, but not be taught intelligent design. Q. And you did that as you said this morning because you thought intelligent design was another theory? A. In opinion, I'm not a scientist, to me that's another science text, that's what it is. Q. And it was another theory to be compared to evolution as a theory, right? A. Well, if that's -- I guess that could be put that way -- Q. Okay. A. -- as far as I'm concerned. I didn't think of evolution, but I just thought there should be other theories that our children should be made aware of. Q. Well, you know that intelligent design is a theory according to your understanding that has to do with the same subject matter as evolution, am I right about that? Is that a clear question? A. No, it's not, sir. Q. Let me try it again. You know that there are other theories in science, and even in biology, right? A. Correct. Q. But it's only evolution that in your mind requires that other theories be made available. Isn't that true? A. I just feel that there's other theories out there that, we have the greatest science in the word right here in our nation, and that our students should be made aware of some of these theories. Q. But the other theories that you're referring to have to do with the same subject matter as evolution, not all the other scientific theories that are out there, isn't that right? A. Well, sir, as far as other theories, I think those are the only theories that are available, the only theory available to our students is evolution. So that's why I say other theories are out there. Q. Just two more quick questions. When you voted for the curriculum on October the 18th -- A. Yes, sir. Q. -- you yourself didn't really understand intelligent design. You just knew that it was as you put it another theory, is that right? A. Correct. MR. SCHMIDT: That was my only question. Thanks very much. THE COURT: Thank you, Mr. Schmidt. Redirect, Mr. Gillen? REDIRECT BY MR. GILLEN: Q. Sure. Jane, we talked about this yesterday and I don't want to belabor the point. I know it's hard for you to try to date things specifically, but I want to ask you this question just by way of trying to mark when you first heard of intelligent design. Do you remember Charlotte Buckingham speaking at a board meeting? A. Yes, sir. Q. Okay, and do you recall that that presentation she gave was in June of 2004, one of the, again one of the two meetings? A. Truthfully I cannot remember if that was in June or what meeting that was. It could have been June. Q. Okay. Well, do you think it was in the summer? A. I think it was in the summer. Q. Okay, let me ask you this. A. You know, may I say something, Mr. Gillen? Q. You may. A. Because I was gone after July, it had to be June or July that she spoke. Q. Okay, let me ask you this. Do you recall intelligent design being mentioned before or after Charlotte spoke? A. I think that was after. Q. You do? A. I'm not sure. Q. I know it's hard for you to remember. A. I'm not sure. MR. GILLEN: Well, that's it. No further questions. MR. SCHMIDT: No recross. THE COURT: Thank you, ma'am, very much. You're excused. That will complete your testimony. MR. GILLEN: My next witness, may I confer with counsel? THE COURT: You may. (Brief pause.) MR. GILLEN: Your Honor, the defense will call Alan Bonsell. (Alan Bonsell was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: State and spell your full name for the record. THE WITNESS: My name is Alan Bonsell. A-L-A-N. B-O-N-S-E-L-L. DIRECT EXAMINATION BY MR. GILLEN: Q. Good morning, Mr. Bonsell. A. Good morning. Q. Let's just get out a few facts about you as a person here. Are you married? A. Yes, I am. Q. Do you have children? A. Yes, I do. Q. How many? A. I have two children in school. Q. Okay. Tell us about the children in school. Do they attend Dover schools? A. My daughter is in 9th grade at Dover and my son is in 11th grade, but he is presently at York Technical School. He went to Dover through 9th grade and then went to York Tech. Q. Tell us a little bit about your educational background. What's your education? A. I graduated from West York High School, which is right next to Dover, and I also graduated college, York College of Pennsylvania. Q. And what was your course of study? A. My major was in management business administration. Q. Are you currently employed? A. I am. Q. How so? A. I've been a business owner, C.R. Smith Radiator and Auto Repair, since 1984. Q. Are you currently a member of the Dover area school district school board? A. Yes, I am. Q. Okay, let's talk about how you came to the board. When did you first join the school board? A. I joined the school board in it would have been December of 2001. Q. Were you elected or appointed? A. I was elected. Q. And I take it you ran for office? A. Yes, I did. I ran in the primaries in May of 2001, and then was elected in the general election in November of 2001. Q. And why did you run for that office? A. Well, I ran for a number of reasons. One is for fiscal responsibility. There was a big fight going on at the time with the building project, and also my goal is to give back to the community and try to make Dover the best school in the county. Q. Let's look at the building project. When you ran, what were you seeking to improve with respect to the district's approach to the building project? What did you see the problems were? A. One of the problems with the building project was that the current board was trying to push through as the people in Dover liked to call it, a Taj Mahal version of the high school, which were they were talking about spending thirty, forty million dollars on a high school building project, which a lot of us in the community felt was ridiculous being in the kind of tax revenue situation that we have in Dover. Q. And what is that tax revenue situation? A. Well, we have like the second lowest I believe tax revenue of any school district in the county, and I wanted to be sure and I think most people wanted to be sure that every dollar that we spend actually goes, you know, to the kids' education and not to some big building. Q. When you ran for school board was there a religious dimension to your platform or campaign? A. None at all, no. Q. Well, did you have a specific platform that you ran on? A. We ran on taking of, of stopping the building project and going back and redesigning it and making sure it was educationally sound for the kids, as well as being affordable for the taxpayer, and also to make sure that the kids, our students had what they needed as far as books and technology, and like I said before to try to improve the educational standards in the public school of Dover. Q. Okay. You said, "We ran." Who did you run with? A. I ran with Sheila Harkins, Angie Yeungling, and Casey, or Mrs. Brown. Q. Well, let's take them one at a time just to take a look at how you came to know them. Why did you run with Sheila Harkins? A. Sheila Harkins was one of the I guess minority board members at the time, and she had a lot of the same concerns that I did. So just obvious joining her. Q. Okay. Did you know Sheila Harkins before you ran with her? A. No, I did not. Q. Did you discuss some sort of religious agenda when you decided to run with Sheila Harkins? A. No. No, I did not. Q. How about Angie Yeungling, you mentioned her. Why did you run with Angie Yeungling? A. Well, Angie Yeungling would come to board meetings along with at the board meetings I would and was an outspoken critic of the board with the building project and was someone also that had the same leanings I did, that wanted a better education for our kids but wanted to also make sure that the tax money was spent properly. Q. Did you know Angie Yeungling before you ran with her? A. No, I did not. Q. Did you discuss any religious agenda -- A. No. Q. -- with Angie Yeungling before you decided to run with her? A. No, I didn't. Q. How about Casey Brown? Why did you run with her? A. Casey Brown was also a minority member on the board at the time and basically was like Sheila Harkins, was basically railing against the building project, and also along the same line, I mean, everybody had this sort of same mindset when it came to that, on what we ran on. Q. Did you discuss any religious agenda with Casey Brown when you decided to run with her? A. No. Q. You've mentioned the building project, and several witnesses have, and I'd like to get a sense here for the record of the impact that that project has had on the Dover community. How would you describe that impact? A. Well, I mean as far as impact -- Q. Well, has it been something that brought the community together, divided it? A. Well, there was a lot of meetings where there was hundreds of people at, and they were all in the same agreement as I was, and I believe after that, I mean the community came together in the fact that they voted us into office, we did what we said we were going to do and to revamp that. I mean, I believe there's still probably, there's still I believe some grudges that are with people today. Q. Well, let's look at this period before you come to the board. Did you personally do anything designed to mobilize community sentiment with respect to the building project? A. Did we do anything? One thing I remember doing that there was a petition that was signed that went around the Dover area to sign to tell the board to stop what they're doing and go back and look and see what the students actually needed and not what somebody wanted, and I believe there was almost close to 1,800 signatures from the Dover community, which was that was a lot of signatures that came together, and was presented to the board. Q. Did you play a role in that? A. Yes, yes. Q. And do you know how the petitions were received by the board at that time? A. Yes, I can remember it vividly. It was given to the board and -- Q. By whom? A. I believe I presented the petitions to the board at a board meeting. This is before I was on the board, and I believe it was Lonnie Langioni who basically took the petitions up, I remember standing up, turning around, and throwing the petitions basically on the floor. Q. Well, who was on the board at this time when you presented the petitions? A. Well, the plaintiff Barrie Callahan was on the board, Lonnie Langioni, Larry Snook, Mr. Murphy, and there was some others, too. Q. Did you have, did the election you've referenced in November of 2001 have an impact on the build project? A. Did the election have an impact on the building -- Q. Yes. A. Yes, it did. I mean, the building project was stopped after that point. One of the things going back to the petitions and everything is that I remember after the primary, when we won the primary we asked the board to stop it because we were going to stop the building project, but I remember that the group of, Barrie Callahan and them that kept pushing this forward trying to push, ram it through before we were elected in the fall, and spent, oh my, I think they wasted half a million dollars or more, which we then stopped, we went back starting in 2002 and revamped the whole building project. Q. Did the election results you mentioned have an impact on the ability of the individuals you mentioned, Snook, Langioni, Mrs. Callahan, to influence the board's actions? A. Well, the thing was before the election they were part of the majority that was trying to push this through and was basically a 6-3 board at the time. When the election took place and I took office in `01, December of `01, it changed the dynamics of it from a 6-3 board in favor of the old more expensive project to a 6-3 board in going back to relook at the project. Q. Did the division between board members you have described along the lines relating to the build project affect your ability to work with Mr. Snook, Mr. Langioni, and Mrs. Callahan? How was your relationship with Larry Snook after you came on the board? A. Well, I mean relationships were strained somewhat. I mean, I tried to work with the people as best as I could, but like I said, I think there were some hard feelings from those three. Q. How about Mr. Langioni, same situation or different? A. Same situation. Q. How about with Mrs. Callahan? A. Really with Mrs. Callahan, I mean, I remember the time period over the years where she basically publicly criticized the board, even calling us, as far as calling us anti-education. Q. Did the three members you mentioned remain on the board? A. Well, they were supposed to be I believe on for two more years, but some point at some point I believe in the spring of, somewhere around the spring of 2002 I believe Lonnie Langioni and Larry Snook came into the meeting, basically criticized the board, said, "We quit, we resign," and walked out of the meeting. Q. How about -- well, what was your reaction to that? A. I felt it was ridiculous. I felt it was childish. Q. How about Mrs. Callahan? Did she remain on the board? A. She remained on the board through the rest of her term. Q. And was she re-elected? A. No, she was not re-elected. Q. Now, is the resignation of Mr. Snook and Mr. Langioni when Jane Cleaver and Bill Buckingham were appointed? A. Yes. At the time when we have resignations like that the state tells the board that they have a certain period of time where they need to advertise for people who might want to come on the board. Then we have a meeting where we interview different people, and then we as a board, as always the board decides together, we elect people to fill those positions. Q. Well, let's look at them one by one, starting with Mr. Buckingham. Did you have a personal friendship with Mr. Buckingham when he applied to fill the vacancy on the board? A. No. Q. Did you discuss religion or a religious agenda with Mr. Buckingham prior to appointing him or voting for his appointment? A. No. Q. Do you recall the vote that put Mr. Buckingham on the board? A. Do I recall the vote? Q. Yes. What the vote outcome was. A. Well, the vote outcome was, the vote was to put him on the board. I don't know the exact -- Q. Okay. Had you asked Mr. Buckingham to apply? A. No. Q. Did you vote to approve him to fill the vacancy? A. Yes, I did. Q. And why did you do that? A. Well, in interviewing him basically he was saying that he had the same kind of fiscal responsibility, that that's what he was looking at. He wanted to make the school district better. You know, he was a police officer. I mean, it was -- I thought he would be a good fit. Q. Did you know anything about Mr. Buckingham's religious convictions when you put him on the board? A. No. Q. Let's look at Jane cleaver. I mean, she's mentioned that you knew her. Did you have a personal friendship with her at the time? A. I don't know if it was a personal friendship. I knew Jane cleaver ever since I was a little boy. She's lived in Dover for fifty or sixty years. She had a five and ten cent store on Main Street in Dover, and I didn't really have a per se friendship with her, but everybody, I think anybody that lived in Dover any period of time knew Jane. She was like one of the pillars of the community. Q. Did you vote to put her on the board? A. Yes, I did. Q. Why did you vote for Jane Cleaver? A. I thought she would be an outstanding addition to the board. She knew Dover inside out. She knew the people, she had a business, she had the, she worked with people, with customers, with employees, had to run budgets, had to keep, I mean, everything that would be perfect to be on a board. Q. Let's look at the building committee as seen through your eyes and its impact on the relationships with the faculty or staff at Dover. Do you think that the new board's attitude towards the building project had an affect on the relationships between the board and the teachers? A. Well, I think somewhat as far as the high school teachers go because, you know, they were looking forward to this and building up to this, and then we stopped the project and revamped it and it took longer, and I think there might have been some teachers that had hard feelings about that. Q. How about the teachers union? Did you feel like the building project affected relationships between the board and the union? A. Well, the building project itself or other, just the building project itself? There probably was some things there that would, again going back with the teachers, with the union, there could be some hard feelings there. Q. Was there any other issue during this period when you were first coming on the board and thereafter that affects the relationship between the board and the union? A. The board and the union? With the building project itself? Q. Yes. I'm just trying to get a sense, give the judge a sense for the climate in which this controversy is taking place. How about Mr. Miller? Is there anything about Mr. Miller that comes to mind? A. Well, Mr. Miller comes to mind, but that doesn't have to do with the building project per se that came along later. Q. Okay. Well, then let's leave it for now. You were elected in November of 2001. So when did you first start as a working member of the board? A. Well, basically my first meeting was in December of 2001. So my first full year would be 2002. Q. Were you a member of the curriculum committee in 2002? A. Yes. Q. Who put you on that committee? A. That would have been Mrs. Casey Brown. Q. Now, some documents relating to board retreats in 2002 and 2003 have been produced by the school district and the subject of much discussion, so let's talk about those documents. As you sit here today do you recall anything specifically about the board retreats in 2002 and 2003? A. Specifics? Not really anything in those board retreats, I don't really remember specifics of any of the board retreats I've been at. Q. As you sit here today can you recall generally what happened at either retreat? A. Well, it's just sort of a get-together. It's an informal thing where the administrators and board members get together, you talk, you have dinners together. It's just more of a team building thing than anything. MR. GILLEN: Your Honor, this is a good point for me to get together the binders that this witness is going to need as I go forward. Might I suggest we take a break now? THE COURT: Yes. It's a little early, but we'll let you do that. Why don't we take our twenty-minute break, and we'll return and pick up the direct examination. We'll be in recess until that point. (Recess taken at 10:08 a.m. Testimony resumed at 10:31 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 18 (October 31), AM Session, Part 2 THE COURT: Be seated, please. All right, Mr. Gillen, we resume direct examination. CONTINUED DIRECT BY MR. GILLEN: Q. Yes. Thank you, Your Honor. Mr. Bonsell, let me ask you, the first retreat for which documents have been produced is January of 2002. At the time of this retreat how long had you been on the school board? A. Barely a month. Q. And did you have an understanding concerning the purpose of the board retreats? A. Like I said before, it was basically a get-together. It was more of a team building experience, because we had new board members on the board and all the new administrators, the principals and things like that, it was mainly a time to get together and talk and get to know each other more than anything. Q. Do you have a recollection about the approximate length of the board retreat in January of 2002? A. I think most board retreats ran two or three hours, and that included dinner. Q. Did there come a time during that January of 2002 board retreat where Rich Nilsen solicited input from board members about thoughts on their mind or other matters? Do you recall that? A. That's basically, you come to the retreats and basically anything that you might have, you know, any thoughts, questions, that's basically it. Q. Do you recall approximately how long this session took where Rich Nilsen solicited input? A. Well, I'm not sure of exactly the length, the total length. Like I said, the whole evening was two or three hours, and that included eating dinner, but each person, each of the board members I think was only given two or three minutes, something along that line, to discuss or say anything they had on their mind. Q. Okay. Let me ask you to look at Defendant's Exhibit 288. A. Okay. Q. And just if you would first scan the document generally and tell me as you sit here today do you remember any specific discussions about any of the issues beneath each member's name? A. Not a specific discussion, no. Q. Well, let me ask you, under your name here there's a word that has a lot of is significance for this litigation. The first item is creationism. Do you recall using that term at this January of 2002 -- A. Believe me, I've been thinking about it, ever since we brought this paper forward I've been thinking about that, and to be honest I don't remember in what context I said anything about it, I'm sorry. Q. Well, as you sit here today do you believe that you must have said that word at this retreat? A. Oh, no, I believe I said it. Q. And why do you believe that? A. Well, these were notes that Dr. Nilsen took, and I do have the confidence in Dr. Nilsen and if he wrote that down, more than likely I said the word, you know, I don't deny that. Q. Let's talk about that word and what it means to you. What does the term creationism mean to you? A. My definition? My definition of creationism would be the literal interpretation of the Bible. Basically, you know, the first few books of Genesis. That's what I believe personally. Q. Is that what you believe in terms of your religious convictions? A. Yes. Q. Well, there's another word there's been a lot of discussion about, which is intelligent design. Do you believe that is creationism? A. Absolutely not. Q. And why do you take that position? A. Well, creationism is like I said the literal interpretation of the Bible. ID is a scientific theory made up by scientists. I mean, it's a science, it's science. I mean, it's two separately distinct things. I know this whole court is about that, but I mean, or this whole case is about this, but it's two separate entities completely. Q. Well, let me ask you this. We'll get back to that later. Look at the second item under your name, "Prayer." As you sit here today do you recall anything you said specifically about prayer at this January 2002 meeting? A. Not specifically, no. Q. Well, let's get a little more general then about this topic. Do you remember after coming to the board any discussions by you about prayer, prayer in the schools? A. I'm sure this could have been in context of asking questions about it, how does the school handle it. You read so much in the papers of, you know, some things you're allowed to do, some things you're not allowed to do, and some of the school districts allow you to pray, some you don't, if it's student led, I know we have meet you at pole at Dover every year. I mean, so it's probably if that was in that kind of context, probably how, that's the only thing I would think, but specifically I don't -- Q. Well, okay, that's fair enough. Let me ask you this. While you've been on the Dover area school district board have you ever taken any steps to require prayer in the schools? A. None at all, no. Q. Let's look, for the record we were looking at the portion of Exhibit 288 with the Bates stamp number 3968 in the lower right-hand corner. Alan, I'd ask you to turn to the page of Exhibit 288 with the Bates stamp number 3969 in the lower right-hand corner. Do you recognize that document? A. It looks familiar. I mean, it's basically the agenda for the board retreat in March of `03. Q. Do you recall anything specifically that was said about the items listed on this document? A. No, I mean nothing specific about these items though. Q. Okay. You'll see that the heading Roman VI is "Board feedback and items of interest." Do you recall a portion of the meeting that was given over to that at all? A. Like I said, I don't really recall pretty much anything specific, specifics on these subjects or feedback from the people or questions or anything like that. Q. Let's turn to the page of Exhibit 288 with the Bates stamp number 3970 in the lower right-hand corner, and again I want to ask you to look down that list and tell us whether you recall anything that was said specifically about any of these items. Do any of these issues in come to mind now? A. The only thing that I can remember I believe it was at this, about I made some comments complementing the administrators, and I guess it sticks in my mind because I guess one of the few times this has ever happened is after the meeting Mr. Renwich came up and shook my hand and said he appreciated my kind comments, and that just stuck with me because I thought that was a very nice thing that he did and I guess it just stuck in my mind. Q. Well, again if you look at this document that's been produced you'll see a number of subjects under your name and let me ask you, the first is mandatory ed line update schedule. Do you remember anything you said about that? A. I mean, what it says here, more information on ed line. Q. How about item 2? A. Stress manners and dress, good behavior. I mean, there again that's something that's, you know, that's said quite often. I mean, I don't remember coming out at this particular meeting, I don't. Q. Well, I mean that's what we're trying to get a since for here. The third item is creationism. Do you recall mentioning that? A. No, I don't. Q. Do you believe that you did as you sit here? A. Again, Dr. Nilsen took these notes, so I have no doubt that I said it. Q. The fourth item is emphasizing American history, there's some bullet points. Do you remember you said at this retreat about that? A. I don't remember anything I said at the retreat about this, no. Q. Okay, how about more generally, do you remember anything you had said to administrators or teachers? A. I think I've had discussions already with Dr. Nilsen or possibly Mike Baksa concerning the founding fathers and how, you know, how I felt it was important that the kids knew about the founding of our country. It's one of those things where I looked at it, you can't fix problems of today if you don't know how the government is supposed to run, and these are the men who made it, put it together, told you how it works. It's like buying a car and having an owner's manual. If you don't listen to the owner's manual, these are the people who built the car, so if you don't listen to that the car isn't going to work that long, something along that line. Q. In your tenure as a board member have you ever taken any steps to change the social studies curriculum? A. No, I haven't. Q. Are there other areas of the curriculum in the Dover area school district that the board has looked at while you've been a member? A. I'm sorry? Q. Are there other areas of the curriculum that the board members have look at while you've been a member? A. Oh, I remember looking at namely consumer science, sex ed, I know we just basically put in a whole K through 12 language arts. We revamped the whole curriculum with the mandates from the state. I'm think there's, I'm sure there is more than that, but that's what comes to mind. Q. Do you remember speaking with Mike Baksa about the biology text and evolution during the period? A. Just the conversation being on the curriculum committee, looking at the book, that was a book that was up for, I believe that was one, the book that was up for to be purchased, and I had spoken to him concerning the evolutionary section of it and was wondering how the teachers or how the Dover school district did that section. Q. Well, did you have a concern that you can remember about the presentation of evolutionary theory in the -- A. What runs in my mind is basically the, when you're teaching, this is a theory that they're teaching, and when they don't include, you know, problems with it or gaps in a theory I mean, and you teach it, it almost sounds like they're teaching it as fact, and that's what, you know, I was sort of concerned about and was just asking questions about. Q. Well, you know, several witnesses have been asked, and I'm sure you will be as well, it's a fair question, what do you really know about evolutionary theory? What were you relying on when you looked at this biology text? A. Well, over the years, I mean, I've gained a lot of knowledge through books and videos and TV, internet. I mean, there's a lot of information that I've come across with that that -- Q. Well, can you state anything more specific? I mean, if you're looking at this text were there things that you knew that you -- A. Well, one of the things I remember seeing, it was on TV I think that was through the National Geographic or Discovery, they had talked about the Piltdown Man and how the Piltdown Man in the early 1900's was basically this was the find of all finds and this was, this proved the evolutionary theory, and from I think from that point up to the 1950's that was viewed that way until they found out that it was a hoax or a fraud, that someone had taken, you know, orangutan teeth or something like that and filed them down, and that was one of the things that I've seen things on different subjects of how bears turn into whales, you know, this was a natural scientific theory which I just thought was absurd. There's also statistical things that I've read about how the statistical probability of life happening by itself was basically impossible, I mean statistically. Q. Were these things that you knew when you looked at the biology text? A. I believe so, yes. Q. Were they things that you had just encountered in general reading or did you make a specific inquiry when the biology text was up for review? A. Well, these are things that I just over the year have seen or read. Like I said, I don't really have specific, these are just different pieces of information I have gotten through all these different types of outlets. Q. Did the information that you described bear on your review of the biology text in 2003? A. I'm sorry? Q. Did the information you described, did you see that as relating to the biology text when you reviewed it in 2003? A. Yes. Q. Tell us how. A. Well, basically it sort of glossed over that, it didn't even mention any kind of problems or anything along those lines, and I thought it would be something I was curious about why that was. Q. Did there come a time when you came to know that Mike Baksa had communicated your questions to him to the science faculty? A. I believe so, yes, they did, and I at some point then in `03 I believe we had a meeting. Q. Do you remember -- when was the meeting? A. That would have been in the fall of `03. Q. Do you remember anything from that meeting? A. Yes, it was myself, Mike Baksa, I believe Bert Spahr, Jen Miller, plaintiff Brian Rehm. There was another, I believe there was Mr. Eshbaugh, and I believe there was, I think there was another science teacher there, but I'm not sure. Q. Tell us what you remember about that meeting. A. Well, it was a nice, cordial meeting, and we got together and basically they educated me on how they presented the biology curriculum and that section of it. Q. Did you gain an understanding as to how they presented the biology curriculum relating to evolution as a result of this meeting? A. Yes, I did. Q. Tell us what it was. A. Basically they said that they taught adaptation over time, or microevolution, and I remember one of the examples that sticks out in my mind, they talked about I believe the peppered moth and how they were showing that has how, I think it changed colors over time or something if I'm not mistaken. Q. Did you come away from this meeting with an understanding concerning whether teachers addressed the origins of life in their presentation? A. They told me that they didn't present origins of life. Q. How about creationism? Was creationism discussed at the meeting? A. Yes, it was discussed at the meeting. Q. Well, let me ask you, did you come away from the meeting with an understanding concerning whether teachers addressed creationism? A. Yes, I did. Q. Well, tell us what that was. A. Well, they told me in the meeting that basically they mentioned creationism in the classroom, but they didn't teach creationism in the classroom. Q. Do you know how the subject of creationism was brought up? Do you remember who brought it up? A. I don't remember, it could have been one of the teachers because they were doing most of the talking. But I'm not sure, I'm not sure. Q. Okay. Well, what was your reaction to that information? A. Well, I was happy in two respects about that information. Basically one is that they mentioned creationism in the fact that they didn't say, they didn't come out and say it's wrong or you can't believe that or whatever, but I was also happy in the fact that they weren't teaching it, because I don't think they should be teaching it. Q. Well, explain that, because that's important. What is your position on it? A. Well, I believe that's up to me and my wife or the other kids and their parents regarding -- Q. Do you recall receiving anything at this meeting? A. I received, yes, Mrs. Spahr had given me a packet of information, and I believe it was information from an ACLU web site saying, given the, telling about I guess different things on creationism and you can't teach it or you can't do different things with it. Q. What was your reaction to receiving that information? A. Well, I was, you know, I was a little taken aback by it because nobody in the meeting was talking about teaching creationism. They said they didn't teach it, and -- Q. What was the tone of the meeting? Describe it as best you can. A. The tone of the meeting was it was just a friendly meeting. A get-together, you know, here's a board member came in who had some questions, and they basically talked and told us and everything was friendly. There was no arguments, no anything. I mean, I came away from this, it was a nice meeting. Q. How about when you parted? Was it on good terms? A. Sure. Q. Or was it -- A. There were no problems whatsoever. Q. Did you ever ask Mike Baksa to take any action with respect to the biology text or the biology curriculum as a result of this meeting? A. No, I did not. Q. Now, you mentioned reviewing the biology text in 2003. Was there a reason that you reviewed the text? A. Well, the book was coming up to be purchased. I mean, it was then I believe in the cycle, if I remember correctly that was in the cycle to be purchased. Q. And so what was your purpose in reviewing it? A. Well, basically we were looking at the books to purchase the books. Q. Were there any considerations that you brought to your consideration of the text in 2003? I mean, what factors are you considering when you're looking at books? A. Well, I mean there's a cycle that Dr. Nilsen had put them on, like a seven-year cycle, but the board sort of looked at okay, we want to look at each one of these books in the cycle. I mean, that was a good idea that they had so that all these books didn't come up at one time, but we wanted to make sure that, you know, one, the books were worn out, and two basically I mean are the new books going to be different from the old books, or is it going to help in the mandating of the teaching or something along that line. Q. Was there, do you recall there being a concern in this period about whether students had a biology text? A. There was concern? Q. Expressed at board meetings. A. Oh, expressed at board meetings. Yes, Barrie, Mrs. Callahan, would come to board meetings quite often and basically complain about things, and this was one of the things that she was always asking about. Q. Well, did you share Ms. Callahan's concern for whether teachers had a biology text in 2003? A. I think she said something that the kids didn't have books. We had a set of books, but that wasn't, it wasn't true that the kids didn't have books. Q. Were the texts purchased in 2003, the biology texts? A. In 2003, no, they were not purchased in 2003. Q. Did you prevent the purchase of the biology text in 2003 because you had some objection to the content of that text? A. That never came into it at all. It was a fiscal thing. Plus the books I believe were 1998, so the books were only like four, five years old, something like that. They weren't actually seven years old. Q. Did you take any other action with respect to the biology text or curriculum through the close of the year 2003? A. No. Q. That brings us to 2004. Did your position on the board change in 2004? A. Yes, I was elected to be chairman or president of the board. Q. In your capacity as chairman of the board did you have appointment power? A. Yes. Q. And did you appoint the head of the board curriculum committee? A. The president appointed every person to all the subcommittees. Q. Okay. Let's look at the board curriculum committee which figures largely in this litigation. Did you make Mr. Buckingham the head of the board curriculum committee? A. Yes. Q. Why did you do that? A. There was a slot open. I mean, I was nominated as president, and he was available to fill the position. Q. Does the curriculum committee chair have any more power on the committee than any other committee? A. It doesn't matter what your position is. As far as power-wise, everybody only has one vote. So they really don't have any more power than anybody else. Q. When you appointed Bill Buckingham to be the chair of the curriculum committee, did you tell him that you wanted to work intelligent design into the biology curriculum at Dover? A. No. Q. When you appointed Bill Buckingham to the chair of the board curriculum committee in 2004 did you tell him that you wanted creationism worked into the curriculum at the Dover? A. Absolutely not. Q. Let's look at the beginning of 2004, from January through the end of May. A. Okay. Q. And let me ask you, do you remember any developments touching on either the biology text or the biology curriculum during this first portion of 2004? A. Can you repeat that again? Q. Sure. Let's look at the biology text, the biology curriculum. Let's look at the year 2004 from the beginning of January through the end of May. A. Okay. Q. I'm asking you to remember what you can. Do you remember any information or developments touching on the biology text or curriculum during this period? A. What I remember I believe of that is that's when the, there's some information came out, I believe it was either books or videos or, I think it was videos, I don't know if it was books, too, on the, I believe it was Icons of Evolution and Unlocking the Mysteries of Life. I guess that's the name of it. Q. Did you review those materials? A. I had looked, at some point I had looked at Unlocking the Mysteries of Life, and I believe it was later, I don't know the exact times on this, of later I believe I reviewed, I know I reviewed, specific times on that, I believe it was later I reviewed Icons of Evolution. Q. Well, you're not on the board curriculum at this time. Why are you looking at these materials? A. Why am I looking at them? Q. Yes. A. It came out as something I guess that interested me. I looked at the information. Q. Do you remember any other materials or discussions of the biology text or curriculum during this period? A. I really, I don't believe so. Q. How about you mentioned the Unlocking the Mysteries of Life and looking at that. Did you look at Icons of Evolution? A. Yes. Q. Do you know generally what that deals with? A. The Icons of Evolution? Q. Yes. A. That I believe basically talks, I think there's basically two different areas it goes into. It goes into I believe gaps and problems of the evolutionary theory, and it also looks into, I believe there was a teacher somewhere out west that wanted to introduce other theories and things like that into the system, into the school system, and how badly he was treated by the scientific community and people, you know, people around him. Q. Did you make a decision as a board member in 2003 concerning whether the biology texts would be purchased in 2004? A. I believe what we had said, because the teachers were concerned I believe, the teachers were concerned that if they didn't get their book because of the cycle they'd have to wait another seven years to get their book. So we told them that next year we would look at the book and more than likely purchase a book next year, and I believe we even earmarked some money into the budget so that it would be there to show them, you know, here's the money, we're earmarking this money, so more than likely we would be purchasing the books next year. Q. Let's look again at this period from the beginning of January to the end of May of 2004, and let me ask you did you attend any board curriculum committee meetings during this period? A. What were the dates? Q. January through the end of May of 2004. A. No. Q. And why not? A. Well, I was board president and I wasn't on the committee. Q. Let's look at June 2004. Actually before we get there let me ask you, was the biology text or biology curriculum discussed at all at the board meetings from January through the end of May of 2004? A. Which was discussed? Q. The biology texts. Do you remember concerns being expressed at the board meetings about the biology texts? A. I don't believe so. Not at that time, no. Q. Okay, let's look at June, and let's look at the first board meeting in June. Do you have the sense that there were two meetings? A. There's normally, there's normally two meetings each month. Q. Do you remember attending the first board meeting in June? A. Yes. Q. Okay. Do you remember anything that occurred at that meeting? A. Yes. Yes, I do. Q. Tell us what you remember. A. I remember I believe it was during public comment period I believe, Barrie Callahan, Mrs. Callahan came up to the board again, as she usually does, and basically was complaining to the board and wondering what's going on in the books, and I believe it was Mr. Buckingham was of telling her, you know, that books were being reviewed, and she kept at him and at him, basically harassment, but you know, we sort of got used to her after a while, that I think he blurted out something or something, he had like laced with Darwinism I believe he said. Q. Do you remember Mr. Buckingham making that statement at this meeting? A. I believe I do, yes. Q. What was your reaction to that statement? A. Well, it was like what? I mean, I didn't exactly know how to take it to be honest. Q. Well, what do you mean by that? A. Well, I don't know what the, laced with Darwinism, what does that mean exactly, and why would he say that? It doesn't make -- I was sort of taken aback by it, where does this come from. Q. Do you remember intelligent design being discussed during this board meeting? A. Just in general. I believe it was mentioned in it, but specifically or how it was mentioned, it could have been in response to Mrs. Callahan. I'm not sure which person or if there was more than one, but I can remember that the intelligent design, I believe that was basically the first meeting it was brought up at. Q. Well, let's look at the meeting as seen through your eyes and then the reporting of it. Did you read the daily papers during this June period? A. Yes. Q. Which ones? A. Well, the York Dispatch is a paper that I had delivered to my home, and the York Daily Record I would buy a lot depending on, you know, it wasn't delivered to my home, but I would buy that periodically also, and the Sunday paper. Q. Did you have an opinion concerning the accuracy of reporting relating to board meetings in these papers? A. Yes, I did. Q. Well, explain what that opinion is. A. I'm trying to think of the words to say. It's got to the point where the accuracy of the press in the local papers was so terrible that, you know, it's just here we go again, just more inaccuracies, more biases, more half truths or half a story. Q. Well, let me ask you this. You have a complaint here, does it relate to the reporting of the board meeting in June of 2004? A. I'm sorry, say that again? Q. You've got a complaint about accuracy. Sitting here today do you remember having that complaint about the way these reporters discussed the board meeting held in June? A. I mean, this has been going on since two years, this has been going on since before I was even on the board, the inaccuracy of the press. Q. How do you know that? A. How do I know it? From reading the articles. I mean, you go to a meeting and then the next day you read the paper and it's like, well, where were they at? They weren't at the meeting I was at. And this is just another case of they take words and mix words around. They'll put in creationism for intelligent design. They did that for months and months and months and months and months. Q. Is your grievance or your complaint about the accuracy of the reporting something that is limited to the reporting of this incident, or more broadly? A. No, if there's one thing other than saying, you know, intelligent design and creationism aren't the same thing, this is another thing that the court needs to know. This has been going on since before I was ever on the board. The two years that I was involved before I ran for the board in 2001 and ever since then, you know, just it came to a point where you couldn't trust what was said. I'm not saying every single word was wrong. I'm just saying it came to a point where it wasn't a trustworthy piece, it wasn't a trustworthy document to look at and see, and I heard it all the time from people all over the place, other board members from different school districts. I mean, township people -- MR. HARVEY: Your Honor, objection. Hearsay as to what was said by other people from other townships or school districts. THE WITNESS: It was my understanding -- THE COURT: Hold on, sir. When there's an action, wait until I rule. MR. GILLEN: I guess he can gain a generalized impression from what he hears, but it's -- THE COURT: No, he was about to repeat what clearly is hearsay, so I'll sustain the objection. Strike that portion of the answer to the extent he got into it. You can proceed with the next question. BY MR. GILLEN: Q. Thank you, Your Honor. Let's look at this period from when you got on the board up until this first meeting in June of 2004. Up until that time had you gone to reporters and expressed complaints about the reporting? A. During this time or during all my -- Q. From the time you got on the board through June of 2004, did you personally talk to reporters and -- A. I personally talked to reporters. I personally talked to editors of both newspapers. So the answer is yes, absolutely. Q. Can you be more specific? Do you remember, again let's look at the period from when you get on the board or before, up until June of 2004, do you remember specific individuals that you spoke to up until this time? A. Well, I mean, you go in, when they start changing words around, you say you can't be right, this isn't what was said, you know. You need to write what we say and not put in your interpretations of it. On the building projects I know they would tell these stories about different things on, or they'd only tell half a story, they'd tell this side but they wouldn't tell the other side. The biasness just shows through. I mean, the biasness, it just drips with biasness. And one thing I remember in particular is that, and this goes back to the building project, we had an article in the paper that basically said the auditorium, I think the roof was leaking in the auditorium, and if you read the article, nothing in the article says anything about a roof leaking, and the thing was that we never talked about a roof leaking in the meeting, there wasn't a roof leaking, and I had had a phone conversation about this with Heidi Bubb, and it was my understanding through the conversation that I told her, you know, papers are inaccurate, and she said -- ( REPORTER NOTE: REMAINDER OF ANSWER STRICKEN PER INSTRUCTION OF THE COURT.) MR. HARVEY: Your Honor, objection. Hearsay as to what Ms. Bubb said. MR. GILLEN: That's true. Alan -- THE COURT: I'll sustain that. Strike that last answer as to what the response was, and you can proceed. THE WITNESS: What can I say as far as my understanding -- MR. GILLEN: Well, you cannot say what someone said. THE WITNESS: Okay. It was my understanding that she agreed with me, and it was my -- MR. HARVEY: Objection, Your Honor. He's getting directly back into hearsay. MR. GILLEN: He's just giving his impression of the results of the conversation. He's not attributing words to it. MR. HARVEY: This is not an area where I think his understanding of it is directly relevant to the case sufficient to warrant him testifying about his understanding and bringing indirectly what is clearly a hearsay statement. THE COURT: So is your objection hearsay or is it relevance? MR. HARVEY: It's hearsay, Your Honor. THE COURT: Then I'll overrule it on a hearsay basis. BY MR. GILLEN: Q. Let's look at the second board meeting in June. Do you have any recollection of the second board meeting in June of 2004? A. A little bit of it. Q. Well, I understand that they can blur together. Do you remember a young man coming to the podium during that meeting? A. Yes, I believe Pell was his name. Q. Did you know his name at the time? A. At the time -- well, when you come up to speak you're supposed to state your name and address and where you live before you speak. I believe he had talked about bringing creationism in school and it wasn't right to do that sort of thing. Q. Do you recall any statements by board members in response to the young man's address to the board? A. From what I can recall, the specifics is hard to recall, but basically we weren't teaching creationism and intelligent design, probably because he was reading the papers and, you know, creationism is creationism and that's not what we were talking about. Q. What were you talking about, Mr. Bonsell? A. Well, intelligent design. We weren't talking about creationism. Q. Did you ever come by an understanding concerning whether certain people attending the board members, including reporters, saw intelligent design and creationism as the same thing? A. I had a conversation -- well, yes, I mean that's why we're here I guess, but there was definitely people there that thought it was all the same thing, and my understanding from conversations is that Joe Maldonado thought it was the same thing. Q. Let me ask you, there's been discussion about an address of Charlotte Buckingham to the board. Do you recall that? A. Yes, I do remember that. Q. Well, tell us what you remember about her address. A. She came forward at a public comment session and she started, I don't know what you want to call it, she started a comment during that point where she went on and on, and it was basically religious, very religious in nature. Q. And there's been some thought that she went on for more than the ordinary period, and you were a board chairman. I want you to describe how long she went on. What was your reaction to her discussion? A. That's true, she did go on longer than normal, there's no doubt about that. Here's the situation that I had myself into. I'm the board president, and here's a lady who's the wife of a board member comes up and starts talking, and it's like you don't want to be rude, you don't want to do that to her, because it got to the point where, and the thing is I thought she was going to stop two or three different times, but she would start to talk, and then she would stop and it's like okay, she's done, and then she'd start talking again, and then it was like she stopped and okay, she's done. It got to the point I picked up my, I had the gavel in my hand, because I remember I had the gavel, if she would have spoken one more word that would have been it, because I mean it did go on longer than normal, I do admit that, and if I had to do it over again I would have gaveled her sooner. Q. Well, let me ask you, before Charlotte Buckingham spoke at this board meeting had you spoken to her about what she was going to say? A. Oh, no. Q. Had you spoken to Bill about what she was going to say? A. Absolutely not. Q. Had Bill Buckingham told you anything about what Charlotte was going to say? A. No. Q. Did you see Mrs. Buckingham as addressing board business when she addressed the board at this meeting? A. No, not at all. Q. What was your reaction to her statement? A. Really, I mean everybody is entitled to come up in public comment, but I didn't really think it was appropriate, but you know, she's a citizen of Dover, so I mean it wasn't something that I would really say was something that was the time and place for. Q. Well, did she mention creationism during her address? A. She probably did. Q. At the time that she did so were you considering a policy change that would require the teaching of creationism in Dover area schools? A. There was never a consideration of a policy change to make creationism part of the school curriculum. Q. Let me ask you about these meetings here in June in terms of their turnout and get a sense of their turnout relative to other meetings. Did the turnout for these meetings in June far exceed ordinary turnout? A. Well, that can be answered two different ways I guess. One is is that usually a board meeting there's usually a couple of people there. So was it more than normal? Maybe a little bit more than normal. But was it like a lot compared to other board meetings I've been at? It doesn't even compare to some of the board meetings I've been at. Q. Okay, let's get a sense for that. If you compare the attendance at these board meetings to attendance at other meetings, were there other issues that brought out a larger turnout? A. The building project. Q. And give us a sense for the numbers and the duration of that kind of turnout as it relates to the building project. A. Well, there was many, many meetings that I remember coming through where the cafeteria was where we hold our meetings in the 5th and 6th grade school basically was filled with people. I mean hundred, hundred and fifty, I think one time more, there could have been at least two hundred people there, and I know there was at the high school we had a meeting that there was probably hundreds of people at that. Q. Let's just compare the turnout at all the meetings relating to the biology text or curriculum throughout this 2004/2005 period. Is it in any way larger than the building project turnout you've referenced? MR. HARVEY: Objection, Your Honor. I think he's asking the witness to speculate. No foundation. MR. GILLEN: Speculate? He's entitled to his opinion based on the facts he observe at the meetings he attends. It's lay opinion about a matter that may have some relevance in the case. THE COURT: No, I'll allow the answer. The objection is overruled. THE WITNESS: Can you repeat that, please? BY MR. GILLEN: Q. Sure. I'm just trying to create a sense for how the turnout at these board meetings relating to the biology texts or biology curriculum compares to the turnout you've described with reference to the building project. A. With all the community members, I mean there really was no comparison I don't believe. Q. How about from the standpoint of the tone of the meeting? There's been some testimony indicating that there was some unedifying conduct at some of these meetings related to the biology text or biology curriculum. Was that an unusual feature of these meetings, or were there other meetings that were similar? A. There was many meetings where there was heated discussion among board members, among board members and some constituents. I can't recall specifics, but I know as far as the divisiveness or meanness, I mean none of these compared to the one I recall with a meeting that we had when we were voting on a football coach. Q. And just describe that meeting in contrast. A. It was a meeting that we were voting on whether or not to keep, to rehire basically our old football coach for next year, and there was a lot of people there and when we voted not to rehire him, I mean, I've never seen anything like this. I mean, the people got up and started swearing and cursing at the board and kids and adults were flipping chairs, taking chairs and actually flipping them on the floor, and it got to the point I think it was the same meeting that the ladies on the board were afraid to go out and get in their car at night. I'm not sure if we escorted them out or they actually called the police to make sure that they weren't, you know, somebody wasn't going to damage their car or they would be accosted or something like that outside. That's the worst I've ever seen. I mean, nothing else in this whole issue I mean pales in comparison to that. Q. Well, I don't want to linger too long, but can you give us a sense for a few other meetings or issues that have produced meetings that are contentious, you know, well attended. A. Well, that was -- the building project, the building project went on for was going on for years, and there was many, many building project meetings that were like that. I think there was an issue of pay for play where we were discussing pay for play as an option maybe down the road or something like that where there was, I believe there was a lot of people that were, you know, they didn't want to pay for play. Q. Okay. We've talked about board meetings in June. Did you attend any meetings of the board curriculum committee in June of 2004? A. No, not that I recall. Q. Why is that? A. Again I wasn't on the committee. I was the board chairman at the time. Q. All right. That brings us to July. Do you recall a board meeting in July of 2004? A. Yes. Q. All right. You know, I'd ask you to look at Exhibit 22. A. 22? All right. Q. Do you recognize that, Alan? A. Yes, that's the, I believe the board agenda for July 12th, 2004. Q. Okay. I'd ask you to look at the page with the Bates stamped number 101 in the lower right-hand corner. A. 101? Okay. Q. And look under the item for curriculum. What do you see there? A. There's a notation that the Prentice Hall Miller and Levine biology book will be ordered, approved for order. Q. Was it your understanding that that book was going to be approved at this meeting? A. Yes, I was. Q. Okay. Was the book approved? A. In July, no, it was not. Q. And do you know why? A. Well, between up until this point I believe the teachers found out that there was a new edition that came out. I believe it was a 2004 edition of the Miller and Levine book, and so I believe they had asked us to postpone the buying of the book until August so they had a chance to review it and see if this was even a better book than the `02 version. Q. Okay. We're looking at July. Did you attend any board meetings of the board curriculum committee -- excuse me, let me strike that question and ask a better one. Did you attend any meetings of the board curriculum committee in July of 2004? A. I don't believe so. Q. Why not? A. Again I wasn't on the committee and I was president of the board. Q. Okay. Did there come a time around this period, July of 2004, when you became aware that Bill Buckingham was obstructing approval of the science, more specifically biology text, that had been recommended for purchase by the science faculty? A. I believe somewhere around that time is I believe Dr. Nilsen and myself had a conversation, I mean, we had about that fact. Q. And tell us what you recall about that conversation. A. From what I can recall is that I believe Mr. Buckingham had another book that he was talking about putting, you know, putting along with this book to be purchased or to be used as textbook I believe. Q. Did you learn the name of that text? A. Yes. Q. And what is the name of that text? A. That was the Of Pandas and People book. Q. Prior to this time had you heard of the Of Pandas and People book? A. Not that I can recall. Q. Did you speak with Mr. Buckingham as a result of the information you received from Dr. Nilsen? A. Well, I spoke, I believe I spoke to him at a later date before the meeting because the books needed to be purchased. Q. Well, tell us what you told Mr. Buckingham. A. Well, I mean I called him because I believed it was going to be the books, the Miller and Levine books were going to be put on for August once the teachers got to look at them, we were going to purchase those in August. Yes, in August, and I believe I called him I think it was right couple of days before the meeting to make sure that the books were on, there were no problems here, and he told me that yes, that the books, he was going to bring them up for approval. Q. All right. As you left this conversation did you believe the text recommended by the science faculty would be approved for purchase at the August meeting of the board? A. That's what I thought, yes. Q. With that in mind, Alan, look at Exhibit 28. A. 28? Q. Yes. Do you recognize that document? A. That is the agenda for the first meeting in August. Q. Okay. I'd ask you to turn to the page that deals with the curriculum. It's Bates stamped number 116. A. 116? Q. Yes, and I'll ask you what you note there as it relates to the Miller and Levine text. A. Noted here, we'll be voting on approval of the following text. That was in the agenda. Q. Do you see a reference to Of Pandas? A. There is no reference to Pandas. Q. And was that consistent with what Dr. Nilsen had told you about his attitude towards placing the Of Pandas text in the August agenda? A. That was my understanding from every, you know, yes. Q. Well, do you recall proceedings at the August 2nd, 2004 board meeting that relate to the approval of the biology text recommended by the science teachers? A. I'm sorry, say that again. Q. Do you recall anything that happened at the August meeting that touched on approval of the biology text? A. Yes. Q. Tell us what you recall. A. Well, I believe at the time, I believe this is the first meeting Mr. Buckingham brought up the subject again of purchasing 220 he wanted to buy, because we were purchasing 220 Miller and Levine books, and he wanted to purchase I believe 220 of the Of Pandas and People book I believe. Q. Okay. A. But there again we took a vote on, we took a vote on, we took a vote on this subject though. Q. Okay, and do you recall the nature of that vote? A. Yes. Q. Tell us what you remember. A. From I remember when we put this up for a vote it was a 4-4 tie, and I guess under Roberts Rules a 4-4, if it's a tie it's a no vote. Q. And what was the purpose of the vote? Was it to approval the text or not? A. The purpose, the only purpose of that vote from what I can recall is to purchase these biology Miller and Levine books. Q. And what was the result of the 4-4 tie? A. Well, a 4-4 tie means no. Q. Did you vote with Mr. Buckingham? A. No, I did not. Q. Why not? A. Because I wanted to approve these books for the kids to be put in the class. Q. What about Of Pandas? What was your attitude towards approving Of Pandas at this meeting? A. Well, I mean I was just starting to hear about it. I believe I probably wanted to review the book before I would say anything one way or the other. Q. Was the vote changed? A. Yes. There was some heated discussions and some questions I believe like okay, now what? You guys voted no, what do the no votes want to do here, and we had a heated exchange. I know Mr. Brown was upset. We were all upset because this was supposed to be voted and done and that was the end of it. After this discussion Angie Yeungling, who was one of no votes, decided to change her mind, and under the rules when you vote on things, only a no vote person can call another question up for a vote. So she called the question again, and we revoted and we approved the books 5-3. Q. So was the outcome of this meeting approval of the text recommended by the science faculty? A. Yes, it was. Q. Well, that leaves another text you mentioned in contention. Do you remember attending any meetings in August relating to Of Pandas? A. I believe there was a meeting sometime, I believe the end of August we had a meeting. Q. With that in mind here let me ask you to go to Defendant's Exhibit 30. A. 30? Q. Yes. Do you recognize that? A. Yes. Q. What is it? A. It's just a memorandum to teachers and board members concerning a curriculum committee meeting scheduled on Friday, August 27th. Q. Did you attend this meeting? A. Yes, I did. Q. Well, let me ask you, this is a meeting of the board curriculum committee. You haven't attended any meetings of that committee up until this point in 2004. Why are you attending this one? A. Well, the reason I did, I mean I have a capacity as board president to sort of I guess, what's the technical term, ex officio, of all the curriculum committees. So when this came out and I started to hear these rumblings about this, and I believe there was probably a conversation between Dr. Nilsen and myself at some point, I thought that if I could come, maybe I could try to build a consensus or try to help, you know, bring people together and take care of it. Q. And you recall attending. Do you recall who was there? A. Well, it was myself and I believe it was Mr. Buckingham, Mrs. Spahr, I believe Jen Miller, I believe Sheila. Well, the curriculum committee, Sheila Harkins, and I believe Casey Brown. There might have been somebody else there, I'm not sure all the people that were there. Q. How about administration? A. I believe Dr. Nilsen might have been there, and Mike Baksa is usually -- I mean Mike Baksa, that's what his job is. He's usually always at those meetings. Q. Do you remember Mr. Buckingham taking a position on the Of Pandas text at this meeting? A. What I can recall is that he basically still wanted to use it as a supplemental textbook, and -- Q. Do you recall the science faculty's reaction to that desire on his part? A. Well, they didn't want to use it as a supplemental text. I don't believe they wanted to teach it. I think they still thought it was creationism, and I believe this is, I'm not sure, this might have been the first time that the subject broached of, you know, they didn't want to be sued. Q. Well, let me ask you, did Mr. Buckingham attend this whole meeting? A. I think this was the one where he wasn't at the whole meeting. Q. Do you recall anything that you said to the teachers and administration after Mr. Buckingham left? A. You know, Bill Buckingham is one person on the board, and not everybody agrees with, always agrees with what he's saying or when. Q. Did you think that this meeting produced any progress in terms of your goal of trying to build consensus? A. Well, I think it did. We brought the teachers around to the fact that I believe it was through here that I believe it was this meeting they had about looking at gaps and problems and using, a possibility of using that book as a reference book, but not a textbook. Q. Did you come away from this meeting giving any direction to Rich Nilsen or Mike Baksa that related to the curriculum? A. I think, I mean Mike being in the curriculum end of it and being an assistant superintendent, probably he took this information, worked on things from there. Q. Well, let me ask you to look at Defendant's Exhibit 44. A. 44? Okay. Q. Do you recognize that, Alan? A. It's a memorandum and a draft. Q. Do you recall receiving this? A. More than likely. I mean, I'm sure I did. Q. Were you surprised when you got this document? A. Was I surprised? MR. HARVEY: Objection, Your Honor. Lack of foundation for that. He just testified that he doesn't remember getting it. MR. GILLEN: Well, look it over, Alan, and see if you did or not. THE COURT: Well, the objection is sustained for the record because he's not sure if he got it. (Brief pause.) THE WITNESS: Okay, the draft was to me, being aware of, yes. BY MR. GILLEN: Q. Were you surprised when you received this? A. Surprised? Q. Yes. In light of what you had worked out at the August meeting. A. Surprised? (Brief pause.) Q. Well, this is what I'm getting at. Look at the first page of Exhibit 44 and focus on what the memo is about. A. The memorandum? Q. Yes. A. Okay. It's basically to the board of directors, and it's showing recommended curriculum change for biology that the science department had reviewed. Q. Now, look at this document in light of the discussion you just described for the August 27th meeting of the board curriculum committee. Did you see them as related? A. Well, they were related, sure. I mean, that's what he had talked about. Mike Baksa went back obviously and worked with the teachers and came up with some sort of draft, a first draft, rough copy or a rough draft of what I believe the science department, reviewed by the science department and what they reviewed, and obviously this was acceptable to them. Q. All right. If you look at the first page of Exhibit 44, you'll see that it's addressed to the board of directors. Did you know why it was addressed to the board of directors? A. Basically to the board of directors to keep everybody in the loop on this, let them have the information on this. Instead of just going to the curriculum committee it went to everybody. Q. Okay. Was that your idea? A. Was it my idea? I can say in this particular memorandum it was either my idea or Dr. Nilsen or Mike Baksa's idea I'm sure. Q. And what was the purpose of addressing it to the board of directors so far as you understood it? A. There again to keep everybody apprised of this. So it wasn't just two or three people, it was everybody that saw this, I mean, and had the time to look at it and take a look at it. Q. All right, as we go forward I want to focus right now on the Of Pandas text and how it came into the Dover school system, and I'd ask you to look at Exhibit 48. A. 48? Q. 48, and go to the page that has the Bates stamp number 135 in the lower right-hand corner. A. 135? Q. Yes. A. Okay. Q. Look at the item Roman XIII, heading "Curriculum." Do you see a reference to Pandas there? A. Yes, I do. Q. And what does it say? A. "Superintendent has approved a donation of two classroom sets of Of Pandas and People, and they will be used as references." Q. Well, let's talk about the donations. Did you have a role in that donation or were you aware of it? A. Yes. Q. Tell us how. A. Well, the story goes back again to Mrs. Callahan. She was at another one of the board meetings, I believe at the time what I can recall of this is again complaining about something. She was I believe saying, criticizing because we shouldn't use Pandas and People as we shouldn't spend public money on it. Q. Well, at the time of the August meeting were you willing to spend public money on Of Pandas? A. At that time I don't know. It was never brought up. Q. Did the board ever consider using public money on Of Pandas? A. It was never considered. Q. Did it not get that far? A. It was never brought up for a vote or put on any kind of agenda for us to vote on, no. Q. If you look at the portion of Exhibit 48 to which I direct your attention, you'll see there are two classroom sets mentioned, 25 each. That's a lot different from the 220 Mr. Buckingham had sought approval for. Do you know why? A. Well, sure. I mean this is what the teachers said, they didn't have a problem with using the books as a reference. It wouldn't be a textbook. It's not side by side. It's not going to be read or required to be read or anything. It's just a reference book. So I guess because there's two classrooms that have this at the same time, I guess that's why we came up with the possibility of two classroom sets using it at the same time, I mean if anybody wanted to look at it there again. Q. Did you have any sense for why your dad volunteered to donate? MR. HARVEY: Your Honor, objection. Lack of foundation that he had any conversation with his father about that. THE COURT: Sustained. Q. Did you have any discussion with your dad about why he volunteered? A. We had conversation. There was nothing, I don't remember specifics per se other than the fact, you know, Mrs. Callahan was complaining, my father had previously been a school board member and sat on the board with Mrs. Callahan, so he knew, you know, he knew about Mrs. Callahan, and this was some of the things, from the complaints and things and something take off the table as a political -- I mean, it was always something, this is always political with Mrs. Callahan, trying to make the board look bad. Q. At the time that your dad volunteered to donate these books, had he made other donations to the school district? A. Yes, yes. Yes, he had. Q. Tell us about those. A. Well, he had, I know he had donated I think a truck full of lumber to the school district already. I believe he also had donated some windows if I'm not mistaken, some windows to the administration office or something along that line, some new windows, and he also, he had offered the school district water fountains, there were brand new water fountains that he had purchased, and he offered them to the school district just for what he paid for them. The district would have saved thousands of dollars if they would have done that. Q. Did you tell others that your dad had volunteered to donate the books? A. Yes. Q. Did you personally contribute any money to the purchase of the books? A. No, I didn't. Q. Prior to this had you ever donated books to the Dover area school district? A. Yes, I have. Q. Tell us about that. A. I believe it was around 75, they were new, they were a little like 1st grade, I think 1st or 2nd grade reader books on being a bunny, or I want to be a bunny or something along that line. Q. Why did you do that? A. Well, the books I gave to, you know, I didn't have to pay taxpayers money for, I gave it to them and hoped the kids, you know, help them to read. Just improve education. That's why I was there. Q. How about Mr. Buckingham? There was a check here that he passed on. Do you know if Mr. Buckingham himself contributed any money to the purchase of the text? A. As far as I know he didn't. Q. Did Bill Buckingham give you a check to pass on to your dad? A. Yes, he did. Q. Did you understand the check was his funds or someone else's? A. No, that's why I said I don't believe it was his money, because he said these were donations that he had gotten and passed a check on to my father. Q. Did you ask Mr. Buckingham who gave him the money? A. No. Q. Is there any particular reason you didn't? A. There was no reason to ask. I mean, if people were willing to give money to buy reference books for the school, hey, that's great. Q. All right. Let's turn back to the curriculum language. We've looked at the document Mike Baksa sent you reflecting review by the teachers, and I'd ask you to look at Exhibit 46. A. What was that again, I'm sorry? Q. 46. A. 46? Okay, 46, yes. Q. Do you recognize that document? A. Yes. Q. Do you remember receiving it? A. Yes. Q. What is it? A. It's basically a memorandum from Mike Baksa to the curriculum committee and myself, excuse me, talking about a board curriculum meeting scheduled for October 7th. Q. Did that meeting occur? A. Yes, it did. Q. Did you attend? A. Yes, I did. Q. Do you know who else attended? A. It was Mike Baksa, Sheila Harkins, Bill Buckingham, and myself. Q. Casey Brown, did she attend? A. No, she had called and left a, talked to Mr. Baksa. Q. Okay. Did you have an understanding of Casey Brown's position with respect to the activities? A. My understanding was from Mr. Baksa that she couldn't make the meeting and that she was sorry, she couldn't make the meeting, whatever we come up with would be okay with her. Q. Again this is now the second meeting of the board curriculum committee that you're attending, although you haven't attended others earlier in the year. What is your purpose in showing up at this meeting? A. It's the same thing. I mean, I'm board president, there's a problem here, I'm -- there's some discussion back and forth and I'm trying all I'm trying to do is help. I'm trying to bring some sense is what I'm trying to do. Q. Okay. I'd ask you to look at Defendant's Exhibit 50. A. 50? Q. And I want to discuss your understanding of these various positions that are mapped out here on this document. A. Okay. Q. If you look at the first recommendation under A, with the number 1, attributed to the administration and staff, did you see that as related to the document we've already looked at that Mike Baksa sent you -- A. That looks pretty much like what the draft said, yes. Q. Now, I want you to look at the language under your name. A. Yes. Q. And there's a couple of things I want to ask you about. A. Okay. Q. There's no mention of intelligent design there. Why is that? A. Well, basically what I said and what the teachers said I didn't really have a problem with because it mentions other theories of evolution, which ID is another theory. Q. Was there -- if you look here at this language you'll see that the teachers' version says gaps. Your says gaps and problem. Was there a specific reason that language is in your version? A. Yes. Yes. Q. Tell us about your thinking on that. A. Well, the way I look at it, gaps and problems are sort of two different things. Gaps could be okay, we have evidence for A and we have evidence for C, but we're missing B to connect the two together. So there are the gaps. A problem I would consider what I think I talked about earlier, a problem for say evolutionary theory is that it's statistically impossible for it to happen. That's a problem. That's not a gap. So that's the only reason I thought it would be better and it would enhance the statement. Q. Well, let me ask you for your understanding of Mrs. Brown's opinion. How did you see her position reflected on this document, Defendant's Exhibit 50 at A-3, relative to yours. Did you see a big difference? A. There really wasn't, I didn't really see a difference. The only thing I see, you know, what I see is that it was wordier, that's all, and mine was a little more short and the other recommendation was a little bit more short and more concise. Q. And how about Mr. Buckingham's version? A. Well, Mr. Buckingham's version basically says the same thing, too, being aware of other theories of evolution, including but not limited to intelligent design, really the only difference between the two as far as I see is that it's saying the words intelligent design. Q. Well, let's turn to the next page of Defendant's Exhibit 50 with the Bates stamp number 36 in the lower right-hand corner, and you'll see a handwritten notation there. Do you know why that notation is there? A. Well, we discussed this and went over it, and being that, you know, Mr. Buckingham says we have books, we have the Of Pandas and People book as reference books, and here again intelligent design is a theory, another theory of evolution, and so we just sort of took my statement and just added "including but not limited to intelligent design," which, you know, still is saying the same thing. It just is a little more specific. Like it says those two words, that's basically all it's adding to it. Q. Well, in all of these versions there's this use of the term "made aware of" that's being used. Did you have an understanding concerning why that language was used? A. Well, sure, because we weren't going to teach it. Q. Why was that? A. Well, teachers had -- MR. HARVEY: Your Honor, objection, no foundation as to there was any discussion on this subject, as opposed to his own idea. I mean, if he wants to testify about what his own understanding of that is, that's fine. Without foundation he can't testify about, it's a collective understanding. MR. GILLEN: He's just testified that he was at an August 27th meeting with the teachers in which they voiced objections. THE COURT: You might be a question or two ahead of yourself. I'll sustain the objection on that basis. Why don't you lay a foundation for whatever it is the question was. BY MR. GILLEN: Q. I will. Thank you, Your Honor. Mr. Bonsell, we're talking about the use of language "made aware of," and I want you to consider that use of language in contrast to the term "teach," and I wanted to ask you, you've mentioned attending an August 27th, 2004 meeting of the board curriculum committee that was attended by teachers. Did you come away from that meeting with an understanding concerning whether the biology teachers at Dover were willing to teach intelligent design? A. My understanding was that they did not want to teach intelligent design. Q. Okay. So is that understanding related to the use of the phrase "made aware of" as it appears here in these proposed changes? A. Well, absolutely, yes. Q. Tell us your understanding of the relationship. A. Well, again, students will be made aware of gaps and problems and other theories of evolution. They're not going to get into teaching it. You know, it's just going to be basically mentioned. Q. Let me ask you this. MR. HARVEY: Objection, Your Honor. Move to strike the last testimony. There was no testimony that he had that understanding as a result of anything in particular, and so it's, the record is quite unclear as to whether that's just his understanding, and if that was clear that would be one thing, but whether that was based on something that was discussed at a meeting. THE COURT: I'll take it as his understanding and I'll overrule the objection. Q. And with respect to the use of the term "made aware of," this document is generated in connection with a meeting of the board curriculum committee on October 7th, 2004, is it your understanding that this document and its use of that phrase "made aware of" reflects a consensus that was worked out by the members of the board curriculum committee in attendance at this meeting? A. That was my understanding. Q. Okay. Did all the members of the board curriculum committee who were present at this meeting have an opportunity to review curriculum language that reflected this revised entry under your name on Defense Exhibit 50, page 36? A. Yes, I believe from here it was sent out again after this. Q. Well, let's look at that process. We're moving towards the October 7th -- October 18th board meeting now, and I want to look at the documents that were generated in preparation for that meeting. With that in mind I'd ask you to look at Defendant's Exhibit 60. A. Sorry, 60? Q. 60. A. Okay. Q. Do you recognize that document? A. Yes. Q. What is it? A. It's basically a memorandum about the, there's another draft of changes to the biology curriculum from the board curriculum committee -- Q. Okay. A. -- that was sent to all the board directors. Q. And I'd ask you to turn to the page of Defendant's Exhibit 60 with the Bates stamp number 18 in the lower right-hand corner. A. Okay. Q. Or actually I guess if looked at properly it's the lower left-hand corner, and direct your attention further to the last entry in the column headed "Unit content and concepts." A. Yes. Q. Would you read that language for the record? A. "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution, including, but not limited to, intelligent design." Q. Okay. Is this consistent with the consensus worked out at the October 7th meeting of the board curriculum committee? A. Yes, it is. Q. If you look in the right-hand corner of that document, the lowermost entry in the column headed "Materials and resources," you see a reference to Of Pandas? A. Yes. Q. Was that discussed at the October 7th meeting of the board curriculum committee? A. Yes. I mean using that only as a reference. Q. I'd ask you to turn next to Defendant's Exhibit 61. Do you recognize that document? A. Yes. Q. What is it? A. Here again it's a note from Mr. Baksa to the board directors for the recommended change of the biology curriculum from the staff and administration. Q. I'd ask you to turn to the page in Defendant's Exhibit 61 with the Bates stamp stamped in the lower left-hand corner, and again direct your attention to the lowermost entry in the column headed, "Unit content concepts." A. Yes. Q. And I want to ask you did you understand this to be the position of the staff and the administration on the proposed curriculum language? A. Yes. Q. I'd like you to look at the column "Materials and resources" and tell me whether you note any difference about this document and the board curriculum committee's proposed curriculum change. A. I believe this one doesn't have the reference Of Pandas and People in it. Q. Now, just for the record I want to make clear your understanding as to the differences of these two versions that we've discussed. If you look at 60, the board curriculum committee, where do you see points of diversion from, or divergence from the suggestion of the teachers? What's at issue at this time? A. Well, mainly as far as wording, basically "including but not limited to intelligent design," I mean that's the wording that's not in this version. That's in the other version. Q. Well, look at the teachers' -- A. And gaps, slash, I mean the problems aren't in there. It just says gaps. Q. Okay, and then how about with respect to the listing of reference material? A. Then the reference is not included also. Q. Okay. A. Reference book. Q. Okay. If you look at these two memos, Alan, they're dated October 13th, and I want to focus your attention on the period between October 13th and the board meeting on October 18th, 2004. Did you do anything in your capacity as board president that was designed to address the conflict between these versions in the period between October 13th and October 18th? A. What I can remember is that I believe I talked to Dr. Nilsen concerning trying to get this worked out, because I wanted everybody to get together on this if this was possible to do. That was my objective as board president, and I believe because the concern was again teaching ID or teaching origins, that type of thing, I said what about coming up with something that, possibly putting in a note or something that origins won't be taught. Q. Do you remember suggesting that to Rich Nilsen? A. To go and see, yeah, trying to come up with something like that to be put in that we could come up with something that we could get everybody together on. Q. Did there come a time when you had reason to believe that your effort to create a consensus had produced some results? A. Yes, I believe after this there is another draft that came about. Q. With that in mind I'd ask you to look at Defendant's Exhibit 68. A. 68? Q. Do you recognize that document, Alan? A. Yes. Yes, I do. Q. Okay, what is it? A. This is another of the drafts for the curriculum, a memorandum from Mike Baksa to the board, attached is a second draft for recommended changes to the biology curriculum for the administration and staff. Q. And I'd ask you to direct your attention to the portion of Defendant's Exhibit 68 with the Bates stamped number 22 in the lower left-hand corner. A. Yes. Q. And just tell me what differences do you note between this document and the two versions of the curriculum change that we have looked at thus far? A. Well, now we have the Pandas as a reference book. The teachers, administration, put the reference book in this draft as using it as a reference book that they didn't have before, and they also added problems to the concepts and added a note at the bottom that origins is life is not taught. Q. And what was your purpose in suggesting that note? A. Well -- MR. HARVEY: Objection, Your Honor. There's been no testimony that he did suggest that note. MR. GILLEN: He just testified that he suggested a note. MR. HARVEY: Perhaps a misstep, I don't believe that's the case. THE COURT: I didn't hear that testimony. I thought that the questions went to the fact that this was received as a compromise from the administration and staff. I think I missed that, too. MR. GILLEN: Well, it's understandable, but let me go back for a second and clarify if needed. BY MR. GILLEN: Q. Alan, the two memos that we looked at earlier, Defendant's Exhibit 60 and 61, are dated October 13th, 2004. Did you do anything in the period between that date, October 13th, 2004, and the board meeting held on October 18th, 2004 in an effort to reconcile the conflict between the two proposed curriculum changes? A. Like I said -- THE COURT: That was asked and answered. I understood the answer to that question. That precise question was asked, and he gave a general answer that he continued to try to move them towards a consensus. The objection by Mr. Harvey went to the fact that there was no specific question on whether Exhibit 68 was his product, because by its -- MR. GILLEN: It's not his product, Your Honor. THE COURT: Well, that's what the question sounded like, and that it's his language. BY MR. GILLEN: Q. Okay, let me ask you, Alan, looking at Defendant's Exhibit 68 and the note you have just read, did you suggest this language? A. Well, the origins of life, the origin of life will not be taught was something that was suggested, that I suggested, you know, go back to the teachers and see if that could be used or not as a, you know, as a way of bringing the teachers in. Q. Okay, and what was your purpose in suggesting that language? How did you think it might satisfy the teachers? A. Well, again two things, because they're still saying about, you know, creationism and ID are the same thing and I didn't want to teach it, that would take care of all that because origins of life is not taught. Q. Well, how do you see that relating to their objections concerning teaching intelligent design? A. Well, intelligent design deals with the origins of life. So it won't be taught, so they won't have to worry about it. Q. Let me ask you, as we lead up now into the October 18th board meeting, did you call any board members to discuss these conflicting versions? A. Leading up to the -- Q. Yes, in this period between October 13th, and October 18th did you call any board members with the concern about this conflict? A. Yes, I did. Q. Tell us who you called. A. I called Mrs. Casey Brown. Q. Why did you call her? A. Well, a couple of reasons. One is I called her because she is on the board curriculum committee and didn't make it to the meeting. I wanted to make sure she got everything, she looked at it, she was okay with that, because it was my understanding per our conversation that she was. I spoke to her, you know, how did Jeff Brown feel about this, and my understanding was she didn't know -- MR. HARVEY: Objection, Your Honor. Hearsay. He was about to testify -- MR. GILLEN: He's testifying to his understanding he got from a telephone conversation. I mean -- THE COURT: No, that was a direct quote. I'll sustain the objection. Strike the hearsay reference to what Mr. Brown said. MR. GILLEN: Did you ask Casey -- THE WITNESS: Well -- I'm sorry, go ahead. THE COURT: Don't respond to an objection and try to explain an answer. THE WITNESS: I'm sorry. THE COURT: Wait until he asks a question and then you answer the question, please. BY MR. GILLEN: Q. Thank you, Your Honor. Did you say anything else to Casey Brown related to her husband? A. I asked her to have him call me. Q. Did he ever call you? A. He never did. Q. Okay. Let's look at the October 18th, 2004 board meeting. THE COURT: Any time you have a break point, too, Mr. Gillen, you can -- I don't want to stop you in the middle -- MR. GILLEN: It's actually a logical point, judge. THE COURT: All right, why don't we, because we've been after it for some time, we took a rather early break, we'll break now. We'll return at 1:20 and pick up the direct examination by Mr. Gillen at that time. We'll be in recess until 1:20. MR. GILLEN: Thank you, Your Honor. (Recess taken at 12:00 p.m. End of morning session.) Kitzmiller v. Dover Area School District Trial transcript: Day 18 (October 31), PM Session, Part 1 THE COURT: All right. DIRECT EXAMINATION ( CONTINUED) BY MR. GILLEN: Q. All right. Alan, before we left off for lunch, we were approaching the October 18th board meeting. I want to ask you some questions about that meeting and your recollection of events, as soon as I get my outline in order. Do you remember attending that board meeting? A. October 18th meeting? Q. Yep. A. Yes. Q. All right. Well, let's -- tell us what you recall beginning with the public comment portion of that meeting. Do you recall any comments being made? A. I believe Bert Spahr spoke at that meeting. And Jen Miller spoke at that meeting. I believe there was a few other people that spoke. Q. Do you remember anything that you heard at that meeting from Bert Spahr? A. I believe it was still, we were on the same subject of what they had talked about before of, they were afraid they were going to be sued, and I believe she still mentioned the fact of creationism being -- intelligent design being the same as creationism, that type of thing. Q. Do you remember any other teachers speaking? A. Jen Miller spoke. And basically, what I can recall is that, she still was on the point that she didn't want to teach intelligent design. Q. What about other board members? Was there any response from board members to the public during the public comment section that you can recall? A. Basically that, you know, ID is not creationism, absolutely is not creationism, and that we weren't requiring them to teach it. Q. Do you remember telling members of the public that during this meeting? A. I think that's, when they were saying that, at some point, that was said. Q. What about the activities of board members when the agenda item came up for consideration by the Board? Do you remember what happened at that time? A. Yes. Q. Tell us what you remember. A. Basically, there was a whole bunch of amendments that were proposed, I believe, by Noel Weinrich. Q. Well, with that in mind, let me ask you to look at Defendants' Exhibit 64? A. 64? Q. Yeah. And direct your attention to the page with the bait stamp number 18 in the lower right-hand corner? A. 158. Q. What do you see there, Alan? A. I see basically a bunch of motions and calls for votes on amendments and calls for questions, call of vote, questions, different things along that line. Q. Are these the votes on motions made by Mr. Weinrich that you recall? A. Yes. Q. Okay. What was your reaction to Mr. Weinrich's parliamentary maneuvers? A. I thought it was silly. I mean, he was just -- it was almost like playing a game. And we weren't talking about the real issue, the three things that we had that were that we were going to discuss. And this didn't serve any purpose, I didn't think. Q. Did you want to discuss any of the amended versions that Mr. Weinrich was proposing that evening? A. Well, I basically -- I mean -- can you say that again? Q. Yeah. I'm not asking you to look at the voting record or anything. I'm asking you to give us your recollection concerning when Mr. Weinrich made these motions, did you want to vote on what he was proposing or on the versions that -- A. No. I mean, we had already done all this work on these other proposals. I wanted to get back, and I think, you know, I remember saying, I want to discuss the issue. I mean, this was just parliamentary procedures here going on. I mean, it didn't have to do with the subject at hand. I mean, I didn't think it was. Maybe he did. I don't know. Q. Okay. I'd ask you to go to Exhibit 187. A. 187? Q. Correct. Do you recognize that document? A. Yes, I do. Q. What is it? A. That is my own personal memoranda, which I have written on, concerning the biology curriculum and also a draft of the curriculum with my personal -- that I had. Q. Okay. Let's look at it. Do you remember articulating a position at this October 18th, 2004, board meeting about the various versions and what your goal was for this meeting? A. Well, I mean, it's written on here, you know, not limited to any one theory, I have written on here. And my goal was to try to bring something that everybody would come together on, everybody could agree on it, if it was possible. I mean, that was my objective to do that. Q. I'd ask you to turn to the page of Defendants' Exhibit 187 that has the number 3771 in the lower left-hand corner. A. Okay. Q. There are notations on that page. Are they your notes? A. Yes. Q. And would you read the notes for the record? A. The whole -- just my notes that I had, handwritten notes? Q. Yes. A. I had a big A with a circle around it, and then I had in parentheses underneath the context concepts o, note: The origins of life is not taught. Q. Did you make that notation on the evening of October 18th? A. Yes. Q. And why did you do that? A. Because what -- what I had tried to do is to get everybody, the teachers, administration, the board members all together, and I thought, by changing the one, taking the one note from the one, and putting it with this, that would take care of it. Q. Did you make a motion to amend the Board curriculum committee's version to add this note? A. Yes, I did make a motion to add this to this particular -- this -- this concept here. Q. Okay. Well, your response points to a need for a question. What were you adding the note to? Whose version? The Board curriculum committee's? The staff administration? A. It was basically the board curriculum committee's. Q. And why were you adding your note to that version? A. Well, I already knew that the board curriculum committee came through with this, and the teachers had problems with teaching, you know, ID. And so this note, I thought, would take care of all those, would take care of that. Q. And how did you think it would take care of that? A. Origins of life is not taught, so that should take care of their problem of the origins being taught. It's not taught. Q. Do you remember how your motion was received by the board on that evening? A. Yes. I believe it was straight nine, zero vote to include it. Q. And was the board curriculum committee's version of the curriculum change, as amended, by your motion, approved by the board on the evening of October 18th, 2004? A. Yes. Q. And do you remember the final vote on that version? A. I believe the final, final version was a six to three vote. Q. So you worked out the actual final version at the meeting on that evening? A. Yes, with adding that on. Q. And again, in doing so, what was your goal in proposing this approach to the matter? A. The whole goal was to try to bring the people together. I mean, that's -- that was the whole goal. That's what -- you know, I was president. That's what I'm trying to do. I'm trying to lead, you know, everybody together and try to get consensus, if it's possible to do. Q. Do you remember the Browns resigning on the evening of this meeting? A. Yes. Q. And what was your personal reaction to their resignation? A. Well, I thought it was ridiculous, and I thought it was inconsiderate, especially saying, you know, they resigned without even mentioning the fact that they were going to do this ahead of time. Q. Well, you know, I'm going to ask you a couple of questions, but one of the most difficult for me to ask certainly personally is this. Did you tell Casey Brown that she was going to hell as a result of her actions on the board or her resignation? A. No, absolutely not. Q. Would you ever say something like that to someone? A. No, I would not. Q. Is that a very serious, in fact, hateful thing for someone to say, in your judgment? A. Absolutely, it is. Q. What happened after the October 18th, 2004, meeting next? Do you recall the next step seen from your perspective as the chairman of the board? A. Well, I guess we were trying to get together exactly how we were going to do this, implement it. Q. Well, let me ask you to look at Defendants' Exhibit 65? A. 65. Q. Do you recognize that document, Alan? A. Yes, this is a draft of what the teachers were to read in biology class. Q. Do you recall receiving this document? A. Yes. Q. Was there some discussion of making students aware of intelligent design by reading a statement when the board held its meeting on October 18th? A. Ask that again. Q. Well, this statement, where did it come from? Had there been some discussion by the board and administration about it? A. There would have to be something. Once we have this, now it's not being taught, so we have to find a way of how we're going to implement it in the curriculum. Q. Did you play any role in drafting the specific language of this statement? A. I don't remember specific language, no. Q. Do you recall at least seeing -- A. Oh, I saw it, yes. Could I have made suggestions? It's possible. But I just don't remember. Q. Okay. Let me ask you again. Now we have a contentious meeting here on the 18th with members resigning. Did you read the papers and their coverage of this meeting? A. I'm sure I did. Q. Well, did you have an impression at this time now concerning the accuracy of the coverage of the events at this meeting? A. I think at this point, I think they're still reporting, you know, we're going to teach creationism. Like I said, it went on. And also, we were going to teach, I remember teaching, that was in the news media, through the papers, through the news -- TV. That was on, I think, months after this proposal was passed. I believe it was still being reported that we were teaching it. Q. Did you speak to any reporters about the reporting on the board's activities relating to this curriculum change adopted on October 18th, 2004? A. Like I said, I have said things at meetings, in meetings. I've said things to reporters outside of meetings. I mean, it was sort of a constant, a constant that you -- that I would do, because they kept doing things like this. I mean, they kept saying teaching instead of making aware. They would say creationism instead of intelligent design. I mean, it's -- it's -- but, yes, I did. I remember talking, having a conversation with Joe Maldonado. And it was my understanding through the conversation that he thought the two things were interchangeable, that creationism and intelligent design were. MR. HARVEY: Objection, Your Honor, hearsay. MR. GILLEN: All I can say is, he's trying to remedy the situation. He's talking to the reporter. He has an understanding of the reporter's view of the matter, whether they're separate or the same. That's all. THE COURT: I think it transcended just his impression. I think it got into hearsay. I'll sustain the objection, and I'll strike what appears to be a direct response from the reporter in this case. MR. GILLEN: Okay. Thank you, Your Honor. BY MR. GILLEN: Q. Alan, let me ask you, you indicated that you spoke with Joe Maldonado about his reporting specifically as it relates to the use of the term creationism to describe intelligent design? A. Yes. Q. As a result of that conversation, did you come away with an impression or understanding of how he viewed them, whether the same or different? A. My impression is -- MR. HARVEY: Objection, Your Honor. THE COURT: Wait, sir. Hang on. MR. HARVEY: This again is hearsay, and if he's testifying just as to his understanding, I don't see any relevance as to what his understanding of Mr. Maldonado's impression is, at least as of this date. MR. GILLEN: It is highly relevant because, from the standpoint of the board, they believed that their position has been mischaracterized. They've been asked -- all the witnesses have been asked numerous times, did you ever complain, did you ever ask for corrections, and so on. Mr. Bonsell has testified that he has, and now what he's, understanding from this request is, it won't be observed because of the reporter's view of the matter. THE COURT: Well, very frankly, he answered the question. He answered the question previously, and I said that it would be stricken -- MR. GILLEN: Right. THE COURT: -- that it was his understanding that Mr. Maldonado viewed the two terms as interchangeable. I said that answer was hearsay and sustained the objection and struck it. You've asked almost the same question again, and I'm going to sustain the objection again because all we're coming back to is, I think, what amounts to, and I understand that you have to try, but I think it's either side door or back door hearsay, and I'll sustain the objection on that basis. It's a bench trial. I heard the testimony. There's no point to double back at this point. Let's move on. MR. GILLEN: Okay. Thank you, Your Honor. BY MR. GILLEN: Q. Did you take it upon yourself personally to do anything else to address the press coverage as you saw? A. Well, like I said all along, I've talked to numerous, numerous editors of the papers. I have talked to the reporters. I know it got so bad that our superintendent wouldn't even return calls anymore. Q. Let me ask you this. Did you direct Dr. Nilsen to do anything as a result of this problem you perceived? A. Yes. One of the things I said is that, I think it's necessary to get some sort of press release out to tell the people what we're actually doing, so they know what we're really doing. Q. Let me ask you to look at Defendants' Exhibit 83. A. 83. Q. Do you recognize that document, Alan? A. Yes. Q. What is it? A. It's a document that I sent to Dr. Nilsen concerning something that maybe we could, you know, put on, if it's possible, to put on the website, the Dover website, so -- just to let -- give the people of Dover a little bit of an update of what's going on. Q. This document is dated November 12th, 2004. Let me ask you, on the evening that the curriculum change was adopted by the board, was there ever any discussion of doing a press release? A. No, none. Q. Did you have any intention of doing a press release when you voted for the curriculum change? A. Not at that time, no. Q. So why are you providing this document to Dr. Nilsen on November 12th, 2004? A. There again, because the inaccuracies that was put out to the public in our local media. Q. Did you draft the press release or did you direct Rich Nilsen to do so? A. Well, this one I had sent to him, but they were coming up with another press release. This was just sort of a stop gap thing until we got an actual press release. Q. Let me ask you to look at Defendants' Exhibit 103. Do you recognize that document, Alan? A. Yes. Q. What is it? A. That's the biology curriculum press release from the board of directors. Q. Was that prepared by Dr. Nilsen at your request? A. Yes. Q. Okay. Do you recall the press release eliciting a response from the faculty? A. Yes, it did. Q. With that in mind, I would ask you to look at Defendants' Exhibit 106. Do you recognize that document? A. Yes. Q. Do you remember seeing that? A. Yes. Q. What did you understand its thrust to be? A. I guess, basically they're writing a letter to Dr. Nilsen objecting on some of the things that are being put out there about the most recent press release. Q. And what was your reaction to this document? A. Well, I couldn't believe it, because they've been involved all along in the process. Q. Did you speak to Rich Nilsen about this document? A. I believe so. And -- because I wanted to know, I wanted to see, okay, sort of get a glimpse of how many times or what -- to show that the teachers had been involved, that -- because, I believe, at the time I was saying, you know, the teachers have been involved in it. Q. Okay. Let me ask you to look at Defendants' Exhibit 184. A. 184? Q. Yeah. Do you recognize that document? A. Yes. Q. Okay. What is this? A. This is a history of biology statement, teacher edits, and some other information that I personally wrote down on the bottom that were additions to this. Q. Okay. Those handwritten notations are yours? A. At the bottom of the paper, yes. Q. But just to be clear, were these put on the document November 19th or later? A. This would have been later. Q. Let me ask you, do you recall the teachers or its union putting out a press release? A. I believe they did put out a press release, yes. Q. If you would, look at Defendants' Exhibit 105. Do you recognize that document, Alan? A. Yes. Q. What is it? A. It's a press release from basically the teachers union or the BAEAEA. Q. What was your reaction to that document? A. Well, it sort of went back to the other letter. I mean, they're saying, has developed, exaggerated it, which really, they did help to develop it. Q. Did you agree with the teachers' position, as articulated in that press release? A. No, no. Q. Did you ask anyone to take any action as a result of that press release? A. To take any action? Q. Yeah. Look again at 184. Was there anything that the board or you or the administration did in response to that difference of opinion reflected in these two press releases? A. Well, that's why we put this together, to show, you know, what we were saying was true, that they were involved in this process. Q. Okay. Let me ask you to look at Defendants' Exhibit 119. Do you have that? A. Yes. Q. Do you recognize this? A. Yes. Q. What is it? A. It is a press release from the Discovery Institute. Q. And what was your reaction to that document? A. Well, again, they must have been reading our local media because it says in here about teaching intelligent design, and we're not teaching it. Q. There's a few steps remaining in this story as it's been outlined so far, and I want to ask you about them. Do you understand that Rich Nilsen placed the Of Pandas book in the library? A. Yes. Q. Do you believe that his decision to do so was consistent with the board's curriculum change adopted on October 18th? A. Sure. They're reference books. Q. Has any member of the school board called for a movement of those texts from the library? A. No. Q. Did there come a time when you understood that the teachers had not read the statement that had been drafted as a result of the curriculum change? A. Can you say that again? Q. Did there come a time when you came to understand that the teachers had not read the statement we looked at already? A. Yes, basically that they wouldn't read the statement. Q. And what was your reaction to that? A. Well, personally, I thought it was clear insubordination. Q. Did you call for any action? A. No, I didn't, because I figured, at this point, it's, you know, it will be settled here. Q. Did you later come to know who read the statement to the students? A. The administration did. Q. When you voted for the curriculum change on October 18th, 2004, was there any discussion by board members of having the administrators read the statement? A. Was there any discussion that we wanted them to read that? Q. Yes. A. No. Q. Did any board member direct -- let me ask you, did you direct the administration to read the statement? A. No. Q. To your knowledge, did any board member direct the administrators to read the statement? A. No. Q. Did there come a point at which you directed Dr. Nilsen to at least prepare or help prepare a newsletter for the district on this issue? A. Yes, after we did -- we thought it would be a good idea to, because the press release basically went out to the press and onto the website, and we wanted to get out something to all of the people in Dover, so they're the ones, it's their school, they need to know. I thought that because of, you know, the problems of communications with the media, that they needed to have this press release so they could see exactly what we were doing. Q. Whose idea was the newsletter? A. I believe I came up with the idea of the newsletter, and I believe the board concurred, and the newsletter was put out. Q. When the board voted to approve the curriculum change on October 18th, 2004, was there any discussion of preparing a newsletter about the curriculum change? A. No, none at all. Q. When you voted for the curriculum change on October 18th, did you intend to issue a newsletter about the curriculum change? A. No. Q. So what was your purpose in doing that now? A. Again, like I said, to get the actual truth out to the people of Dover. Q. Now at some point, did you become aware of a donation of books to Dover that was also linked in some way to the biology curriculum? A. Yes. Q. And about when was that? A. I believe that was the spring of this year. Q. How did the books -- A. Somewhere in that area. Q. How did the books come to your attention? A. They were -- I guess they were sent to the school district, and probably the administration let us know. Q. Did you ask who donated the books? A. Not really. I mean, they told me it came from a group, but I didn't ask who. Q. Did you review the books? A. I looked at the books. Q. Why did you do that? A. Just to make sure they weren't, I mean, pornographic or something that wouldn't be something that should be put in the library or used. Q. Well, I mean, you've referenced some concerns about the books. Did it strike you as a little odd at the time the way they were donated, the way they arrived? A. Yeah, they just sort of came on our door step. Q. Did the board approve adding the books to the library collection? A. Yes, yes. Q. As you sit here today, do you know where those books have been placed in the library collection? A. That would be the librarian's job. Q. Did there come a time after the donation of the books where you became aware that Rich Nilsen had changed the statement read to students in light of that donation? A. Yes. Q. When you learned of that, did you think his change to the statement was consistent with the purpose of the board's curriculum change adopted on October 18th? A. Yes. Q. And why is that? A. I have no -- I mean -- wait a minute. Ask the question again, please. Q. Well, why? If you thought it was acceptable for him to do that, why? A. Acceptable for him to change? Q. Change the statement. Why? What was your point? Why did you see that as consistent? A. Because we had more books and more things on the subject, more literature, more books on the subject. And he changed it. And I didn't see a problem with that. More references. More material. Q. All right. As we're wrapping up here, I know you're engaged in this litigation, but do you feel that your service on the board has been a service in which you've tried to promote and have enjoyed some success in promoting the interest of the Dover community? A. Yes. Yes, I do believe that. Q. And can you just explain briefly why you have enjoyed some success? MR. HARVEY: Your Honor, objection, relevance. MR. GILLEN: I'm trying to demonstrate that he has, throughout his tenure, acted as a board member to serve the best interest of the community he serves by his -- THE COURT: I'll allow some latitude. It goes to weight. It's a bench trial. I'm going to hear the answer because we got to keep moving here. So I'll overrule the objection. BY MR. GILLEN: Q. Just briefly, Alan, as the judge said? A. Just quickly. Some of the things that we've done over the last four years. I mean, we tried to work together as a team, and we have been successful in doing a lot of things. Some of the things, our test scores are up. You know, we've instituted full-day kindergarten, the only school district in York County that has that. We went back to do remediation so that we try to get all the kids at the same place, I believe, by like third place, because we don't want any of our children to be left behind. As far as taxes, we're the only school district this year that doesn't have a tax increase. So we looked at everything. Our 8th grade, our 8th grade test scores. Five years ago in the year 2000, we were 13th out of 15 schools. And this year, we're number 1 in the county with our test scores. So we -- I think, I believe, not for a pat on the back or anything like that, but I believe that's what we came here for, to make Dover the best it can be. And this isn't -- I mean, there's a lot of other things that Dover can be proud of. Q. Did you see your participation in the board's distributions on this curriculum change as part of that same goal? A. Yes. Q. As a board member, ever since you sat on the board, have you ever taken any step that you thought would lead to the teaching of creationism in the high school at Dover? A. None whatsoever. Q. Have you ever tried to take any step to prevent the teaching of evolutionary theory? A. None. Q. In this 2004 period, when the science text, more specifically the biology text, proposed by the teachers were up for purchase, did you ever try and obstruct the purchase of the text they recommended? A. No. Q. You mentioned your daughter earlier. Is she a student at Dover High School now? A. Yes, she's in 9th grade. Q. Is she taking biology? A. Yes. Q. And do you have an understanding concerning whether she'll be taught evolutionary theory in biology? A. Yes. Q. What's your understanding? A. My understanding is, she'll be taught evolutionary theory, the micro evolution theory, in class. Q. Are you going to tell your daughter to opt out of this section dealing with evolution? A. Absolutely not. Q. Do you have any objection to her learning about evolutionary theory in biology? A. No, none whatsoever. MR. GILLEN: I have no further questions. THE COURT: All right, Mr. Gillen. Thank you. Cross-examine, Mr. Harvey. MR. HARVEY: Just one minute, Your Honor, while I get some materials. THE COURT: Take the time you need. MR. HARVEY: Your Honor, may I approach the witness and hand him some documents? THE COURT: You may. What book are you in, Mr. Harvey? MR. HARVEY: Your Honor, I'm not in a book. That's a special notebook we made up. THE COURT: Are you going to put them up on the -- MR. HARVEY: Yes, sir. THE COURT: That's fine. CROSS EXAMINATION BY MR. HARVEY: Q. Mr. Bonsell, I've just handed you a notebook of various exhibits we may refer to your testimony today, and I've given you a copy of your deposition transcript that was taken on January the 3rd, 2005, and a copy of your deposition transcript that was taken on April the 13th, 2005. Do you have those in front of you? A. Yes, I do. Q. You recall being deposed on those dates, January the 3rd of 2005 and April the 13th of 2005? A. Yes. Q. You were here for Mr. Buckingham's testimony last week, weren't you? A. Not all of it, no. Q. I thought I saw you in the room. And I think you were in the room when he testified about the donation, donations that were given to him at his church in the amount of $850.00. Were you here during that part? A. Yes, I did hear that. Q. And he testified about a check. And I'd like to show you the check. It's number P-80 in your notebook. And Matt will bring it up on the screen. A. P-80? Q. Yes, sir. A. Okay. Q. And today, you told us in your direct examination that Mr. Buckingham had given you a check, right? A. Yes. Q. And as a matter of fact, that is the check right there for $850.00 that's been marked P-80, correct? A. That, I couldn't tell you. I don't know. Q. Okay. But he definitely gave you a check, right? A. Oh, yes, uh-huh. Q. And he told you that these were donations that he had received? That's what you told us in your direct exam, right? A. Yes. Q. Did he tell you that these donations came from people at his church? A. No. Q. He didn't tell you that, is that correct? A. Yes. Q. Now, do you remember former board member Larry Snook asking about the source of the donation of Pandas at a board meeting in November 2004? A. I believe I do remember that. Q. And Mr. Snook specifically asked the board to say who gave the Pandas to the school district, correct? A. I believe that's what he said. Q. And nobody from the board provided him with any information, either that time or any other time, isn't that right? A. Not that I recall. Q. You didn't provide him with any information, did you? You certainly know that? A. No. Q. And you recall, and we just discussed, your deposition was taken on January the 3rd. Did you know that it was taken that day so that the Plaintiffs -- it was taken pursuant to court order -- so that the Plaintiffs could decide whether or not to move for a temporary retraining order. Did you know that at the time? A. I knew they were taking depositions for a particular reason. Q. Did you know it was for that particular reason? A. I'm sorry. Could you repeat that? Q. So the Plaintiffs could decide whether to seek a temporary restraining order to prevent the board from implementing its policy in January of 2005? A. I believe so. Q. And when Mr. Rothschild at that deposition asked you about the donation of the books to the school district, you didn't tell him that you had received any check from Mr. Buckingham, did you? A. I don't believe so. Q. And you didn't tell him that you had a conversation with Mr. Buckingham on that subject, did you? A. That I had a conversation with him? Q. Yes, that you spoke -- that you spoke to Mr. Buckingham about the donation of this check? A. I don't -- I don't believe so. Q. Well, let's just take a moment to look at your deposition. A. Okay. Q. Let's go to your January 3rd deposition. A. January 3rd, all right. Q. Yes, sir. Page 13, beginning on line 6. And it covers a few pages, and so we're going to go through it. I apologize if it's lengthy, but I think it's important. A. All right. Q. Mr. Rothschild asked you the following questions and you gave the following answers: Question, Are you aware that 60 copies of this book were donated to the school district? Answer, Yes. Question, Who donated those books to the school district? Answer, I don't know. Question, You don't know? Answer, No, I don't. The question again? Question, Who donated those books? Answer, Who donated the books? They wanted to remain anonymous. Question, Do you know who donated them? Answer, Do I know the people that donated them? Question, Yes. Answer, I don't know -- I don't know all the people that donated them, no. Question, Do you know any of the people who donated them? Answer, One. Question, Who was that? Answer, Donald Bonsell. Question, Who is that? Answer, He is my father. Question, Do you know the names of anybody else who donated these books? Answer, No. Question, How did you become aware that these individuals, including your father, intended to donate the books? Answer, Repeat that again. Question, How did you become aware that your father, as well as other individuals, intended to donate the Pandas book to the district? Answer, I believe the offer was made after there was complaints of using school district money. Question, Using school district money for what? Answer, To buy the books, I believe. Question, Who was the offer made to? Answer, I'm not sure. Question, When was the first time you became aware of the offer to donate the books? Answer, After the complaint, the complaint from -- I believe it was from Barrie Callahan. Question, How did you become aware of the offer? Answer, I'm not sure of the exact way I became aware of it. Question, Did your father say anything to you? Then there's an objection, and the question was restated. Question, Did your father say anything to you about his intention to donate books or his offer to donate books to the school district? Answer, I'm sure there was something said. Question, This morning I took the deposition of School Superintendent Nilsen. He testified that you communicated him to the fact -- to him the fact of this offer to donate the Pandas books. Is that accurate? Answer, That I was going to donate the books? Question, That you communicated to Mr. Nilsen that the offer was being made. Answer, That is what I am saying. I don't remember exactly how it came about. That's what I am saying. Question, Did you communicate to Mr. Nilsen that an offer was being made to donate Pandas to the district? Answer, I'm not sure. Question, Do you know where the Pandas book were purchased from? Answer, No. I mean, no. Question, Did you contribute any money to the purchase of the Pandas books that were donated to the school district? Answer, No. Question, Did you suggest to your father that he donate the books? Answer, No. Question, did you request that he donate the books? Answer, No. Question, Was the first time you heard anything about a donation when your father told you he intended to do it? Answer, Repeat that again. Question, Was the first time you became aware of any possible donation when you father told you he intended to do it? Answer, Well, he wasn't -- I mean, as far as I know, he wasn't the only person. Question, You don't know who the other people are? Answer, I don't know who the other people are. Question, You have never spoken to anybody else who was involved with the donation? Answer, I don't know the other people. Question, The only person you could have spoken to about the books was your father, correct? Answer, Yes, as far as donating the books. I guess they offered to pay for the books, and they got the books, and gave them to the school district. Question, They offered to whom? How was the offer communicated? Answer, That is what I am saying. I am trying to think about exactly how it was done. I don't remember exactly how it was said or done. Was that your testimony on January the 3rd, 2005, Mr. Bonsell? A. Yes, it was. Q. And you didn't mention anything to Mr. Rothschild about getting a donation, a check from Mr. Buckingham for $850.00, did you? A. No, I didn't. Q. And you understood that he was seeking that specific information, not that specific information, but that he asked you questions that should have called for that information, isn't that correct? A. No, I don't agree with that. Q. Mr. Bonsell, he asked you, Question, The only person you could have spoken to about the books was your father, correct? Answer, Yes, as far as donating the books. I guess they offered to pay for the books and they got the books and gave them to the school district. Question, They offered to whom? How was the offer communicated? Answer, That is what I'm saying. I'm trying to think of exactly how it was done. I don't remember exactly how it was said or done. And you didn't provide -- that was the question and answer. And you did not provide Mr. Rothschild with any information or tell him in any way that you had received a check from Mr. Buckingham, correct? A. I didn't receive -- that I didn't receive a check from Mr. Buckingham? No, I already said, I haven't -- I did not tell him about me receiving a check from Mr. Buckingham. But I still, you know, don't believe I misspoke. Q. Well, Mr. Bonsell -- A. I mean, in my opinion. Q. Today, you told us that you recall Mrs. Buckingham speaking at a board meeting in June of 2004, correct? Do you remember that? A. In June 2004? Q. Yes. A. Yes. Q. And you said that she went on for a great length, and you felt uncomfortable gaveling her down because she was the wife of a board member, correct? A. Oh, Mrs. Buckingham, okay. Q. Yes, Mrs. Buckingham. A. Yes, yes. Q. And you said that she probably mentioned creationism, isn't that right? A. It's very possible. Q. And you testified today that her comments were very religious in nature, isn't that correct? A. What I can remember now, yes. Q. Now Mr. Rothschild asked you about this at your deposition on January 3rd, 2005, and you didn't mention this either, did you? A. I don't know. Q. Do you remember Mr. Rothschild asking you about that? A. I don't remember it, no, but -- Q. Go to your January 3rd deposition at page 50, please. A. Page 50. Okay. Q. And line 20. And he's referring to a news article, which we're going to look at in a minute. Question, After that, there are remarks attributed to Mr. Buckingham's wife, Charlotte, on the subject of creationism. Do you remember her saying what is attributed to her in the article? Answer, I remember Mrs. Buckingham coming up and talking at public comment, but I don't remember what she said. Wasn't that your testimony on January the 3rd? A. On January the 3rd, it was. Q. And your testimony is something different today, isn't it? A. Only to the extent that I remember more of what she said then versus now. I mean, I did say that she did -- I remember her coming up and talking. Q. Well, let's take a look at what has been marked as P-54. A. P-54. Q. That is a June 15th article, June 15th, 2004, article from the York Dispatch written by Heidi Bernhard-Bubb, isn't that correct? A. Yes. Q. Now you actually were provided that article and asked to look at the second page, the seventh full paragraph, the one that says -- Matt, could you highlight it, the one that begins, his remarks. The one that says, His remarks were echoed by his wife, Charlotte Buckingham, who said that teaching evolution was in direct opposition to God's teaching, and that the people of Dover could not in good conscience allow the district to teach anything about creationism, close quote. Do you see that? A. Yes, I do. Q. That's the specific statement that you were asked to look at your deposition by Mr. Rothschild before you gave the testimony we just discussed, isn't that correct? A. That, I don't know. Q. Well, take a look again at the deposition. And, if you begin, and I'm not going to -- if you begin on page 45? A. Page 45? Q. Yes. A. Okay. Q. You see on line 8, he's asking you to turn to the June 15th article in the York Dispatch by Heidi Bernhard-Bubb, isn't that correct? A. Yes. Q. And P-54 is a June 15th article in the York Dispatch by Heidi Bernhard-Bubb. In fact, it's that same article, isn't that correct? A. It looks like it is. Q. And then if you look on page 50, that's what he was referring to when he says, on line 20, after that, there are remarks attributed to Mr. Buckingham's wife, Charlotte, on the subject of creationism. Do you see that? A. Okay. Which line is that again? Q. That is on page 50, line 20. A. Page 50? Q. Yes, page 50, line 20. A. Page 50, line 20. Okay. Q. That's the exact same article, P-54, that you were asked to look at your deposition when you gave that testimony that you didn't recall Mrs. Buckingham saying anything to that effect or you didn't remember what she said, correct? A. Yes. In January, that's what I said, yes. Q. But the question is, you looked at P-54, that exact same article, and you read the language that I read to you from P-54 about what Mrs. Buckingham said at the June meeting, and that's what you were looking at, and you read just before you gave that testimony at your deposition, isn't that correct? A. So you're saying, page 50, you asked me to look at this page? Q. Yes, sir. A. And where does that -- I don't see that on page 50. I see the question, what we already went over a minute or two ago, but you're saying I was looking at this page when -- Q. Yes, yes, if you look again. Let's go through this. If you go to page 45 -- A. Oh, back to 45. Okay. Continues on through there? Q. That's right. A. Oh, okay. Q. He's asking you a whole series of questions about this article. A. Okay. Q. Then if you go to page 50, he says, now this is on line 15, after that, there is a statement attributed to Mr. Buckingham that the liberal agenda was chipping away at the rights of Christians in this country. Do you know if he made that statement? Answer, I'm not sure if he said that or not. That was your testimony, right? Correct, that was your testimony on that date? A. I'm not sure if he said them or not. Okay. That's on 19? Q. Right. That was your testimony, right, on page 50. A. All right. Q. Then the very next thing he says is that, after that, there were remarks attributed to Mr. Buckingham's wife on the subject of creationism. Do you see that? A. Yes, I do. Q. Now if you go back to P-54, and you look at the seventh full paragraph, where it's talking about the statements by Charlotte Buckingham, all right, do you see that? A. Okay. Q. If you see the statement, just before that in the article is about a liberal agenda chipping away at the rights of Christians in this country? A. Okay. I see that. Q. Okay. Now what I'm asking you is, P-54 and specifically that statement, seventh full paragraph on the second page, that's the statement that you looked at your deposition just before you told Mr. Rothschild that you couldn't remember anything that Mrs. Buckingham said at the meeting, isn't that right, Mr. Bonsell? A. That's what I said in January, yes. Q. And that was P-54, you were looking at that time in that specific statement? A. That's what it appears to be, from what you're saying. I guess there is no other articles on that date, so I would imagine that's it. Q. Mr. Bonsell, you testified this morning about when you ran for the school board in 2001. Do you recall that? A. Yes. Q. And is it your testimony that you didn't bring up creationism or school prayer at any time during the course of running for that office? A. That was nothing that we -- that was nothing that we ran on, no. Q. And my question is, you didn't bring it up at any time during the course of running for office, is that correct? A. In the course of running for office? I don't believe. No. Say that question again. Q. I'd like to know whether at any time when you ran for school board in 2001, you brought up the subject of creationism or school prayer? A. In my running for school board, I don't believe I did. Not that I recall. Q. We looked at this morning a document. Matt, would you bring it up, P-21, and highlight the first and second items under Mr. Bonsell's name there. A. I'm sorry. Which number is this? Q. P-21. A. Oh, okay. So just look on the screen here. All right. Q. If you would like, you can look on the screen or you can look at the exhibit. A. All right. Q. You talked about this morning, this same document with a different number on it from your counsel. And is it your testimony that you did not say or bring up the subject of creationism at that school board retreat on January the 9th of 2002? A. Did I say I didn't bring it up? Q. I'm asking you now. Did you mention creationism at that school board retreat? A. As my testimony earlier, I must have. I must have brought it up at the board retreat. Q. Do you remember bringing it up? A. I don't remember. There again, I don't remember what I wish I did, but I don't remember what I said about it, no. Q. I'm just asking not whether you remember what you said about it. Do you remember bringing it up at all at that school board retreat? A. I don't remember bringing it up. Like I said, Dr. Nilsen wrote it down, so I must have said it. Q. If you could take a moment to look at what has been marked as P-25. Matt, would you please bring that up? Focus on the third item under Mr. Bonsell's name. Now, Mr. Bonsell, do you see that, the third item under your name, under what's been marked as P-25, is creationism again? A. Yes, sir. Q. Do you remember bringing that up at the school board retreat in March of 2003? A. Again, I don't really remember any of this or, from my previous testimony, I believe I said, I don't remember this or any of the other subjects from this or other board retreats. Q. Do you remember that you had an interest in creationism when you were a member of the school board in 2002 and 2003? A. Did I have an interest in it? It might have been a question about it. But I don't know -- maybe you need to be more specific. Q. Sure. Matt, would you please bring up Mr. Gillen's opening statement at page 19? The -- no, the last full paragraph on page 18 and the first full paragraph on 19, please. I'm sorry. 18 and 19. That's it. You were here for the opening statement in this case, weren't you? A. I believe so, yes. Yes. Q. And Mr. Gillen said the following words: Alan Bonsell is a perfect example. He came to the board without any background in education of the law, just a sincere desire to serve his fellow citizens. By virtue of his personal reading, he was aware of intelligent design theory, and that 300 or so scientists had signed a statement indicating that biologists were exaggerating claims for the theory. He had read about the famous Piltdown man hoax. He had an interest in creationism. He wondered whether it could be discussed in the classroom. Do you see those words? A. Yes, I do. Q. Now is it true that you had an interest in creationism, as your counsel said in his opening statement? A. Well, I have said it twice at two board retreats, so it must be. That's why I said, it could be as a question in that, as just like I have testified about prayer. Q. Well, let's just put aside what was said at the board retreats and focus on what you remember about your own self during that time period. Do you remember that you had an interest in creationism with respect to the Dover public schools in 2002 and 2003? A. Did I have an interest in creationism in the public schools? I mean, what do you mean by that? Q. I mean, did you think to yourself, gosh, I'd like to have creationism in the schools or I wonder if I could have creationism in the school or what would it be like if we had creationism in the schools or any thoughts whatsoever, Mr. Bonsell? A. I don't think in that respect. I think more in the respect of, you know, is it taught? Is it not? Is it even mentioned? In what -- it's sort of like, you know, in what way does Dover look at this, if they do? I mean, I could see something like that. Q. I'm not asking you if you could see something like that. I'm asking you if you have a memory of wanting to know how the Dover schools dealt with creationism? A. That could be. Q. That could be or that is? Either you remember or you don't, Mr. Bonsell. A. Did I ever have an -- could you ask that one more time? I'm trying to get an understanding of where you're coming from with the question. Did I ever have an interest at all in creationism? Q. Yes, sir. And the question is more specific. Actually, it's in 2002 and 2003, whether you had any interest in creationism that related to the Dover schools? A. Probably. Q. That you can recall? A. Probably. Q. Whether it was said or not, whether it was just in your head and never said? A. Probably. Q. Now I'd like you to take a look at what has been marked as P-26. And we'll bring that up on the board. This document is a memo from Trudy Peterman to Mr. Baksa, Mr. Reading, and Mrs. Spahr, isn't that correct? A. Do you have a number I can look at? It's awful small. Q. It's P-26 in your notebook. That might be easier for you to look at. Do you have that in front of you? A. Yes, I do. Q. That's dated April the 1st, 2003? A. April 1st, 2003, yes. Q. Now if you'd look at the last sentence of the first paragraph. Matt, would you highlight that, please? That says, Mr. Baksa further stated to Mrs. Spahr on March 31, 2003, that this board member wanted 50 percent of the topic of evolution to involve the teaching of creationism. Do you see that? A. I see that. Q. And the memo doesn't identify who the board member is, who wanted it, correct? A. Not in that sentence, no. Q. It doesn't actually anywhere in that whole paragraph or the letter, isn't that correct? A. I didn't -- do you want me to read it? Q. Well, look at the first paragraph. A. Okay. Q. All right. That doesn't identify who the board member was who wanted this? A. No. No, it doesn't. Q. Right. Now Mr. Rothschild asked you about this at your deposition on April 13, and he showed you P-26, which we just looked at, which is one of the documents that says creationism next to your name. Excuse me. He didn't -- not -- it's P-26 in this document. I'm sorry. He showed you this document at your deposition, and he asked if you recalled advocating the teaching of something 50/50 with evolution in or around this time, April 1, 2003. Do you recall that? A. Can you show it to me, please? Q. Sure. Go to the second -- your second deposition on April the 13th. A. April 13th one. Q. Beginning on page 45. A. I'm sorry? Q. Beginning on page 45, line 20. A. Line 20. Q. He asked you, and I'll -- did he not -- and my question to you is, Did you ever, did you personally ever express that to Mr. Baksa, that you wanted 50 percent of the topic of evolution to involve the teaching of creationism? Answer, No. Question, Did you ever express to Mr. Baksa or in Mr. Baksa's presence that you wanted 50 percent of something else to be taught along with the topic of evolution? Answer, No, I don't believe so. Do you see that? A. Yes, I do. Q. That was your testimony on that date, right? A. Yes. Q. Mr. Bonsell, that was your testimony on that date? A. Yes, yes. Q. Now that was before the Defendants produced either P-21 or P-25, the documents that we just looked at that have creationism next to your name. They came -- they were produced later in the course of the litigation, you know that, right? A. P-21? Q. And P-25? A. Oh, the ones you just -- oh, okay, the retreat, yes. Q. Yes, they were produced after your deposition on April the 13th, so we couldn't show them to you on that date, right? A. Yes. Q. And your deposition also occurred -- your deposition was on, excuse me, the board retreat in March of 2003 was actually on March the 26th, right? We can see that by looking at P-25? A. March 26th? Q. Right. A. Yes. Q. And that was less than a week before the date of the Trudy Peterman memo, which was April 1, right? A. Okay. Q. Isn't that correct? A. April 1st, that would be correct. Q. And your deposition was taken before Mrs. Callahan located what has been marked as P-641. Can you bring that up, Matt? A. P-641? Q. Right. A. Okay. Q. All right. Now you actually looked at a copy of that document earlier in your direct examination without the handwriting on it, isn't that right? A. Yes. Q. Now the handwriting, if you look on the right-hand side, are two-thirds of the way up or maybe just a little more than two-thirds of the way up, it has handwritten, Alan. Am history. Founding fathers. 50/50 evolution versus creationism. And then there's an arrow that says, does not believe in evolution. Would you agree that's what that handwriting says? A. Yes, it does. Q. So I've asked you to look at these various documents, because we didn't have them when we took your deposition on April the 13th. Now looking at these documents, can you tell us, were you the board member who wanted to teach evolution, 50/50 evolution, creationism, in or around March of 2003? A. No, I don't believe I am. Q. In fact, to the best of your recollection, you've never talked about creationism at any school board meeting, isn't that correct? A. Any school board meeting? I don't recall it being discussed. You're talking -- and you're saying, never said the word in a board meeting or -- Q. Yes. A. I just don't recall it in a board meeting. Q. When we asked you about this at your deposition, you said you never talked about creationism at any school board meeting. Do you remember that? A. Okay. Q. Is that correct? A. That sounds correct. Q. That's what you told us when we asked you this at your deposition. You never said creationism at any school board meeting? A. Okay. Q. Now if these two documents that we've looked at, the board retreat documents showing the word creationism next to your name in 2002 and 2003, if they hadn't turned up, we would never have learned from you that you had brought up creationism, isn't that correct? A. That is -- I guess that would be true. The thing is about that, you're asking me about my recollection. I believe, number 1, is, we brought these papers forward. And that basically, you know, you're asking me about my recollection. Mrs. Callahan didn't have a recollection of it. Mrs. Brown, Mr. Brown, the administrators. The same thing. So -- Q. Well, you didn't bring those documents forward personally, did you? You didn't find those? A. No. Q. Dr. Nilsen found those, correct? A. Correct. Q. He gave them to your counsel, who turned them over to us? A. That's correct. Q. Now let's talk for just a few minutes about creationism. Creationism is your personal belief, right? A. Yes -- well, you want to give me a definition before I say yes? Q. Well, we asked you this at your deposition, and you said that your creationism was your personal belief, isn't that correct? We'll talk about what it means in a minute. A. Well, that's what I said. I mean, again, I believe I've also said that everybody's definition of creationism could be different. Q. Well, we're interested in your definition of creationism. You believe in creationism, don't you? A. My faith? Q. Yes. A. Yes. Q. And that actually is based on the Bible, on Holy Scripture, isn't that correct? A. Yes. Q. And one aspect of creationism is that species exist -- excuse me -- is that species were formed as they now exist, isn't that right? A. I believe so. Q. And that species, including man, do not share common ancestors? That's one aspect of creationism, as you understand it? A. As I understand it. It is my belief. Q. And that means that birds were formed with their feathers, beaks, and wings, correct? A. Well, that's not in the first parts of Genesis, but, okay. Q. Well, I recognize that's not in the first parts of Genesis, but that is part of what you understand to be creationism, correct? A. That the animals were formed, yes. Q. Well, including specifically birds with their feathers, beaks, and wings, that they were formed that way, correct? A. Yes. Q. And that's your personal religious belief? A. Yes. Q. And that fish were formed with their fins and scales? A. That would probably be true. Q. Again, that is your personal religious belief? A. Yes. Q. And that humans -- and it's also your personal religious belief that humans -- I would say man, but that's not politically correct anymore -- that humans were formed, were created in their present form, right? That's part of your definition of creationism? A. Yes. Q. Again, that's, with all respect, your personal religious belief? A. Uh-huh. Q. I'm sorry. You need to say yes or no. A. Yes. I'm sorry. Q. And as part of that, it's part of your personal religious belief that humans did not evolve from any other species, correct? A. My religious belief, yes. Q. Now -- and all of those things that we just discussed are aspects of creationism, correct? A. Okay, yes. Q. Now some people who believe in creationism think that the Earth is not billions of years old, but only thousands of years old. Are you familiar with that? A. There are some people that believe that, yes. Q. And then other people who believe in creationism believe that the Earth is possibly billions of years old, right? A. I guess there's all sorts of beliefs, yes. Q. Well, specifically, we're talking about beliefs in creationism. I'd like to know, what's your personal religious belief on that subject? A. I don't believe that the Earth is billions of years old. As far as exact time, I can't really say. Q. Do you believe that it's only thousands of years old? A. I would say, thousands and not billions. Q. Just to be clear, that's your personal religious belief? A. Yes, yes. Q. Now the theory of evolution teaches, among other things, that humans evolved from another species, a lower form of life, and that humans and other species share a common ancestor. You understand that, that is one of the things that the theory of evolution teaches? A. I believe, in macro evolution, yes. Q. And that specific aspect of the theory of evolution is offensive to your personal religious beliefs, isn't it, Mr. Bonsell? A. Offensive? I don't believe it -- I have my beliefs. Q. Well, it's inconsistent with your personal religious beliefs? A. It's inconsistent. Q. Now, Mr. Bonsell, do you believe that evolution is atheistic? A. Not necessarily. Q. Well, take a moment to look at what has been marked as P-127. Matt, would you please bring that up, second page? A. 127? Q. Correct. A. I don't think that's in my book. Q. You know, gosh, it didn't make it into the book. I can get you a copy of it or you can look on the screen. A. I'm trying to look. He blew it up a little bit here. I should be able to read it. Q. Yes. Actually, I want to look at the -- P-127, this document that we're looking at, this is the February newsletter that the school board sent out? A. Okay. Q. You put together some frequently asked questions? A. Okay. Q. Isn't that right? Do you remember that? A. Yes, uh-huh. Q. You had assistance from the people from the Thomas More Law Center in putting this together? A. Yes. Q. Now if you go to what we're just looking at, that one particular frequently asked question, quotes, Are there religious implications to the theory of ID, end quotes. Do you see that? A. Yes. Q. And ID is intelligent design? A. Yes, it is. Q. And it says, and I'd like to read it to you, Not any more so than the religious implications of Darwinism. Some have said that, before Darwin, we thought a benevolent God has created us. Biology took away our status as made in the image of God or man is the result of a purposeless process that did not have him in mind. He was not planned. Or Darwinism made it possible to be an intellectually fulfilled aethiest. Do you see that? A. Yes, I do. Q. Now are you trying to convey, that P-127, that passage I just read, trying to convey that evolution has anti-religious implications? A. Not necessarily. We were basically responding to what we were hearing out in the public and trying to respond to different things along that line. We were saying it was religious implications of ID. That was one of the main thrusts of the whole thing. Q. I guess what I'd like to know is this. This is -- not I guess what I'd like to know, I know this is what I'd like to know. Do you agree with me that the theory of evolution is religiously neutral, it doesn't have any implications for the existence of God or any other deity? It doesn't suggest the non-existence of God or any other deity. It is religiously neutral. Do you agree? A. No. Q. You don't agree that evolution is religiously neutral? You think it has religious implications? A. You could have religious implications with Darwin. Q. Sure. Well, somebody could draw implications from anything, but I'm asking you, is standing alone, is it your understanding that the theory of evolution has no religious or anti-religious implications one way or another? Do you agree with me on that? A. No, it doesn't have anymore religious implications than ID. Q. We're not talking about ID right now. We can talk about that later perhaps. We're talking about evolution. I just want to know if you agree that evolution has no religious implications? A. No, I don't agree with that. Q. So you think evolution does have religion implications? A. It could have religious implications. I mean, scientists that I've heard here are saying that there's religious implications in every theory. So, no, I don't agree that it's neutral. Q. Now, before you said that at some level you had an interest in creationism in the Dover public schools, isn't -- do you remember that testimony? A. I'm sorry. Repeat that. Q. Before, we were asking about, talking about your, the statement, your counsel's opening statement about your interests in creationism, and you, I believe, agreed with me that, at some level, in your mind, perhaps not expressed, you had an interest in creationism in the Dover public schools. Do you remember that? A. In my mind? I guess I could say yes to that. Q. Did you want to do something to present or teach or somehow address or involve creationism in the Dover public schools? A. I have never brought anything forward to put creationism into the school district in any way, shape, or form. Q. I'm asking you, not what you did, but I'm asking you what you thought because -- A. What I thought? Q. Yes. Did you ever think that? A. I don't know. Did I ever think about it? Did I ever think about it? I think about a lot of things. Did I ever think about it? Q. Let me ask you the question again, Mr. Bonsell. We've seen two documents that have your name and the word creationism next to them, and you agree that you are sure you said them? A. In that with respect, I guess I would say, yes. Q. But you don't remember saying it, and so you -- obviously, it was there, you obviously said it, but you can't remember anything, but what you said about it, and I'm asking you now if you remember that you wanted to, you have no recollection of expressing it, but that you wanted to somehow bring creationism or address creationism in the Dover public schools? A. No, not in that respect, no. I mean, obviously, I said it at two board -- said the word at two board retreats so, obviously, I must have had the word in my head when I said it, as far as that goes. But I never brought anything forward about it at all. Q. And again, I'm just, you don't even have any recollection of a thought process about doing something within the Dover schools, correct? A. Not that I recall. Q. You testified before in your direct that, in your view, intelligent design is not creationism? A. Absolutely. Q. And Pandas, the book Of Pandas and People is the reference source for information about intelligent design for students in the Dover High School, at least according to the board's resolution? A. It's a reference book. Q. It's the reference book on intelligent design, right? A. Yes. Q. And it's for the students in the Dover High School? A. If they want to look at it. Q. Right. And I'd like to show you -- Matt, if you could please bring up P-11. And Mr. -- I want to ask you a couple questions about Pandas. Let me get you a copy of it. Mr. Bonsell, I've just given you a copy of the book Of Pandas and People, and it's been marked as P-11. And I'd like you to go to pages 99 and 100 of this textbook, which you've been in court for much of the trial, haven't you? A. A lot of it, yes. Q. Matt, could you bring up -- and actually, we've highlighted the language that I want you to look at on page 99 and 100. And it's highlighted on your screen. It says that, quote, 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. Do you see that? A. I see that, yes. Q. Now would you agree with me that, that's the same or at least very similar to what you said was one aspect of creationism? A. It's very similar, but I also have an understanding from Dr. Behe that he didn't think that was -- that should have been in there. Q. Now I'd like you to look at the same document, P -- page 156. Matt, could you please bring that up? It's on the left column in the middle. It's the paragraph that begins, This is precisely why a book that questions -- Mr. Bonsell, I'd like you -- do you have that page in front of you? A. I have it on the screen there, yes. Q. I'd like to read this paragraph to you. It says, quote, This is precisely why a book that questions the Darwinian notion of common descent is so necessary. By presenting a reasonable alternative to evolution in the second sense; i.e., common ancestry, Pandas helps students learn to work with multiple perspectives to distinguish those perspectives from facts and to guard themselves against the illusion of knowledge. Do you see that? A. Yes, I do. Q. And that's consistent with your personal religious belief that doesn't believe in common ancestry as taught in the theory of evolution, isn't that correct? A. It really didn't go into what the alternative is here in this sentence though. They're saying, by presenting a reasonable alternative to evolution in the second sense; i.e., common ancestry. Is that what you're talking about? Or can you give me exactly what, you know, what it is that I'm supposed to be agreeing to here? Q. Sure. I'm asking you, Pandas questions the notion of common descent, isn't that correct? That's one of the things that Pandas does? A. Well, again, my understanding from listening to Dr. Behe, that there's, you know, he doesn't have a problem with common descent, from what I understood. So I think this could be -- maybe there's some that do and some that don't. Q. I understand that. But I'm asking you if it's your understanding that the book, Pandas and People, the reference source on intelligent design that's provided to students in the Dover High School, questions the notion of common descent? A. Well, that, I'm not sure of, because I don't really see that in that sentence saying that -- it says there's a reasonable alternative, but it doesn't say what that is, so I don't know if it's something that could be part of that or not part of it or what. So I can't really answer yes or no to that. Q. Well, actually, I'm looking at the first sentence, the words that say, A book that questions the Darwinian notion of common descent. Do you see that? A. Questions the notion, okay. Q. Right. That's clearly referring to the book in question, to Pandas, correct? A. Yes. Q. My question is simply, you agree that the book Pandas, not Dr. Behe, but the book Pandas questions the notion of common descent? A. That's what it says there. Q. Again, that's consistent with your religious personal beliefs? A. Questions the notion of common descent? Yes. Q. Now I'd like to ask you to look at page 92 of Pandas, the last paragraph in the right column? A. 92. Q. Tell me when you've got that. It's also on the screen. A. That's even bigger, so it's good. Q. It says, An additional issue concerns the matter of the Earth's age. While design proponents are in agreement on the significant observations about the fossil record, they are divided on the issue of the Earth's age. Some take the view that the Earth's history can be compressed into a framework of thousands of years, while others adhere to the standard old-earth chronology. In this chapter, we will examine the three features outlined above. Do you see that? A. I see that, yes. Q. I didn't need to read the last sentence. But I guess what I'm asking you is that, Pandas, to your knowledge, takes no position on the age of the Earth, correct? A. I didn't read it cover to cover, but if that's what you're telling me, yeah, I'll agree with you. Q. I'm asking you if that's your understanding, that the book Of Pandas and People doesn't take any issue with the age of the Earth? It doesn't address it one way or the other? A. I'm not sure. Q. Okay. But in any event, the -- this paragraph that we're looking at right here says that proponents of intelligent design have different views on the age of the Earth, as I just read, correct? A. Yes. Q. And that's consistent with your personal religious beliefs as well? A. Well, I believe that what it says is that, some might agree with what I'm saying or what I believe and some don't that are in that design proponent. So I don't think that's -- I would then have to say, no, that isn't correct. Q. Well, you would agree that it's not inconsistent with your personal religious beliefs? A. Well, yes, it would be, because there is -- they're divided on the issue. So, yes, I would say that is an inconsistency. Q. So to the extent that Of Pandas and People teaches that the Earth is really billions of years old and not thousands of years old, that's inconsistent with your personal religious beliefs? A. Yes. THE COURT: Mr. Harvey, wherever you see a logical break point, we can take a break. MR. HARVEY: I just concluded a section, Your Honor, so this will be perfect right now. THE COURT: That's what I thought. We'll take a 20 minute recess, and then we'll return with your cross examination at that point after the recess. (Whereupon, a recess was taken at 2:53 p.m. and proceedings reconvened at 3:15 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 18 (October 31), PM Session, Part 2 THE COURT: All right. Mr. Harvey, you may resume your cross examination. CROSS EXAMINATION ( CONTINUED) BY MR. HARVEY: Q. Mr. Bonsell, at your deposition, you told us that you had either read a book or parts of a book or books by William Dembski. Do you remember that? A. Yes. Q. Did you read Intelligent Design, The Bridge Between Science and Theology by William Dembski with a forward by Michael Behe? A. Can I see that? Q. Sure. MR. HARVEY: May I approach, Your Honor? THE COURT: You may. THE WITNESS: This doesn't look familiar. BY MR. HARVEY: Q. You don't think you read that book? A. The cover doesn't look familiar, no. They said Dembski. I believe -- I don't know if I read the whole book. Just bits -- I mean, parts of the book of a Dembski book. Q. Did you ever read a book in which Mr. Dembski said that, quotes, Any view of the sciences that leaves Christ out of the picture must be seen as fundamentally deficient? A. No. I remember the bit -- what I can remember, I believe, of his book, he was talking about how the scientists were treated that had any other view outside of Darwin's view, how the scientific community treated them, their own friends treated them, how they were basically ex-communicated. People that were friends of his, they wouldn't even look at him anymore. Q. Well, there's another volume called, It's Mere Creation, Science, Faith, and Intelligent Design. It's a correction of essays edited by Mr. Dembski with contributions by Michael Behe and Phillip Johnson, among others. Is that the book that you are referring to that you read? A. No, that doesn't look familiar either or sound familiar. Q. Now putting aside books and talking about newspapers, you testified that you read the York Dispatch. You have that actually delivered to your home, correct? A. Yes. Q. And you, many days, read the York Daily Record as well, correct? A. Yes. Q. And that was true in June of 2004? A. It probably was, yes. Q. And at your deposition, you told us that you had read many of the news reports in this case? A. Many of them. I mean, there's been a lot. Q. Do you recall that in June of 2004, the York papers reported that Mr. Buckingham, who was at that time the head of the curriculum committee, had advocated at a public meeting in June of 2004 or had said at a public meeting in June of 2004 that he was concerned that the Miller Levine textbook recommended by the teachers and administration was laced with Darwinism? A. Which meeting was that? Q. Any meeting. That it was reported in the June -- in the York papers in June of 2004, that Mr. Buckingham had said that? A. It sounds -- I testified that I remembered hearing him say that, yes. Q. Well, putting aside whether you remembered hearing him. I know you testified that you heard him say that, but I just want to know, that was reported in the papers, correct? A. Could you show me what you're talking about? Q. Sure. Take a look at has been marked as P-44. Do you have that in front of you? Then if you go to the second page, fourth paragraph? A. Second page? Q. Yes, the second page of P-44. Matt, would you please bring up the fourth paragraph? It says that, quotes, Buckingham said, although the book has been available for review since May 20003, he had just recently reviewed the book himself and was disturbed the book was laced with Darwinism. A. Okay. I read that. Okay. Q. I just want to know, you knew that was reported in the York papers in June of 2004? A. Okay. Q. Right? A. That's what it says, yes. Q. Okay. And you knew that in June of 2004, the York papers reported that Mr. Buckingham had said that the committee, that's the curriculum committee, would look for a book that presented both creationism and evolution? A. I don't recall that. Q. Okay. And I'm not asking you whether you recall it being said. I'm asking you if you knew that that was reported in the papers at the time? A. Right here at this moment? Can you show it to me? Q. Sure. Why don't you -- Matt, will you please bring up P-45? You can either look on the screen or look in your book at P-45. P-45 is a June 9th article from the York Dispatch written by Heidi Bernhard-Bubb. Do you see that? A. Yes, I do. Q. And if you go to the second page -- I'm sorry, first page, fifth paragraph, second line -- second sentence. I'm sorry. Can you highlight that, Matt? Beginning, Buckingham said. Do you see that? Buckingham said the committee would look for a book that presented both creationism and evolution? A. I see it. Q. You knew that was reported in the papers, in the York papers in June of 2004? A. I mean, I see it here, yes. Q. Well, you got the York Dispatch, didn't you? A. Sure. Q. I mean, there's other York papers that reported. Do we need to look at those or do you remember that you read that? A. I'm just saying, I don't remember off the top of my head reading every report that was made by a newspaper report for, you know. So that's why I'd have to see it. I mean, yes -- I mean, that's what it says, yes. Q. You believe you saw that in June of 2004? A. Probably. Q. Well, just to make sure, let's take a look at P-46. Right. That's also an article dated June the 9th, 2004, except this is from the York Daily Record, and it's written by Mr. Maldonado. Fifth paragraph. Matt, could you highlight that, please? It says that, Buckingham and other board members are looking for a book that teaches creationism and evolution. Do you see that? A. I see it. Q. Okay. A. Yes. Q. And you knew that was -- I guess I'm just asking you to remember that you knew that was reported in the York papers in June of 2004? A. Okay. All right. Q. Do you remember that, that it was reported in the York papers? A. Well, again, I can't say I recall every article that was written in both papers and the Sunday paper and everything that I see. I don't remember exactly word for word what was said, but I see that there was one on June 9th, and I agree with that, that was reported. Q. We can look at other articles. A. No. Q. There's no question that you knew in June -- THE COURT: Hang on, please. You may proceed. BY MR. HARVEY: Q. Mr. Bonsell, just more generally, you knew, in June of 2004, that the York papers were reporting that the board or some board members wanted creationism? A. That's what they're reporting, yes. Q. You knew that in June of 2004? A. Okay. Q. Is that right? A. Obviously, yes. Q. Okay. And now did you know in June of 2004, that the York papers had reported that Mr. Buckingham had said at a public board meeting, 2000 years ago, a man died on a cross, can't someone take a stand for him, or words to that effect? A. I believe something along those lines, yes. Q. That was reported in the York paper? A. That was reported, yes. Q. And did you know that, do you remember that in June of 2004, it was reported in the York papers that Mr. Buckingham had also said, this country wasn't founded on Muslim beliefs or evolution, it was founded on Christianity, and our children should be taught as such, or words to that effect? A. Probably, yes. Was that at a board meeting? Q. I don't know whether -- I mean, I don't know whether it was at a board meeting or not, but it was reported that Mr. Buckingham had said that publicly? A. Okay. Q. Did you know that? A. Probably. Q. Do you want to take a look at an article? A. Well, that's fine. Q. Go to P-47? A. If you are saying they reported it, I believe you. Q. Okay. That's all I'm -- I'm just getting to confirm that you knew that was reported in June of 2004, right? A. Sure. Q. All right. Now did you know that in June of 2004, the York papers reported that a group called the Americans -- called Americans United for Separation of Church and State was considering legal action against the board if it chose a textbook that included creationism? A. The question is whether they reported that or whether it happened? Q. Well, did you know in June of 2004 that the Americans United for Separation of Church and State -- A. I don't recall. That, I don't recall if they did in June. I know that name came up somewhere along the line in 2004. Q. Well, take a look at what's been marked again, back to P-45. Are you at P-45? A. Okay. Q. It's the seventh paragraph, begins with the words, Robert Boston? A. Yes, I see that, yes. Q. It says, Robert Boston, spokesman for Americans United for Separation of Church and State, said the district will be inviting a lawsuit if it chooses a textbook that teaches creationism. Do you remember that was reported in June of 2004? A. Okay. Q. Was that a yes? A. I mean, it definitely was reported, yes. Q. If you look at P-54 -- well, yeah, if you look at P-54, second page, tenth paragraph, again, beginning with Robert Boston. Are you at that -- tell me when you're there. It says, Robert Boston, spokesman for Americans United for Separation of Church and State, has said that the district will be inviting a lawsuit if it chooses a textbook that teaches creationism. And then it goes on to say that, Buckingham said he did not believe the members of the Americans United know what it means to be American. Do you see that? A. Yes, I do. Q. I'm just trying to get you to remember that in June of 2004, you knew that Americans United for Separation of Church and State were talking about bringing a lawsuit against the board if it talked -- if it was going to teach or select a textbook that included creationism. Do you remember that? A. I see it, that was printed. I didn't remember. You know, I don't remember exact dates, but this is from that time period, so I say, yes, I see it here. Q. Now you never put anything in writing to any of the newspapers in June of 2004 or afterwards to say that anything they reported was incorrect, isn't that true? A. I'm not sure if I ever put anything in writing to newspapers saying they were inaccurate. Q. Fair enough. And, in fact, you didn't ask the reporters of the newspapers themselves to correct any statements that were reported about the board meetings in June of 2004, did you? A. I'm not sure if I don't recall in the second meeting saying about inaccuracies in the press at the board meeting. Q. So you may have said something about inaccuracies in the press at a board meeting? A. I don't remember exact words, but it's -- that's what I am thinking, yes. Q. But you never, with respect to any specific statement, asked the press -- told the press, the York papers or the reporters, that something was inaccurate? A. Well, if I was reporting about inaccuracies in the press at the second board meeting in June, it would have had to do with the first board meeting in June, which is what this is talking about. Q. You never said anything specific to any members of the press, the York papers or the reporters? A. I didn't write anything, if that's what you're asking. Q. You never said anything either, that specifically you said that -- A. Well, I might -- I can't sit here and say, yes, that is specifically what I said. But I'm saying inaccuracies at a board meeting, that's probably a pretty good indication. Q. Mr. Bonsell, you need to let me finish my question -- A. I'm sorry, I'm sorry. Q. -- before you start answering. You did it again. Just be careful about that. I guess -- I'm just trying to establish that you never went to the papers and said that anything specific was inaccurate in any way? You never said that, isn't that correct? A. I don't -- I never went to anybody or said anything to anybody? Is that what you're asking? Q. You never went to the papers or the reporters about the coverage in June of 200 let me finish -- about the coverage in June of 2004 and said, this statement is incorrect or that statement is incorrect or there's something specific in there that's incorrect, did you? A. Again, I believe I had talked about inaccuracies, but I don't have specific exactly, because I just don't remember from June of 2004 exactly what I said. But obviously, when we started talking about intelligent design and the words started to be interchanged, this would be a clear example of that. But I can't sit here honestly and say, yes, absolutely, that's what I talked about. But this would clearly indicate that that's probably what I was talking about. Q. But you don't have any memory of saying to the members of the press that any specific statement or anything specifically that was reported was inaccurate? That's all I'm asking you to agree with me on. That's true, isn't it? A. Again, can you say that one more time, please? Q. You never said to anybody with the York papers that any specific statement was inaccurate, isn't that true? A. I can't remember that, so I can't say, no, I -- again, you need to 4 didn't. Q. Well, you certainly have no memory of doing that. That would be a fair statement, wouldn't it? A. The thing is that, it sort of all goes together because I was saying things to reporters, especially Joe Maldonado, all the time, at board meetings, after board meetings. I talked to him on the phone. I talked to, like I said, numerous editors. But I've never written them a letter. So, I mean, the thing is, if I was going to write every time that the media had put in something that wasn't correct, I wouldn't get anything else done. Q. I understand your testimony on that point, Mr. Bonsell. I'm just asking you to confirm for me that you have no memory of ever going to the York papers or their news reporters with respect to anything that was reported in June of 2004 and saying, that statement is wrong, or anything specific in there is incorrect, isn't that true? A. I guess not -- if you're asking me specifically, absolutely, that I said that, then I would have to say, no, I don't. Q. You didn't -- you never did that, correct? A. I'm not saying that. I'm saying, you're asking me if I have a recollection of that specific thing. No, I don't have a recollection of that specific thing. But like I said before, because of what I said at other meetings, it would lead me to believe that this possibly could be one of the reasons. But going back to your question, absolutely, no. Q. Well, can you point to anywhere where you made or any board member or the administration made a public statement that, what was reported in the York papers in June of 2004 was incorrect? A. I -- do you want a specific date? I can't give you a specific dates. But I can tell you that it was done at board meetings. I, sitting in that chair, have specifically said that there are things that were not reported correctly. I mean, so -- I know I've done it. But if you're asking me specifically, that, I can't -- I didn't write it down, which dates I said that, because it was an ongoing thing. Sometimes I said it to them after the meeting. Sometimes I said it to them when I was sitting behind the table. So, I mean, I can't tell you specifically. Q. Well, did you -- going back to where we were just a minute ago. Did you do that with respect to anything specific that was reported about what happened in the June meeting? Did you say that, this statement, creationism was discussed, is wrong? Did you ever say that to anybody in any public forum that the newspapers had got that wrong? A. I'm sure at some point I had said about using the word creationism for intelligent design. But like again, I can't sit here and tell you what specific date that I would have said that or if I said it, because more than likely, I said it more than once. But I'm sorry, I can't answer your question as a specific date. I just can't give that to you. Q. Well, it's not -- it's more than a specific date. You can't even remember what you said specifically, correct? A. I'm sure I would have said something along the lines of, the teaching, we're not teaching, because I said that over and over again. We're making kids aware. I'm sure that when they say creationism, it's not creationism, because if I said that once, that intelligent design is not creationism, I said it a hundred thousand times, that it's not creationism. So, I mean, I said that in board meetings, out of board meetings. So, but again, I mean, I said it all the time. Q. What about Mr. Buckingham's comment that was reported, 2000 years ago, a man died on a cross, can't someone take a stand for him? Did you or any other board member ever say in any public forum that that was not said? A. I think, in my deposition, I remember him saying that. But I think it was at a different time period. So I wouldn't say he didn't say it, because I remember, but I think it was a different time period. Q. Well, you told us -- that's your testimony, that it was said at a different time period, it was said in November 2003, it wasn't said in June 2004. That's your testimony on that? A. I believe that's what I had said before, yes. Q. All right. But my question -- and you told us that, as you say, at your deposition? A. I believe that was. Q. But did you ever say it to any -- did you or any board member of the administration say it before then, that that was something that was inaccurate, that wasn't right in the press? A. I don't recall. Q. Now the only statement in writing in response to what was reported in the press is Mrs. Geesey's letter to the editor of June the 27th, which has been marked as P-60. Could you please bring that up, Matt? We've got it blown up on the screen, if that's helpful, too. A. Oh, okay. Thank you. Q. Have you seen this before? A. I think I saw it the other day when I was here at the hearing. Q. This is a letter, according to Mrs. Geesey, that she wrote, and that was published in the York Sunday News on June the 27th of 2004? A. Okay. Q. Right? A. All right. Q. And in here, she is responding to some of the things that are being said and reported in the papers, correct? A. I guess so. I believe that's what she had said, that she was responding to somebody's letter. Q. And the question is, you're not aware of any board member or the administration ever responding in writing to anything that was said in the press other than this letter, correct? A. I mean, about that particular board meeting? There again, I'm saying, if you're asking me, absolutely specifically on something, I'd have to say, no. When did it happen? It happened all the time. Yes. But it wasn't in writing. Q. Okay. Fair enough. So it's your testimony then that, other than this letter by -- to the editor by Mrs. Geesey, no board member of the administration ever put in writing that they disputed anything that was reported in the York papers in June of 2004, correct? A. Well, yeah. In writing -- well, I shouldn't speak for everybody. I don't know. I mean, I'm speaking for myself. I don't know. There could have been others. I just don't know. Q. So you don't know of any except Mrs. Geesey's letter in which she talks about creationism, right? A. I don't think -- she's responding to somebody writing, or another editorial letter, isn't she? Q. Yes, she is. A. She's responding to an editorial letter not about a board meeting, about an editorial letter, correct? Q. We can take a look at it, if you want. A. No, I'm just asking. I thought that's what you said. This is a response to an editorial. Q. It was in response to something that was said in the papers? A. Yeah, in the papers. Q. Why don't we take a look at that? A. Okay. Because I thought it was -- yeah, I remember it from the other day. Q. Please bring up what's been marked as P-56. And you can turn to it in your notebook as well. A. P-56? Q. Yes. A. Yes. Q. All right. You've had a chance to review that, haven't you? A. Yes. Q. Now this is a letter from Beth Eveland, one of the Plaintiffs in this lawsuit? A. Yes. Q. And it was published in the York Sunday News on June the 20th of 2004? A. Okay. Q. Right? A. Yes. Q. And in it, she's saying that she was very upset about something she read in Wednesday's York Daily Record, and the specific thing she mentions is the York Daily Record's report that Mr. Buckingham had said, this country wasn't founded on Muslim beliefs or evolution, this country was founded on Christianity, and our students should be taught as such. Correct? A. That's what she says here, yes. Q. And then Mrs. Geesey, if you go back to P-60 for just a minute, is responding to this. All right. Can you see in the first paragraph, she refers to Ms. -- to Beth Eveland? A. Yes. Q. Okay. We're making this more complicated than it needs to be. All I'm saying is, other than Ms. Geesey's letter to the editor on June the 27th of 2004, in which she refers to creationism, you're not aware of any board member or the administration putting in writing that they -- reacting or responding in any way to the reporting of the York papers in June of 2004? A. Am I aware of any writing? I would say, no, I'm not aware of any writing. Q. Okay. And, in fact, the first time that the board or the administration put in writing that it disputed anything that was reported in June of 2004 was when it submitted its answer to the complaint in this litigation on January the 3rd, 2005, seven months later, isn't that right, Mr. Bonsell? A. No. I believe there was something -- we had put those responses in the -- at the website. Q. You're referring to -- Matt, why don't you please bring up P-104. This is the document you're referring to that was put up on the website? A. That and the interim one that was before this. Q. Well, this says, the interim one was on October 19th, correct? A. I'm not sure of the date. It was before this one. Q. I believe they're exactly the same, correct? A. No, the smaller, little, the little one that was put on the website, that was put on our website. Q. Matt, if you would highlight the second paragraph of this. This paragraph was the same both in the first version of what was put in the press release and the second version of what was put in the press release in November, right? A. No. What I'm talking about, there's another smaller one that was one that we put out right after, I think, right after, before this one, the one that we had gone over earlier. MR. HARVEY: Can I approach, Your Honor? THE COURT: You may. BY MR. HARVEY: Q. Are you referring to what has been marked as Defendants' Exhibit 83? A. Yes. Q. That's a memo from you to Mr. -- to Dr. Nilsen, dated November the 12th of 2004? A. Yes, that's a memo. But I believe that was placed on -- I believe -- I'm pretty sure that was placed on the website, on our website. Q. Please read it for us. A. Read it to you? Q. Yeah, sure the substance of it. A. The Dover Area School District is in the process of forming a fair and balanced science curriculum. We are not, underlined, teaching religion. To keep our residents informed and to clear up any misconception that they may have concerning this matter, in the next few weeks we'll be issuing an informational statement on this subject. Q. That was the first thing that you put in writing on that subject, right? A. Probably -- after it was -- because this was before anything was ever passed. This is after it was passed. Q. Sure. And that's not referring to anything that was inaccurate in the reporting in the York papers in June -- A. Well, I think there's -- when you say, we are not teaching religion, that is in direct response to what has been said in the public up until that time. Q. Okay. A. So there wouldn't be any reason to put that in there unless there was a misunderstanding. Q. Well, you're not -- that doesn't say anything about the fact that board members discussed creationism, as reported in the papers, right? A. But where did Mrs. Eveland get her -- she lived in York Township at the time. She didn't even live in Dover. Q. I'm sorry? A. I said, Mrs. Eveland, in this letter here, says she lives in York Township. Q. What I'm saying to you is, your November the 12th memo to Dr. Nilsen, which you say was put on the website, doesn't in any way say, the board didn't discuss creationism in June of 2004, as reported in the papers, does it? It doesn't say that or anything like that? A. Well, it doesn't say that, but it says, we are not teaching religion. If we would have been discussing putting creationism in the schools and teaching it, then you would have been teaching religion. So we are not teaching religion. Q. That doesn't in any way -- Mr. Bonsell, that doesn't in any way respond to the very specific reports that were in the paper in June of 2004 about the board discussing creationism, does it? A. No. In that respect, no. Q. It doesn't respond to the reports in the York papers in June of 200 public meeting, 2000 years ago, a man died on a cross, can't someone take a stand for him? It doesn't respond to that specifically in any way, does it? A. It doesn't respond to that specifically, but in general, I believe it does. Q. And it doesn't respond specifically in any way to the reports in the press that Mr. Buckingham had said in June of 2004 that, this country wasn't founded on Muslim beliefs or evolution, this country was founded on Christianity, and our children should be taught as such, right? It doesn't respond to that specifically, does it? A. Specifically? No. Q. And then if we look at your press release that came out on the 19th of November -- we've blown up the language there. There is reports -- there is something in there that says, quotes, Some statements and opinions from the media, community members, and board members which are completely inaccurate or false have been assumed to be official district policy or curriculum procedure. And then it goes on to say, The following is the actual chronology of the district vows and curriculum development process and implementation, right? that Mr. Buckingham had said at a 4 A. Okay. Q. And in that, you're suggesting that the media reporting was incorrect, right? A. It says, Some statements and opinions from the media, community members, and board members -- statements and opinions from the community, media, community members, board members, which are completely inaccurate or false have been assumed to be official board policy. Yes. Q. And that's five months after the reporting in the June York papers, right? Five months later, approximately? A. Yes. Q. And again, that doesn't say anything in there specifically in response to the reports that board members were discussing creationism or the other things that I mentioned to you just a minute ago, does it? A. Not specifically, but it does mention statements from the media. Q. Okay. And then, in fact, the first time that the board or the school district or the administration in any way specifically disputed in writing what was published in the York papers in June was at the time of the answer, right? A. At the time of the answer? Q. Matt, can you bring up a side-by-side of paragraph 29 of the complaint and paragraph 29 in the answer? MR. GILLEN: Your Honor, at this time I would respectfully interpose an objection on the theory that this examination is cumulative. Mr. Bonsell has testified that he didn't put anything in writing. He said that his complaints were verbal. And we're going over it numerous times now. I don't see the point of the cumulative examination. I think the point has been elicited. MR. HARVEY: Your Honor, if either counsel or the witness will agree with me that no one disputed those specific reports in the June York papers until the answer in this case on January 3rd, 2003, I'll move on. MR. GILLEN: Specifically in writing, he's been asked that question several times, and he said he didn't put anything in writing. THE COURT: I take that as a yes. Why don't you move on. MR. HARVEY: Okay. BY MR. HARVEY: Q. Now you were deposed on January 3rd, 2003, right? A. Yes. Q. And did you know, that's the same day that your counsel submitted the answer in this case? A. I don't recall that. Q. And when you were deposed, you denied that creationism had been discussed at the June board meetings, right? Do you remember that? A. Can you show me that? Q. Sure. Please go to your January 3rd deposition, page 45, line 22. You were shown an article, and then Mr. Rothschild asked you the following question, and you gave the following answers: Quote, Does this article accurately report that creationism was being debated at school board meetings? Answer, Absolutely not. Question, There was no discussion about creationism? Answer, No. Question, So as we look through these articles, this uninterrupted series of articles about June meetings that talk about creationism being debated at the school board meetings and statements made by school board members, including yourself, about creationism, all of those are just fabricated? Answer, Fabricated? Question, Yes, fabricated. Answer, Fabricated? You mean, she just made them up -- all up, is that what you mean? Question, There are a lot of statements in here about people talking about creationism. I think you are suggesting to me it never happened. Answer, All this debate about creationism, yes, that never did happen. It was not a debate about creationism. A. Okay. Q. Then if you go over to page 48, line 19 to 22. Do you have that in front of you? A. Page 48, 19, yes. Q. Question, So you can't remember anything he said about it, but you are sure all this discussion about creationism is just made up? Answer, I am sure about that. I mean, you have to ask Mr. Buckingham what he said. That was your testimony, wasn't it? A. Yes. Q. So on January 1st, you told us that the discussions, the reports in the paper about discussions of creationism were just made up, correct? A. That's basically what I said. Q. Okay. And also that day, you also said that you didn't know when Mr. Buckingham made the statement about, 2000 years ago, a man died on a cross, or at least you couldn't remember. Do you remember that testimony? A. Can you show me that? Q. Do you remember your testimony? A. I would like to see it. Q. Sure. Let's go to page 48 of your deposition. A. Same page, okay. Q. Line 24. Question, If you could go down -- if you could go to the next page of that article, four full paragraphs down, a statement is attributed to Mr. Buckingham, nearly 2000 years ago, someone died on a cross for us, shouldn't we have the courage to stand up for him? Did Mr. Buckingham make that statement? Answer, I'm not sure he said that. I'm not sure he said that at this meeting. Question, Do you recall him saying, making that statement at any school board meeting? It is a pretty powerful statement to say at a school board meeting. Answer, I don't think it has to do with what we are talking about, not. Question, Do you think he made that statement at a meeting? Answer, I'm not positive. I think he said something along those lines, but I don't believe it was -- it had to do with this. What do you believe it had -- Question, What do you believe it had to do with? Answer, There was a year ago, before this, there was another discussion on the pledge, but this was the year before. Question, You think he made a statement along those lines regarding the pledge? Answer, To be honest, I'm not sure when he said it or if it is -- if this is exactly what he said. I'm just not sure. Isn't that right? A. Yes. Q. And that day, you also said you weren't aware of Mr. Buckingham ever saying, this country wasn't founded on Muslim beliefs or evolution, right? A. Well, going back to this last thing, it says, I thought it was -- had a discussion to do with the pledge, which was a year before. So I believe that's consistent with what I am, you know, thinking, you know, what I said now. Q. Well, you also said then that you just weren't sure? A. Well, I'm not sure. The thing is, basically, on something like this, this was January 3rd, you know, I come into a deposition like this. I've been reliving this whole thing. I've been coming to almost all these meetings. And some things, I mean, recollections do come back on some issues. I mean, I wish everything would come back, but it doesn't. But, I mean, this is pretty much along the lines of what I'm saying now. Q. All right. So just to clarify. At the time you said, it was -- you thought that it was, it happened in 2003, but you weren't exactly sure, and today you're saying you're pretty sure it was said in 2003, not in June of 2004, right? A. Yes, that -- that's basically, yes. Q. Now let's talk about the October 18th board meeting, Mr. Bonsell. That's the meeting at which the board adopted the resolution that's at issue in this case? A. Yes. Q. Do you remember Heather Geesey stating at that board meeting that somebody might be fired? A. Yes. Q. Tell us what you remember about that. A. What I can recall about that was is, there was talk about, I guess, a lawsuits, or something along those lines. And from our understanding was, is that what we were doing was legal per our attorney. There was nothing unconstitutional about it. And she basically, I think -- somewhere in the conversation, she basically said, you know, well, more or less, they better be giving us right information, and if not, if we get sued, we should fire our attorney. Q. Right. And then the paper reported the next day that Mrs. Geesey had said something about firing the teachers, right? A. That wasn't correct. Q. Right, but that's what the paper reported the next day, right? A. Well, I believe so. If you can show it to me, that's fine. But I'll take your word for it, if that's what you're saying. Q. Well, take a look at P-797. And Matt, if you could please bring that up, the second full paragraph in the right-hand column. It's on the screen in front of you as well, Mr. Bonsell. It says, if they -- quotes, If they requested Stock and Leader, they, the faculty, should be fired, said board member Heather Geesey. They agreed to the book and the changes in curriculum. Do you see that? A. I see it, yes. Q. At least what the paper is saying is that Ms. Geesey said the faculty should be fired, right? That's what the paper said, right? A. That's what the paper said, but that's incorrect. Q. Actually, if it were correct, and I'm not asking you to agree that it's correct, but if it were correct, that would be a very serious thing for a board member to threaten to fire teachers at a board meeting, correct? A. To fire teachers at a board meeting? Yeah, I guess so. Q. Well, if you are talking about firing teachers -- A. You don't -- well -- Q. That's a pretty serious things? A. You don't make flip remarks like that, no. Q. Excuse me? A. You wouldn't make a remark like that probably, no. Q. That's right. That would be a very serious thing if you said it, right? A. That would be a very serious thing? In what way do you mean? Q. If I was talking about -- if I was a board member, and I was talking about firing teachers, that would be a very serious thing, isn't that true? A. I would agree. Q. And, in fact, Mrs. Geesey was very concerned about this, this report in the paper, and she contacted Dr. Nilsen the very next day, didn't she? A. I believe that's correct. Q. And were you here for Dr. Nilsen's testimony on that point? A. I don't know if I -- I wasn't here for all of Dr. Nilsen's testimony. Q. Matt, can you please pull up Dr. Nilsen's testimony on October the 20th in the afternoon, page 113. Mr. Bonsell, I actually have a copy of the testimony, if it would be easier for you to read it? A. I think I can read it. He expanded it a little bit. I believe I should be able to read it. Thank you. Q. All right. Now if you look on line, it looks like, 11. Question, Okay. Did Mrs. Geesey ever ask you to do anything as a result of the controversy surrounding her comment? Answer, Yes. The next morning, the paper reported that she had recommended firing the teachers. And she immediately contacted me and told me that she was -- that that was -- that that was obviously not what she had said, and I agreed with her, and she did two things. One, she sent me an e-mail explaining her position and asked me to forward that throughout all of the teachers, stating on her behalf that, or in her words, that that was not what she had intended and, in fact, that she liked all the teachers and supported the teachers. Secondly, to prove that that was not what she had said, she requested that I develop a verbatim transcript of the October 18 meeting concerning the issues of -- or the area of curriculum. Did I read that correctly? A. Yes, I believe you have. Q. You were here for that testimony, weren't you? A. No. No, that's why I said, I don't remember this. Q. Well, you know that's what happened, right, or at least you know now? A. I know now. Q. Now as it turns out, we can't check to see what Mrs. Geesey actually said at that meeting because, according to Dr. Nilsen, that part of the tape -- that part of the meeting was not taped, right? A. By accident, yes. Q. And Dr. Nilsen testified that the tapes were only kept until the minutes were approved, do you remember that, or did you know that? A. I believe we had a letter from Denise Russell, who was the business manager for 10 years, and basically said that's what was basically the policy. Q. That was your understanding. The board -- the tapes of the board meetings were kept until the minutes were approved, right? A. I believe so, yes. Q. And actually, were you here for Mrs. Callahan's testimony? A. Some of it, I believe, yes. Q. She testified that the -- she thought the tapes were kept for like six months. Do you remember that? A. Well, now that you say that, I believe she did say that, but that's not -- that wasn't correct. Q. Right. It's your testimony, they were only kept until the minutes were approved, right? A. Up until the point of these lawsuits, yes. Q. And that's always been your understanding. You don't agree with Mrs. Callahan, right? A. Well, we have a letter stating as such, that she isn't correct, from Denise Miller, who has, unfortunately, passed away, but she was the business manager and board secretary from 1995 up until her time when she left the school district. Q. Do you know when the minutes of the June 7th and June 14th board meetings were approved? A. I'm not positive. Usually, it's the next, you know, the next month. But I'm not, you know -- I don't know off the top of my head a date. Q. Let me show you the minutes. Matt, can you bring up P-63, the minutes of the meeting on July the 12th. And I'll ask you to highlight the section on approval of minutes. P-63 is the minutes of the July 12th, 2004, board meeting, right, Mr. Bonsell? A. That's what it says, yes. Q. And under approval of minutes, it says, quote, Motion by Mrs. Harkins, seconded by Mr. Weinrich, that the school board approve the minutes of June 7, 2004, and June 14, 2004, motion adopted by a vote of nine yes, and zero no. Do you see that? A. Yes, I do. Q. And that means then that the tapes for the board meetings on June the 7th and June 14th would have been in existence, at least as of the date of these minutes, which is July the 12th, 2004? A. It would appear that that would be the case. Q. And if you or any other board member or the administration had wanted to dispute anything that was reported in the York papers in June of 2004, as of July the 12th, you could have gone to the tapes and made a verbatim transcript to prove that you didn't say it, just like Mrs. Geesey did when she disagreed with something in the press, isn't that correct? A. I guess you could have. Q. Now you knew that this issue of what was said at the board meetings was going to be an issue, at least as of August 27th, 2004, at the board curriculum meeting that date, right? A. The board curriculum meeting, yes. Q. Because -- A. Well, that's when we met with the science teachers. Q. Right. Take a look at what's been marked as P-70. Do you see that? That's an e-mail from Steven Russell, who is an attorney with Stock and Leader, to Dr. Nilsen, dated August the 26th, 2004? A. Yes. Q. And you received this e-mail at a curriculum meeting on the 27th of August, 2004? A. I believe. I'm not positive on that. Q. Were you here when Dr. Nilsen testified that you did receive it? A. No. Q. Well, look at the bottom, the fourth sentence from the end and the third sentence from the end. Matt, if you would highlight those beginning with the words, my concern for Dover. And that says, quotes, My concern for Dover is that, in the last several years, there has been a lot of discussion, news print, etc., for putting religion back in the schools. In my mind, this would add weight to a lawsuit seeking to enjoin whatever the practice might be, close quotes. Do you see that? A. Yes, I do. Q. You saw that on or around August the 27th, 2004? A. I must have. Q. So you knew that these reports that had been in the papers was going to be a very serious matter for the board in this lawsuit, didn't you? A. Well, if that's what would happen, that we would have to address it. Q. Now is it still your testimony that the discussion of the creationism at the June board meetings was just made up by the local papers? A. Like I said before in my testimony, I don't recall it being discussed, no. Q. Well, at your deposition, you said that it was just made up, right? A. I'm not sure if that's what I said, it was made up. Q. Should we go back there? A. Yeah, let's go back. Q. Your January 3rd deposition, page 48? A. Page 48, okay. Q. Lines 19 to 22. Tell me when you're there, please. A. 48, 19. Yes, I'm there. Q. The question was, So you can't remember anything he said about it, but you are sure all this discussion about creationism is just made up? Answer, I am sure about that. Do you see that? A. Yes, I do. Q. So is it still your testimony that the discussion of the reports about creationism in the York papers in June of 2004 was made up? A. I believe so, because that's when -- I believe the first meeting is when we started to discussing -- ID came up. Q. So you believe that two reporters who wrote the reports, Ms. Bernhard-Bubb and Mr. Maldonado, made it all up? Is that your testimony? A. Well, made up, maybe that's a -- but interchange words. I guess that could be the same thing as made up. But, I mean, Mrs. Bubb and Mr. Maldonado usually sat together. Q. Were you here the other day when Mr. Baksa testified, and he said he heard the word creationism at the June meetings? A. No. Q. If Mr. Baksa testified that he heard creationism at the June board meetings, is he making it up, too? A. No. Q. Now were you here when Bertha Spahr testified that she heard the word -- Mr. Buckingham say, 2000 years ago, a man died on a cross, can't someone take a stand for him, in June of 2004? A. I was here for that. I'm not exactly sure -- but, okay. Q. Do you remember that she -- do you remember that she testified that she had heard that in June of 2004? A. I don't remember her saying that, but if you're saying that's what she said, okay. Q. Well, do you think -- A. Like I said, I was here. I just don't remember her -- that particular testimony. Q. Why would the press make up that statement and claim that something that was said in November of 2003 was said in June of 2004? Why would they do that? A. I don't know. Q. Mrs. Spahr wouldn't lie about that, would she? A. I wouldn't say she would. Q. If the news -- if the press is so prone to exaggerating or not getting it correct, then why do you keep making statements to them, including statements during the course of this lawsuit? A. In the course of this lawsuit? Basically in the hopes that some of the truth will get out to what's going on, on our side. I mean, in the newspaper, in particular, I've noticed that, in one time in particular, I was just curious, and I measured -- you know, they did a whole report on one of the days of the trial. And they always say, you know, they say, oh, fair and balanced and all that. And I just -- I had to do that. I measured the lines of print that were on the subject. And I believe there was 40 inches of print about the day, the day's witness. And 37 and a half inches were the Plaintiffs' attorneys and 2 and a half inches were about our attorneys. Q. You don't deny that you and Mr. Thompson have been standing on the front of the courthouse steps making statements about this case, do you, Mr. Bonsell? A. I do that occasionally, yes. Q. Now you're familiar with the Discovery Institute? A. Yes. Q. And the Discovery Institute actually came to the Dover School Board and made a presentation in executive session prior to the October 18th board meeting, isn't that correct? A. Legal, yes. Q. Right, but two gentlemen from the Discovery Institute in Seattle, Washington, came to the Dover School Board and made a legal presentation at some time prior to the October 18th board resolution, correct? A. I believe it had to do with legal matters, yes. Q. Now would you agree with me that, with the exception of the presentation that was made to the board by the Discovery Institute, which was, as you say, legal, no one made any presentation to the board about intelligent design or the subject of the October 18th resolution? A. No one made a presentation about intelligent design, and what was the last section? Q. Or the subject of the October 18th resolution? A. Or the subject -- Q. The October 18th resolution. Nobody came in and said, here's why you should -- made a presentation, and said, here's why you should pass this October 18th resolution? A. Not that I recall, no. Q. And you never, yourself, spoke to the board about why they should support the resolution, did you? A. Spoke to the board about it? I'm sure there was a -- I'm sure there was discussions about it, but I don't know specifically, no. Not specifically. Q. And you're not aware that anyone provided any materials to the board about intelligent design to help them make their decision about the October 18th resolution, are you? A. Any materials? Q. Yes. A. I guess the discussions, and the book and the videos were there. Q. You're not aware that any members, that they were provided to the members of the board, were you? A. That, I don't know. Q. They were generally available, correct? A. Yes. Q. But you don't know that they were provided to the board, right? A. I think they were made available, but you'd have to ask each person if they looked at it. I don't know. Q. You're not aware that either you or any member of the board or the administration contacted the National Academy of Sciences or the American Association for the Advancement of Sciences or the American Biology -- the Federation of Biology Teachers or any other organization to find out about intelligent design or evolution in helping you make your decision on October 18th, isn't that correct? A. No, but I don't know if we've ever done that with any other form of curriculum either. Q. Now when you passed that resolution on October 18th, 2004, you had actually been working, according to you, you had been working on that subject for approximately six months, isn't that correct? A. Well, give or take -- I mean, it was a few months that we had been working on it, yes. Well, it was four to six months, something along those lines. Q. Well, it included the June board meetings, right? A. Yeah. Q. Yes? A. Yes. Q. You testified in your direct examination that you had a meeting with the teachers in the fall of 2003? A. Yes. Q. And at that meeting, you learned that the biology teachers did not teach common ancestry in the Dover biology class in high school, correct? A. They didn't teach macro evolution. Q. Right. By that, you mean, they didn't teach common ancestry? A. I guess that's part of it. Q. And, in fact, you learned that they only taught evolution within a species or what you call micro evolution? A. Well, micro evolution, adaptation over time, that type of thing, yes. Q. Change within a species? A. Yes, you could say it that way. Q. And that was good news for you, because you don't have any problem with teaching -- as a personal, as a matter of your personal religious beliefs, you don't have any problem with change within a species, do you? A. No. Q. And as we discussed earlier, macro evolution is inconsistent with your personal religious beliefs? A. In which respect are you talking? Q. Well, common ancestry? A. Common ancestry? (Witness nodded head affirmatively.) Q. The idea that one species, over a very long period of time, could give rise to another species, that's inconsistent with your personal religious beliefs? A. Yes. Q. Dr. Nilsen testified that Mrs. Harkins designated you as the board member assigned to check out the Thomas More Law Center at the time that the board agreed to have the Thomas More Law Center as its counsel in this litigation. Were you here for that testimony? A. No. Q. Is it true that Mrs. Harkins assigned you to check out the Thomas More Law Center? A. I talked to numerous attorneys, because we had offers from many attorneys. Q. And the board engaged Thomas More Law Center to be its counsel in December of 2004, right? A. I believe that's correct. Q. You checked out the Thomas More Law Center on its website, among other things, right? A. And talked and spoken with them. Q. You spoke with people from the Thomas More Law Center, right? A. Yes. Q. You checked out their website? A. I believe so. Q. Well, and you knew -- actually, you knew -- strike that. I'm going to ask, please pull up P-134, and you can turn to that. Can you bring that up so we can see it, Matt? This is from the website of the Thomas More Law Center, and it's printed out on December the 20th of 2004. Matt, if you can go to the right-hand corner so we can see that. Down in the lower right-hand corner, it's a little cut off by the sticker, but you can see right there. It says 12/20/2004. Do you see that? A. I'm sorry? Q. I'm just pointing out to you that this, which was used at the depositions on January the 3rd of 2005, was actually printed off the website on December the 20th of 2004. So that would have been around the time that you were looking at the website, right? A. I guess that was a little after that time. Somewhere in that, you know, within the month anyway. Q. Matt, could you please go back to the body of it and highlight the sentence that begins, our purpose. Let me read this to you. It says, Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square. Do you see those words? A. Yes, I do. Q. And did you know that Thomas More called itself the sword and shield for people of faith? A. This is probably the first I've seen that per se. Q. And would you agree with me that, in this case, Thomas More is providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square? MR. GILLEN: I'm going to object to the questions. I mean, it's our mission statement. But it seems to me, there's some sort of impeachment by counsel, which is improper. And insofar as I know, it's not proper to attempt to impugn, apparently, a client based on the work of the lawyer. I mean, certainly I know that I wouldn't do that with respect to the Plaintiffs based on their selection of counsel. And I fail to see how it's relevant or proper here. MR. HARVEY: Relationship with Mr. Gillen wouldn't impugn anyone, I believe. MR. GILLEN: Thank you for that, Steve. MR. HARVEY: Furthermore, I'm not impeaching this witness with this. I'm asking him if he knew this. One of the central issues in this case is whether the board acted for a religious purpose. They have hired -- or they have not hired, excuse me, apparently they're being represented for free by an organization that has, as its express and written mission, defending the views of the religious freedoms of Christians in the public square. And I'm just asking him if he knows that and if he believes that's what this case is about. THE COURT: I would say to Mr. Gillen, despite the evident and appropriate cordial relationship and professional relationship that exists among counsel and with the Court, I don't view this as a personal question. I view it as an appropriate question. If he presses on this point, I might find that objectionable. I think that question in the context of this case is not objectionable, and I may not view it as you view it. I can understand why you would view it that way as counsel and as a member of the Thomas More Law Center. So perhaps you don't have the objectivity that I have. I'll overrule the objection. I'll allow him to answer the question. Do you remember the question, sir? THE WITNESS: No, sir. THE COURT: Wendy, would you read the question back? MR. GILLEN: I thank Your Honor and ask only that you be solicitous of my concern that our clients should in some way be penalized because of anything that -- THE COURT: I'm cognizant of that, and I'll consider that a continuing objection, and I'll -- if I believe that the inquiry gets into that area, I'll certainly stop the examination. Wendy, if you could, please. (Whereupon, the court reporter read back the last question.) THE WITNESS: I'm sorry. Can you say that one more time? (Whereupon, the court reporter read back the last question again.) THE WITNESS: Well, two answers to that. One is, I didn't pick Thomas More or -- I mean, all the attorneys that offered their services offered it for free, that I talked to. And, you know, I sort of take offense to it, that you would think that I would pick an attorney to represent the school district because they put some words in a website. I picked Thomas More because I thought they were the most qualified to defend Dover School District. And I talked to other people, not saying that the other attorneys weren't good, I just, from my talking with them and seeing issues, this is a constitutional issue, obviously, we don't want an attorney out of the yellow pages. We want someone that works with these types of cases. And to say I would pick someone because of words in that is absolutely ludicrous. And, you know, I really, I take offense to that, that you think I would pick someone because that's what it says in a website. BY MR. HARVEY: Q. Actually, that wasn't my question. My question was simply whether it's your understanding that the Thomas More Law Center is providing legal representation without charge in this case to defend and protect Christians and their religious beliefs in the public square. Yes or no? A. No, that has nothing to do with what we're doing here. Q. Let's go on with the Thomas More website. I actually went on it yesterday. Matt, can you bring up P-822? This is the Thomas More Law Center website as of yesterday, at least the home page. Do you recognize Mr. Thompson's picture? A. Yes, I do. Q. Hard to miss that. And there's an article there that's reprinted. It's reprinted on the website at the Thomas More Law Center website from salon.com. Do you see that? A. Okay. Q. It's written by somebody named Gordy Slack? A. Yes. Q. And actually, we've pulled the article. It's P-824. It should be in your book. A. P-824? Q. Yeah. MR. GILLEN: Judge, I object again. I mean, I fail to see the purpose of this examination, except -- THE COURT: Let's see where he goes. I'm going to overrule the objection because it's a speculative objection and I don't know what the question is going to be. So I'll overrule the objection. I'll allow you to revisit it as he gets into his questions. BY MR. HARVEY: Q. Do you have that article in front of you, Mr. Bonsell? A. I believe. From Gordy Slack? Q. Yes. A. Okay. Q. The sixth paragraph -- by the way, did you read this before now? A. No. Q. Okay. Go to the sixth paragraph on the first page. I'll read it. And maybe Matt can bring it up on the screen, too. The one that begins, schools that want to include. Quotes, Schools that want to include the ID debate in their curriculum deserve the right to do so, Thompson says. Denying them that right is a form of both scientific and religious discrimination. And now he's apparently quoting Mr. Thompson directly. Quotes, ID is seeking a place in the classroom because of its merits, close quotes, he says. Quotes, But it's being kept out because it is harmonious with the Christian faith, period, close quotes. Do you see that? A. Yes, I do. Q. And I just want to know if it was your understanding at the time that you passed the October 18th resolution, that intelligent design was harmonious with the Christian faith? A. No. Q. You didn't have that understanding on October 18th? A. No. Q. Now if you go to the end of this article, the last two pages? A. The last -- Q. Yeah, it's actually the fifth and sixth. The sixth is the last page. I want you to focus on the last five paragraphs of the article. And I'll read them to you once you have them in front of you and once Matt has brought them up on the screen. A. I am on page 5 and 6, I'm there. Q. The paragraph that begins, as we talk. Do you see that? A. As we talk, the third paragraph from the bottom? Q. Yes. Quotes, As we talk, Thompson bristles at the notion that ID is and always will be excluded from science. Quotes, What is science, and what is not science, is merely a convention, close quotes, he says. Quotes, It can be challenged and changed at will by scientists themselves. And scientists are the products of their culture, too, close quotes. Doesn't he find it a little odd that a champion of unchanging and absolute moral values should take such a relativist stance on science? He shrugs off the question. Quotes, Look, scientists don't sit there and ask, am I doing science or not? No scientist is going to say, this is empirical truth about the wrong subject so I'm not going to study it. No, they look at whatever the empirical data is, and draw conclusions from it, close quote. Quotes, So you want to change the definition of science to include the supernatural, close quotes. Quotes, Yes, close quotes, he says. Quotes, We need a total paradigm shift in science, close quote. Do you see that language? A. I see it. Q. Now according -- at least according to what it says there, as reported, Mr. Thompson seems to think that, for intelligent design to qualify as science, the definition of science needs to be changed to include the supernatural. And I want to know if that's your understanding as well, Mr. Bonsell? A. I guess I need more specifically what you mean by supernatural. What do you mean by that? Q. You can't answer the question just as it is? A. I want a specific definition. Q. Something outside of nature. A. Something outside of nature? Q. Yes. A. And what do you consider nature? Q. The natural world. A. The natural world? So that encompasses the whole universe is what you're saying? Q. Yeah, the natural world. A. I'm still not sure I understand the question. I think this was asked of me in one of my depositions. Supernatural? Q. Can you answer the question, Mr. Bonsell? A. Ask it again, please. MR. HARVEY: Can you read that back, please? I'm afraid I won't be able to get it right. (Whereupon, the court reporter read back the referred-to question.) THE WITNESS: I think I've said this. I'm not sure if this was in my deposition or not. I mean, the thing is, I've read other scientists, and you say, you know, the search for truth is -- the search for truth, no matter where it leads. You know, if the truth leads there, then, okay. If it doesn't, then, no. You know, it's wherever it goes. Wherever science -- wherever it takes us. I don't want science to be put in a little box and say, you can't ever look outside that little box. Is that -- MR. HARVEY: May I confer with my co-counsel for just a minute, Your Honor? THE COURT: You may. MR. HARVEY: No further questions, Your Honor. THE COURT: All right. Assuming Mr. Gillen has some redirect, I'm going to exercise my prerogative before we break today, because you may have some lengthy redirect, is that a fair statement? MR. GILLEN: I think that I have accumulated a considerable list of questions. THE COURT: I want to exercise my prerogative, and I have some questions before we break today. I would like, Mr. Harvey, if you would hand up to me the witness's deposition testimony, specifically as it related to the question of the $850.00 check. I believe it's the deposition as taken by Mr. Rothschild in January of 2005. MR. HARVEY: Yes, Your Honor. My copy is marked up. Do we have an unmarked copy? Or if you want, I could just have it delivered to your chambers in a few minutes. THE COURT: I want it now, if you have it. Hand it up. And can you direct me to the pages, and specifically the pages, Mr. Harvey, that you referred to in your questions? MR. HARVEY: Yes, Your Honor. I read from page 13, line 6, through page 16, line 20. THE COURT: All right. Give me a moment, please. That's fine. I see where you were. All right. Let me ask you. BY THE COURT: Q. When did you first become aware of the fact that your father was in possession of the $850.00 that was being donated to buy Of Pandas and People? A. Well, Mr. Buckingham gave the check to me to pass to my father. He said this was money that he collected for donations to the book. So I gave it to him. Q. So you were the conduit -- A. Yeah. Q. -- by which your father received the $850.00? A. Yes. Q. Tell me why, in January of 2005, you didn't tell Mr. Rothschild on his repeated questioning that your -- that Mr. Buckingham was involved in that exchange? A. Basically because I understood the question to be, who donated the books? Do you know anybody that donated? I only knew my father was the one that donated the books. I am still to this day convinced, you know, that Mr. Buckingham didn't give any money towards the books. He said to me, this is money that he collected towards the books. And I didn't ask him. You know, he didn't say -- if he would have said, some of this money is mine, or I put 50 bucks in the pot, or I did this, I would have told Mr. Rothschild at that time. Q. The specific question was asked to you, sir: You have never spoken to anyone -- anybody else who was involved with the donation? And your answer was, I don't know the other people. That didn't say, who donated? That said, who was involved with the donation? A. Okay. I'm sorry. What -- Q. Why did you -- I'm on page 16. A. Okay. Q. Line 9. That didn't say, who donated? That said, who was involved in the donation? Now you tell me why you didn't say Mr. Buckingham's name. A. Then I misspoke. Because I was still under -- from behind -- wait a second. I -- well, I'm going back here -- and so, yeah, that's my fault, Your Honor, because that's not -- in that case, I would have -- I should have said, Mr. Buckingham. Q. Tell me again why you gave the money to your father. Why did you utilize your father as the ultimate recipient -- not the ultimate recipient, but as a conduit for this money? A. Why he was the conduit? Q. You took the money from Mr. Buckingham, if I understand it. You turn it over to your father. Is that correct? A. Yes. Yes, sir. Q. Because the check was made specifically to your father. Why was your father involved? A. He agreed to -- he said that he would take it, I guess, off the table or whatever, because of seeing what was going on, and with Mrs. Callahan complaining at the board meetings not using funds or whatever. Q. Why couldn't you use Mr. Buckingham's check? What was the difference? A. My father was the one that agreed to do the books. Q. I understand that. A. And that basically anybody, you know, if somebody wanted to give money, they could give money to him. He just passed, you know -- Q. Now the way I understand it from Mr. Buckingham's testimony, Mr. Buckingham stood up in front of his church. Mr. Buckingham, despite testimony which was somewhat confusing, obviously, apparently made a plea for funds for this book. Mr. Buckingham received in addition to, apparently, his own contribution funds, which totaled $850.00. Why couldn't Mr. Buckingham's check be used? Why did your father have to be involved? A. I guess it could have been used, but put the thing is, the money was going to him, and he was purchasing the books. And I think it was basically, if somebody gave money, fine. If not, he was going to buy the books. He was going to do it himself. Q. You don't know why Mr. -- in other words, you don't know why Mr. Buckingham couldn't just purchase the books directly? Is that what you're telling me? Because I still haven't heard an answer as to why your father -- why the funds had to be paid first to Mr. Buckingham, why Mr. Buckingham couldn't write a check. Why did he have to give the funds to your father? I still haven't heard an answer. A. I guess he wouldn't have had to give the funds to my father. It's just that he was -- he had made -- he had made the -- Q. Who's he? A. My father. He had made the -- oh, I don't know what word I'm looking for. He said that he would get -- donate the books, you know. So basically, I guess, he asked -- I guess you're saying, Mr. Buckingham went before his church. He collected money -- Q. You were here. You heard Mr. Buckingham. A. He collected the money. And just -- because -- he had the check, gave me the money, I gave it to my father. Q. I still haven't heard an answer from you as to why your father was the recipient of this money. Tell me why. A. Because he's the one that said he would donate the books. Q. It wasn't -- the money did not belong to your father. It came from Mr. Buckingham. He didn't donate the books. He received money from Mr. Buckingham that Mr. Buckingham received through donations from his church. Your father, unless I'm missing something, did not donate the books. He was the recipient of donated money and purchased the books. A. No, but my father donated money towards the books. It's just that people had given money, and if -- basically, if no one had given a penny, my father would have bought all the books. So he must have went out and said, you know, if you want to give money, Mr. Bonsell is -- and so that's why the check is in his name, because the money was going to him. He was buying the books. So he did put money towards the books, and he would have bought all the books. Q. Now you were under oath. You know you were under oath on January the 3rd of 2005, is that correct? A. Yes. Q. And your reason that you didn't mention Mr. Buckingham's name on January 3rd of 2005 is because you said you misspoke? A. I was under the impression, Your Honor -- I was under the impression -- they were asking me who -- do you know anybody else? I mean, because I'm the one that brought my father forward in the testimony. I said, it was my father. He was the only one that I knew that put money towards the books. Because, to be honest -- I mean, truthfully, I did not know that Mr. Buckingham gave any money towards those books. I would have said that. I would have said that. Now like I said -- Q. You knew on January 3rd that Mr. Buckingham had possession of funds that he received from his church, didn't you? A. Not from his church, no. Q. You knew that Mr. Buckingham had received funds, which he turned over to your father, from someplace? A. Oh, yes. Q. Do you have any explanation for why Mr. Buckingham in this same series of depositions in January of 2005 also failed to admit that he was involved in soliciting money for the purchasing of this book? Do you have any explanation for that? A. Why he said he wouldn't solicit money? I don't know. Q. Were you here for Mr. Buckingham's testimony? A. I heard part of it. Q. Well, let me represent to you that Mr. Buckingham testified in June of 2005 in his deposition that he didn't know where the money came from. Do you have any explanation for why that is? A. I don't have any explanation for that. THE COURT: All right. Those are the questions I have. We'll reconvene tomorrow -- Wednesday, pardon me. We'll continue with the examination of this witness on redirect by Mr. Gillen. And our trial days will be Wednesday, Thursday, and Friday. And hopefully, we're on track to finish the testimony on Friday. We'll be in recess until Wednesday at 9:00 a.m. (Whereupon, the proceeding adjourned at 4:40 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 19 (November 2), AM Session, Part 1 THE COURT: All right. Good morning to all. We are on redirect examination by Mr. Gillen. MR. GILLEN: Thank you, Judge. (Whereupon, ALAN BONSELL, having been previously duly sworn, resumed the witness stand.) REDIRECT EXAMINATION BY MR. GILLEN: Q. Good morning, Alan. A. Good morning. Q. We are back on the record in connection with your testimony rendered on Monday. And this is my opportunity to ask you a few questions to address some questions that had been asked of you and for which answers are required. The first question I'd like to ask is about things you've been interested in while you've been a school board member. And in particular, Mr. Harvey asked you some questions about an interest in creationism, which plainly you have, and we've discussed. I want to ask you this. As you sit here today, we know now from documents, that you mentioned that word at two board retreats; one in 2002, one in 2003. Do you recall anything that you said at those meetings about creationism? A. No. Q. Okay. Well, let me ask you this. There's a couple other things you've been interested in, and I want to talk about those before we go forward. At the 2002 retreat, you also mentioned prayer. As we sit here today, do you remember anything that you said at that board retreat about prayer? A. No. Q. Have you ever taken any step as a board member to implement prayer in the schools while you have been on the Dover Area School District School Board? A. No. Q. Let me ask you about something else that you've expressed an interest in, and that's the social studies curriculum. As we sit here today, do you recall anything that you said at the 2002 or 2003 board retreat about the social studies curriculum? A. Not that I recall. Q. Since you've been a board member on the school board at Dover Area School District School Board, have you ever taken any step to require a change to the social studies curriculum? A. No. Q. Since you've been a board member of the Dover Area School District School Board, have you ever taken any step to implement the teaching of creationism? A. No. Q. Mr. Harvey has asked you a few questions about religious implications of theories, and I want to make sure that the record is straight on that point. With that in mind, I'd like you to look at an exhibit he showed you. MR. GILLEN: Your Honor, may I approach? THE COURT: You may. BY MR. GILLEN: Q. I've shown you what has been marked as Plaintiffs' Exhibit 127. Do you recognize that, Alan? A. Yes. Q. What is it? A. It's the Dover Area School District newsletter that went out in February. Q. Okay. There's a few portions of this newsletter that have been focused upon, and I want to ask you a few questions about that. If you look at the section, quotables, you'll see there a quotation that is attributed to someone named Anthony Flew. I want to ask you. Do you know why that quotation is there? A. Yes. Q. Explain that. A. Well, Anthony flew is, what he quoted here, he was regarded as an atheist, and just trying to show that you didn't have to be religious or a Christian to believe in intelligent design. Q. So let's talk about religious implications of theories with that in mind. As you sit here today, do you believe that intelligent design is necessarily religious? A. No. Q. As you sit here today, do you believe that evolutionary theory is necessarily religious? A. No. Q. Do you believe that evolutionary theory is necessarily atheistic? A. No. Q. Explain that. Why? A. Well, you have Charles Darwin, who was a theistic evolutionist who, I believe, in one of his books wrote about God and the creator. And I believe that Plaintiffs, I think, Mr. Miller, said he was a Catholic and believed in evolution. Q. There's another portion of the newsletter that I'd like to ask you about. You'll see in the same page you're looking at, there's a question, are there religious implications to the theory of ID? I want to ask you, do you know why that section of the newsletter is there? A. Yes. Q. Explain. A. Well, basically, there was a lot of people at that time going around saying that ID was religious -- MR. HARVEY: Objection, Your Honor. Hearsay. MR. GILLEN: Thank you. Your Honor, I can ask him why he did it, and I'll do so. THE COURT: I think it's a close call. I'll overrule the objection so long as he doesn't repeat the exact substance of what the individual said. I'll take it in the context of the answer, so the objection is overruled. You may proceed. MR. GILLEN: Thank you, Your Honor. BY MR. GILLEN: Q. Please continue, Alan. Why is that section there? A. It was my understanding that -- it was my understanding, basically, that it was being said that ID was religious in the fact that the designer was God. And we would just -- we were just trying to show that you could have religious implications in every theory, but it doesn't mean it has to be religious, just you can make religious implications. Q. And when you say, theory, what kind of theory are you referring to? A. Well, scientific theories. Q. Okay. And was it ever your understanding, while you were a member of the school board, that whatever religious implications could be attached to a theory made it more or less scientific? A. No. Q. How do you view that? What's your understanding of the relationship between scientific theory and religion? A. Well, from my understanding is, there's -- you can bring religious implications into every scientific theory, but that doesn't mean that it is religious. It's still scientific. And that's the way I view those, evolution and ID, as scientific. Q. When you voted for the curriculum change on October 18, 2004, were you doing so because of religious implications attached to theories? A. No. Q. Why were you voting? A. All I was trying to do is to make the education better for the kids. Q. As we sit here today, do you have an understanding concerning whether intelligent design theory is consistent with your religious faith? A. Not necessarily, no. Q. What do you mean by that? A. Well, Dr. Behe -- as my understanding of what Dr. Behe has said is that, he has no problems with 4 billion year old Earth or billions of year old Earth and the evolutionary process. Q. Are some of the views that you -- well, do you understand those views to be views attached to intelligent design theory? A. Yes. Q. Okay. Knowing that, do you still believe that the board curriculum policy is a good measure to be in place in Dover Area schools? A. Yes. Q. Okay. Now one final area I want to ask you a few questions about are the circumstances surrounding the donation of the books. Questions have been asked about that, and I want to make sure that the record is clear. First of all, whose idea was it to donate those books? A. My father volunteered. Q. Before your dad volunteered, had you ever spoken with Bill Buckingham about arranging a donation of the books? A. No. Q. At the time your dad volunteered to donate those books, had he donated other things? A. Yes. MR. HARVEY: Objection, Your Honor. Leading the witness. MR. GILLEN: I can ask -- I don't really know how I can ask that. Were there other donations that your father made before this, I suppose. THE COURT: Why don't you rephrase. I think you're getting to where you need to be, so I'll sustain the objection. It was somewhat leading. I think that was likely an appropriate question, so why don't you ask it that way. MR. GILLEN: I will, Your Honor. Thank you. BY MR. GILLEN: Q. Alan, at the time that your dad volunteered to donate the Of Pandas books, had there been other occasions in which he had donated books? A. In which he had donated? Q. Had donated anything to the school? I'm sorry. A. Yes. Q. How about yourself? Prior to this time, had you engaged in any donations? A. Yes. Q. Okay. And what had you donated? A. Books. Q. Now we know that later Mr. Buckingham passed the check on to you, correct? A. Yes. Q. Okay. At any time did you know how Mr. Buckingham had collected the funds that he passed on to you? A. No. Q. How about where the funds had come from? At any time, do you know where he had collected the funds from? A. No. Q. Do you believe that the funds Mr. Buckingham passed on to you covered the cost of the books that were donated? A. No. MR. HARVEY: Objection, Your Honor. Continuing leading the witness in this area. THE COURT: No, I don't think that's leading under the circumstances. I'll overrule the objection. BY MR. GILLEN: Q. Would you answer the question? A. Could you repeat that? Q. Yeah. Do you believe that the donation, the funds that were passed on to you from -- by Mr. Buckingham covered the full cost of the books? A. No. Q. And why is that? A. I believe it was in July or August, there was a paper that had said that the Pandas books were approximately $25.00 apiece, and I believe there was 60 books donated, so that was almost $1500.00. Q. All right. There's one last question. Both the Plaintiffs and the judge have asked you some questions about an answer you gave in your deposition, and I know that it troubled you, and I want to ask you a few questions about that. First of all, I want you to describe the situation, as you saw it, when you were deposed in January of 2005. A. Leading up to this, we, after passing this curriculum change, we didn't think that we were going to be sued. And in the middle of December, we were sued. I was very shocked by that. It came the holidays, two days after the holidays, that I was deposed. I've never been deposed before let alone being in a federal lawsuit. I was extremely nervous, to say the least. And I honestly tried to do my best and answer as truthfully as I could. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Gillen. Recross by Mr. Harvey. MR. HARVEY: Yes, Your Honor, just one second. THE COURT: All right. RECROSS EXAMINATION BY MR. HARVEY: Q. Mr. Bonsell, since you gave testimony here on Monday, have you spoken to anyone about your testimony or about this case? A. My attorney. Q. You spoke to him about your testimony? A. I'm sorry? Q. Did you speak to him about your testimony? A. Yes. MR. GILLEN: Objection, Your Honor. I'm not sure that's a proper question. THE COURT: Well, it's a yes or no. I think there may be an objection to the question. That's a yes, no question. That's not objectionable. MR. GILLEN: Okay. THE COURT: The answer was, yes, I think. THE WITNESS: Yes. THE COURT: And you may proceed. BY MR. HARVEY: Q. When you were deposed on April 13th, April 13th, 2005, that's your second deposition, you were asked if you had had a chance to read your first deposition, isn't that correct? A. (No response.) MR. HARVEY: May I approach, Your Honor? THE COURT: You may. BY MR. HARVEY: Q. Turn to page 4 in your deposition, please, Mr. Bonsell, line 12. Mr. Rothschild asked you this question. Have you read the transcript of your previous deposition in this case? Answer, I have read over, I believe, most of it. Question, You don't think you've read all of it? Answer, it was right after it came out. I haven't seen it for a couple months. Question, So sitting here today, is there anything that you testified to in that prior deposition that you would like to change or modify today? Answer, I don't believe so. Isn't that correct, Mr. Bonsell? A. That's what it says, yes. Q. And -- MR. GILLEN: Your Honor, I object. Unless they asked him about it, there's no basis to impeach him on based on that. Did they ask him about it? THE COURT: Ask him about? MR. GILLEN: About the check or anything that they're questioning him about now. THE COURT: Mr. Harvey. MR. HARVEY: I certainly asked him about it on January 3rd, and in his deposition, we asked him if there was anything in there he'd like to change or correct, and he said, no. THE COURT: This was the second deposition. MR. GILLEN: That's correct. THE COURT: Is your point, Mr. Gillen, that they didn't ask him about the check during the second deposition? MR. GILLEN: Exactly, Your Honor. I have no recollection, as I sit here today, and I don't see how it could be impeached based on a question that wasn't asked. THE COURT: Well, but the question that was asked by Mr. Harvey went to the previous deposition, if I understand it. MR. GILLEN: But -- it's true, but he hadn't seen it for a couple months, and it's a general question. THE COURT: I think that goes to weight. The question was asked, you've seen the transcript of your previous deposition, is there anything that you want to change? They can ask him that. MR. GILLEN: They can indeed, and I agree with that. But he said, I only read most of it a couple months ago. THE COURT: Well, again, you're not making an evidentiary objection. You're arguing the point. You're saying -- MR. GILLEN: Well, I just -- I don't see how they can impeach him based on a question they didn't ask. He was asked questions in his first deposition, and I understand that. But it's a general question, is there anything you can recall at this time that you would change. I mean, it's not even a fair question. THE COURT: No, it's more than that. It's a question asked during a second deposition as to whether he wants to change anything he said in his first deposition. And the answer was, no. And it's been asked and answered. I mean, we have it on the record. It's not a general question. It's a specific question. Now you may say that, and you may have an argument that, he didn't have enough time, that he wasn't able to look at it, that there were other circumstances. But that goes to weight. That doesn't go to the admissibility of the question, and this isn't impeachment necessarily. This is cross examination. MR. GILLEN: Okay. I accept your decision, Judge. THE COURT: Well, I'll let you argue more if you got another argument you want to make. MR. GILLEN: Well, it seems to me, Mr. Harvey is trying to impeach him based on the fact that he didn't volunteer it at the second deposition. THE COURT: I don't think that's impeachment. I think you may call it impeachment. It's a question that is legitimate on recross, because you raised it on redirect, that has to do with the answer that he gave. He gave testimony now on redirect that during his first deposition he was nervous, he had never been involved in a federal lawsuit, he had difficulties. Now Mr. Harvey is saying to him, you were redeposed in April, and did you make a correction with respect to your first deposition? I think that's a fair question. It flows from your redirect. MR. GILLEN: Okay. THE COURT: All right. The objection is overruled. Lost in the shuffle, was there an unanswered question? I'm not sure. MR. HARVEY: I think he answered. THE COURT: I thought he did. So it won't be stricken. The objection is overruled. You may proceed. BY MR. HARVEY: Q. Mr. Bonsell, at your first deposition, when Mr. Rothschild asked you who donated the books, your first response was not, my father, or my father had anything to do with it. Your first response was, I don't know, isn't that correct? A. It could have been. Q. Please turn to page 13 in your deposition on January 3rd, line 6. Isn't it true that Mr. Rothschild asked you the following questions, and you gave the following answers. Question, Are you aware that 60 copies of this book were donated to the school district? Yes. Question, Who donated those books to the school district? Answer, I don't know. That was your testimony at that time? A. That's what it says on that answer, yes. Q. And then later after -- A. But I -- Q. Then Mr. Rothschild asked you several more questions? THE COURT: Let him finish his answer. THE WITNESS: I later on went on to correct that to the person that, and then I named my father. BY MR. HARVEY: Q. That was after Mr. Rothschild asked you several follow-up questions, correct? A. I believe so, yes. MR. HARVEY: No further questions, Your Honor. THE COURT: All right. That concludes the examination of this witness. Sir, you may step down. And we'll take your next witness, Mr. Gillen. MR. GILLEN: Thank you, Your Honor. MR. GILLEN: The defense calls Sheila Harkins. THE COURT: While Ms. Harkins is taking the stand, we can take up the exhibits for Mr. Bonsell. We have on the Defendant's examination, we have the D-44, which is the memo and plan and instruction curriculum guide; D-46, which is the memo regarding the 10/7/04 meeting; D-50, the minutes of 10/7/04; D-187 is the memo and curriculum guide; D-184 is the history of the teachers edits of the biology statement; and D-119 is the press release by the Discovery Institute. First of all, did I miss any exhibits? And Mr. Gillen, I may have gone through them too rapidly. But did you get those? MR. GILLEN: I did get those. I believe they're all proper, and I would move for their admission. If you would, Judge, I'd ask you to leave the door open. I didn't bring my list. THE COURT: That's fine. We'll let you pick it up later. Let's get as much as we can, and that will be acceptable, and if during the break you identify others, we can double back and take those. MR. GILLEN: Thank you, Judge. THE COURT: What's the Plaintiffs' position on those exhibits? MR. HARVEY: No objection to any of those exhibits, Your Honor. THE COURT: All right. Then they are all admitted. On the Plaintiffs' side, we have a number of articles that we have not yet ruled on, and we're going to rule on those at some point soon. They constitute P-54, 44, 45, 46, 54, and 797. We then have P-134, which is the Thomas More Law Center web page; P-822, which is the updated website; and P-824, which is the intelligent designer article posted on the website. MR. HARVEY: Your Honor, we're not moving to admit 824, the article from the website. We are moving to admit the website itself. MR. GILLEN: And I object to that, Your Honor. I don't think it has any relevance to the dispute. You know, as I say, my position on that is, our clients are responsible for their words and deeds, the way in which whatever we say has nothing to do with this case. I would never dream of bringing to bear anything -- THE COURT: You're making a relevancy argument? MR. GILLEN: Yeah, relevancy, and also I think it wasn't truly -- the way it was used in the questioning, it's not admissible for any purpose. He asked him specific questions about how Mr. Bonsell viewed the representation. Those answers were given. That's the evidence. THE COURT: Mr. Harvey, we didn't -- although there was an objection to relevancy, as you went through your questions, which was overruled, and we allowed you to ask the questions, it would appear to me that there could be extraneous matters on the website that would go to their admissibility. I gave you latitude to ask the questions. I would not be inclined to admit the web pages as exhibits. I don't think we need to do that under the circumstances. MR. HARVEY: Your Honor, P-134, I believe, is only one page from the website, and as we established in the testimony, it was dated right around the time he engaged Thomas More, so I would think -- THE COURT: And he was asked questions regarding specific portions of that, that you directed him to, and I understand that, and that's on the record. But I don't have instantly a memory of what else is on that page, and I do agree with Mr. Gillen, that it's possible that there -- there it is through the magic of electronics. But I don't -- I'm not inclined to necessarily admit that if there are -- Mr. Gillen, I'm going to ask you that you look at this as well. What specifically on that is objectionable, having asked the questions of the witness. MR. GILLEN: Well, again, Your Honor, I think, you know, it is, of course, hearsay. But on top of that, it's improper to try and -- what shall I say. I don't know what the purpose of it is. THE COURT: Yeah, you know, I have to agree with Mr. Gillen under the circumstances. You know, I think that having given some latitude, having given some latitude on the questions, I'm not inclined to admit that, and I will not admit the website page. I think that's extraneous. MR. HARVEY: So P-134 and P-821 are not admitted? THE COURT: Well, I guess all of the exhibits, the non, if you will, article exhibits, as they pertain to Mr. Bonsell, would be the website pages, and so I will not -- one of them, you withdrew anyway. The other two would be the website and the updated website. They're not admitted. MR. HARVEY: Yes, Your Honor. Then the remaining, there was another one, P-63, which was the minutes from the July the 12th meeting. THE COURT: I'm sorry. I couldn't hear what you said. MR. HARVEY: P-63, I don't believe, has been admitted. THE COURT: Okay. I missed that. MR. HARVEY: That's the minutes from the July the 12th meeting which shows that the minutes from the June board meetings were approved that day. THE COURT: That's P-63? MR. HARVEY: That's correct. THE COURT: We missed that. I apologize. MR. GILLEN: No objection, Your Honor. THE COURT: Then P-63 is admitted. Anything else we've missed? MR. HARVEY: I don't believe so, Your Honor. THE COURT: All right. Then we'll proceed with the examination of this witness. Whereupon, SHEILA HARKINS having been duly sworn, testified as follows: COURTROOM DEPUTY: State your name, please, and spell it for the record. THE WITNESS: Sheila Harkins. S-H-E-I-L-A. H-A-R-K-I-N-S. DIRECT EXAMINATION BY MR. GILLEN: Q. Good morning, Ms. Harkins. A. Good morning, Pat. Q. As you know, you're here in court today to give testimony in this case, which is basically your side of the story, your perspective on what happened. And as a preliminary matter, I'd like you to just introduce yourself. Are you married? A. Yes, I am married. Q. And do you have children? A. I have a daughter, which I'm very proud of. She went through the Dover school system. After that, she graduated, went to college. And I'll brag, if I can a minute. She then went on to Penn State to get her master's degree with a 4.0 average. And she came back to Dover and has been a teacher in the Dover Area School District for 15 years. Q. And what about your education? Give us some sense for your educational background. A. I have a high school diploma, and I've taken some college courses. Q. And are you currently employed? A. I consider myself a homemaker, but I do buy properties on the side and rehab them and sell them. Q. Are you currently a member of the Dover Area School District School Board? A. I am a member of the Dover Area School Board. I am a member of the York County High School Board. And I'm also a member of the York County Probation Department Dover Youth Aid Panel. Q. When did you first become a school board member? A. I became a school board member eight years ago. Q. And were you elected or appointed? A. I was elected. Q. So you ran for office? A. Yes, I did. Q. And why did you do that? A. I was interested in education. I had volunteered in my daughters's classrooms and in other classrooms, and I have always been interested in kids. Q. Now when you ran the first time, was there any religious dimension to your platform? A. No, none. Q. Did you have a specific issue that brought you out and that you used in campaigning? A. The first time? Q. Yes. A. No, huh-uh. Q. You mentioned the first time. If you were elected, how long is a term for a school board member? A. Four years. Q. And did you run for election for another term? A. Yes, I did. Q. Okay. And how about, let's look at that decision to run. Why did you do that? A. Well, when I first came on the board, I found the board was not as fiscally conservative as I was. And I found myself in the minority with Casey Brown. There then was a building project that came up, and Casey and I was the minority members at that time in the building project. Q. Let me go back for a minute to your first race. When you ran the first time, did you run with anyone? A. No, I did not. Q. When you ran the second time, for your second term, did you run with anyone? A. I ran with Casey Brown, Alan Bonsell, and Angie Yingling. Q. You've mentioned Casey Brown, and there's a few questions I want to ask her -- you about her as we get started. There's been some discussion in this case about discussions of religion with Mrs. Brown, and I want to ask you, did there come a time when you discussed religion with Mrs. Brown? A. Yes, I have. Q. How did that happen? A. Casey knew I attended Quaker meetings, and she was interested in the Quaker faith, and so she asked me what the Quakers believe, and I told her, Quakers didn't have a dogma or a doctrine. Q. Did she bring it up or did you bring it up? A. She asked me what Quakers believe. Q. And then when she asked you the question about the Quaker doctrine, did you explain? A. Well, she then asked me, she said, we talked a little bit, and then she said, well, Quakers, do they believe the Bible is an inherent word of God? I told her that wasn't necessary -- MR. SCHMIDT: Your Honor, let me interpose a hearsay objection now. I understand that the subject matter of the conversation can be identified, but I believe it's improper for the witness to testify to what Mrs. Brown just said to her. THE WITNESS: All right. Can I just say, we discussed religion? THE COURT: Ma'am, when there's an objection, you don't talk until I finish talking -- those are the rules -- and/or until Mr. Gillen finishes talking. So we'll let Mr. Gillen talk. MR. GILLEN: The objection is proper, and let me rephrase. THE COURT: All right. We'll strike the answer and sustain the objection. BY MR. GILLEN: Q. You've testified that you had a discussion with Mrs. Brown. As a result of that discussion, did you provide her with material responsive to her concerns or questions? A. Yes, I did. I bought her a book on Quaker faith and doctrine and gave it to her. Q. She asked you about Quakerism. Do you have reason to believe she acted on the information that you provided to her? A. Yes, I do. Q. What is that? A. Her and her mother showed up at a Quaker meeting. Q. Did she ever speak with you about that later? A. Yes, she did. She told me she enjoyed it. Q. Let's go back to board business again and the building project, this issue you discussed about fiscal responsibility. What was the issue, as you saw it, for the second term of the board? A. What do I see the issue as? Was the building project. Q. Yes. A. The building project was the main issue of the four of us. Q. And you've indicated, there was a division on the board. What was the basis for the division? A. They wanted a much more expensive project than we did. Theirs was, I think, 30 some million, and ours was about 19. Q. Were there specific members of the board with whom you differed in judgment with respect to the building project? A. Yes. Q. Tell us who they are. A. Lonnie Langioni, Larry Snook, Barrie Callahan. I'm trying to think who else. And I think Shirley Harnish was for it also. Q. Was the building project the big issue of the election or were there others for your second term? A. The building project was the big issue. Q. Did you run with others for this second term? A. Yes. Q. Who did you run with? A. I ran with Angie Yingling, Alan Bonsell, myself, and Casey Brown. Q. Okay. Let's look at each of those members, and I want you to describe whether you have any relationship with them prior to? A. I'm sorry. Q. Do you have water? A. Could you restate that? Q. Yes. Do you have water? A. Yes, I do. Q. Okay. A. I'm sorry, Pat. Yes. Q. That's all right. Did you run with Mr. Bonsell? A. Yes. Q. Okay. And why did you choose to run with him? A. Alan Bonsell had attended several meetings and spoke out against the building project that they had planned, and he was fiscally conservative, obviously. Q. Was there any discussion of religion when you decided to run with Mr. Bonsell? A. No. Q. Did you know Mr. Bonsell beforehand when you decided to run? A. No, I didn't. Q. How about Angie Yingling? Why did you run with her? A. Same thing. She came to the board meetings and was opposed to the building project. Q. Was there any discussion of religion when you decided to run with Angie Yingling? A. No, none. Q. And how about Casey Brown? A. Casey and I were the minority members on the board and was a good fit. Q. When you decided to run with Casey and your deciding whether you have a shared interest and can run together, was there any discussion of religion? A. No. Q. I want to talk briefly about your impression of the impact of the building project on the community, on the board, the school. How did you see the impact of the building project on the Dover Area community? A. I saw it as it would increase taxes, you know. Q. Okay. How about in terms of board meetings and controversy? Was it a big issue or small? A. It was very divisive. The meetings were extremely divisive. Q. Was there -- were there comments directed at the board? A. Yes, there were. There were many comments directed at the board. They were adamantly against the board. Q. Okay. How about the, when you got on -- well, let me ask you this. Did the election that you've referenced for your second term have an impact on the make-up of the board as it related to the building project? A. Yes, it did. It turned the board around to six that were no longer in favor of the building project and three who were still in favor of it. Q. Who were they? A. Lonnie Langioni, Larry Snook, and Barrie Callahan. Q. Did the election results quell criticism of the board or did it continue? A. On the board, did you say? Q. Of the board. Did people still show up at meetings to discuss the project? A. No, not -- no, huh-uh. Q. How about in terms of the individuals you've mentioned? Did the election results affect their continued participation on the board? A. Yes, it did. Q. Tell us how. A. Excuse me. Larry Snook and Lonnie Langioni resigned from the board. Barrie stayed. Q. And did Barrie stay on the board for a long time or did she later leave? A. Barrie stayed for the remaining two years, to her credit. I have to give her that. Q. Now when Mr. Snook and Mr. Langioni resigned, what action did the board take? Did they take any action in response to the vacancies? A. Yes, we replaced those two vacancies, of course. Q. And do you remember who they were? A. Yes, Bill Buckingham and Janey Cleaver. Q. Okay. I want to look briefly at your relationship with them before they came to the board. Did you know Bill Buckingham -- A. Yes, I did. Q. -- when he applied to fill the vacancy on the board? A. I'm sorry. I didn't wait until you finished. I apologize. Q. That's all right. Did you know Bill Buckingham when he applied to fill the vacancy on the board? A. Yes, I did. Q. How did you know him? A. Jeff Brown started the tax payer group. I went to his meeting he had, and there were only two other people that showed up. One of them was Bill Buckingham. Q. And did you have any discussions with Mr. Buckingham about change in the curriculum or bringing religion to bear in the curriculum when you met him? A. No, none. Q. Had you had any such discussions with Mr. Buckingham when he applied to fill the vacancy on the board? A. I'm sorry? Q. Had you had any discussions of that nature relating to the curriculum or bringing religion into the schools when he applied to fill the vacancy on the board? A. No, none. Q. Did you vote to approve Mr. Buckingham? A. Yes, I did. Q. And why did you do that? A. Well, I knew from him going to Jeff's tax payer group, he would be a fiscally conservative person. Q. How about Jane Cleaver? Did you have a personal relationship with Jane at the time she applied? A. No, but Janey had attended many meetings, and I knew her that way. Q. Had you asked Jane Cleaver to apply for the position when she did? A. No, I did not. Q. Had you asked Bill Buckingham to apply for the position? A. No. In fact, I believe it was Jeff Brown that asked him to join the board. Q. Did you vote to appoint Jane Cleaver? A. Yes, I did. Q. Why did you do that? A. I thought she would be a good fit for the board. She knew the vast majority of the people in the community. Q. There's been some testimony about board retreat -- A. I'm sorry. I apologize. Q. That's all right. There's been some testimony about board retreats in 2002 and 2003. And I want to ask you, as you sit here today, do you remember anything specifically from those two board retreats? A. Not at all. I shouldn't say, not at all. You know, slim to none. Q. Do you remember anything generally about the retreats? A. I remember the whole process of the retreat. First, we came, we got our food, ate. Then the administrators all have their couple minutes. And then the board had their quick impressions. I'm sorry. Q. Let's focus your attention on the 2002 retreat. And I don't want to spend too much time on this. But do you remember anything that Alan Bonsell said about creationism at that retreat? A. I don't remember a word he said at all that I know of. Q. How about prayer? A. Huh-uh, no. Q. Well, do you remember anything you said about -- A. No. Q. Do you remember any discussion -- A. Nobody has reminded me yet. Q. How about the 2003 retreat? A. 2003 retreat? Q. 2003 retreat. There was one held in March. As you sit here today, do you remember any discussion of creationism at that retreat? A. No, none. Q. How about prayer? A. No. Q. How about the social studies curriculum? A. No. Q. Do you remember a portion of the retreat in March of 2003 where Dr. Nilsen solicited input from board members? A. He generally does that always at the end of the retreat. Q. Okay. Just give me a description of that portion of the meeting. How long was it roughly? A. They're all -- you mean, the board part. Q. Yes. A. It's just a quick go around. You just quickly say anything that's on your mind. Q. Okay. And about how long is that quick go around? A. One to three minutes. He doesn't stop you usually. But it's very quick. It's late in the evening, you understand. You want to get home. Q. All right. Let me ask you this. Let's focus your attention on the 2003 period and on the biology text and curriculum. And I want to ask you, do you remember any information that you received in 2003 that related to the biology text? A. I'm trying to think. I do remember getting something in 2003. Q. Let me be more specific. Do you remember comments being made at board meetings about the biology text? A. Yes. Yes, I do. Q. Okay. A. Should I tell you about them? Q. Yes, please. A. I remember Mrs. Callahan. I think there was another parent also that came and complained about the kids not having biology texts. Q. At this period, did you believe that students in Dover did not have biology textbooks? A. No. As far as, I had spoke to Bert Spahr before, and it was my impression the issue with the biology text was, they had texts, but they really weren't using them hardly at all, because they really didn't fit the curriculum well. Q. Okay. Let me ask you this. Were the biology texts purchased in 2003? A. No, they were not. Q. And do you have an understanding -- well, did you vote to approve the text? A. Excuse me? Q. Did they come up for a vote? A. No, they did not. Q. Okay. Why? A. Well, one, they weren't on the agenda ever. I know they weren't. There wasn't money for them, I don't think. I think money might have been set aside for them, but somehow -- I'm not sure how it worked exactly. Q. Let's look at the 2003 period, and let me ask you, did you ever obstruct purchase of the biology text because of some objection to evolution or evolutionary theory? A. No. Q. Are you aware of any board member who tried to obstruct purchase of the biology text because of an objection to evolution or evolutionary theory? A. No. Q. Let's look at 2004. And let's look at your committees. Did you serve on any committees in 2004? A. Yes, I did. Q. Can you remember which ones? A. I think here we're talking about the curriculum committee. Q. Okay. How did you get on the curriculum committee? A. Alan Bonsell assigned me there. Q. Do you know why you were put on the curriculum committee? A. I didn't ask. Q. Did either Alan Bonsell or Bill Buckingham tell you that they wanted to work intelligent design or creationism into the curriculum? A. No, they did not. Q. Let's look at 2004, and take it from January to the end of May. And I want to ask you, do you remember any developments relating to the biology text or curriculum in that portion of 2004, from January to the end of May? A. If I may, May and June, there were two curriculum meetings I attended, and they both sort of go together. So if I can go May and June. Q. Okay. Well, do you have any specific recollection of one in May and one in June or can you separate them? A. A little bit, yeah. Q. Well, can you tell us anything that you recall specific to a meeting in May? A. The first one, as I recollect, is when they presented books they had, I think -- they had family consumer science book, I think, purchased chemistry book, and the biology book there. Q. Did you do anything as a result of this meeting? A. Yes, I asked if I could have a copy of the new book and a copy of the old book. That's what I usually did. I usually liked to look at both books. Q. Why was that? A. Just to compare them sort of. Q. And did you come to a conclusion based on your review of the books? A. I came to a conclusion that the chemistry book. She needed a new one. It was worn out. And the family consumer science book looked new, and so did the biology book. Q. Let's look at the biology book. Did you have an objection to the biology book based on its presentation of evolutionary theory? A. No. Q. And this has been raised as an issue here. Is evolutionary theory in any way inconsistent with your religious convictions? A. No, it is not. Q. Do you remember anything else about the meeting in May? A. I remember the teachers talked a little bit about the books. I think there was in, I don't remember more than the books that they wanted to buy for family consumer science and chemistry, but I recollect there was a couple different biology books there. Q. You've mentioned two meetings during this period, and I know you can't distinguish them. If what you said is proper to the May meeting, tell us what you can recall about these meetings in the spring period? A. The second meeting, as I recall -- like I say, this is, take it as my recollection, and it's not firm, you understand. Bill came with a list of issues that he had with the book. I also -- I'm not sure -- we discussed curriculum, too. I'm not sure if we discussed them at both or just the last meeting. And Bill went through his list of concerns in the biology book. Q. Do you remember any specific concerns that he raised? A. They were pretty much all evolutionary concerns. Q. Did the teachers respond to Mr. Buckingham? A. Yeah, I felt they were very understanding and very supportive and wanted to work with him. Q. You've mentioned some discussion of gaps and problems. Actually, let me strike that, because you haven't. You've mentioned some discussion of the curriculum. Can you recall any specifics about that discussion? A. Can I go back once? I do remember the second meeting. Bill did say a few things that -- the teachers were nicer than Bill was at that meeting. How's that? Is that fair? Q. I guess you could describe the tone, but let me ask you. You've mentioned curriculum. Do you recall any specific changes -- A. Excuse me. Q. Do you recall any specific changes being discussed to the curriculum? A. Yes. Q. Okay. Tell us what you recall. A. We talked about the gaps, other theories of evolution. Q. And how was the tone of the meeting? Was it strained or was it generally cordial? How would you describe it? A. No, the first meeting, I remember, was extremely cordial. The second meeting was okay. But I wouldn't say it was as good as. Q. Let's look at the board meetings in June. Do you have any specific recollection of those board meetings? A. Yes, I do. I was going to say, the two though, there were two, a planning meeting and a board meeting. And they sort of go together, you know what I mean. One is a planning and one is a board meeting. Q. Let's look at them together then, and let me ask you. Do you remember any discussion of the biology text at the board meetings in June? A. I do. I'm trying to think what all I remember. Q. Well, let's look at it from your standpoint. Do you recall making comments about the biology text during this June period? A. Yes, I did. I said that I thought the books looked new and had a little reservations on that issue. Q. Excuse me? A. And had some reservations on that issue. Q. Well, describe them. What do you mean by that? A. Well, this was a '98 -- we had a '98 textbook. This was a 2002 textbook. And that's only four years difference. And we generally go seven years. So even though I didn't understand, they said we were up on the cycle, but to me, that four years isn't seven years. Q. Well, let me ask you. Do you remember creationism coming up at board meetings in June? A. Yes. Q. Do you remember how? A. Well, I remember -- I'm trying to think. There are people in the audience talking about creationism. It seems to me -- it seems to me, Jeff was talking intelligent design, but he was also talking creationism, I think. That's my recollection of the board. I'm trying -- Q. Do you remember other board members discussing creationism when it was brought up? A. No, no, I don't remember any other ones. Q. Do you recall intelligent design being brought up at board meetings? A. Yes, I do. Q. Okay. Do you recall discussion of intelligent design? A. Yeah. My recollection is, it seems to me -- I was thinking Jeff was the first one to bring up mention of intelligent design. And in the conversation, Alan and Noel and Bill got in on the conversation. Q. Okay. MR. GILLEN: Your Honor, if you'd bear with me for a second, I've got to look for an exhibit. THE COURT: That's fine. MR. GILLEN: Forgive me. I apologize, Your Honor. I omitted to prepare this. May I approach the witness? THE COURT: You may. BY MR. GILLEN: Q. Now I know, since this trial began, you've actually come across something that you recollect, and I want to look at that. I've shown you what has been marked Plaintiffs' Exhibit 149. A. Yes. Q. Now let me ask you. Do you recognize that? A. Yes, I do. Q. And tell us, what is it? A. It's views on the origins of the universe and life. Q. Okay. And have you seen this before? A. Yeah, I did. I didn't remember I saw it until it was up on there. Q. Okay. Well, tell us about it. What do you know about that document? A. I got it. I'm not exactly sure who gave it to me. And I had conversations with Jeff and Casey, and I gave this to Casey. Q. Do you recall approximately when you gave it to Casey Brown -- is that Casey Brown? A. Yeah, uh-huh. I'm sorry. Yes, sir. Q. And about when did you give it to her? A. It was around that time, around June. Q. And what was your point in giving her this document? A. Well -- THE COURT: Give me the exhibit number again, Mr. Gillen. MR. GILLEN: Yes, it's Plaintiffs' 149. THE COURT: P-149. I'm sorry. MR. ROTHSCHILD: Your Honor, would you like it on the screen? THE COURT: Why don't you. That would be helpful to me. I have approximately 500 binders sitting next to me. All right. You may proceed. MR. ROTHSCHILD: This is the second page of that exhibit, Your Honor. THE COURT: Thank you. THE WITNESS: All right. The point was, if you go to the first column, second down, it's intelligent design of the world. Right. If you go -- even -- then if you go down that column to the bottom, even to Charles Darwin. So the point is that, according to this sheet, of course, this is -- this isn't fact. This is just information that somebody gave me. Okay. BY MR. GILLEN: Q. Okay. But I'm interested in your point. A. My point was, here was someone that viewed Charles Darwin believing in intelligent design. Q. And did you pass this on to anyone? A. Yeah, Casey and Jeff. I was going to say also, if you want to look -- if you look, the second column at the bottom is the intelligent design movement. Okay. Q. Okay. A. I view those as different views. Q. Okay. But your point to the Browns was what? A. My point to the Browns was that, according to this, that Charles Darwin himself believed in intelligent design. Q. And why did you give it to the Browns? Had that come up? Was there a discussion of it? A. Yes. Q. When you gave her this document, were you giving it to her in an effort to persuade her to accept intelligent design for religious reasons? A. Not at all. Q. What were you trying to do? A. We just had discussions. They viewed differently than I did. Q. Well, did you really know that much about intelligent design? A. Not at all, no. Q. Did you try and acquaint yourself with it? A. Yes, I did. Q. What did you do? A. I Googled. Q. Excuse me? A. I Googled. Googled. Q. Oh, okay. MR. GILLEN: It's been a long trial, Your Honor? THE COURT: It certainly has. It wouldn't have made sense 10 years ago. It makes better sense today. MR. GILLEN: I'm glad my kids aren't here. BY MR. GILLEN: Q. Okay. Let's go on then. When you Googled it, did you learn much by way of the substance of intelligent design? A. You just see what's there. Q. Did you reach conclusion as a result of your Googling? A. No, I did not. Q. Let's look at July. And I want to ask you, do you recall -- A. Understand, I did not reach a conclusion from this sheet either. Q. No, I understand. I thank you for making that plain. And again, this is something that someone passed on to you? A. That's correct. Q. Do you remember who? A. I think. And I don't want to swear to this, all right. But I believe it was Dan Singlinger. Q. And how do you know him? A. Just a friend. Q. Let's look at July then and action on the text? A. I'm sorry. Repeat that. Q. Let's look at July then and any action on the biology text. Do you recall any board action relative to the purchase or approval of the biology text in the July 2004 period? A. Yes, I do. I remember -- is seems to me, it was Bert that came up to the podium and -- I'm not sure, but it seems to me, Bert said she had just received a 2004 edition of the biology text and they were going to review it. Q. Do you remember another text coming up during this July 2004 period? A. Yes, Pandas book. Q. And can you tell us what you remember about how that book came up? A. It seems to me, Bill had a copy there, and he said it was on intelligent design. Q. Bill had a copy there. Where do you mean? A. At the board meeting. I'm not sure if it was the first or second board meeting though in July. Q. Do you have any specific recollection of two board meetings in July? A. No. But I mean, they go -- planning meetings and board meetings, in my mind, run together all the time. Q. Did you see the text at the time? A. There, no. He had -- he only -- you know what I mean. He didn't have any books to share with us. Q. Okay. Did you later get a copy of the book? A. Yes, I did. I called Mike Baksa and got a copy. Q. Did you review the text? A. Can I elaborate on this? Q. If you'd like to explain your answer, go ahead. A. Yes, I did. I got the book from Mike. But as I recall, until I got home, Jeff had gone up for the book at the same time. And when he found out I had the book, I had a message already, Jeff wanted to look at the book. And so I called him, and I told him I would look at it quick. And -- Q. Did you pass it on to him? A. Passed it on to him, yeah. Yes, I did. So I only looked at it very briefly. Q. Okay. Did you have any discussion of the text with Mr. Brown prior to the August board meeting? A. Well, when he came to pick up the book, he wanted to know what I thought of it, and I wouldn't tell him. Q. Why was that? A. Just -- I just, you know, I wasn't telling him what I thought. I wanted him to form his own opinion. Q. Okay. And did Mr. Brown take the book from you? A. Excuse me? Q. Did Mr. Brown take the book from you? A. Yes, he did. Q. Did he later contact you? A. Can we go back? When you said about any other discussion. We did have discussion then afterwards. I apologize. Q. Based on that discussion, did you get an understanding of Mr. Brown's position on the text? A. Yes, I did. Q. What was -- A. He felt it was -- I think his words were, it offended his religion. Q. And did you agree with Mr. Brown? A. No, I didn't. Q. Why? A. I didn't see any religion in it. I thought it looked like science to me. Q. Well, based on your review of Pandas, did you think it was a text that addressed creationism? A. No, I didn't. Q. Did you think it was a religious text? A. No, I didn't. Q. When you got this book and looked it over, you've mentioned that Bill Buckingham brought it up at a board meeting. Had you ever discussed the book with anyone prior to that time? A. Excuse me. Say it again, Pat. Q. Sure. You mentioned that Mr. Buckingham brought up the book in July? A. Uh-huh. Q. Prior to that first mention, had you ever discussed the book Of Pandas with anyone? A. Before he brought the book to me? Q. Yeah. A. I never heard of the book before. Q. Okay. You've mentioned a discussion with Mr. Brown. Had you ever discussed with Mr. Buckingham the text prior to your discussion with Mr. Brown? A. When I discussed the text with anyone else? Q. Yeah. A. Is that what you're asking? Q. Yes. Had you discussed it with Mr. Buckingham prior to passing it on to Mr. Brown? A. Huh-uh, no. Q. Had you discussed it with Mr. Bonsell prior to passing it on to Mr. Brown? A. No. Understand, from when I picked the book up to when Jeff came and got it was maybe an hour and a half, two hours. Q. Okay. A. It wasn't long in my possession. Q. Okay. And let's look at that. You've already mentioned reviewing the Miller and Levine text. About how long did you spend reviewing that text? A. About, I'm going to say, three nights. When I say -- right before I go to bed, I take something with me and look at. Q. What would be -- can you give us an estimate concerning the total amount of time you spent reviewing the Miller and Levine text? A. Maybe six hours. Q. Okay. Did there come a time when the Miller and Levine text, recommended by the teachers, came up for a vote by the board? A. Yes, it did. It came up in August. Q. Okay. And let's -- let me ask you what you recall about that meeting. Do you recall it coming up for a vote? A. Yes, I do. Q. And do you remember the vote? A. Yes, it was four-four. Q. And did you vote with Mr. Buckingham? A. Yes, I did. Q. Now prior to voting at this meeting on the text, had you spoken with Mr. Buckingham about the voting? A. No, I didn't talk to him about voting. Q. Do you recall the first vote that was taken on approval of the text recommended by the faculty? A. That was the one we were just talking about? Q. Yeah. Do you recall the vote, the vote outcome? A. Yeah, it was four-four. Q. Okay. Now let me ask you. Why did you cast your vote? A. We had x amount of dollars. We bought the chem books, which we had to have for Bert. They then bought the family and consumer science books, which I didn't want to buy. And we didn't have enough money left. We were like $5000.00 short for that year for -- these were the science books. Q. You happened to mention Of Pandas. Were you voting with Bill to link approval of the science text recommended by the faculty with approval of Pandas? A. No, no. Q. Prior to casting that first vote, had you spoken with Heather Geesey about the way you were going to vote? A. No. Q. Prior to the first vote, had you spoken with Angie Yingling? A. No. Q. Do you recall what happened when the results of the first vote came in, four-four? A. Yeah, there was a big discussion. Q. Do you recall any specific comments that were made? A. Yeah. How can you do this? They need their books. They got to have their books. It was like it was a world-ending crisis if they didn't have books. Q. What was your view on that concern? A. This was 2004. We didn't quite have enough money. We could have taken it out of the fund balance. But we still were only six years -- we weren't at seven years, in my mind. And we had spent the money on the family and consumer science books, which I didn't feel we should have spent it on there. We should have spent it on the biology books instead. Q. How about your sense for whether the texts were essential to classroom instruction? Did you have an impression or opinion on that when you voted in August? A. I'm sorry? Q. How about -- you've mentioned that you believed at one point the texts weren't being used. When you voted in August, did you think they were essential for instruction? A. No, because they already -- I know they didn't fit the curriculum, and that was my impression from Bert, that they didn't. And I felt, one more year isn't going to hurt them. Q. Well, do you remember what happened after the tie vote? Was there another vote? A. Yes, there was. Angie said, well, she felt they needed their books. And since she was one of the dissenters, she put it back up. Q. Do you recall the outcome of that vote? A. It was five-three. Q. And -- A. I think. Q. What was the implications of the vote for the approval of the text? A. What do you mean? I'm sorry. Q. Was the text approved or not? A. The text was approved. Q. Okay. MR. GILLEN: Your Honor, is this a good time for a break? THE COURT: I think we could take a break at this point. Why don't we take a 20-minute break, and we will return and pick up your direct examination with the witness after that. We'll be in recess. MR. GILLEN: Thank you, Your Honor. (Whereupon, a recess was taken at 10:15 a.m. and proceedings reconvened at 10:37 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 19 (October 28), AM Session, Part 2 THE COURT: All right. Mr. Gillen, you may pick it back up. MR. GILLEN: Thank you. Your Honor, may I approach the witness? THE COURT: You may. THE WITNESS: Can I set these here? THE COURT: Yes. THE WITNESS: Can I set these here? THE COURT: You can ask Mr. Gillen, too. We'll let him weigh in on it. DIRECT EXAMINATION ( CONTINUED) BY MR. GILLEN: Q. Oh, Lord. All right. We're moving past the August meeting into the fall of 2004 and some developments that relate to the biology curriculum. And I'd ask you to look at Defendants' Exhibit 44. A. Okay. Q. Do you recognize that? A. This first is the memorandum. Is that what we're looking at? Q. Yes. A. This is of September 21st, 2004. It is the recommended curriculum change for biology. Q. Okay. Do you remember receiving this? A. Not as I sit here, no, I don't. Q. Well, flip the page and take a look at the next page. I think that will help you. Look at the page with the baits number 32 on it. Do you remember receiving a document like this from Mr. Baksa in the fall of 2004? A. It looks familiar, but I don't remember getting it at that time, but I do remember seeing this. Is that what you're asking? Q. Yeah. A. Yes. Q. That's it. Now let me ask you to look at Defendants' Exhibit 46. A. Am I supposed to keep ahold of this one, too? Q. No, that's fine. Just on to 46, please. A. Okay. Q. Do you recognize that document? A. Yes. Obviously, this would be a memorandum, and, obviously, who it's to is to the curriculum committee members. Q. Look at the reference to a meeting. A. October 7th, 2004, 3:15. Okay. Q. Okay. Do you remember receiving this memo? A. No. Q. Do you remember attending a meeting on October 7th? A. No, but I probably did. Q. Let me ask you. Well, let me stop here. Before we go on, look at Defendants' Exhibit 46? A. Yes, I do. I do remember now. I do, thinking about it. Q. Okay. A. Do you want me to look at 46 yet, or what did you say? Q. Okay. Do you remember seeing it now? A. I remember -- I now visualize, I'm pretty sure, the meeting. Q. With that in mind -- A. A little bit. Q. I want you to look at Defendants' Exhibit 50. A. Yes. Q. Do you recognize that document? A. Yes, this is all the recommendations for all the different curriculum changes. Q. Okay. Before we go to that, I want you to tell me, do you remember there was a time when textbooks Of Pandas were donated to the school district? A. Yes, I do. Q. And I want to ask you, did you have a role in securing that donation? A. No role whatsoever. Q. Did you discuss the donation of the book with anyone? A. No. Q. And did you contribute any money personally to the purchase of the book? A. I did not. Q. Let's look at the Exhibit 50, and let me ask you, do you remember attending a meeting on October -- A. You know what. Am I supposed to get rid of this curriculum meeting -- Q. No. Is that Exhibit 50, Sheila? A. Yeah. Excuse me. Yes. Q. Okay. And I'd ask that you direct your attention to that. A. Yes. Q. And I'd ask you whether you remember being at a meeting on or about October 17th, 2004? A. Yes, I do. Q. Do you remember seeing this document? A. Yes, I do. Q. Okay. Let's talk about that. I notice that there is no position attributed to you on this memo. Is there a reason for that? A. I just wanted to go to the meeting and see what other people had and listen to their arguments. Q. Well, let me ask you a little more about that. At this time, you have in front of you a document entitled proposed curriculum changes. Did you have a strong opinion on whether a curriculum change was necessary or desirable? A. I had no strong opinion whether it was necessary, no. Q. So why are you attending this meeting? A. I wanted to hear their arguments for it. Q. And what do you mean by that? A. I want to hear what they have to say, what they want, and why. Q. Okay. Now you've been on the board curriculum committee in 2004 and party to some discussion between board members and teachers? A. Yes. Q. Did you have a sense as you attended this meeting concerning whether those discussions were at all fruitful? A. Yes. I thought the administration and the teachers were working together to come up with something, an option. Q. If you look at Exhibit 50, at the page bait stamp 35, under the heading, A, recommendations, there's a number of positions that have been laid out there. Do you remember looking at those? A. Yes, I do. Q. And do you remember having a sense for whether they were different, and if so, how? A. Well, yeah. Mr. Buckingham's was the only one that had intelligent design. Casey wasn't at the meeting. She didn't come. But she sent this in. Alan's was, to me, very similar to the administration's and staff's. Q. Okay. Do you recall whether it was a long meeting? A. No, it was not. Q. I'd ask you to direct your attention to the portion of Exhibit 50 -- A. Excuse me. Q. If you would look at the page of Exhibit 50 that has 36 stamped in the lower right-hand corner? A. Yes. Q. And you'll see some handwritten notations? A. Yes, I do. Q. Do you have an understanding concerning how those notations got there? A. Yes. We discussed it. And as I listened to them, part of my argument was, well, if you want to mention other theories of evolution, you ought to have an example of what other theories are. So I sided with Bill because I felt, just saying, other theories, well, what are other theories? So Alan went along with us and agreed to include, but not limit to, intelligent design. Q. All right. We're leading up to the meeting of the board on the 18th, so I want to just get you to look at a few documents and discuss those briefly with you. If you would look at Defendants' Exhibit 60? A. 60? Q. 60. A. Okay. Q. Do you recognize that document? A. Do you want me to just look at the memorandum? Q. Yeah. If you would, look at both pages. Do whatever it takes to see if you recognize that document? A. I'm sure I got this. I don't remember, you know, getting it at the time, but it looks familiar. Q. Okay. Well, let me ask you to look at the subject matter of the memo, which is Defendants' Exhibit 60, at the page with the number 17 in the lower right-hand corner. A. 17, memorandum? Q. Yeah. A. Yes. Q. Do you see a description of the attached document? A. It says, attached are the recommended changes to the biology curriculum from the board curriculum committee. Q. Okay. With that in mind, I'd ask you to flip to the page of Defendants' Exhibit 60 which has the page 18 stamped on it? A. Yes. Q. Looking at that document, does that strike you as the board curriculum committee's -- A. Yes, it is. Q. Now I'd ask you to look at Defendants' Exhibit 61. A. Okay. Q. And again, I direct your attention to the description of the attached document on the page of Defendants' Exhibit 61, bait stamped number 19 in the lower right-hand corner? A. Yes, I apologize. Yes, attached are the recommended changes to the biology curriculum from the administration and staff. Q. Okay. And I'd ask you to flip to the next portion of that exhibit with the bait stamp number 20 on it? A. Yes. Q. And examine that document. Do you recognize that? A. Yes, that's -- that was from the -- Q. Do you remember receiving this in the period leading up to the October 18th, 2004, board meeting? A. Like I said before, I'm sure we did -- I did, but -- Q. Okay. A. My recollection -- Q. Do you recognize the document? A. Yes, I do. Q. Okay. Thank you. Look then next at Defendants' Exhibit 68? A. 68. Okay. This says, attached is a second draft of the recommended changes to the biology curriculum from the administration and staff. Q. Again, I'd ask you to direct your attention to the second page of that exhibit, which has the baits number 22? A. Okay. Q. Do you recognize that document? A. Yes, this has the note, the origins of life is not taught. Q. Okay. Do you remember receiving this document as you went into or leading up to the October 18th, 2004, board meeting? A. No, but I did see this. Q. Okay. Do you remember voting on three versions of the curriculum change that night? A. Yes. Q. Defendants' Exhibit 60. A. Excuse me. I'm sorry. Q. That's quite all right. Defendants' Exhibit 60 is one version, correct? A. Okay. Q. Defendants' Exhibit 61 is another version, correct? A. All right. Q. And Defendants' Exhibit 68 is a third version, correct? A. Yes. Q. Okay. Do you remember seeing any other versions in the lead-up to the October 18th, 2004, board meeting? A. Not to my recollection, no. Q. Let's talk about the board meeting. As you went into the board meeting, did you see a big difference between the various versions? A. No. Q. Do you remember any public comment being made at the beginning of the October 18th board meeting? A. Yeah, this is when, I believe, Bert got up and talked, and it became apparent that she strongly did not support having the words intelligent design in the curriculum change. Q. Okay. Do you remember anything specific she said? A. Yeah. She quoted several different law cases. Q. Do you remember a response to Ms. Spahr's statement? A. Yes, Mr. Buckingham said, where did you get your law degree? Q. Did you have a reaction to that statement? A. (No response.) Q. What was that reaction? A. He shouldn't have said it. Q. Do you remember anyone else who spoke at that meeting? A. Yeah. I remember Jen Miller talked, but I don't remember what she talked -- I'm trying to think what she talked about. Q. If you would, Sheila, speak into the microphone. A. I'm sorry. I was thinking. I was trying to think at the same time. I apologize. Q. That's all right. A. Yes. Q. When you say Bill shouldn't have offered that retort to Bert's comment, what do you mean by that? A. That wasn't nice. Q. Well, let's talk about the process of voting. Do you remember how that process began? A. Yes. Q. Okay. A. Noel started out. He made several different changes or motions. He made several different motions of different options. Q. Okay. You know, to help you out here -- A. Is that what you're referring to? Q. Yeah, I'm referring to what you remember, but let's do this to try to help you out. Would you look at Defendants' Exhibit 64? Again, I'd ask you to look at the page with the baits number 158 in the lower -- A. 158? Q. 158. A. Okay. Q. Now let me ask you. What was your reaction to Noel Weinrich's motions? A. I didn't get the point. Q. What do you mean by that? A. I didn't understand what his point was that he was trying to make. Q. Did you see any meaningful difference in the versions of the curriculum change that were in front of you at that time? A. No. Q. Okay. How about Mr. Weinrich's motions? Did you see them having a point? A. I didn't understand where he was going with it. Q. You've mentioned some objection that the teachers made at the beginning of this meeting. Did you agree with the objections that were being raised to the curriculum change? A. Run that by me again. Q. Sure. You've mentioned that there were some objections to the proposed curriculum changes that were voiced in the public comment? A. Yes. Q. And I believe you said that they were voiced by the teachers, is that correct? A. Yes, that's correct. They were concerned they were going to be forced into teaching creationism, I think. Q. Okay. And do you recall whether there was a response to that from board members? A. They were told they were not teaching creationism. We were not having them teach intelligent design even. Q. Do you remember, during the process of the voting, Mr. Bonsell making a motion to amend? A. Yes. Yes, he made the motion to add on a note, the origins of life, you know what I mean, that note, yes, onto our board curriculum committee recommendation motion. Q. Did you have an understanding of Mr. Bonsell's purpose in doing so? A. It was to address that concern. Q. And what concern? A. The concern that they were not going to be teaching intelligent design. They weren't going to be teaching -- if they interpreted it as creationism, they weren't going to be teaching that either. Q. Did you vote to support the motion proposed by Mr. Bonsell? A. Yes, I did. Q. And why did you do that? A. Because they do not teach origins of life. Is that what you're asking? Q. That's what I'm asking. A. And to direct their concerns, to direct the teachers' concerns. Q. And is it your recollection that the final version of the proposed curriculum change was worked out on this night of the meeting? A. Yes, it was. Q. Do you remember board members resigning at the conclusion of this meeting? A. Yes, I do. Q. Tell us what you remember about that. A. At the end of the meeting, Casey resigned first, and gave a lengthy dialogue chastising the board, and then Jeff resigned, too. Q. And what was your reaction to their resignation? A. I was extremely disappointed. Q. And why is that? A. They're my friends. Q. Some criticism was made of the board in connection with these resignations. Did you agree with that? A. Excuse me? Q. Some criticism was made at the board with respect to these resignations in evidence here. Did you agree with that criticism? A. What did you say? I'm sorry. Q. Excuse me. A. I'm sorry, Pat. Excuse me. Q. You've mentioned the statements that Mrs. Brown made? A. Yes. Q. Did you perceive that as critical of the board or favorable? A. Critical. Q. Did you agree with the criticism she offered? A. No, I felt hurt. Q. At the time that this curriculum vote was taken, were you voting for a religious reason? A. No. Q. I'd ask you to look next at Defendants' Exhibit 65. A. Okay. Q. Do you recognize this document? Maybe if you flip to the next page? A. Okay. Yes. This is the statement that's read. Excuse me. Okay. This is the statement that the administration reads. Is that what you're asking? Q. Did you play any role in drafting that statement? A. No, I did not. Q. Do you recall reviewing the draft at some point? A. Yes, I do. Q. Now let me ask you. When the curriculum change was put in place, did you believe a statement would be necessary? A. No, I did not. Q. Did you have something in mind when you voted for the proposed curriculum change? A. I just felt the teachers would present it however they saw fit. Q. And did you see a problem with that? A. No, not at all. Q. As we move forward from this meeting, let me ask you. Did you become aware of a controversy surrounding the reporting on this meeting, the press reporting? A. Yeah. Q. Okay. Tell me what you recall about that. A. We've had problems. We've had strained relations with the newspaper for some time. And it wasn't a good situation. Q. Well, you perceived this strained relation. How far back does it go? A. It goes back, jeez, when -- when we were doing the building project, the newspapers took a position against us, as the board of directors, us, the conservative board of directors. They wrote editorials against us. And took positions that way. So that each -- so we've had strained relations for some time. And then another instance, we had -- when we did the pledge, it seemed almost deliberate that the newspaper, they put in, in the front of the section, they put a little block of what you're doing, and they're putting, the Dover School Board wants to take under God out of the pledge. And then the next meeting, we had -- I mean, we had -- our room was more than packed. Q. Was the board contemplating taking under God out of the pledge? A. No, we were not. Q. Do you remember Mr. Buckingham saying anything in connection with that meeting? A. Excuse me? Q. Do you remember anything that Mr. Buckingham said that was reported in connection with that meeting? A. He said something the meeting before. Q. Okay. Tell us about that. A. When the motion for the pledge for under God came up, they wanted to send a resolution supporting under God. This is when the big issue was up, I don't -- when the lawsuit was with the Supreme Court or whatever. He wanted to send a resolution. And I raised my hand and said that I couldn't -- I didn't support the resolution. And Bill immediately -- before I even got my statement finished, he comes down my throat verbally at me and shouts, 2000 years ago, somebody died on a cross for you. Can't you take a stand for him? And to that, Jeff Brown comes to, if you want to call it, to my defense, and goes, whoa, you know, are you saying that's a Christian God in the pledge? And we were off to the races at a big verbal heated debate. Q. Did you understand that other board members shared Mr. Buckingham's criticism of you? Did they express support for that position? A. Oh, no. Jeff and Casey both supported my position the first meeting. And in the second meeting, when we voted, Jeff and I were the only two that did not support the motion. Q. Did you ever do anything? A. I was going to say, I did get to explain my position though. Q. Okay. Let me ask you this. Did you ever do anything personally to address what you perceived as inaccurate reporting? A. Yes. Q. Tell us what you did. A. I regrettably had words with Joe. Q. Joe who? A. Maldonado. Q. And when was that? A. A couple times. I got to the point that I didn't talk to him. Q. Is this prior to the curriculum dispute or in connection with the curriculum dispute? A. Before that. Q. What was the issue that you were complaining about? What reporting concerned you? What was the issue? Do you recall? A. There were numerous. I don't have anything particular. Q. Okay. Let me ask you to look at Defendants' Exhibit 103. A. Okay. Q. Do you recognize that? A. Biology curriculum press release. Yes. Q. Do you recognize that? A. Yes. Q. Now let me ask you, when the curriculum change was voted for on October 18th, 2004, was there any discussion for a need for a press release? A. Yes, there was. People came from the community and said they wanted more information, and there were concerns -- people came there and said, why are you teaching creationism? Why are you teaching intelligent design? And we tried to explain to them, we're not doing that. And so I think it was Alan's idea that we put out something of our own to the community. Q. Let me ask you to look at Defendants' Exhibit 119. Do you have it there, Sheila? A. 119? Q. Yeah. A. I don't see 119. I see 113. MR. GILLEN: Your Honor, may I approach? THE COURT: You may. MR. GILLEN: Thank you. THE WITNESS: I still don't see a 119. MR. GILLEN: Is that volume 2? THE WITNESS: This starts with 171. Is it upside down? Okay, it's upside down. Excuse me. Okay. 119. Yes. BY MR. GILLEN: Q. Do you recognize that document? A. (Witness nodded head affirmatively.) Q. Do you remember seeing this? A. I'm thinking. Yeah, I think I did, yeah, uh-huh. Q. What was your reaction to that document? A. This is when the Discovery Institute, as I recall this article, came out opposed to us. Q. Did you agree with it? A. No. Q. Why was that? A. I thought the Discovery Institute supported intelligent design. Q. Let me ask you about the placement of Pandas. Do you know where the Pandas books were placed ultimately? A. In the library. Q. Do you believe that placing the books there is consistent with the curriculum policy? A. Yes. Q. Why is that? A. That's where I always thought they were going to be. Q. Excuse me? A. That's where I thought they were always going to be. Q. We've had you look at a statement that was drafted and passed on to you for your review. Did there come a time when you learned that the teachers did not read the statement? A. Yes. Q. And what was your reaction to that? A. Upset, hurt. I guess, you know, disappointed. Q. Why was that? A. I guess I didn't understand why. Q. Did you call for any action? A. No. Q. Why was that? A. I think we were already sued, weren't we? I believe we were. Q. And did you see a connection between the litigation here and whether any action should be taken with respect to the teachers? A. Action against the teachers? Is that what you said? Q. Yes. A. No. Any action? Q. Yes. A. (Witness shook head negatively). Q. Well, all I'm trying to do is, have you explain for the record here in court why you did not call for any action when the teachers didn't read the statement? A. I guess I don't understand the action against -- I'm sorry, Pat. I'm not following your train of thought here. Q. Okay. Well, let's just -- I guess we can leave it at that. Did you want any action to be taken against the teachers? A. No. Q. Do you have an understanding concerning who ultimately did read the statement to the students? A. The administration. Q. Let me ask you. When you voted for the curriculum change on October 18th, 2004, did you contemplate that the administrators would read the statement? A. No. I didn't contemplate when we passed the motion there would be a statement. Q. What did you have in mind? A. Like I said before, that the teachers would just say whatever they felt they needed to say. Q. Okay. Let me ask you this. Did there come a time when Dover Area School District put out a newsletter relating to the curriculum change? A. Yes. Q. Okay. And do you know whose idea it was to put that out? A. No, I don't. Q. Did you support sending it out? A. Yes. Q. And why? A. I just thought it was good to give the community more information. Q. How about -- A. So they understood better what we were doing. I think it was -- yeah. Q. Okay. Let's talk about donations of other books. Did there come a time when you became aware that other books relating to the biology -- A. Yes. Q. -- curriculum had been donated to the school district? A. Yes. Q. And do you have an idea for when that happened? A. In the spring sometime. Q. And how did the books come to your attention? A. Somebody told me they got an e-mail or something at school, and they had arrived -- a box -- excuse me. A box had arrived -- how was it. They got an e-mail, and they didn't know -- let me think back exactly how it was. I think the administration got an e-mail saying they had a donation of books, and it was from a group called Debunk Creation, and what they were going to do with it, something like that. Q. Okay. Did you review the books? A. Yes, I did. Q. And why did you do that? A. I wanted to see what these books were that came at our door step. Q. And you referenced coming to your door step. Was there something about the circumstances of their arrival that you found unusual? A. Well, they arrived, I guess, the secretary signed them in, and nobody knew they were there even. Somebody had to go hunt for them, I think it was. Q. And I think you said you reviewed the texts? A. Yes, I did. Q. And did you approve placement -- or inclusion of the texts in the library? A. Yes. Q. Why did you do that? A. I thought that -- I like books. I thought, you can give them information. If it's additional material, good. Q. Okay. Did there come a time when you learned that Dr. Nilsen changed the statement that's read to students? A. Yes, I did. Q. And do you know the nature of the change? Did it relate to these books? A. To say we had more books, I think it was. Q. And do you believe that's consistent with the board curriculum change adopted on October 18th, 2004? A. I do. Q. Why is that? A. Because we support additional information. We support teaching kids, you know, anything we can in addition -- you know, give anything available we can provide for them, that's what we want to do. Q. Okay. Let me ask you. When you voted for the curriculum change on October 18th, 2004, did you have a religious purpose in doing so? A. No, I did not. Q. What was your purpose? A. I just thought it was good to add additional information. I thought, you know, we are -- we are a standards driven school. But when kids walk across that stage, you want them -- you want them to know how -- not just what to think, but how to think. I thought, this is another way to maybe make them think. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Gillen. Cross by Mr. Schmidt. CROSS EXAMINATION BY MR. SCHMIDT: Q. You need more water, Mrs. Harkins? A. No, I don't. I'm good. Thank you. Nice to see you again. Q. You, too. I think you've testified in response to Mr. Gillen a bit about your career on the school board, but let me ask a few additional questions. As I recall your testimony, you ran for reelection with a ticket including three other members, including Alan Bonsell, in 2001. And in the course of that election, you became, in effect, a part of a majority on the board, having been part of a minority before that. Did I sum that up correctly? A. Very well. Q. In December 2004, you were elected president of the board, isn't that right? A. Yes, sir. Q. And you conducted at least an informal campaign for that position, didn't you? Didn't you solicit votes from other board members for that position? A. No, I didn't. Q. Just sort of happened out of the blue? A. No. What we did, we were taking turns. My turn would have been before, but I never really wanted my turn before. I wasn't, you know, seeking a turn. I had more seniority than other board members, but I didn't take a turn. And I now was available to take a turn. Q. So you welcomed the opportunity to be president, is that a fair statement? A. That's a fair, I guess, yeah. Q. Now as president of the board, you've done a number of things that have some bearing on this litigation, and I'd like just go over a few of them with you? A. Okay. Q. One thing you've done, and I've noticed, you've been here for nearly every day of the testimony, isn't that right? A. That is correct. I've tried. Q. You've heard the witnesses testify about many of the same subjects that you've testified about this morning? A. Yes, sir. Yes, sir. Q. Second thing you did of pertinence is, as board president, you appointed, if that's the right term, Alan Bonsell to serve as the board's liaison or representative in establishing a relationship with a lawyer and eventually with the Thomas More Law Center? A. That is correct. Q. A third thing that you did involved the publication of a newsletter for the Dover Area School District that you just spoke about with Mr. Gillen, isn't that right? A. I didn't initiate it. Q. Who initiated that, Mrs. Harkins? A. I don't know. I would guess -- I don't remember who brought it up and asked for the newsletter be sent out. I don't remember that. Q. Let me show you two exhibits. A. Okay. MR. SCHMIDT: May I approach the witness, Your Honor? THE COURT: You may. THE WITNESS: Okay. BY MR. SCHMIDT: Q. I think you have already seen, so I won't burden your table with it, Plaintiffs' 127, which is the newsletter. Do you understand the newsletter I'm referring to? A. Well, okay, yes. Q. The one that's up on the screen? A. Uh-huh. Q. Okay. Now the exhibit that I've handed you are the minutes of a meeting in February of this year. Do you see that? A. Yes, sir. Q. Look under number 1, communications? A. Yes, that's presented by Mrs. Harkins, okay. I didn't remember I presented that. Q. And then look under number 2, board presidency? A. That's what I was referring to, yes. Yes. Q. It says there that this newsletter, as I understand it, was presented by you at the meeting? A. All right. Q. And you were president of the board? A. Yes, I was. Q. You were aware of the efforts to prepare a newsletter, is that right? A. Yes. Q. You knew somebody prepared it? A. Yes, I did. Q. Is it your testimony today that you don't know who prepared it? A. Why don't you ask the administration? They're up next. I'm not sure. No, I don't. Q. Did you agree with it? A. Yes, I did. Q. You approved sending it out? A. Yes, I did. Q. Okay. Now the fourth thing that you did that's pertinent to this case, among a number of things, was you testified on January 3rd -- A. Yes. Q. -- as one of four representatives of the school district in connection with the Plaintiffs' decision whether or not to pursue a temporary restraining order, isn't that right? A. That is correct. Q. And on January 2nd, in the evening, you, Mr. Buckingham, Mr. Bonsell, Mr. Nilsen, and Mr. Baksa met with the district's lawyers, Mr. Thompson and Mr. Gillen, for several hours to prepare for those depositions, isn't that right? A. Two, less than two, I think it was. Q. And that was a meeting that all of you participated in at the same time? A. That is correct. Q. And you understood what the purpose of those depositions was when you were preparing for them, isn't that right? You knew that they were pursuant to an order from Judge Jones to allow discovery prior to the decision to pursue a temporary restraining order? A. Okay, yes. Q. You did know that, didn't you? And you were deposed by Mr. Harvey, my colleague, who's been in court? A. Yes, that is correct. Q. Now during that deposition, you reviewed a number of press reports involving the district's consideration of a biology textbook in June of 2004, isn't that right? A. That is correct. Q. Now I think I understand this, but let me confirm it. You take the York Daily Record at home? A. That is correct. Q. You read it every day? A. No, that is not correct. I get it every day. I read it from walking -- carrying it into my husband, so that would be, you know, then I might glance through it. Some days, I don't read it. Some days, I do. When I say, you know -- you know, so, no. Q. Fair enough. A. Is that okay? Q. That's fine. That's fine. Prior to the deposition on January 3rd, you were aware that there had been extensive coverage of the board's meetings in June of 2004 and the discussions of the biology textbook? A. Yes, I was. Q. Now you've said today that you thought some of the board's activities had been misreported, particularly by Mr. Maldonado? A. There were strained relations. Q. The strained relations, as I recall your testimony a few minutes ago, was because board meetings had been misrepresented by Mr. Maldonado and his articles that appeared in the York Daily Record, right? A. No, that's not true. These strained relations happened before we were elected on the board even with the building project. THE COURT: I'm having trouble hearing, you and I'm sure the court reporter is, too. THE WITNESS: I'm sorry. I'm thinking with my eyes closed. I'm sorry. BY MR. SCHMIDT: Q. I think you testified a few minutes ago that the strained relations arose from how the building issue was reported in the paper, and that involved events reaching all the way back to your run for reelection in '01, isn't that right? A. That's correct. Q. And I think you said, as I recall your testimony, that there was some misreporting or mischaracterization of the board's debate of the under God issue when a resolution was being considered to support the position of a party in a Supreme Court case? A. That's correct. Q. Now there weren't any other problems you had with Mr. Maldonado's reporting in the York Daily Record, were there, just those two? A. I don't remember. There were other issues, but I can't give you any particulars. The relationships were strained. Q. I'm trying to get at not whether the relations were strained, but whether you are able to identify any other issues that you thought involved misreporting in the York Daily Record. As I understand your testimony, Mrs. Harkins, the only issues involved the building project and the board's debate of whether or not to adopt a resolution to support the use of under God in the pledge of allegiance. Am I right about that? A. No. There were several other ones. I know there was an issue -- I'm thinking back. Misreporting. Angie Yingling had issues, and there was some misreporting then. And I can't tell you what they all were. I'm sorry. Q. That's all right. Let me ask you a follow-up question on that subject. A. Okay. Q. As I recall your deposition testimony, and I'm happy to show you the transcript -- A. Okay. Q. -- but this may shorten it up. A. Okay. Q. The third subject is the one you just mentioned, which was some reporting of comments by or about Angie Yingling that you took exception to? A. Yes. Q. Isn't that right? A. Something like that. I don't know. Q. Okay. But at the time of your deposition, you did not identify any misreporting by the paper of the board's debate at the June meetings when the subject of the biology text was discussed, did you? A. I probably couldn't think of anything. Q. Now your testimony this morning is that, when the board was considering a biology book in June of '04, your view was that the books then in use looked new and that you didn't believe it was necessary to buy new books or newer books, is that right? That was your principal concern? A. Yes, pretty much, yeah. Q. That wasn't the concern that was expressed by everybody else on the board though, was it? A. Oh, not at all, no. Q. In fact, Mr. Buckingham thought the problem with the book was that it was laced with Darwinism? A. You better believe it. Q. Some people on the board wanted to find a book that balanced the teaching of creationism and evolution, didn't they? A. I don't remember that. Q. You remembered that there was no such discussion? A. I don't remember that, no. Q. One way or the other? A. Huh-uh. Q. Okay. A. Correct. Q. Now during the deposition that was taken, I think you were asked about some other statements by Mr. Buckingham? A. Such as? Q. Bear with me one minute. A. Okay. MR. SCHMIDT: May I approach the witness, Your Honor? THE COURT: You may. BY MR. SCHMIDT: Q. Do you see that? A. Uh-huh, yes, sir. Q. If you would look down at P-53. Sorry, Matt. Seventh paragraph. It starts, 2000 years ago, someone died on a cross? A. Yes, that is correct. Q. Do you see that? A. Yes, sir. Q. Is it your testimony today that this statement was not made at the June 14th board meeting by Mr. Buckingham? A. That's my testimony, that I never heard him say it there. I heard him say, I think, I believe, I should say, I believe I heard him say the one above that, but I don't remember the 2000 one, no. Q. The one above that, you're referring to the paragraph that refers to a generation that prayed and read from the Bible during school? A. No, the one above that, the liberals in black robes. Q. Okay. Do you recall him saying that? A. Something -- I remember something to that effect, I think. Q. It's come up with other witnesses, Mrs. Harkins, and I want to be clear about that question. A. I'm sorry. Q. That's quite all right. You're doing fine. This article says that Mr. Buckingham said, 2000 years ago, someone died on a cross? A. Right, correct. Q. Is it your testimony today that he did not say those words at the June 14th -- A. I cannot say. Q. Wait for me -- that he did not say those words on June 14th? A. I didn't hear him. I didn't hear him say those words. I don't have any recollection of it. I don't. Q. In fact, you have a clear recollection that he said those words in November of 2003, isn't that right? A. He jumped down my throat. Q. Is that why you recall him saying it in November 2003? A. Right, because he -- I mean, he bit my head off. Q. Now is it possible that he said those words on June 14th, 2004? A. I could have been coughing. Q. Say that again. I missed that. A. I could have been coughing. Q. Turn the page, if you would. P-53. Please look at the fourth paragraph down. A. Which one? Q. Fourth down. Starts with the word also. Do you see that? A. Yes, sir. Q. You recall Mrs. Buckingham saying those words at the board meeting on the 14th? A. Since I've been sitting in court, I do, but I did not remember that at all when I gave my first deposition. I know I didn't. Q. But you remember it now? A. Yes, sir. Q. Do you remember saying at your first deposition emphatically that she didn't say that? A. I didn't remember that at all, you're right. I did not. Because I thought she only got up and, quote, unquote, preached once. But maybe she preached twice. I don't know. Or maybe this was the only time. Q. I want to be clear about what you're saying now, Mrs. Harkins. Is it your testimony that you didn't remember this before, but you remember it now? A. Since I sit in here, yes, that's correct. Q. And isn't it true, at your deposition, in fact, you said emphatically that she made this statement in November of '03? A. I thought that's when she made it, that is correct. Q. Well, for the moment, you've saved me a trip up to the witness stand. Let me ask you some questions about Pandas. A. Yes, sir. Q. You got the Pandas book from either Mr. Baksa or Mr. Nilsen sometime in the summer of 2004, correct? A. That's correct. Mike. Q. You had it for a very brief time, and you gave it to Jeff Brown? A. That is correct. Q. I think you said you had it for about an hour or two, is that right? A. That's correct. That's all I had it for, that's correct. Q. And you glanced through it? A. That is correct. Q. Did you study it? A. No. Q. Do you remember what parts you read? A. No. Q. How did you reach the conclusion that it was science and that it didn't have anything to do with creationism, Mrs. Harkins, if you only looked at it for an hour? A. That was my opinion after looking at it for an hour. Q. And that remains your opinion today, and it remains so based on just that hour's review of the book, isn't that right? A. Yeah, there are things in there I don't like that I've seen since, but, yes. It looks okay for the library. Q. Looked okay to add to the curriculum, isn't that what you mean to say? A. I don't see a problem with that. But we have the other books added, too, to the curriculum. Q. Jeff Brown told you that it offended him because he thought it was religious in nature, didn't he? A. I'm trying to think what exactly -- he looked at the book as -- I think he said it offended his religion. Q. It offended his religion on religious grounds, didn't it? A. Yeah, I would say so, yes. Q. And Jeff Brown also told you that he thought it was surprising that you would be willing to spend about $4400.00 to buy Of Pandas because of your fiscal conservativism? A. I never said I was willing to spend $4400.00, never. Q. You knew that was how much it was going to cost to buy the 220 books? A. I never said we were going to buy the 220 books. Q. You knew Mr. Buckingham proposed that the district acquire Of Pandas and People and make it a companion text with the biology book, didn't you? A. I remember something to that effect. Q. That, in fact, was the subject of the debate at the board meeting on August 2nd, wasn't it? Do you recall that, Mrs. Harkins? A. I remember the debate, but I don't remember that -- it may have been said -- that was a huge multi-faceted, if you will, debate. Q. Wasn't the essence of Mr. Buckingham's position on August 2nd that he wanted the district to have Of Pandas and People be a companion text with the Miller and Levine biology text? A. I believe you're right, yes. Q. Isn't it true that Mr. Buckingham advised the board and the school's administration that he could acquire, or the district could acquire, the 220 volumes that would be needed for $4400.00? A. I don't remember the cost, but I remember -- I think you're right, that he did propose something of acquiring them, yes. MR. SCHMIDT: May I approach the witness, Your Honor? THE COURT: You may. BY MR. SCHMIDT: Q. I'm showing you Exhibit 65. A. Okay. Q. Take a minute to look at it. A. Okay. Q. That's a memorandum from Mr. Buckingham -- A. Okay. Q. -- involving his position that Of Pandas should be purchased as a companion text, isn't that right? A. It appears so, yes. Q. And it does say that the cost to the district afforded by the distributor would be $4391.20, plus shipping, right? A. Yes, that is correct. Q. And isn't it true that Mr. Brown was surprised and expressed his surprise to you that you would be willing to spend that money given some of the budget cuts that the board had authorized or was considering? A. I don't remember him ever saying that, no, I don't. Q. Isn't it true that around the time that this issue came up, you had cut the library budget at Dover High School? A. No, we increased the library budget. Q. Isn't it true you were considering charging volunteers in the school district a $10.00 fee to defray the security checks that had to be performed? A. No, that's not true. We've charged the people, I think, for two years -- ever since we initiated -- the state passed a law that you have to have checks on all your volunteers. And from that time, we've -- they've had to pay for their checks. I think it's $10.00. Q. So there is a fee that the board requires, is that right? A. But it was long before any of this. Q. Okay. A. Long, long. Q. Let me take you forward in the summer of 2004. A. Okay. Q. You've had the book. You've passed it on to Mr. Brown. And the meeting on August the 2nd includes the debate that we just touched on, which is whether or not to purchase the biology book with Pandas as a companion book, correct? A. Correct. Q. You recall that discussion? A. That's correct. Q. It's your testimony this morning that you decided to vote against purchasing the book because it was too expensive? A. Yes -- well, we were short on money. We bought the family consumer science book. Q. And, in fact, the money you said you were short was almost exactly the amount of money that it would have taken to purchase the book Of Pandas and People, according to Mr. Buckingham's memo, isn't that right? Didn't you say that you were $5000.00 short? A. It was something like that, that we were short in the budget. No, that was what the biology books would have cost, we were short. Q. I think your testimony this morning was, I just want to be clear about it, is that the biology textbook was an expense you didn't want the district to incur, and that the district, I think you said, was $5000.00 short in the textbook fund for that year? A. That was my recollection, that's correct. Q. And I think you said that the kids -- A. I think that's what the family consumer science books cost, if you look. Q. I'm only asking you this, whether you thought the fund was short $5000.00? A. That was my recollection. Q. And the kids were just going to have to wait another year? A. Those books were like brand new. Q. Now it's true, isn't it, Mrs. Harkins, that you had already heard from the teachers on more than one occasion that the then current biology book didn't fit the curriculum? A. That is correct. Q. And you said today, and you've said before, that Dover is a standards driven district? A. That is correct. Q. And isn't it true that Dover had to adopt its curriculum to teach biology to conform to the Pennsylvania standards for teaching biology in public schools? A. That is correct. Q. And you had a '98 book? A. That's correct. Q. And the standards came out and the curriculum was modified to meet the standards several years after that book was published, right? A. Yes, but they didn't use that book from before. Q. Okay. And isn't it true that the reason they didn't use the book, to use your description, is because they had too many students who needed access to the books, so it was kept in the classroom rather than distributed to each student? A. No, that's not true. Bert said, when they got the book back, it would have been '98, when they got the book, that they had only reviewed one chapter of it. When they got the book, they realized, in that period, that it didn't fit the curriculum. Q. Isn't it true that in the spring of 2004, the biology teachers provided a multi-point response to the question why they needed a new science textbook? A. When was this? Q. In the spring of 2004. A. I don't remember. Q. Do you recall that? A. No. Refresh my memory. I'm sorry. I do not remember that. Q. If you don't recall it, you don't recall it. A. No, I don't. Q. I want to go back to my question about the curriculum, because you have expressed your testimony about the cost of the book? A. That's correct. Q. I want to be sure I understand that you knew at the time that the books didn't match the curriculum that had been adopted three or four years after the book was purchased by the district? A. Then they were teaching the curriculum fine without -- with the information they were using, the supplemental information. Q. So you made a judgment that the teaching was going just fine despite the fact that the teachers told you they needed the new book, is that your position? A. That's pretty fair to say. Q. I want to move on to the change in the curriculum. A. Okay. Q. Do you have the exhibits that Mr. Gillen gave you still up there? A. Which one would you like? Which book? Q. I'll point you through it. Just hang on to the book. It's the exhibits that started with 44. MR. SCHMIDT: Bear with me a moment, Your Honor. THE COURT: That's fine. BY MR. SCHMIDT: Q. I think you have a chart. A. Okay. Q. Plaintiffs' Exhibit 149. Do you have that in front of you still? I'll hand you mine. A. Yes, sir. Yes. Q. You have it? A. Uh-huh. Q. Your testimony this morning was that you gave that document to Casey Brown? A. What was -- the other side is what I was focusing on. We really didn't focus on this side. Q. Page 2? A. No, only that side did we discuss. Q. You recognize page 1? A. That's the side we discussed, correct. Q. Turn to page 1. A. Uh-huh. Q. Page 1 of 149. A. Uh-huh. Q. You've seen that one before? A. Yes, that's the opposite side. Q. You gave both sides of this piece of paper to Casey Brown, didn't you? A. That is correct. Q. You were here for her testimony, weren't you? A. Yes, I was. MR. SCHMIDT: Your Honor, may I approach the witness? THE COURT: You may. BY MR. SCHMIDT: Q. I'm showing you what has been marked as Plaintiffs' Exhibit 660, and ask you to turn two or three pages in, and ask if you recognize those as the same document that shows up as P-129? A. Yes, sir. Q. Now turn back to the first page of that exhibit. A. Okay. Q. Do you see that handwriting in the top corner? A. Yes, sir. Q. What's the date there? A. August 27th. Q. And you recall Mrs. Brown testifying that she got these documents -- A. Yes. Q. -- on August 27th? A. I believe that Casey might have got that document on August 27th. But I think maybe this was not in the same pile. I gave her this one. I believe she may have got that one then. Q. Isn't it true that you attended a curriculum committee meeting with Mrs. Brown on August 27, 2004? A. I was at a curriculum committee meeting August 27th. I'm thinking if Casey was there or not. Q. I think her testimony was, she was. A. Okay. Q. That's when she got those documents? A. Well, does anyone else that was at the meeting have that document? MR. GILLEN: I just want to object for the record to the clarification. I know you're trying to date it, Tom. MR. SCHMIDT: That's all right. THE COURT: Hold it. Wait a minute. What's the objection? MR. GILLEN: The objection is, there's a question here about the dating of this document and receipt by Casey Brown. I do not -- the witness has testified she gave it to her in the spring. THE WITNESS: I thought it was around June. THE COURT: Wait, ma'am. Hold it. Don't talk while he's talking. MR. GILLEN: And the document that was flipped up there, the version of the chart that's up there has spring of 2004 on it. THE COURT: I'm just wondering, what's your objection? MR. GILLEN: My objection is to the characterization of the witness's testimony. MR. SCHMIDT: I think -- THE COURT: He's got her on cross. THE WITNESS: No, he can ask me. THE COURT: I think it was fair cross. So -- MR. GILLEN: Then let me withdraw the objection for now, Your Honor. THE COURT: Did you have an unanswered question? MR. SCHMIDT: I was going to ask one that might fill in the concern that Mr. Gillen raised with his objection. THE COURT: So I'll consider that the objection has been mooted, and I'll allow you to ask the -- at least the objection to the prior question, and allow you to ask a new question. Try it that way. BY MR. SCHMIDT: Q. We have Mrs. Brown testifying that she got the document on August 27th? A. Okay. Q. We have your testimony that you gave Mrs. Brown the document? A. Yes. Q. You understand that? A. That is correct. Q. Okay. We've looked at P-149, which has handwriting in the top right corner? A. Where's P-149? Q. I can show it to you. A. Okay. Q. Let me bring it up. MR. SCHMIDT: If I may approach the witness, Your Honor? THE COURT: You may. It's on the screen also, I note. THE WITNESS: Given to me by Baksa. Okay. BY MR. SCHMIDT: Q. I think we have testimony that, that's Jen Miller's handwriting and her notation of when she got the document? A. Okay. Q. Is it possible that you got the document at the same meeting that Jen Miller did and got it from Mike Baksa in the spring of 2004? A. I don't know that. I thought I got it from a private person, but I can't swear that. Q. Is it possible that you got it from a private person and gave it to Mike Baksa in the spring of 2004? A. That is possible, too. That is very possible. Q. It's also possible that you gave that document to Casey Brown in August of 2004, isn't it? A. I thought I gave it to her earlier, but -- Q. You don't remember, do you? A. I thought I -- my recollection was, it was around -- when we first started talking intelligent design, which was around June. That's how I placed it. Q. Back to the curriculum change, if I could? A. Okay. Q. You've testified about the October 18th meeting. I need to ask you about the October 4th meeting, which was the planning meeting for the board, is that correct? A. Right. I'm trying -- it's not coming up in my mind. Help me. Q. Isn't it true that the board has two meetings every month? A. Yes, sir. Q. Except sometimes in the summer? A. That is correct. Q. And while we're on that subject, isn't it true that the board only had one meeting in July in 2004, July the 12th, because July 5th was the date adjacent to the holiday? A. I don't remember, but I take your word. Q. Okay. Back to July -- I'm sorry, back to October 4th. A. Okay. Q. There was no discussion of the proposed curriculum change at the October 4th meeting, was there? A. I don't remember any. Q. Yet you were aware that there was a curriculum change under consideration, weren't you? A. We had been talking about one for sometime, yes. Q. You knew on October 4th that Noel Weinrich and Jane Cleaver were resigning from the board, didn't you? A. I knew when? Q. October 4th. A. I don't recall that I knew that. Q. Okay. Didn't Jane Cleaver announce her resignation at the October 4th meeting? A. I don't remember that. Q. You knew that she purchased a house in Florida, didn't you? A. Yes, I did. Q. You knew that Mr. Weinrich was going to resign from the board, didn't you? A. I knew Mr. Weinrich was going to be leaving, yes. Q. You knew both of those people had announced their departure before the October 18th meeting rolled around, isn't that true? A. I think they did. I think you're right. Q. In fact, you knew that before the October 4th meeting rolled around? A. I don't know that. I can't dispute that. Q. Okay. Before the meeting on October the 18th, there was a meeting of the board curriculum committee to discuss the curriculum change? A. Yes, sir. Q. Isn't that right? A. Yes, sir. Q. If you would pull up the exhibits that Mr. Gillen identified, I'm going to ask you a few questions about them. A. Okay. Q. I'll walk you through them with my questions? A. Yes, sir. Q. Defendants' Exhibit 44. Do you have that in front of you? A. Yes. Q. That is the faculty and administration proposal, correct? A. Correct. Yes, sir. Q. It doesn't mention intelligent design? A. That is correct. Q. It doesn't mention Pandas? A. Correct. Q. Correct? A. That is correct. Q. Let's keep the dates straight. That's September 21, 2004? A. Okay. Q. One week later, Mr. Baksa sends just the board members who are on the curriculum committee, including Mr. Bonsell, who's ex-officio, a memo that asks for a meeting on October 7th, is that right? A. Which one is that? Q. I'm sorry. Exhibit 46. I just called out. A. Okay. Q. No faculty was invited to that meeting, were they? A. No. Q. And it was at that meeting that the decision was made by the four board members to add intelligent design to the curriculum? A. That is correct. Q. At that point, your familiarity with the concept of intelligent design was limited to whatever you saw in an hour's glance through Pandas and some Googling on the Internet, correct? A. Pretty much, yes, sir. Q. And I think your testimony today is consistent with your deposition, which is that, there was a reference to other theories and the only one anybody could identify was intelligent design? A. That's correct. Q. You didn't know what intelligent design really meant at that time, did you? A. I still don't have -- I listened to many experts, and I still don't have a firm explanation. Q. Having had that meeting with the board members -- A. Yes, sir. Q. -- when it came time to have the board meeting on the 18th, you still couldn't get that position out of the faculty or the administrative staff, could you? They still didn't want to include intelligent design in the curriculum change, did they? A. That's correct. Q. Then there was the compromise, which appears behind Exhibit 68. Do you see that? A. Yes, sir. Q. That was proposed, metaphorically speaking, at the 11th hour, right before the meeting, isn't that right? A. No, sir, it was, I think, done during the meeting. Q. Well, if you look at the exhibit? A. That's what I thought. Q. I don't mean to jump you around, but if you look at the exhibit, there's a memorandum from Mike Baksa to the board dated October the 18th, correct? A. Oh, okay. I thought that's the one we did at the meeting. Q. Did you see where I'm looking? A. Yes. Q. Okay. This is a compromise proposed by the faculty and administration for consideration at the meeting, isn't that right? A. Yes, that is correct, yes. I was ahead of myself. Q. Still no reference to intelligent design? A. That is correct. Q. But an inclusion of a reference to Pandas? A. That is correct. Q. And you understood it was a compromise, didn't you? A. I understood that this was what the administration staff was presenting. I can't say that I understood a compromise. Q. It was something that they were prepared to live with since the members of the curriculum committee wanted intelligent design. Isn't that your understanding of happened on the 18th? A. Run that by me again. Q. I'll try it a different way, okay? A. Okay. Q. When you come to the meeting on October the 18th, you heard Mrs. Spahr make a presentation about why intelligent design should not be included in the curriculum, isn't that right? A. Correct. Q. She thought that it might be illegal? A. That's correct. Q. She thought it was not good science? A. Correct. Q. She thought it meant the teachers would be required to teach creationism? A. That's correct. Q. And Mrs. Spahr and Jen Miller were the only people with any special scientific training or education who spoke to that issue for the board? A. That's correct. Q. You didn't have the background to evaluate what they said or disbelieve it, did you? A. That's correct. MR. SCHMIDT: One moment, Your Honor. THE COURT: That's fine. BY MR. SCHMIDT: Q. I think you testified this morning that you couldn't see the point to what Mr. Weinrich was trying to accomplish? A. I didn't, yeah. Q. Okay. And I think you said that you didn't see that it was a particularly big deal to add the phrase intelligent design to the curriculum? A. I was -- I would say, I was one of the proponents of adding it for the reason I wanted something added. I didn't want it just to say, other theories. I felt you had to have an example. Q. Okay. I understand what your testimony was. But the teachers said it was a bad idea to include a reference to intelligent design, isn't that true? A. Well, they said they thought they were teaching it. We said they weren't teaching it. Q. We'll get to that in a moment. A. Okay. Q. The teachers spoke against the inclusion of a reference to intelligent design, isn't that true? A. That is true. Q. And your testimony today was that you didn't think it was particularly significant to include a reference to intelligent design, isn't that right? A. I didn't think it was particularly -- I don't understand. Q. I thought that's what you said. A. No. Excuse me. Q. I think your testimony was that you didn't think adding the words intelligent design made a very big difference? A. Not if you're only making them aware, that's correct. Q. The teachers thought it made a big difference though, didn't they? A. Only because they thought they were teaching it. Q. So you thought the solution was, if they didn't have to teach it, then it didn't really matter, is that right? A. That's why, if you want to call it, the 11th hour, Alan suggested we add the note, origins of life is not taught. That addressed that issue. Q. Mr. Gillen, in his opening, referred to this curriculum change, and I wrote his words down, as a modest change to the biology curriculum for the purpose of enhancing science education, end quote. Do you recall that statement? A. Yes, sir. I believe you. How's that? I don't know I recollect those exact words, but I believe you. Q. The biology teachers thought it made a difference. The administration didn't support the proposal in several go arounds before the meeting. Am I right about that, Mrs. Harkins? A. The teaching of it. Q. The inclusion of a reference to it? A. Excuse me? Q. The inclusion of a reference to intelligent design was something that the teachers vigorously opposed at the meeting on October 18th, isn't that true? A. But that was teaching of it. They always said, teaching. Q. After the curriculum was adopted, the administration prepared the four paragraph statement that you testified about? A. Yes, sir. Q. I think, if you look at Exhibit 65, do you see that? A. Yes, sir. Q. I think you testified this morning that when you agreed to the curriculum change, you didn't think there would be a need for such a statement? A. Correct. Q. That's because you thought the teachers could handle the curriculum change in the classroom, isn't that right? A. That is correct. Q. And teachers teach, don't they? A. Well, I've heard Bert Spahr say she mentions things that she's not teaching. She's only making students aware of. Q. Teachers do teach though, don't they? A. They do teach. Q. And the teachers on October 18th expressed concern about teaching intelligent design? A. That is correct. Q. So the curriculum that was adopted, in your view, involved something the teachers would have to handle in the classroom just like they handle all the other parts of the curriculum, isn't that right? A. They handle a lot of things that aren't teaching though also. They do cafeteria count. They take attendance. Is that teaching? Q. I don't think so. Do you? A. No. Q. But when they're making somebody aware of something, they're teaching them about it, aren't they? A. I don't consider it, no. Q. In any event, you felt it was necessary, as the board, to establish a regime for handling the curriculum change to make it explicit that the teachers were not to teach intelligent design, is that right? Isn't that eventually what happened? A. Put that in smaller words. Q. Sure. Happy to, and I apologize for not doing it. After the board adopted the curriculum change, the board and the administration established a policy that explicitly said teachers were not teaching, I'll put that word in quotes, intelligent design, is that your position? A. That is correct. Q. Now, in fact, the policy said that, if a student asked a teacher about intelligent design, the teacher was supposed to decline to answer the question, right? A. Yes, but that only happened after we were sued. Q. Well, wasn't that the district's plan from the beginning? Isn't that your testimony? A. A teacher, I think, can handle something however they see fit. Q. Is the teacher free, Mrs. Harkins, to teach intelligent design? A. We never -- no, that was never planned. That was only to make aware of, that is correct. MR. SCHMIDT: May I approach, Your Honor? THE COURT: You may. BY MR. SCHMIDT: Q. Mrs. Harkins, I've put in front of you a copy of the transcript of your deposition. A. Yes, sir. Q. Taken January 3rd? A. Okay. Q. I may ask you to refer to that. A teacher is not permitted to respond to questions about intelligent design in the Dover School District? A. That is correct. Q. Back on October the 18th, if a teacher had asked you a question about intelligent design, you wouldn't have been able to answer it, would you? A. That is correct. Q. You didn't really know anything about intelligent design, except that the two words existed side-by-side, isn't that right? A. No, that's not true, huh-uh. I knew a little bit, but I still don't know enough that I could ever teach it, no. I know very little still. Q. Isn't it true that you didn't have a way to define or describe intelligent design? A. I still don't today. Q. And yet you're prepared to make that part of the curriculum at Dover Area School District, isn't that right? A. And I think I've always said, you make them aware of it. They find out for themself. Q. When you adopted the curriculum change in October of 2004, you knew it was controversial; you knew it was viewed as bad science and teaching creationism, at least by those who were in charge of dealing with it in the classroom; you knew that at least one person whose judgment you trusted on the board, Jeff Brown, was troubled by the contents of it; and that you didn't understand what it really involved; and yet you voted to add it to the curriculum? A. Right. I didn't see it as creationism. I saw it as science, correct. And Jeff and I did have lengthy conversations on it. Q. And your view of it as science is based on, as you put it, an hour's glance through Of Pandas and a little Googling, right? A. That's fairly close, yes. Q. And then in the following year, in February, when you sent out the newsletter that I think is P-127, you approved the statement that ID is a scientific theory, even though you really didn't have any basis on which to make that decision? A. Only from what I had read, right. I had read different scientists on Googling supported it, credible scientists. Q. The last thing to ask you, Mrs. Harkins, is, at the October meeting when you made the momentous decision to include intelligent design, you didn't offer any explanation to the teachers or those in attendance at that meeting about how this was going to enhance scientific education in Dover, did you? A. I don't recall that that was ever discussed. Q. Certainly wasn't discussed by the board, was it? A. I don't think it was ever brought up. MR. SCHMIDT: That's all I have, Your Honor. THE COURT: All right. Thank you, Mr. Schmidt. Redirect, if any, by Mr. Gillen. MR. GILLEN: Thank you, Your Honor. REDIRECT EXAMINATION BY MR. GILLEN: Q. I'm going to be brief, but I have a few questions for you. Mr. Schmidt directed your attention to Plaintiffs' Exhibit 53. A. 53. Is that in one of the books? Q. It's a newspaper article dated June 15th, 2004. A. 53? Q. It's not in one of our books. A. I'm sorry. Q. I believe Mr. Schmidt provided you with a copy when he questioned you about it. A. Is this the one that says, P01328 in the bottom? Q. You know, as a matter of fact, Sheila, I apologize. I've misidentifieded it. I'm talking about or want to question you about Plaintiffs' Exhibit 53. A. First page? Q. The first page. A. Yes, sir. I was doing so good for a while. I'm sorry, Pat, yes. Q. That's all right. I won't keep you long. If you look at the one, two, three, four, five, six, seventh paragraph down, you'll see that, after Bill Buckingham's now familiar comments about the text being laced with Darwinism, the paragraph continues? A. Excuse me. I'm not with you yet. Q. If you would go down to the seventh paragraph of this article dated June 15, 2004? A. What does the paragraph begin with? Q. It begins with, last week. A. Okay, yes. Q. That paragraph begins with the statement, laced with Darwinism, and then continues. This week, he said, a Seattle based think tank gave the book Biology by Miller and Levine an F grade. Do you remember Mr. Buckingham saying anything about a Seattle based think tank? A. No. Q. Do you recall him saying that the Miller and Levine text had been given an F by a Seattle based think tank? A. No. Q. All right. You've been asked questions about your vote on August 2nd, 2004, with respect to approval of the biology text. And I want to make sure the record is clear on this. Were you voting to approve the purchase of Pandas when you voted in August? A. No. Q. Why did you cast your vote in that initial vote in the same way that Mr. Buckingham did? A. Sorry, Pat. I don't understand. Q. The vote came up for approval of the text. Do you recall how you voted on that first vote to approve the text in August of 2004? A. No. I voted, no. Q. Why did you do that? Were you voting with Mr. Buckingham or did you have your own reason? A. No, it was the fiscal issue pretty much. Q. You've been shown two copies of this chart? A. Yes, sir. Q. And during the questioning, Mr. Schmidt brought to your attention that Casey Brown, on Plaintiffs' Exhibit 660, after a strike-out, has it dated August 27, 2004? A. Okay. Q. Displayed on the screen was Plaintiffs' Exhibit 149, which has a handwritten notation saying the spring of 2004. If you had to choose between those dates as the date when you remember giving this chart to the Browns and discussing it with them, which date would you choose? A. I thought it was the earlier, like June, when we first started discussing intelligent design. Q. Mr. Schmidt has drawn attention to the fact that the faculty was absent from the board curriculum committee meeting at -- A. I'm sorry. I'm sorry. I'm sorry, Pat. Q. Mr. Schmidt has drawn attention to the fact that the faculty were not invited to the October 7, 2004, meeting of the board curriculum committee. I want to ask you, did you see the absence of the faculty as unusual at that meeting? A. No, we generally have committee meetings, just the committee and the administration. Q. There's -- A. You know, and other committees. Like buildings and grounds and other ones. Q. Well, let me ask you, so the record is clear. Are they always involved in board deliberations or only sometimes? A. Sometimes. Q. And are they involved early in the process with board committee deliberations or later or how does it work? A. Usually earlier in gathering information. And then the last meeting before anything is decided or thought about, then the board has their own meeting, board committee meeting. Q. You've been questioned about the board curriculum change, the various versions, and the phrase, teach versus made aware of. How did you understand the purpose of the language made aware of when you voted for these curriculum changes? A. How did I view it? Q. How did you understand the intent behind the use of the phrase, made aware of, when you voted for the curriculum change on October 18th, 2004? A. Made aware of, I didn't view as teaching. And I heard Bert say on different instances, even in her class, that she makes kids aware of stuff, that she's not teaching. MR. SCHMIDT: Your Honor, move to strike. Hearsay. THE WITNESS: I'm sorry. THE COURT: Sustained. We'll strike the last answer with respect to what Mrs. Spahr said. MR. GILLEN: Okay. BY MR. GILLEN: Q. At the time that you voted for the curriculum change which employed the language, made aware of, did you have an understanding concerning whether that was consistent with teacher practices in some areas? A. Yes, sir. Q. Did you have an understanding concerning whether make aware of, in terms of teacher practice, was different from teach? A. Yes. Q. Do you know why teachers were -- do not take questions on intelligent design? A. Because that's what the administration told them. Q. Do you know why? A. Is that what you're saying? Do I know why? I think because we were sued. I don't know. No, I don't know why. Q. Okay. And there's been some questioning about your, the basis for your vote on October 18, 2004. And I want to ask you. You didn't know a lot about intelligent design, but you voted for this curriculum change. Why is that? A. Because if you're going to say, other theories, you should have an example of what other theories is. Q. Well, did you think that making students aware of other theories would contribute to their education? A. Yes. Q. And how? A. By expanding their knowledge, provided them more information. MR. GILLEN: I have no further questions, Your Honor. THE COURT: All right. Mr. Gillen, thank you. Final round two, Mr. Schmidt, on recross. RECROSS EXAMINATION BY MR. SCHMIDT: Q. I want to be sure I understand your testimony about teachers being instructed not to teach. That's a mandate issued by the board through the administration, is that right? A. I don't recall. I don't know that. Q. Let me divide it up. Was it a board decision that teachers were to be prohibited from responding to questions about intelligent design? A. Not to my recollection. Q. Is your testimony -- A. But like I say, the administration is up next. You can ask them. It is not my understanding that the board directed them, but I might be wrong. Q. Certainly, it's a district directive that teachers are prohibited from responding to questions about intelligent design. Is that your testimony today? A. Only currently. Q. Currently? A. Currently. Q. I want to be clear about this. Your testimony today is that, teachers are prohibited from answering questions about intelligent design as the part of the district's response to this litigation, is that right? A. Right now, we have a statement that is being read. The statement would not be necessary if we were not sued. So the -- they would present it however they saw fit. Q. That's what I'm trying to establish, Mrs. Harkins. So the record is clear, the curriculum is adopted -- A. That is correct. Q. -- on October 18th, right? A. Correct. Q. Sometime later, and there's an exhibit in front of you, but I won't bother you to look for it -- A. Okay. Q. -- there's a memorandum sent out by Mike Baksa -- A. That is correct. Q. -- that has a statement, correct? A. That is correct, that says, teachers will not answer questions, that is correct. Q. And after that, there is a further directive by the school district that says, teachers may not answer questions about ID? A. That is correct. Q. And your testimony this morning is that that restriction, that directive to teachers is a direct response to this litigation, is that your testimony? A. That's what I would presume. Q. I'm not asking you to presume. A. I don't know. I can't say I know. I would presume that. Q. Well, you've testified already today that the reason teachers are told they may not teach ID and may not answer questions -- A. Correct. Q. -- is because we got sued. I think that's the expression you used. A. I didn't say, teach. I said, made aware of. I don't think I said, teach. I think I said, made aware of. Q. Okay. I'm probably confusing you, so let me try one more time. A. Yeah, you are. Q. The curriculum says, students are to be made aware of intelligent design, right? A. Right, that is correct. Q. After that, curriculum change is adopted? A. Uh-huh. Q. The district prepares a four-paragraph statement to be read to students? A. Yes. Q. Right? A. That's correct. Q. And sometime after that, the district establishes a policy that teachers are not to teach intelligent design or respond to questions from students about intelligent design? A. Correct. Q. And I want to confirm your testimony today, that this last step, this directive that teachers not teach and answer questions was adopted by the district as a response to being sued? A. See, I don't agree with that. Teach. That word teach you have in there, I have a problem with. Q. Let's take teach out of it. Have teachers in Dover have been told they're not to answer student questions about intelligent design? A. That is correct. Right now, yes. Q. Your testimony today is, they were told that as part of the district's response to being sued in this litigation? A. That's my understanding, yes. MR. SCHMIDT: That's all I have. THE COURT: All right. That will complete the questioning of this witness. Ma'am, you may step down. We have, by way of exhibits, only a few. None it appears on direct examination. And on cross, we have another article, which we will not take at this time. That's P-53. Then we have P-65, which is Mr. Buckingham's request to add the discussion of Pandas. I'm not sure if that was in previously, P-65. But are you moving that in, Mr. Schmidt? MR. SCHMIDT: Yes, sir. THE COURT: All right. Any objection? MR. GILLEN: Excuse me. P-65? No objection, Your Honor. THE COURT: All right. P-65 is admitted. Have I missed any exhibits on either side? MR. SCHMIDT: May I have one moment, Your Honor? THE COURT: Certainly. MR. SCHMIDT: Your Honor, my colleague's notes indicate that P-54 was mentioned, but it's a news article, so it will be handled separately. THE COURT: That's fine. We have 53 and 54, and they're picked up elsewhere, obviously. They've been repeatedly mentioned. We'll take them up at a different point in time. Anything else from you, Mr. Gillen? MR. GILLEN: No, thank you, Your Honor. THE COURT: Would counsel approach, please? (Whereupon, a discussion was held at sidebar off the record.) THE COURT: All right. Thank you for everyone's indulgence. What we were talking about with counsel had to do with scheduling, and rather than bore everyone to death about that, we took it at sidebar. I will advise, particularly the assembled media representatives, that it is quite clear to me that we're going to have a couple more witnesses from the defense. Those witnesses should be wrapped up tomorrow. They may lapse over into Friday morning, but I don't think so, although that could happen. It's clear to me that we'll be in a position to have closing arguments by counsel on Friday at some point, and that this trial will end, as arranged and as agreed by counsel and the Court, at a point in time on Friday. And that's what the subject of the discussion was, so that we're all clear on what we have to do. So we'll pick it up after the lunch break. Let's take a break until 10 minutes of 2. We'll return at that point with Mr. Baksa's continued testimony, is that correct, Mr. Gillen? MR. GILLEN: That's correct, Your Honor. THE COURT: All right. We'll be in recess until 1:50. Thank you. (Whereupon, a lunch recess was taken at 12:26 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 19 (November 2), PM Session, Part 1 THE COURT: Good afternoon. Mr. Gillen, just to clarify, because Liz mentioned to me that we may need to just clarify, what I was saying was simply that we'll continue to roll through the testimony, if this works for everybody, and we will hopefully complete the testimony tomorrow. Worst case would be Friday morning. At the conclusion of all the testimony, we would then argue admissibility on the remaining exhibits, which consists of the articles, I think. I don't think we have anything else. So that would be Friday, in any event. Even if you finish the testimony tomorrow, it seems like that's an argument best left for Friday. MR. GILLEN: Okay. THE COURT: And then have closings after that. Now, I would intend, consistent with our discussion, to alert everybody before we depart on Friday of those areas that I would like you to play some emphasis on in your submissions. I don't want to, by doing that, usurp the format that we talked about before or attempt to have you overemphasize something, but just simply have you do that. And then it occurred to me that if, in fact, having received your submissions, we need to have further dialogue, we could even do that by telephone argument or by some other mechanism that doesn't necessarily have you come in. I'm not convinced that we'll need to do that, but we can talk about that. But in any event, that's not for today. So does that clarify what you need? MR. GILLEN: Yes, it does. Thank you, Your Honor. MR. ROTHSCHILD: Just a couple other loose ends. We still have to present those parts of the demonstrative exhibits that we think should be introduced into evidence as opposed to just being -- THE COURT: Yes, okay. MR. ROTHSCHILD: And also we have the issue of whether Dr. Forrest's reports and the exhibits that she did not testify about would come into the record for the purposes of her admissibility, and that's, I think, a loose end we still have. MR. GILLEN: Sure. And on that limited point, the Forrest materials, with the understanding I believe we've reached, that it's for the limited purpose of demonstrating her qualifications and the basis for her opinion, I have no objection to them. THE COURT: All right. Why don't you put your heads together at the break, and, in addition to the articles and the demonstrative exhibits, make sure there's nothing else so that we don't have a surprise on one side or the other. And then you can alert me if there are other things. I'll assume that that settles the Forrest -- MR. ROTHSCHILD: Just to be clear, that's her reports and the exhibits that she refers to in her reports but did not testify about coming in solely for the admissibility issue, not as substantive evidence. MR. GILLEN: You know what, let me take it up later. THE COURT: I think you want to talk about that. I don't want you to concede a point that you haven't had an opportunity to talk to co-counsel about. So it seems to me then, you know, at worst, we'll have the Forrest report and the ancillary exhibits, which are really the articles that she referred to, and other publications in her report. We'll have the various York newspaper articles, and we'll have the demonstrative exhibits. We don't have an agreement on the demonstrative exhibits? MR. GILLEN: I think we have an agreement in principle, it's just the specifics that need to be discussed, and I'm waiting for my colleague to return, who is better situated to address it. THE COURT: Suffice it to say, though, then on Friday -- and alert me if you have other areas just so I'm prepared for those, too, and alert each other so that no one is sandbagged on that. But on Friday then, we'll take that, we'll take the evidentiary arguments in a bundle. I'll rule on those, and then we'll roll into the closings after that. Does that make sense? MR. GILLEN: Yes. THE COURT: And we don't have to do that before, it seems to me, Friday. So in answer to part of your question I think that you posed to Liz at the break, Mr. Gillen, you don't have to be prepared to do that tomorrow. It looks to me like tomorrow, in any event, will be all testimony. MR. GILLEN: Okay. And, Your Honor, as I understand it, on the newspaper articles, your focus on Friday will be on the admissibility issue, leaving the effect -- THE COURT: Absolutely, absolutely. It's admissibility only. It's a limited argument. And one of the things I'm going to ask you to pay some attention to in your briefs would be the further argument, but you do not have to be ready to argue that on Friday, nor do the plaintiffs' counsel. MR. GILLEN: Thank you, Your Honor. THE COURT: All right? Does that clarify our status at this point? Poor Mr. Baksa is on the stand for the third time. Hopefully this is it. We'll complete your testimony, and you may proceed. MR. GILLEN: Thank you, Your Honor. DIRECT EXAMINATION (cont'd.) BY MR. GILLEN: Q. Mike, I think when we left off last, we were just through the October 7th board curriculum committee meeting and were going to move forward. And with that in mind, I'd ask you to look at Exhibit 51. A. Okay. Q. Do you recognize that document, Mike? A. Yes. Q. Is it a document that you generated? A. Yes. Q. And why did you do that? A. Dr. Nilsen asked that I send the board curriculum committee's biology language to the curriculum advisory council for their review. Q. Did district policy require this? A. No. Q. Why did you do it? A. Again, Dr. Nilsen wanted to make sure that we involved the curriculum advisory council and they had a chance at least to comment on the proposed changes by the board curriculum committee. Q. And did you receive any feedback from any members of that committee? A. Yes. Q. And with that in mind, I'd ask you to look at Defendants' Exhibit 67. A. Okay. Q. Do you recognize that document? A. Yes. Q. What is it? A. This is a summary of the feedback I got from the curriculum advisory committee. Q. And how did you get that feedback? A. The first item was a phone call and the second was an e-mail. Q. And do you remember who gave the phone call? A. Mrs. Callahan. Q. And the e-mail? A. Was from a teacher, but I don't remember which teacher. Q. Okay. Now, as we approach this October 18th meeting, I want to walk you through a few documents that are pretty familiar and get your understanding of what was in play here on the night of October 18th, 2004. I'd ask you to look at Defendants' Exhibit 60. MR. ROTHSCHILD: What number was that? MR. GILLEN: 60. THE WITNESS: Okay. BY MR. GILLEN: Q. Do you recognize that document? A. Yes. Q. And what is it? A. It's a memo from me to the board of directors that informs them of the board curriculum committee's biology curriculum change. Q. All right. I want you to look through that, Mike, and give me a sense for what you saw as the important elements of the board curriculum committee's version. And with that in mind, I'd ask you to look at the page with the Bates Stamp Number 18 on it. A. The board had a number of concerns, and the language that they developed was in answer to those concerns. The language at the bottom of the unit, Content and Concepts, Students will be made aware of gaps or problems in Darwin's theory, that was one of the board's concerns, and of other theories of evolution, which is another concern, and with an example, including, but not limited to, intelligent design. In addition to that, in the materials and resources section, Of Pandas and People is listed as a reference. Q. Okay. I'd like you to look next at Defendants' Exhibit 61. A. Okay. Q. Do you recognize that document? A. Yes. Q. What is it? A. That's a memo from me to the board of directors that has the recommendation from the administration and the staff for the biology curriculum change. Q. And am I correct that the board curriculum committee's version had the designation Roman XI-A? A. Correct. Q. This document you've just referred to has the designation Roman XI-B? A. Yes. Q. And if you would direct your attention to the portion of Defendants' Exhibit 1 with Bates Stamp Number 20. This is Roman XI-B, and I'd ask you to give us your understanding of the important elements of the curriculum change from the teachers' perspective. A. In the draft from the administration and teachers, there's language that says, Students will be made aware of gaps in Darwin's theory and of other theories of evolution. There is no reference to Of Pandas and People. Q. Looking back at the board curriculum committee version, do you have an understanding as to why Of Pandas was specifically listed in the reference portion of that recommended curriculum? A. My understanding is that the teachers, one of the things they were worried about was liability, and Dr. Nilsen included it in there so the book would be board approved and they wouldn't be questioned or liable for having that book in the classroom. Q. Okay. If you look at the cover memos for both of these exhibits, you'll see they're dated October 13th. We're leading up to the October 18th meeting, and I want to ask you, did you, in your capacity as assistant superintendent, take any steps that were an effort to reconcile the difference between these versions? A. After I received the board curriculum committee's version, I did meet with the -- I did share that with the science teachers. Q. How about, did you get any feedback from members of the board that was designed to address this tension between the versions? A. Dr. Nilsen, my understanding was that Dr. Nilsen was in receipt of additional changes from Mr. Bonsell that specifically included language that, Note, origins of life will not -- is not taught. And I believe I received that on the 18th. Q. All right. Let me ask you to look at Defendants' Exhibit 68. A. Okay. Q. Do you recognize that document, Mike? A. Yes. Q. What is it? A. This is a second draft from the administration and staff that I worked out with the staff during their lunchtime on the day of the 18th. MR. GILLEN: Excuse me, Your Honor. BY MR. GILLEN: Q. And I'd ask you to turn to that portion of Defendants' Exhibit 68 with the Bates Stamp Number 22 in it. A. Okay. Q. And looking at that, Mike, would you identify the points at which this document diverts from the two we've spoken about thus far? A. The language included in the curriculum draft here includes, Students will be made aware of gaps or problems in Darwin's theory, so it adds problems from their original proposal, and of other theories of evolution. It includes the note, The origins of life is not taught, which was Mr. Bonsell's suggestion. And it also includes the reference Of Pandas and People in the materials and resources. Q. Okay. You've mentioned that this document was generated in the lead-up to the October 18th meeting, and I want to talk to you about that next. Do you recall the evening of that meeting? A. Yes. Q. And did you provide copies of all three of these documents in connection with that meeting? A. To the board, yes. Q. Okay. Do you remember speaking with board members about these documents and the position of the administration in connection with that October 18th meeting? A. Yes. Q. What did you say? A. I informed the board that the first recommendation from the teachers would be XI-B and that if the board was -- if that didn't answer the board's concerns, the teachers were willing to submit XI-C as a compromise for curriculum language. Q. Do you recall conveying your understanding of teacher concerns to the board at that time? A. Right, that the teachers were concerned about the mention of intelligent design, and no draft that would have that in would be acceptable to them. And they stressed that it was important that the teachers be on board with the curriculum language. Q. Do you recall any concern about the requirement of teaching intelligent design that was expressed by the teachers? A. I believe that -- my understanding is that teachers felt that the inclusion of the language in the curriculum would lead them to have to teach it. If the language is in there, then it meant they had to teach it. Q. Do you recall a board member trying to address that concern? A. I believe that's what Mr. Bonsell was doing by putting that note in there that the origins of life is not taught. Q. Let's look at the board meeting and as it began, the public comment. Do you remember anyone speaking at the board meeting during the public comment session -- section of the meeting? A. Mrs. Spahr and Mrs. Miller I remember talking. Q. And how did you understand their position as a result of that statement? A. I think both Bert and Jen were recommending against the board's version, XI-A, and they were recommending B or C in its place and spoke against including intelligent design being included in any curriculum change. Q. And did you make a recommendation? A. Yes. Q. And what was that? A. Our first recommendation was for B, and if that wasn't acceptable, didn't answer the board's concerns, then C would be the second administrative and staff recommendation. Q. And why did you do that? A. We were trying to address the board's concerns, and we felt that really C did address the concerns that the board had expressed to the teachers, and if the teachers were willing to make these compromises with the language that they included in C, that we felt that should address the board's concerns sufficiently. Q. Okay. And in terms of the discussion, did you make that clear at the meeting? A. Dr. Nilsen asked me to speak on behalf of the administration and give our recommendation to the board, and at the meeting I did recommend B, and if not B, C. Q. And we're speaking about a curriculum change here. Is there a specific reason that you took the position you did at this meeting? A. Well, being responsible for curriculum, it would be my position, along with the staff, to make any recommendations to the board. Q. Okay. And how about follow-through on any curriculum change, did you think that your position was designed to foster that? A. Can you ask that again? Q. You've taken a position on versions that you think are acceptable, and I'm asking you, do you think that's one that was designed to ease implementation or not? A. Yes. Q. And how is that, Mike? A. With the teachers recommending B and possibly -- and if not B, C, the teachers had to implement whatever the language is going to be. So if they had concerns about not being sure about how to implement language that included intelligent design, they were okay with the language that they proposed in C to be able to implement that in their classrooms, but they were very concerned about and didn't know how they would implement language that included intelligent design. Q. Well, let's look at the portion of the meeting that involves the voting on the agenda item. Do you recall that portion of this meeting? A. Yes. Q. And tell us what you remember. A. The proposal was made for -- well, Mr. Buckingham would have made a motion for A, and discussion followed after that. I remember Mr. Wenrich making a lot of amendments to the motion, all of which tried to exclude the language that included intelligent design and those being defeated. At one point I remember -- I think it was Mr. Bonsell that suggested the note origins of life be moved from C and attached to A, and that was done. And then I believe A with that attachment, that amendment, was passed. Q. All right. Do you recall any discussion after the curriculum motion by Mr. Bonsell was made? I mean the motion to amend that you just described. A. Do I recall any discussion about that? Q. Any specific discussion about that at that time. A. No. Q. Am I correct that his motion provided the basis for the final curriculum change as adopted that evening? A. Yes. Q. So it was worked out on the night of this board meeting? A. Yes. Q. We've got a board curriculum change that's been voted on on October 18th. What happened next in terms of implementation of that? A. Then Dr. Nilsen directed me to come up with a statement that we could use to implement the curriculum change. Q. And with that in mind, I'd ask you to look at Defendants' Exhibit 65. A. Okay. Q. Do you recognize that? A. Yes. Q. What is it? A. This is a draft of the statement that I prepared and sent to the board of directors. Q. And you say you prepared it. What did you use as the basis for the statement? A. The concerns that the board had expressed to me earlier and to the teachers. Q. Okay. Let's look a little more specifically at some elements of this statement. If you look at the first indented paragraph there, you'll see it begins, Darwin's theory of evolution continues to be the dominant scientific explanation for the origins of the species. The state standards require students to learn about the theory of evolution and to take a standardized test of which evolution is a part. Did you draft that language, Mike? A. Yes. Q. What was your purpose in doing so? A. My purpose was to make it clear that Darwin's theory is taught, that the state standards require it, and that students will eventually be tested on this, to make sure that Darwin is mentioned first. Q. Okay. If you look at the second paragraph, there's language in there describing intelligent design as a theory. And I want to ask you, when you drafted this statement, Mike, did you believe that intelligent design was a religious theory? A. No. Q. And what was the basis for your understanding? A. Just reading Of Pandas and People, I didn't see that making a religious argument. Q. And then if you look at the last paragraph of the statement, it talks about the school leaving the discussion of origins of life up to individual students and their families. Did you put that language in there? A. Yes. Q. And why did you do that? A. That really came from my discussions with the teachers. I remember them saying that that's what they had done in the past, so I included it in this draft. Q. Did you understand this language to mean that they would not be teaching intelligent design? A. Yes. Q. What happened next relating to this statement? Did there come a time when you came to understand that teachers objected to being identified with the curriculum change? A. Yes. The teachers sent me a request to have their names removed from the new biology -- the change that had been made to the biology curriculum. Q. And with that in mind, Mike, I'd ask you to look at Defendants' Exhibit 81. A. Okay. Q. Do you recognize that? A. Yes. Q. And what is it? A. That's a request from the science teachers to have their names removed. Q. And based on this, did you have an understanding for why the teachers wanted their names removed? A. They objected to the inclusion -- they did not agree to having intelligent design in the curriculum and then they didn't want their names on it to look like they wrote that or authored it. Q. And did you do anything as a result of receiving this document? A. I removed their names from the biology curriculum. Q. And why did you do that? A. Because they asked me to. Q. I want to ask you a few questions about reporting on the curriculum change in this period after October 18th. Did you have any discussions with reporters about the impact of the curriculum change after the October 18th meeting? A. Yes. Q. And who were those reporters? A. Heidi Bernhard-Bubb and Joe Maldonado. Q. And what was the nature of the information you gave them? Let's start with Ms. Bubb first. A. I remember Heidi inquiring about what the nature of the change -- you know, what does it mean now, this curriculum language has been passed and what's the nature of that. And I explained to her that we would be developing that with the teachers, but I'm envisioning that what will probably happen is there will be some mention of intelligent design at the beginning of the unit and that they'd be mentioning it and not teaching it. And I remember Heidi, you know, laughing when I made that distinction saying, aren't you just playing semantics? I said, no, I said, there's a difference between mentioning and teaching. Q. Did you have an opportunity to review some reporting on the curriculum change after that discussion? A. Read articles? Q. Yes. A. Yes. Q. And did it reflect the information that you had provided? A. The articles still were reporting that we were teaching intelligent design or teaching creationism. Q. How about Mr. Maldonado, do you recall a similar conversation with him? A. I believe I mentioned -- with Joe I remember going more closely through the curriculum draft changes, explaining XI-A, B, and C, but I also remember talking to Joe about -- saying that, you know, I think it's going to result in maybe somewhere down the line we'll be reading a statement but not teaching it. Q. Did you have an opportunity to review press accounts by Mr. Maldonado about the impact of the curriculum change after the discussion you've just described? A. Yes. Q. And did it reflect the information you had provided to him? A. Still reported that we were teaching intelligent design. Q. Did there come a time when it came to your attention that board members were concerned with the reporting about the curriculum change? A. Yes. Q. And did you have an understanding about whether board members wanted any steps to be taken to address the curriculum change? A. Well, my understanding is that Mr. Bonsell was concerned with the reporting of teaching intelligent design, and we said we're not teaching it, you know, we'll be working out this statement about mentioning, and that he had talked to Dr. Nilsen about it and asked that, you know, we address it publicly to explain to the community exactly what we are intending and what we're not intending. Q. With that in mind, I'd ask you to look at Defendants' Exhibit 83. A. Okay. Q. Do you recognize that document? A. Yes. Q. And what is it? A. It's a statement, kind of a press release about what we're doing in relation to the biology curriculum change from Mr. Bonsell to Dr. Nilsen. Q. And I'd ask you to look at Defendants' Exhibit 85. A. Okay. Q. Do you recognize that? A. Yes. Q. And what is it? A. It's a note from me to my secretary to send I guess the latest draft of the statement to all the science teachers for their review. Q. Since we're focused on the statement, Mike, I'd ask you to look at Defendants' Exhibit 86. A. Okay. Q. 87. A. Okay. Q. Essentially do us a favor and give us a quick run, look through 86 to 100. Do you recognize these documents, Mike? A. Yes. Q. And what are they? A. These are the multiple drafts that were generated from suggestions from the teachers' review of the statement and the board's review of the statement. Q. In this litigation, some attention has been paid to the word "theory," and I want to ask you, the word "theory," does it appear in the final version of this statement that's read to students? In the final version of statements that is read to students, does the word "theory" appear? A. Could we go to that? Q. Well, I guess you could go to Defendants' Exhibit 103. Do you recognize that, Mike? A. Yes. Q. And there's an indented portion at the bottom of the page Bates stamped 49 carrying over to the page Bates stamped 50, and I'd ask you to look at that and see if you can identify that as the final version. Do you recognize that? A. Yes. Q. Okay. If you look at the second paragraph, the word "theory" is defined as, Theory is defined as a well-tested explanation that unifies a broad range of observations. And I want to ask you, do you know how that definition of theory was included? A. During the process of the teachers' review of this, I remember Mrs. Miller sent me a note to have the definition of a theory put in there. And then I met with Mr. Linker and we went to the back of Miller and Levine and pulled the definition that was there and then placed it into the statement. Q. Okay. Now, I'd like you to look back at Defendants' Exhibit 86 again. A. Okay. Q. And I direct your attention to the second paragraph of the statement language that's in this draft and to the third sentence which reads, Individuals may subscribe to other theories of evolution, including intelligent design. Now, I'd like you to look at 103 again. A. Okay. Q. If you look at the third paragraph of the indented statement it reads, Intelligent design is an explanation of the origins of life that differs from Darwin's view. Can you tell me how the description of intelligent design came to be an explanation of the origin of life as opposed to a theory? A. Well, my original -- in my original draft, I had included language that said intelligent design is a theory. And when that was returned to me from the teachers -- and I believe it was Mrs. Miller doing some of the review -- theory was changed to explanation for intelligent design. Q. We've looked at the press release, which is Defendants' Exhibit 103. Did you play any role in drafting that press release? A. No. Dr. Nilsen would have probably given it to me to review, but I don't remember editing it or making any changes to it. Q. Do you recall the press release issued by Dr. Nilsen generating a response on the part of the teachers? A. Yes. Q. And with that in mind, I'd ask you to look at Defendants' Exhibit 106. A. Okay. Q. Do you recognize that? A. Yes. Q. What is it? A. That's a note from the teachers, the science teachers, to Dr. Nilsen expressing their concern with the press release and the implication that the teachers were fully supportive of intelligent design. Q. And did you see this document? A. Yes. Q. What was your reaction to it? A. The language in the -- I thought the language in the press release accurately portrayed their involvement in the review of the curriculum language and in the statement. I didn't see it in the light that they were seeing it in. I thought it fairly portrayed their involvement because they were involved to an extent. They didn't agree with the intelligent design language, but they were involved in helping implement it. Q. Did the administration do anything in response to this document? A. We met with the teachers. Q. And around when was that meeting? A. November before the Thanksgiving break, I believe. Q. And who was there? A. The science teachers, Dr. Nilsen, myself, the association president, Sandy Bowser, association representatives Brad Neal and Bill Miller. Q. And when you say "association," is that the teachers' union? A. Yes. Q. And what transpired at that meeting? A. I believe Mr. Miller kind of took the lead for the teachers and asked Dr. -- expressed concern that the press release unfairly portrayed the teachers' involvement in the curriculum change in the statement and asked Dr. Nilsen to reissue a new press release and clarify that the teachers weren't supportive of intelligent design. Q. Did they take any position on the nature of their involvement in either the curriculum or -- curriculum change or the statement? A. They believed -- well, the word I heard for the first time -- during this whole process, I would draft something, give it to them for them to review and edit back to me. But I remember Brad Neal saying that I had given the statement solely to the teachers to review for scientific accuracy, which isn't language that I ever used with them. I just gave it to them to review. That may have been what they were doing, but that wasn't what I was -- you know, I hadn't specifically directed them to do that. Q. There was some discussion of a request for a press release. Did that occur? A. No. Q. Did you discuss anything else at this meeting relating to the implementation of the curriculum change? A. Yeah. This meeting actually sat on top of another meeting. I originally had a meeting set up for the teachers to discuss implementation. So after Dr. Nilsen talked about the press release, then the teachers and I moved on to talking about implementation, how we're going to distribute the books, what we'll do if students opt out, when we're going to distribute the books, and how long they might -- students might keep them, and the actual mechanics of getting them stamped and where we would place them in the classrooms. Q. What was the tone of this meeting? A. Well, I'd say it was strained because the teachers were very upset with the press release. Q. Okay. You discussed opting out. How did that come up? A. That had been -- I remember in discussions with them my understanding was that we would allow students to opt out of even other curriculum, health curriculum that might involve sex education, dissection in the sciences, and that even in the past, my understanding was that teachers, if a student objected to evolution, they'd opt out of that unit. Although they were responsible for it, they could opt out of it. Q. Do you recall receiving expressions of concern from parents relating to the implementation of this curriculum change? A. Yes, I did receive an e-mail. Q. And with that in mind, I'd ask you to look back at Defendants' Exhibit 70. A. 70? Q. Yeah. Do you recognize that document? A. Yes. Q. And what is it? A. It's an e-mail from Mrs. Kitzmiller that was forwarded to me from Mrs. Miller. Q. And did this provide part of the basis for your decision that the opt-out would apply here? A. Yes. Mrs. Kitzmiller was asking if parents would be able to allow their children to opt out. Q. Now, when you reached the conclusion that the opt-out would apply, did you do that based on an opinion that intelligent design was religious? A. No. Q. Why did you reach the decision that it applied, the opt-out policy? A. We had allowed students to opt out for other nonreligious reasons of the curriculum. If parents felt strongly about it, we would honor the parents' requests, and so we were going to do the same for ID. Q. If you would, Mike, I'd ask you to look at Defendants' Exhibits 133, 134, and 135. Do you recognize those documents, Mike? A. Yes. Q. What are they? Let's look at 133 first. What's that? A. 133 is a letter that I drafted that would be sent home to parents explaining what we would be doing, reading the statement and the ability to opt out of hearing it. 134 is the actual excusal form for a parent to have their son or daughter opt out. And 135 was another excusal form. Q. And were those documents that you prepared in connection with allowing the opt-out? A. Yes. Q. Let's turn your attention for a minute to the reading of the statement. When you were drafting this statement, did you envision that the administration would read it? A. No. Initially -- and I remember talking to the science teachers previously, talking to them previously when they talked about how they mentioned -- how they preceded the chapters and what they talked about with students prior to that. So initially we thought they would do what they did in the past and they would speak about it prior to beginning teaching of evolution as they had in the past. Q. Okay. Let me ask you to look at Defendants' Exhibit 138 and 139. Do you recognize those, Mike? A. Yes. Q. And what are they? A. 138 are tentative minutes that Mrs. Spahr drew up for my meeting with the teachers when we were talking about how to implement the letters and the opt-out forms. And 138 also includes suggestions from Dr. Nilsen on what changes we should make. Q. What was the purpose of these minutes? A. One of the things the teachers were concerned with was liability. That came up at the November meeting. So at that meeting we had agreed to put anything that involved the books or the curriculum language, the books Of Pandas and People or curriculum language, to put that in writing so that there's a clear directive from administration that the teachers were told to do this so that they wouldn't be liable. So these meetings are a written record of what we agreed to, what we decided on. Q. I'd ask you to look at Defendants' Exhibit 139 under the heading C and the subheading Number 3. A. Okay. Q. And read that for the record. A. Under C? Q. Yeah. A. Three reads, All students will be responsible for the material and the subject that will be assessed. Nothing discussed during the student absence will be assessed. Q. And what was the point of that item? A. Again, I think that's from a parent concern that if students miss something, would they be tested on it and then would they be hurt by, you know, excusing themselves from the classroom and wanted to be reassured that we agreed that we weren't going to assess that and students would not be penalized for opting out and not hearing the statement. Q. Does that item reflect the basis for your belief that students are not being taught intelligent design? A. Yes. Q. And how is that? A. Because they're not tested on it afterwards. Q. We've talked about reading a statement and some opt-out forms. Let me ask you, what was the plan for the distribution of the letter about the opt-out and the form? A. Well, at this meeting we had agreed that -- the teachers reviewed the forms, we edited them a little bit. I produced clean forms for everybody, and the plan was that the teachers would distribute them and collect them. Q. Did the teachers distribute the letter and opt-out form? A. No. Q. How did you find out that they did not distribute those? A. The teachers were to distribute -- I believe it was on a Friday we had agreed that they would distribute the opt-out forms to students. And previously I remember talking to a parent, either through an e-mail or phone call, and they were wondering, you know, what are we doing, where is this opt-out form and when will their child get it. And I think I remember that same day, Friday, the parent contacting me and saying the daughter came home and didn't receive any form. So I called the building principal and asked him to check into why -- you know, if the forms were distributed. Q. And did you learn whether they had been? A. Yes. Q. And what did you learn? A. That the teachers did not distribute them. Q. And what was your reaction to that? A. Well, prior to that, the teachers had requested to Dr. Nilsen to not have to read the statement. And they asked for that, and Dr. Nilsen granted them that. They never informed us that they were not going to distribute the forms. So we were under the assumption that students would get the forms and be able to opt out. So I was -- I really thought that was a breakdown in communication, that they should have communicated that to us. And then I also learned that the association had advised them against it. So what I did is, I ended up writing a letter to the association stressing how improper I thought it was that they didn't communicate and that it was a little bit reckless of them to put their teachers in a position that might be judged to be insubordinate. Q. Let me ask you to look at Defendants' Exhibit 142. A. Okay. Q. Do you recognize that document? A. Yes. Q. What is it? A. This is the -- Dr. Nilsen had drafted language that we would actually say to the students when we went in to read the statement. Q. And did the teachers read the statement? A. No. Q. Was the statement read? A. Yes. Q. Who read it? A. Dr. Nilsen and I read the statement. Q. Well, let me tell you, why did you and Dr. Nilsen go into the class and read the statement? A. Because the teachers didn't want to read the statement. They didn't want to have anything to do with it. Q. Was this reading of the statement by administration what you originally contemplated when you sought to implement the curriculum change? A. No. Originally we thought the teachers would do that. Q. At any time did any board member tell you that they wanted the administration to read the statement? A. No. Q. Let me ask you, Mike, at some point did you learn that Dover had received another group of books that were related to the biology curriculum? A. Yes. Q. And when was that? A. When? Q. Yeah. A. In spring, I believe. Q. Sure. I'm not asking for a specific day. Sometime in the spring. How did the books come to your attention? A. I believe Cora Kunkle, the high school librarian, sent me a notice that she had gotten all these books, here is the list of them and titles and what is she to do with them. Q. Do you recall receiving the books? A. Yes. She sent them over to my office. Q. Do you know if the books were reviewed? A. Yes. Q. And who reviewed the books? A. Well, I know Mrs. Harkins picked the books up from my office, and the board curriculum committee was advised that the books were available for review. Q. Do you know where the books ended up? A. Yes. Q. Where? A. In the high school library. Q. Do you know the specific areas in the library where the books were located? A. No. Mrs. Kunkle would have determined where the books would be placed. Q. Did the board approve the donation of the books for placement in the library collection? A. Yes. Q. Based on what you know as the assistant superintendent, was the addition of those books to the library collection consistent with the purpose of the curriculum change adopted on October 18th, 2004? A. Yes. Q. Did there come a time when you came to know that the donation of the additional books had an impact on the statement that was read to students? A. Yes. Q. And what was that effect? A. Dr. Nilsen asked me to include language in the statement when we read it in June that would mention that there are other resources in there, in the library. Q. And did you do that? A. Yes. Q. And was that revised statement read to students? A. Yes. Q. Mike, do you know what result a student will get if they go to the catalog of the Dover High School library and do a search using the term "intelligent design"? A. Yes. Q. What is the result? A. One book comes up. Q. Do you know the author and title of that book? A. Yes. Q. Please tell us. A. The author is Robert Pennock, and the title of the book is Intelligent Design: Creationism and Its Critics. MR. GILLEN: I have no further questions Your Honor. THE COURT: All right, Mr. Gillen. We thank you. Cross by Mr. Rothschild. CROSS-EXAMINATION BY MR. ROTHSCHILD: Q. Good afternoon, Mr. Baksa. A. Good afternoon. Q. Mr. Baksa, I took your deposition twice in this case? A. Yes. Q. I'm going to give you copies of each of those depositions. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, on the subject of the donated books, you were here when Mrs. Harkins testified. Correct? A. Yes. Q. She testified that those donated books had, like Pandas, been added to the curriculum, but that's not accurate. Correct? A. Of Pandas, Of Pandas and People appears in the biology curriculum page as a reference. Those other books do not appear in any curriculum pages. Q. And in the statement that was read to the students in June, while it refers to other books, it does not describe what those other books are. Correct? A. Correct. Q. And to the best of your knowledge, those books are not situated next to or near Pandas in the library. Correct? A. Yeah, I really don't know where they are. The librarian placed them. Q. So you have no reason to dispute the proposition that they are not located next to or near Pandas? A. Right, I have no -- I don't know where they are. Q. When Mr. Gillen was asking you questions a few minutes ago, he emphasized the point that the statement read to students now calls intelligent design an explanation, not a theory. Correct? A. Yes. Q. And that was a change from what you had originally drafted. Correct? A. Yes. Q. And why is that significant? A. I'm not sure I -- that was a change Mrs. Miller made. She never explained to me why she made that change. Q. Do you understand it to convey that intelligent design is, in fact, not a theory as defined in the statement, a well-tested explanation that unifies a broad range of observations? A. I'm sorry, could you ask me -- Q. Why don't you look at Defendants' Exhibit 103. A. Okay. Q. And that's the board press release? A. Yes. Q. And it includes the version of the statement that was read in January? A. Yes. Q. And if you look at the second paragraph, it describes Darwin's theory as a theory, and then it says, A theory is defined as a well-tested explanation that unifies a broad range of observations. Correct? A. Yes. Q. And you have no reason to doubt that that's a good definition of a scientific theory? A. Yes. Q. And then it says, Intelligent design is an explanation of the origin of life that differs from Darwin's view. Correct? A. Yes. Q. It does not call intelligent design a theory. Correct? A. Correct. Q. Which is what you had originally put in the document? A. Right. Q. So it was your understanding that this was to represent that intelligent design is not, in fact, a scientific theory? A. Well, again, that's a change Mrs. Miller made, and she didn't discuss with me why she made that change. Q. So you don't have an understanding one way or the other? A. Right. Q. Do you have an understanding of whether intelligent design is a theory, a scientific theory? A. The only information I have about intelligent design is what I -- if it's a scientific theory or not is what I gleaned from reading Of Pandas and People. Q. And do you understand it to be -- A. And I think I -- I'm sorry. Q. Go ahead. You should finish. A. And I think I testified in my depositions with you earlier that, you know, I don't feel qualified like Dr. Behe or the scientific community to make a determination on intelligent design, whether it's -- what its status is as a scientific theory. I would defer to science teachers and the scientific community to make that determination. Q. And so you don't have an understanding one way or the other whether intelligent design is a well-tested explanation that unifies a broad range of observations? A. Correct. Q. March 26th, 2003, was the first time you had attended a retreat of the Dover Area School Board. Correct? A. Yes. Q. You had been hired by the board in the fall of 2002 or to start in the fall of 2002? A. Yes. Q. And that's a decision by the board? That was a decision by the board to hire you? A. Yes. Q. They decide which administrators to hire? A. Yes. Q. And which to fire? A. Yes. Q. I'm not suggesting anything. Now, March 26th, 2003, was actually the same day you attended the retreat at Messiah College. Correct? A. Yes. Q. And you understand that Messiah College is a religious college. Correct? A. Yes. Q. And the symposium you attended was on the subject of creationism? A. Yes. Q. You had been sent there on the recommendation of Dr. Nilsen? A. Yes. Q. But he never told you why he wanted you to go. Correct? A. Yes. Q. And you didn't ask him? A. That's correct. Q. This is the only conference or lecture or symposium that he ever sent you to on a specific scientific topic. Isn't that right? A. On a specific scientific topic, yeah. Q. And this presentation lasted several hours? A. Yes. Q. You took notes? A. Yes. Q. And what you heard was the history of creationism. Correct? A. History of the controversy on teaching evolution and other theories alongside Darwin's evolution. Q. And part of the history of creationism you heard included a discussion of young earth creationism. Correct? A. Correct. Q. And you learned that young earth creationism includes an age that -- includes the proposition that the earth is approximately 6,000 to 10,000 years old? A. Yes. Q. And you understand that that's at odds with the sort of standard scientific interpretation of the age of the earth based on the geologic record? A. Yes. Q. And the speaker in this conference on creationism mentioned Phillip Johnson. Correct? A. Yes. Q. And intelligent design. Correct? A. Yes. Q. And he indicated that Phillip Johnson, what he stood for was an attack on evolution on common descent. Correct? A. I'd have to -- just you saying it, I don't remember. Q. Fair enough. A. I'd have to look at my notes for that. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, Exhibit 284 is a copy of your handwritten notes from the creationism conference at Messiah College? A. Correct. Q. And if you could turn to the second page of your notes on the page Bates stamped 4013. And, Matt, if you could blow up that very bottom underlined passage there. And could you read what's said there? A. It says, Phil Johnson, attack on evolution, common descent. Q. Those are your notes of what was communicated at the conference? A. Yes. Q. And on the page before, if you turn back, you have the term -- towards the bottom on sort of the right-hand side you have Phillip Johnson and intelligent design. Is that right? A. Do you want me to read all that or -- Q. No. I'm just saying you do have notes here about Phillip Johnson and intelligent design, correct, down in sort of the right-hand corner? A. The one line with Phillip Johnson says, Ten years later balanced education struck down, Phillip Johnson. And then under that I have a note out in the margin, today, and these are three alternative explanations or theories that they are putting forth that exist today, young earth creationists, common ancestry, and intelligent design. Q. And you understand Phillip Johnson was associated with intelligent design? A. No, actually, I didn't know that. Q. If we could turn back to Page 2 again, you have, Note, National Science Teachers Association position on evolution. Is that what you wrote on the last line? A. Yes. Q. Did you ever get a copy of the National Science Teachers Association's position on evolution? A. No. Q. In fact, you never investigated, throughout this whole issue at Dover, starting from this retreat on forward, you never got materials or investigated the positions of any of the mainstream scientific or science education organizations on the issues of intelligent design or evolution. Correct? A. That's correct. Q. And as far as you know, no one else from the school board or school administration did either. Correct? A. Right, as far as I know. Q. Safe to say you went to that retreat on the evening of March 26, 2003, with creationism on the brain? A. I believe in my deposition I said I returned from the workshop and went to the retreat. Q. And you had been listening to lectures about creationism all day, and I assume you were thinking about it? A. The workshop, later learned -- because I think I misrepresented and said it was an evening. Actually, I believe it was 9:00 to 1:00. The retreat was at 6:00 or 6:30. I believe I would have been thinking of other things in between that, but certainly that would have been something that I attended that morning. Q. Your antenna was up to the issue of creationism. Would you agree with that? A. I don't have antennas, but -- Q. That's not what you told me at your deposition. (Laughter.) A. I would agree that certainly I learned of creationism and evolution that day and could be thinking -- would be thinking about that. Q. Now, at that meeting, as you discussed with Mr. Gillen, there was an opportunity for each board member to identify the issues that were important to them. Correct? A. Correct. Q. And while that happened, Dr. Nilsen took notes? A. Yes. Q. And later he circulated a typed-up version of those notes. Correct? A. At the retreat or later? Q. Later. A. Later, yes. Q. You received a copy of the typed-up version of his notes? A. Yes. Q. And so did board members? A. That I don't know. Q. Okay. And you saw those notes fairly promptly after they were created. Correct? A. Yes. MR. ROTHSCHILD: And, Matt, if you could put up Exhibit 25, Plaintiffs' Exhibit 25. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, these are -- Exhibit P25 is, in fact, the typed-up version of the notes Dr. Nilsen took? A. Yes. Q. And as you went over with Mr. Gillen, under Mr. Bonsell's name is the word "creationism." Correct? A. Correct. Q. And you also list the issue of American history. Correct? A. Yes. Q. And that is an area of the curriculum that Mr. Bonsell has expressed some interest in? A. Yes. Q. You've actually discussed that area with him? A. Yes. Q. And for this entire set of notes, you never went to Dr. Nilsen and said there's something you need to correct here? A. That's correct. Q. About anything on these notes? A. That's correct. Q. Now, after this meeting, you had a conversation with Mrs. Spahr of the science department about what a board member said about teaching evolution. Correct? A. Yes. Q. And that board member was Alan Bonsell. Correct? A. Yes. Q. And the reason you did that is, you wanted to give the science department a heads-up about what the board was saying about a topic taught in science class. Correct? A. Correct. Q. They deserve that. Right? A. Yes. Q. And you have a lot of respect for Mrs. Spahr? A. Yes. Q. And Mrs. Miller, the biology teacher, as well? A. Yes. Q. You recognize that they're the science education experts in the district? A. Yes. Q. You wouldn't call yourself an expert in science education? A. Correct. Q. Or Dr. Nilsen? A. Correct. Q. Or anybody on the board. Correct? A. Correct. Q. And you also have confidence that the teachers are acting in the best interests of these students, these science teachers. Would you agree with that? A. Yes. Q. And they have continued to act that way throughout this controversy. Right? A. Yes. Q. Now, you told Mrs. Spahr what Mr. Bonsell said at the board meeting about the teaching of evolution. Correct? A. I told Mrs. Spahr that what I heard last night at the retreat was that Mr. Bonsell was looking for a 50/50 split with Darwin and some alternative. Q. That's what you told her? A. Yes. Q. And Mr. Bonsell had actually been expressing concerns about the teaching of evolution to you since the fall of 2002. Correct? A. Correct. Q. Now, shortly after that conversation with Mrs. Spahr, you received the memo from Dr. Peterman. Correct? A. Yes. Q. And why don't we just take a look at that. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. P26 is the memo from Dr. Peterman that you received on or around April 1st, 2003? A. Yes. Q. And that memo summarizes a conversation that Dr. Peterman had with Mrs. Spahr? A. Yes. Q. And in that conversation, according to the memo, Mrs. Spahr reported to Dr. Peterman about the conversation she had with you. Correct? A. Correct. Q. And what the memo says is that you told Mrs. Spahr about a board member wanting creationism taught 50/50 with evolution. Is that right? A. That's what the memo says, right. Q. And when you saw this memo, you didn't talk to Dr. Peterman about it. Correct? A. No, when I saw this memo, my first reaction -- I distinctly remember this -- is, that's not what I said and she got it wrong, nobody is looking at teaching 50/50 with creationism. I remember going to Dr. Nilsen and saying, you know, here's Dr. Peterman jumping the gun again because this isn't what I talked to Bert Spahr about. Q. But, Mr. Baksa, you didn't go to Dr. Peterman and talk to her about this. Correct? A. That's correct. Q. You didn't go to her and say, are you sure that's what you heard? You didn't do that. Right? A. Right. Q. You didn't go to Dr. Peterman and say, that's not what I told Mrs. Spahr. Right? A. Right. I wouldn't go to Dr. Peterman because anything else I tell her, she would take or misinterpret or just do more damage with it. She's already written a memo which I think mischaracterizes my conversation with Mrs. Spahr. And I was dealing with the science teachers, and I was not dealing with Dr. Peterman on this issue. Q. And you didn't respond to her in writing, either? A. That's correct. Q. Okay. Well, let's talk about the science teachers. You didn't talk to Mrs. Spahr about the memo either, did you? A. That's correct. Q. You didn't go to her and say, look what -- and she received this memo. Correct? A. Yeah. Q. And you didn't go to her and say, Bertha, is this what you told Dr. Peterman? A. But Mrs. Spahr did believe that. I mean, Mrs. Spahr did believe that, you know, the board was looking at teaching creationism from the very moment early in the fall when I expressed -- we had board members or Mr. Bonsell had concerns about teaching evolution, and I told her about Mr. Bonsell's concerns about carbon-14 dating, species evolution. I believe from the very beginning Mrs. Spahr mentioned to me creationism many times. So I wasn't going to convince Mrs. Spahr that she was wrong in not thinking this. So until -- and it's this whole way through. Until I get something specific that I could tackle with the teachers and say, look, this is what they want done now, how do we address that, until then, I'm just saying -- you know, before we were talking about mentioning something, now it's a 50/50 split, I don't know what that's going to look like, we just might have to do something in the future. So, no, I did not address any of this with Mrs. Spahr. I was meeting with Mrs. Spahr all the time anyway on the issue. Q. That's exactly right, Mr. Baksa. And I know this is difficult, but you went to Mrs. Spahr right after the retreat -- A. Right. Q. -- and talked to her about what Mr. Bonsell's issues were with the teaching of evolution, but you didn't go back to her and say, this isn't what I said to you. It may be what you think is happening, but it's not what I said to you. You never did that. Correct? A. That's correct. Q. And you have to admit, Mr. Baksa, it's pretty unfair to Dr. Peterman to say that Dr. Peterman is exaggerating and being untruthful if you don't know what Mrs. Spahr told her. Would you agree with that? This might be exactly what Mrs. Spahr told Dr. Peterman. Isn't that right? A. I never thought of it. Mrs. Spahr could have told her that, yeah. Q. So it's pretty unfair to Dr. Peterman to say that she's exaggerating or being untruthful in this memo when you don't know if this isn't exactly what Mrs. Spahr told her? A. What I would say is fair to Dr. Peterman is whether Mrs. Spahr did this -- told her that or not, for Dr. Peterman to just fire off a memo to us to address this without ever having confirmed with me what did I really tell her, what is the real issue, what concerns did I hear from the board, you know, Mrs. -- Dr. Peterman is committing to a memo what Mrs. Spahr -- supposedly I told Mrs. Spahr. So it's not a conversation I had with Dr. Peterman, and to me I think it's fair to characterize Dr. Peterman jumping the gun without checking to see is this really true. I think that's fair to characterize it that way. Q. Well, Mr. Baksa, given how much uncertainty there is about what individuals in this school community have said over this issue, don't you think it's a good practice to write down what you've heard? A. As a matter of record, not as a memo to take action without confirming it. Q. Now, if you look at what's written here, you've got this 50/50 aspect. That part of it you agree is right? A. Yes. Q. Alan Bonsell did say something at that board meeting about -- at that board retreat about teaching something 50/50 with evolution. Isn't that right? A. Yes. Q. And creationism, the second half of this proposition, is exactly what's reflected in Dr. Nilsen's notes. Isn't that right? A. Yes. Q. So when you look at that all together, this may be exactly what you told Mrs. Spahr. Don't you agree? 50/50, creationism? Sort of all coming together? A. Honestly, I really remember reacting to this thinking that Bert or Dr. Peterman, as you pointed out, that they got it wrong, that that's not what anybody was advocating. Because the other piece is, teaching creationism is a non-starter. It's not going to happen. It's not legal, so it's not -- nobody is advocating -- I hadn't heard that being advocated. And if somebody is talking about it, it's not going to happen. Q. Well, Mr. Baksa, you're not really saying that Mr. Bonsell didn't talk about teaching creationism, you just don't remember one way or the other. Isn't that right? A. Right, I don't remember him talking about it at the retreat. Q. You don't remember one way or the other? A. Correct. Q. Now, after this retreat, you had further conversations with Mr. Bonsell about his concerns about the school's teaching of evolution? A. I'm sorry? Q. After this retreat, after this April 1st memo -- A. Yes. Q. -- you had further conversations over the following months with Mr. Bonsell about his concerns about the teaching of evolution. Correct? A. Yes. Q. He had conveyed that he had some problems with the text and the way evolution is taught? A. Well, he didn't -- his concerns with the text were the presentation of Darwin. Actually, after the retreat, I had met with Mr. Bonsell and heard his concerns about the treatment of Darwin in texts prior. I met with him separately after the retreat to find out what 50/50 was all about. Q. So he had already expressed concerns about the text and how it presented Darwin's theory of evolution. Right? A. Correct. Q. And then you subsequently found out he had questions about the accuracy of carbon dating. Correct? A. Yes. Q. And he had some problems with the idea of speciation. Correct? A. Correct. Q. He was worried that teachers were teaching bears to whales. Correct? A. He had simply reported to me -- my understanding is that he had seen a video that was showing the evolution of a bear into a whale, and he found that highly improbable or ludicrous to think that that could happen. Q. Another thing he expressed to you was that he was concerned that if students were taught Darwin's theory of evolution, that might conflict with what they were being taught at home. Correct? A. That's correct. Q. And you understand that to mean what they were taught about origins from a religious perspective, don't you, conflict with what they were taught at home about origins from a religious perspective? A. I don't understand Mr. Bonsell's concern to mean that it conflicts with religious beliefs, just that it would be -- if anybody believed in anything other than Darwin, that it would conflict with that. But I didn't have an understanding that it was solely religious beliefs. Q. You're not suggesting that Mr. Bonsell was talking about a conflict between the scientific account of evolution taught by Mrs. Miller in biology class and the scientific account of evolution taught by parents? That's not what Mr. Bonsell was talking about, was he? A. I think he was just expressing that parents and students may have different beliefs. I mean, we didn't say what those are. He didn't use the word "religious beliefs," and we didn't talk about religion. Q. But that's what you understood. Isn't that right, Mr. Baksa? That's the only thing that makes sense? A. No, I didn't know -- I can't take away an understanding that that's what Mr. Bonsell meant from his conversation with me. Primarily it focused on his concerns with Darwin, the teaching of -- initially his concerns of the teachings of the origins of life in the classroom. And his concern there was that there might be teachings and beliefs at home that conflicted with that. But we never talked about those being religious conflicts, and I didn't pursue, you know, that line of questioning of him to find out further. It was enough for me to take to the teachers a concern about origins of life, for us to address that. THE COURT: Mr. Rothschild, at any place you want to take a break, since I assume you're going to be in this for a little while -- MR. ROTHSCHILD: Just a few more questions, Your Honor. THE COURT: Okay. That's fine. BY MR. ROTHSCHILD: Q. Now, whatever beliefs at home Mr. Bonsell was talking about, in this upcoming school year, his own son was going to be in biology class, right, in 2003? Is that right? A. Yes. Q. So this issue was particularly important to Mr. Bonsell? A. Because of his son? Q. Because his son would learn something in biology class that might conflict with what he learns at home. A. Mr. Bonsell didn't say that to me. Q. You do know his son was going to be taking the biology class? A. Yes. MR. ROTHSCHILD: This would be a good time for a break. THE COURT: Let's take a recess here for about 20 minutes, and then we'll resume with the cross of Mr. Rothschild. We'll be in recess. (Recess taken.) Kitzmiller v. Dover Area School District Trial transcript: Day 19 (November 2), PM Session, Part 2 THE COURT: All right. Mr. Rothschild, we'll pick up where we left off. BY MR. ROTHSCHILD: Q. Mr. Baksa, in the fall of 2003, you discussed Mr. Bonsell's concerns about the teaching of evolution with the teachers. Correct? A. Yes. Q. So that's at least the second time that they have heard from you that a specific board member has some pretty serious concerns about how they teach evolution. Correct? A. The fall of 2003, that's -- we met with Mr. Bonsell. Q. Before that you told them about his concerns. Correct? A. Yes, before that. Q. And so that's at least the second time that you communicated to them that there is an issue with their teaching of evolution. Correct? A. Yes. Q. At least the second time, may have been more? A. Yes. Q. And you communicated to them, for example, that Mr. Bonsell had concerns about their teaching the origins of life. Correct? A. Yes. Q. And you understand that term to mean, as Mr. Bonsell was using it, the teaching of changes from species to species. Correct? A. And probably how life began, initiated. Q. Macroevolution? A. Yes. Q. Common ancestry? A. I don't remember Mr. Bonsell talking about common ancestry. Q. But he did have a concern with the teaching of macroevolution. Correct? A. Yes. Q. Speciation? He had a concern about teaching speciation? A. Yes. Q. And you do understand that macroevolution, speciation, are elements of the theory of evolution. Correct? A. Yes. Q. Now, you arranged a meeting with Mr. Bonsell and the teachers. Correct? A. Yes. Q. And in that meeting, Mrs. Miller explained how she taught evolution? A. Yes. Q. And one of the things she communicated was that she does not teach origins of life. Correct? A. Yes. Q. And you understood that to mean that she was not teaching macroevolution and speciation. Correct? A. Yes. Q. Including that modern man, homo sapiens, descended from lower creatures. Correct? A. I'm sorry, again? Q. You understood that included within that was that she was not teaching that modern man, homo sapiens, had evolved from lower creatures. Correct? A. Yes. Q. And you felt that information seemed to satisfy Mr. Bonsell? A. Yes. Q. You left that meeting feeling that there had been some meeting of the minds? A. Very much so. MR. ROTHSCHILD: Matt, could you call up Defendants' Exhibit 286. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, this is a document that Mr. Gillen asked you about during your direct testimony. Do you recognize that? A. Yes. Q. Okay. And this is the draft curriculum change which says that students will be able to demonstrate awareness of other theories of the origin of life, including, but not limited to, creationism. Matt, if you could blow up that left-hand corner. Correct? A. Yes. Q. And it says students will be able to demonstrate awareness of creationism, so that would indicate some form of assessment. Correct? A. That language would indicate that somehow the teacher would be able to know that the students have an awareness. Q. And it indicates that there will be a textbook for this unit of the biology curriculum. Correct? A. Yes. Q. Now, this is something that you didn't produce until -- I think it was September of this year? A. To counsel? Q. Yes. A. Yes, yes. Q. And when you found it, you turned it over to him as soon as you saw it. Correct? A. Yes. Q. And you testified, I think it was Friday of this trial, the first day of your testimony here, that this is a document from, you think, the fall of 2003, and you think that because of the other documents you found it with. Correct? A. Well, I found this document with documents that were dated in August of that year, so summer, fall. Q. And you're confident that this is something that you created? A. Well, as I explained to you prior, when I found the document, I didn't remember creating the document, was surprised to see it. I do remember initially Dr. Nilsen giving me language that had origins of life in it, to look at possibly including language in a curriculum draft to address any concerns Mr. Bonsell might have. So I don't remember creating this document, but I believe I'm the only one who could create this document physically. Q. And sitting here today, you do remember getting some kind of curriculum language from Dr. Nilsen or Mr. Bonsell? A. Not from Mr. Bonsell, from Dr. Nilsen, yes. Q. In fact, you remember him giving you a document in this form with some handwritten notes on it. Correct? A. Right. Q. And that may well have been the basis for what you created here. Right? A. Yes. Q. Because you did not, on your own initiative, decide to add a unit to the biology curriculum that included creationism. Correct? A. Well, can I explain the document? Q. Please. A. Okay. I may have included the word "creationism" in this document. The document, as you know, was never distributed. Q. I don't know that, but if that's your testimony. A. I believe it was not because there were copies that were attached to it yet. And literally what I did, without reviewing this -- what I believe happened, without reviewing this with anybody, is, I simply took the language that normally you would use in writing curriculum and demonstrate -- you want to use language that results in some student activity, took that language, the state standards there, lecture would simply repeat, textbook would be just repeated without having a textbook that had creationism to do this. My thinking, even with this, which is -- from the start is that maybe, to answer some of the concerns of Mr. Bonsell or other board members, we would have to mention something, say something, prior to beginning the unit on evolution. So this would be consistent with my drafting some language to answer the concerns of some board members. Q. So it wasn't your own initiative to -- it wasn't something you thought up on your own to add this creationism language, you were anticipating the board's position? A. Well, up to this point, I can only -- you know, not remembering doing that, but up to this point, I mean, Messiah talked about, you know, mentioning other theories, creationism, that that would make for a rich discussion, not teach it, but mention it. I knew the teachers were mentioning that already prior to their teaching the theory of evolution. So it was just -- and I knew Mrs. Spahr thought this is what Alan was talking about or Alan wanted in the curriculum. So if language like -- you know, it's very possible that if language like this then would be all that was necessary to answer Mr. Bonsell's concerns, it's likely that I could draft language like this. Q. You weren't doing this for Mrs. Spahr's benefit? A. No. Q. You didn't put creationism in because Mrs. Spahr was thinking that Alan Bonsell wanted creationism? A. No, I'm only saying that Mrs. Spahr is thinking that what we're talking about is creationism. Q. But Mrs. Spahr didn't create this, and you weren't doing this for her. Correct? A. That's correct. Q. You were doing it for another reason which you can't remember right now? A. Well, I can tell you very clearly I'd be doing this to address the concerns of a board member. Q. Concerns of Mr. Bonsell? A. Yes. Q. All right. Moving forward to 2004, the issue of teaching evolution arose again around the selection of the biology textbook. Correct? A. Yes. MR. ROTHSCHILD: Matt, could you pull up Plaintiffs' Exhibit 817. May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, what we've marked as P817 is your notes of a meeting with Mr. Buckingham about the biology textbook? A. Correct. Q. And this is where you're listening to him describe his sort of page-by-page problems with the book. Correct? A. That's right. Q. And what he's complaining about is that the textbook addresses things that he considers to be origins of life. Correct? That's one of the main things he's communicating to you? A. Yes. Q. Okay. He has a problem with, for example, the mention of common ancestors which you see on Item 7 and 8? A. Yes. Q. And, for example, 8 says, Common descent and species descend into species? A. Yes. Q. And Mr. Buckingham thinks that's problematic. Correct? A. Yes. Q. And, again, you do understand that common ancestry and this descent from one species to another, that is part of the theory of evolution. Correct? A. Yes. Q. And I think if we look at Item 9, it indicates, Page 393, he says, It points students to research the theory of evolution, paren., more, close paren. That's right? A. Yes. Q. And that was something else that Mr. Buckingham was pointing out as a problem in the book? A. Yeah. I'm not really sure what that one is, though. Q. But you're writing down things he has a problem with. Right? A. Yes. Q. And one of the things he has a problem with is that students might research the theory of evolution more. Correct? A. That's what -- yeah. Q. And from Mr. Buckingham's standpoint, that's a bad thing? A. I just know what I -- I knew that -- you know, my understanding that these are items that he found, and I tried to capture his objection. So all I really have to go on are my notes, for the most part. Q. Fair enough. You can put that aside. Now, you attended the two meetings in June where the biology textbook was discussed, the two board meetings? A. The board meetings, yes. Q. And you remember that there were a number of news articles about those meetings? A. Yes. Q. And you read those articles around the time they were published? A. I probably did. Q. And they reported about statements made by board members on the subject of the biology textbook. Correct? A. Yes. Q. And one of the things the papers report is that Mr. Buckingham talked about creationism at the June meetings. Correct? A. Yes. Q. And you remember that. Correct? A. Yes. Q. It was said in the context of discussing the selection of the biology textbook. Correct? A. I'm pretty sure it was -- I remember Mrs. Callahan questioning why we weren't moving on the biology books, and I remember a back-and-forth exchange with Mr. Buckingham. And I believe somewhere in there creation, I don't remember the exact context, but I remember Mr. Buckingham saying creationism. Q. He talked about creationism? A. Yes. Q. So if anyone that attended the June meeting says that Mr. Buckingham didn't talk about creationism, you know that's not correct? A. Well, I remember him saying that. Q. Just like the papers reported? A. Correct. Q. They also report that Mr. Buckingham stated that the biology textbook recommended by the teachers was laced with Darwinism. And you remember him saying that, don't you? A. Yes. Q. And they report that Mr. Buckingham stated that 2,000 years ago a man died on a Cross, can't we take a stand for Him now, and you know that he said that, as well. Correct? A. Yep, but what I don't remember is, I don't remember if that's in the June board meeting. Q. You were at -- A. I remember him saying that. Q. You were at the board meeting when Mr. Buckingham said those words. Correct? You were present when he said that? A. Yes. Q. Okay. And it could have been at one of the June meetings as has been reported by the newspapers. Correct? A. Yes. Q. And as many witnesses have testified at this trial? A. Yes. Q. You have no reason to dispute that the statement was made at one of the June meetings? A. Well, I don't remember it. I remember hearing it, but I can't place it at the June meeting myself from my memory. Q. You have no reason to place it at the November meetings, either, do you, on the pledge? A. Well, I don't remember -- Q. You have no memory? A. Yeah, I don't remember when it was said. Q. Now, another thing that the papers reported is that Mr. Buckingham said, This country was founded on -- was not founded on Muslim beliefs or evolution, this country was founded on Christianity, and our students should be taught as such. And you remember him saying something to that effect, as well, don't you? A. Yes. Q. And, again, you have no reason to dispute the newspapers that said this was said in June when the biology book was being discussed. Right? A. Actually, I forget what I say in my dep, but -- Q. You're testifying, Mr. Baksa. We go to the dep afterwards. A. I actually thought he said that not in June, but that would have been when the under the pledge was being discussed, I guess that November period. Q. So your memory today is that Muslim beliefs and evolution was being discussed not when evolution was being discussed but in a controversy over the pledge? A. No, I don't remember evolution and Muslim beliefs being tied together. I remember him talking about -- yeah, I surrendered a document to counsel that is a phone call from an Afghanistan native of Dover. And I believe -- I don't think it's dated, but I believe his concerns about Mr. Buckingham's remark, what you just said, was during that earlier period. And I don't remember -- I mean, you have the notes, but I don't remember in my notes writing anything about evolution. Q. Okay. Why don't we turn to Page 79 of your March deposition. A. Okay. Q. Actually, if you look at Page 78, you'll see that I'm asking you questions about a June 9, 2004 article from the York Daily Record. Do you see that? A. I'm reading. Q. Do you see that on Page 78? A. Can I read it? Q. Yeah, sure. A. Okay. Q. I'm asking you about a June 9th article. Right? A. Yep. Q. And then if you go down to Page 79, Line 14, I ask you, Then the next paragraph he's quoted as saying -- the "he" being Mr. Buckingham -- This country wasn't founded on Muslim beliefs or evolution, this country was founded on Christianity, and our students should be taught as such. Do you remember him saying that? You answered: Yes. I asked, What were the circumstances in which he said that? And you answered: I don't remember when he said that or the circumstances. I just remember him saying that and hearing that. So as of your deposition on March 9th, you had no memory of when he said that? A. Right, that's correct. Q. The papers also reported that Mr. Buckingham stated that liberals in black robes were taking away the rights of Christians in this country. A. Yes. Q. And you remember him saying that, too? A. Yeah, I think I said I remembered that, yeah. Q. Now, after these meetings, two meetings in June, you had a meeting of the curriculum committee with the science teachers? A. Yes. Q. And that was a meeting that was initiated so Bill Buckingham could articulate his concerns about the textbook and how evolution was being taught. Correct? A. Yes. Q. So the teachers were meeting for the second time in this school year with a board member on the subject of how they taught evolution? A. With the whole board curriculum committee. Q. And this was right after the two meetings in June where the biology textbook was discussed. Correct? A. Yes. Q. Where you remember Mr. Buckingham talking about creationism? A. Yes. Q. And when he may have said his 2,000 years ago statement. Right? A. Yes. Q. Now, you can't remember any other academic subject where Dover School Board members have so directly confronted teachers on an area of curriculum, can you? A. Well, just the two that I testified to before, the family consumer science was a concern of Mrs. Brown and also the fundamentals of success. Q. But they weren't meeting with teachers to discuss the content of how the teachers taught the subject. Correct? I mean, that wasn't what happened with those topics. Right? A. Those topics primarily were whether the course was -- whether it warranted or not us having the course. Q. But there was never any other instance at Dover where teachers were being questioned so much about how they taught a specific unit of the subject? A. I don't remember it. Q. I mean, in your fairly long career as a teacher and administrator, you've never seen anything quite like this, have you, where board members are directly questioning teachers on multiple occasions about how they teach a specific area of the curriculum? A. I've seen a lot of things, so -- nothing that -- I know that very typically the matter -- matters like sex education, matters like evolution, typically that those are sensitive subjects for parents and students, and in any district typically you might have to address concerns in the teaching of that. That is typical. Q. But here you've got board members already twice sitting down with the teachers complaining about how they teach a specific area of the curriculum. Correct? A. Well, the complaint isn't what they're -- the board members were actually fine with what they were teaching. The concern was -- Mr. Buckingham's concern, for the most part, was the presentation of Darwin in the book and what the book was saying. Mr. Bonsell's concern actually was answered by the teachers when he found out origins of life wasn't taught. The first meeting included family consumer science teachers, and, for the most part, teachers presented their justifications for the books and the board curriculum committee listened. The second meeting we now had very specific concerns from Mr. Buckingham on the biology text and his concerns with the presentation of evolution there. So that was a little bit -- and we just had -- the second meeting included just the science teachers. The family consumer science teachers were not in that meeting. Q. And I'm not talking about what I think is an April or May curriculum meeting, I'm really talking about Mr. Bonsell sitting down with the teachers in September and then Mr. Buckingham and the rest of the curriculum committee sitting down with the teachers in June and really getting into the details of how evolution was taught or how evolution is presented in the textbook. A. Correct. Q. You would agree this puts quite a bit of pressure on the teachers to have to justify how they're teaching evolution, how they're presenting evolution to board members in this fashion? A. Well, it's not unusual, if board members have questions about a unit of study, to meet with teachers and have them explain exactly what they do. I mean, I -- with the family consumer science and the fundamentals, I mean, I did prepare -- have the teachers prepare unit outlines and justifications for that and had the books available for Mrs. Brown to review. So, you know, it's not unusual to ask the teachers to do some things so that we can get a clear explanation of what's going on in the classroom and to answer board concerns. That's actually a good thing because that's how you clear things up. Q. You would agree what happened here with the subject of evolution put quite a bit of pressure on the teachers, wouldn't you? A. Well, the teachers were frustrated in this aspect, that, you know, they sat down with Mr. Bonsell, thought they had everything settled, didn't think there was going to be another concern, and Mr. Buckingham seemed to bring up the same issues, and they had to go through all this justification again. Mrs. Spahr, I believe I have an e-mail from her where, you know, she's frustrated and venting her frustration to me having to do this all over again. In that sense, it was stressful for them that they continued to have to -- in their minds, continued to have to explain what they were teaching in classrooms and why the Miller and Levine book that they want is a good book for them. Q. Mr. Baksa, you would agree that there was a lot of pressure on these teachers, yes or no? A. Pressure to do what, though? Q. Pressure about their teaching. The board was in their face on this particular subject. You would agree there was a lot of pressure on them, wouldn't you? A. No, because teaching -- Mr. Buckingham and Mr. Bonsell were okay with what the teachers were teaching. So the -- Q. Is your answer no, Mr. Baksa? A. The pressure was to justify Miller and Levine. I think if they were going to have any pressure, they wanted to get this book passed, and we were not able to convince Mr. Buckingham to throw his support for the book. But what was going on in the classroom, even Mr. Buckingham at the June meeting agreed that, you know, he had no problems with them teaching change over time within a species. Q. Everybody was happy with that as long as they weren't teaching macroevolution? A. Yes. Q. Weren't teaching speciation? A. Yes. Q. Now, Mrs. Miller did talk about how she teaches the evolution of Darwin's finches. Correct? A. Yes. Q. You understand that those are multiple species of finches? A. Well -- Q. Yes or no? A. I mean, yeah, I guess. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, what I've shown you are Defendants' Exhibits 19 and 20, which you looked at in your direct testimony, as well. And am I correct in understanding that these are notes of the curriculum committee meeting in the middle of June, 2004? A. That's correct. Q. And on Defendants' Exhibit 19, in addition to your notes, we have the survey of biology books used in area schools. Correct? A. Yes. Q. And that's something that -- a document you prepared? This is a document you prepared? A. Yes. Q. And it was based on research or investigation that you and your staff did. Correct? A. Yes. Q. Now, this survey of these schools is something that Dr. Nilsen asked you to do. Correct? A. That's what I remember, yes. Q. And you don't know why. Correct? A. Dr. Nilsen did not explain why. Q. And Mr. Gillen asked you why the survey only includes parochial schools, and you answered that the teachers had already seen all the books offered by mainstream publishers, which is what all the local public schools were using. Does that accurately capture your testimony? A. Yes. Q. And, of course, you understand that the public schools are the schools that are required to abide by the establishment clause of the First Amendment? A. Yes. Q. And so you and the teachers already knew what all the alternatives were from the mainstream publishers that were used by the schools bound by the First Amendment. Correct? Right? A. Yes. Q. So this was really only a search for books that did not fall within that universe. Correct? A. Well, in my mind -- and I think I have testified to this, and I thought about this a little bit more since both depositions -- Dr. Nilsen didn't tell me why he wanted me to just research these schools. I did do that. I also researched our home-schoolers, what books they might use. But this would have come after our teachers -- and I'm thinking about it now and answering you. We have Mr. Buckingham's concern with the Miller and Levine book. We've already, at the May meeting, presented the justification why we need the books. And we've already reviewed -- teachers already did the review of all those mainstream books or books typically in the public schools. So in my mind, we're looking for -- Mr. Buckingham wants us to look at other books. We're looking for other books that may address his concerns with the treatment of Darwinism in the teaching of evolution. These are the only sources that you would go to. That's me talking. That's not Dr. Nilsen making that explanation. Q. And that's exactly right, you already know all the books used by the public schools. Right? A. Yeah, our teachers would have gotten them from the mainstream publishers. Q. All the books used by the schools bound by the First Amendment. Right? A. Yes. Q. And this is a search of parochial schools. Correct? A. Yes. Q. Which are not bound by the First Amendment. Correct? A. I'm taking your word for that. I mean, I don't think public -- public schools can present material -- or that private schools could present, in my mind could present material that public schools could not. Q. Correct. And similarly, home schools or home-schoolers are not bound by the establishment clause of the First Amendment. Right? A. Right. Q. And you looked for books that they used, as well? A. Yes. Q. Including, you found out, a book that was published by the Bob Jones University Press. Correct? A. Right. Q. Which you also understand to be a religious school. Right? A. Yeah. Q. So these were the places you went to look for a book that would satisfy Mr. Buckingham. Correct? A. Yes. Q. Now, Exhibit 19 refers to Icons of Evolution, and it looks like Cold Water Media? A. Yes. Q. That's one of the videos that Mr. Buckingham got from the Discovery Institute. Correct? A. Yes. Q. So we know that this meeting happened after Mr. Buckingham's communications with the Discovery Institute. Correct? A. Right. Q. And below that you write, Topic 1, we will review tape and offer flaws if found around our content. Correct? A. Right. Q. So what you're indicating here is that the teaching of evolution in Dover High School would be revised to include information from this tape. Correct? A. The teachers -- and I'm not sure -- I think they did review it prior to this already. And what we're trying to do at this meeting is come to some agreement to get the textbook, Miller and Levine. And the conditions that we worked out and the compromises that we worked out, this was one of those compromises, that the teachers would go back, look at the tape, if there's anything that fit their -- the standards or their specific content, then they would look at possibly using that information from the tape. Q. They would offer the flaws that were found, that were presented on this tape. Right? A. Around their specific content. Q. Right. THE COURT: Mr. Rothschild, what's that exhibit number again? MR. ROTHSCHILD: That's Defendants' Exhibit 19. THE COURT: Thank you. BY MR. ROTHSCHILD: Q. So what they were saying is they would look at the tape and offer the flaws presented in that tape around the material on evolution that they already had from their textbook or their curriculum. Right? A. Yeah. But there is another piece of information we have. The teachers have already reviewed the tape. And I remember talking to them, and I think one of the things that they told me about is that Icons dealt with the origins of life and it didn't deal with the content that they presented in their class, so we can make that offer to Mr. Buckingham, but I think the teachers already know there's no match. So when you say that it would be used in the curriculum, I think the teachers already made a determination that it would not be appropriate and there's no match to use. Q. They didn't say that to Mr. Buckingham at this meeting? A. No. They agreed to review the tape and -- Q. In order to get Mr. Buckingham to approve the standard biology textbook, they're agreeing to take this material from the Discovery Institute's videotape and add it to their curriculum. Right? A. Yes. They were willing to review it to see if they could do that, right. Q. Now, at this time did you know anything about the Discovery Institute? A. No. Q. Mr. Buckingham apparently did? A. Well, I mean, I got the materials from them and I heard they're from the Discovery Institute, but I don't think I had any more information than that. Q. Really, the only person there who had information about the Discovery Institute was Mr. Buckingham? A. I believe so. Q. And, for example, did you know about the Discovery Institute's Wedge document? A. No. I've already testified that I think the first time I saw that was in the complaint. Q. Fair enough. So at the time that the administration and the teachers were indicating their willingness to Mr. Buckingham to incorporate content from this tape, nobody but Mr. Buckingham knew anything about the Discovery Institute except for Mr. Buckingham? A. Yeah, I don't believe the teachers or I were given information. Q. But they were agreeing to do this because that's what Bill Buckingham wanted? A. I'd agree with that. Q. But at the same time neither Mr. Buckingham nor yourself nor anybody else was actually -- had actually gone to any of the mainstream scientific organizations to find out whether the materials, the content of Icons, had any scientific or academic merit. Correct? A. No, although the teachers felt that it was accurate in that it pointed -- while it didn't offer an explanation for some of the gaps, that it did fairly portray those areas of Darwin's theory that were less supported. Q. They thought Icons was accurate science? A. Yes, they did. Q. Now, the next note down says, Intelligent design instead of creationism. Right? A. Right. Q. So here we're bringing intelligent design into this discussion of the curriculum committee. Right? A. Yes. Q. And you don't remember who initiated the subject of intelligent design at this meeting, do you? A. No. And I think I -- I'm not sure what I testified to about that. But I think what my note is -- as we were working through, you know, the components of this compromise, one of the components is going to be some curriculum language. And thinking about it now, you have Mr. Buckingham mentioning creationism in June, and I think what we're saying is it's not creationism that we're going to put into language, it's going to be intelligent design. Q. Okay. But you don't know who initiated that idea. Right? A. That's correct. Q. And, in fact, at that meeting you didn't even know what intelligent design was? A. This is June. We didn't get the Panda books until July, I believe. I mean, it was mentioned at Messiah, but I don't think there was a full explanation of it. Q. I mean, at this meeting, so far as you can tell, nobody knows what it is? A. I'm trying to think. I don't think we received any materials on intelligent design prior to this meeting. I can't remember any. Q. So the answer is yes, at this meeting, nobody knows what intelligent design is? A. Well, I can't -- I know I haven't received the materials to understand what intelligent design is, but -- Q. Nobody else has explained it. Right? A. No, no, remember Mrs. Spahr does have -- remember when she got those legal opinions for teaching creationism, within that there was some discussion in there about intelligent design. Q. So Mrs. Spahr thinks it's creationism? A. Yes. But I don't remember in those -- I mean, if you're asking me what intelligent design is, I don't recall -- know that if in those documents there was an explanation to allow Mrs. Spahr to make a judgment about that, that's all. Q. Fair enough. At this June curriculum meeting, you don't know what intelligent design is and you don't know that anybody else knows what it is. Right? A. That's right, I don't know that. Q. So far as you can tell, it's just two words replacing the one word "creationism" that Bill Buckingham brought up in June. Right? A. Yes. Q. And this mention of intelligent design instead of creationism is occurring after Mr. Buckingham has had discussions with the Discovery Institute. Correct? A. I think so. Q. Now, if we could go to Exhibit 20, which are additional notes from this meeting. The middle of the page you have a note that Bill would like both taught, he wants intelligent design taught. Correct? A. Yes. Q. And you also have right above that as a to-do item, Opinion on intelligent design. Correct? A. Yes. Q. And what you mean by that is a legal opinion. Right? A. I believe so, yes. Q. And you eventually did receive an e-mail with a legal opinion from the school solicitor. Correct? A. Well, the e-mail that we've already presented here deals with Of Pandas. I did send the solicitor the curriculum language that included intelligent design, and I don't think I got -- I remember talking to him about it. Q. We have to be careful here. MR. GILLEN: Thank you, Eric. THE WITNESS: Okay. THE COURT: You don't want to get into what you were told by counsel, and that's not what Mr. Rothschild's question was. And it's perfectly all right for you not to get into an area that's privileged. And I'll listen for an objection, but with that clarification, why don't you rephrase or get another question on the floor. BY MR. ROTHSCHILD: Q. We'll talk about the e-mail memo later, but let me just move on. A. Okay. Q. Another thing you have here right below what we just looked at is, To do, is Descent of Man in library? Right? A. Yes. Q. And Decent of Man is one of the books written by Charles Darwin. Is that your understanding? A. Yes. Q. And it deals with exactly what it sounds like, right, the descent of man from other creatures? A. I haven't read it, but I guess. Q. That's your understanding? A. Yes. Q. I haven't read it, either, but that's my understanding. Now, that was something brought up by Mr. Buckingham, wasn't it? A. Yes. Q. And he asked that because that book deals with the origins of life as he understands it. Correct? A. What I remember is, I think he looked at this or portions of it. He was doing a lot of research on the Internet. My recollection is that he had problems and concerns with the book Descent of Man, and his question was -- you know, he wanted to know if that is in our library, if our students would have access to that book. Q. He wanted you to find that out? A. Yes. Q. And you understood he wanted you to find that out because he didn't think it should be in the library. Correct? A. Well, he didn't say that. I mean, he just wanted to know if it was in the library. I know he had concerns he didn't think it was a good book. Q. He certainly wasn't asking you to find out if it was in the library so it could be moved over to the science classroom. Correct? A. You could say that. Q. Now, moving forward into July, the 2004 version of Miller and Levine came on the scene. Correct? A. I'm sorry? Q. Moving into July, the 2004 version of Miller and Levine came onto the scene. Right? A. Yes. Q. And you and the teachers reviewed it very carefully on the subject of evolution? A. Yes. Q. Because that was the subject that the board was concerned about? A. Yes. Q. And you said that the teachers were happy with the 2004 version because -- and tell me if I'm characterizing your testimony correctly -- it discussed gaps in evolution more than the 2002 version? A. Yeah. When we went through both editions, we found a number of areas that we felt addressed Mr. Buckingham's concerns and thought that he would be happy with the changes that were in the new edition. Q. Including that it was more forthcoming about gaps in evolution? A. Yes. Q. So from the standpoint of faculty and administration, the board no longer had a reason to worry that gaps in the theory of evolution weren't being taught. Is that fair? A. Could you ask that again? Q. After reviewing this new version of Miller and Levine, from the administration and the faculty's perspective, there was no longer a reason to worry that gaps in evolution weren't being taught. Is that fair? A. From the position of the teachers and administrators? Q. Yes. A. Well, I don't know that I came to that conclusion. I mean, for the most part, I'm looking at trying to get the book approved and trying to answer the concerns of the board and have the teachers address their concerns. What the effect of those changes were, you know, both for the teachers and for administration, I mean, I don't know that I know that. I mean, we thought it was good that that was in there because that wasn't in there before, and that's something very specific that board members had talked about. Q. Now, none of the other science books used by Dover students or actually any other aspect of the Miller and Levine biology textbook has ever been examined, to the best of your knowledge, to see if it reports the relevant gaps in scientific knowledge in other areas. Right? A. None of the other science classes? Q. Nobody has examined the chemistry book or physics book to see if they accurately report gaps in scientific knowledge relevant to those areas of study, have they? A. Not while I've been there. I mean, I don't know. Q. And, in fact, nobody looked at the biology book, any version of the biology book, to see if it correctly reported gaps in other aspects of biology besides evolution. Correct? A. Yeah, I don't remember the board having concerns in other sections of the biology book other than that one section. Q. Now, eventually Pandas came on the scene. Right? A. Yes. Q. And you agree with what Dr. Nilsen testified, that the teachers complained about the book having faulty science, being dated, and having readability issues beyond grade level. Right? A. Right. Mrs. Spahr said she found something that was inaccurate scientifically. I know Jen had done a readability study on it. And it was an old copyright for the book. Q. And these are three problems that the teachers communicated, faulty science, dated, readability. Right? A. Yes. Q. And then you had a district specialist, reading specialist, Dr. Butterfield, do a readability study, and she concluded that the book's readability was grade 12 or higher. Correct? A. That's correct. Q. And the teachers also communicated that they thought the content was creationist or close to it. Correct? A. Of Pandas? Q. Yes. A. I don't remember them saying that of Pandas. I remember Mrs. Spahr taking the position -- and I believe the department shared this with her -- that intelligent design was creationism. Q. But you don't have a separate specific memory about them considering Pandas to be a creationist book? A. Right. Q. Okay. Fair enough. Now, you did get a legal opinion about Pandas. Correct? A. Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. What we've marked as P70, Mr. Baksa, that is an e-mail you received from the school district solicitor, Stephen Russell, or that Dr. Nilsen received? A. Right, Dr. Nilsen received it. Q. And at the curriculum committee meeting at the end of August, this document was circulated to a number of people, including teachers and curriculum committee members. Correct? A. Yes. Q. And this is something you had seen? A. Yes. Q. Now, one of the things that is -- that Mr. Russell says here is that the Thomas More Law Center refers to the creationism issue as intelligent design. Right? MR. GILLEN: Objection, Your Honor, again, just to any characterization of the document. That's Mr. Russell's description of our position, not our own. THE COURT: What's the objection? MR. GILLEN: I just want to make it clear for the record that this is Mr. Russell's description of our position, not anything we told him. Objection, hearsay, is, I guess, it. THE COURT: On your first objection, you're making an argument instead of an objection, and that's not appropriate. You know that. MR. GILLEN: That's correct. THE COURT: You can save that. So that's overruled. Now what's your -- so you default to what? MR. GILLEN: I default to this, that statement by Mr. Russell is hearsay in that he's purporting to characterize whatever he heard from whomever he spoke with at our organization. That's hearsay, and I object to it. MR. ROTHSCHILD: And I want to be -- first of all, we're introducing it for what the board members, teachers, and administrators heard, received from Mr. Russell. I agree that there's hearsay, and I want to be just careful here because Mr. Gillen is going a little bit beyond hearsay and I would suggest testifying here that this is not what they said. And I don't want to make him a witness, and I think there needs to be a remedy of that being stricken, because we don't know that, either. MR. GILLEN: Well, that's what I'm saying. This is his -- basically it's hearsay. I don't know who he spoke to, but he is purporting to repeat something that he heard. I have no knowledge of that, and I don't want that hearsay admitted. THE COURT: Well, you're saying you didn't say it, and now you're saying you didn't have knowledge of it. And what Mr. Rothschild's articulated fear is, is that you're opening the door and potentially waiving a privilege that exists. I don't think you got to that point, but we want to be careful. Now, on the hearsay objection, it appears to me that Mr. Rothschild is introducing this not for the truth but for the impact on the viewer, in this case, Mr. Baksa. I don't take it as fact. MR. GILLEN: Okay. THE COURT: And I don't see that it's being introduced for that purpose. So on the second basis, I'll overrule the objection, and you may proceed. BY MR. ROTHSCHILD: Q. So in this e-mail, Mr. Russell reports that the Thomas More Law Center, Mr. Thompson, refers to the creationism issue as intelligent design. Right? That's what he wrote? A. Yes. Q. The first paragraph? A. Yes. Q. And that's something you were aware of around the time of this e-mail. Correct? A. Yes. Q. August 26th, 2004? A. Yes. Q. And then there is discussion of a textbook here, and you understand that to be Pandas. Correct? A. Yes. Q. And what Mr. Russell reports from Thomas More is that there's been discussions about possible litigation, nothing has come about, this suggests to me that no one is adopting the textbook. And then he says, Because if they were, one can safely assume there would have been a legal challenge by someone somewhere. Correct? A. Yeah. Can you show -- Q. This is all in the first paragraph. A. Okay. Q. If you need to take a minute, I don't mean to rush you through the document. I'm just trying to rush us through the trial. THE COURT: Why rush now? MR. ROTHSCHILD: You know, I talked about pressure, there's a little from home. THE WITNESS: Okay. I agree. BY MR. ROTHSCHILD: Q. And certainly Mr. Russell, from his own standpoint, is nowhere suggesting that using Pandas in a public school classroom would be legal or constitutional. Correct? A. You're asking me whether he thinks it would be legal? Q. I'm just asking you to look at what he said here, and nowhere there is he conveying to the readers of this e-mail that using Pandas is legal or constitutional. Correct? A. I don't see where he's clearly saying that it's illegal. Q. I agree with you, he's not saying it's illegal. Right? A. Right. Q. But he's also not saying it's legal or constitutional. Correct? A. I don't think you'd ever get a lawyer to go out on a limb like that, and I think that's why Mr. Russell clearly explains, you know, what legal challenges there might be to the book and for us to consider the use of the book and how the book might be challenged. He's not giving it a -- you know, a totally green light, but he's cautiously advising the board to consider these matters in consideration of use of the book. Q. There's certainly nothing in here that the board or the district could rely upon and take comfort that using the book is constitutional. Correct? A. Well, this was provided to the board for them to be able to make a decision about the use of the book, and their interpretation and comfort level with the language that Mr. Russell provided, I'm not aware of that. Q. Okay. But from your own standpoint, you don't see anything in this document that someone choosing to add the book to the curriculum could rely upon and take comfort that what they're doing is legal. Correct? A. Well, again, I don't think it clearly says it's illegal. It says to consider these matters if you were to use the book, you know, that he hasn't found any litigation with the book or its use. Q. There's nothing positive in here, is there, Mr. Baksa? There's nothing that a reader could say, we're going to be okay if we use this book? I agree with you it's not saying it's illegal, but there's nothing positive saying, you know, you'll be fine or we think you'll be fine or anything anywhere close to that. Correct? A. I would characterize this as Mr. Russell advising caution in using the book. Q. And, in fact, if you go down to the bottom of the document, he's expressing concerns over a lawsuit that the Dover School District might face. Correct? A. Yes. Q. And the reason he's concerned is, as he says in the last sentence of the last large paragraph is, that the last several years there has been a lot of discussion, news print, et cetera, for putting religion back in the schools. Right? A. Yes. Q. And you knew what he was talking about, didn't you? A. Yes. Q. Because, for example, you heard Mr. Buckingham talk about creationism. Right? A. Yes. Q. You heard him talk about it's not a Muslim nation, it's one founded on Christian values. Right? A. Right. Q. And you heard him say at one meeting or another, 2,000 years ago a man died on a Cross, can't someone take a stand for Him now? Right? A. Right. Q. Now, Mr. Gillen went through a number of documents with you that he described as your research on Pandas. Correct? You had some notes and some other documents? A. Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. MR. ROTHSCHILD: Matt, could you put up D35, please. BY MR. ROTHSCHILD: Q. Mr. Baksa, what I've shown you is Defendants' Exhibit 35. That was one of the documents that Mr. Gillen showed you on your direct. Right? A. Yes. Q. And this is an order form from the Institute for Creation Research online store. Correct? A. Yes. Q. And it's an order form for Pandas. Right? A. Yes. Q. And this is something you did. Right? You went on the Institute for Creation Research online store and pulled up Pandas. Correct? A. Not me personally. Q. Who did that, Mr. Baksa? A. Either my secretary or Marsha Hake. I know from my notes Marsha Hake did a lot of the research for finding this -- I think it was Marsha Hake. And at one point we wanted to get prices for the book, not order the book, but get pricing information and publishing information where we might -- where the book might be purchased. And then I believe she produced this document for the -- to get us to the Web site. Q. Who is Marsha Hake? A. She's secretary for the language arts supervisor and the district people personnel director. Q. And this was done on your instruction? A. Yes. Q. And in the bottom corner of the document, it has a slash 2004 on it. Do you see that, the bottom right-hand corner? A. Yes. Q. And we asked your counsel to look at the original to see if that had been redacted, and he couldn't find anything. Do you know what the complete date of this document is? A. I'd guess July. I remember when we first received a copy of Pandas, I gave it to Jen Miller, and I know that we then ordered additional books for board members and other teachers to look at. So I'm guessing July, August. Q. And what it says here, if you look at the text, below the picture of Pandas, it says, Beautifully illustrated, thoroughly researched textbook designed for public schools without biblical content, contains interpretations of classic evidences in harmony with the creation model. Correct? A. Yes. Q. So that was information you were aware of as you researched Pandas. Correct? A. Yes. Q. Now, in the order information it says, Quantity in basket, 50. Right? A. Yeah. Q. Now, you didn't get 50 copies for the board to read, did you? A. No. Q. And in July, Mr. Buckingham was still talking about ordering 220 copies of Pandas. Correct? A. Right. Q. So 50, that's pretty close to what actually got ordered. Isn't that right? A. I believe 60 were ordered. Q. But 50 is pretty close? A. Yeah. Q. Mr. Baksa, were you pursuing this information to order the books on the instruction from somebody on the board? A. To order the books? Q. Yes. A. No. The original thought of the books was when we got the books, we first thought we would have those as a resource for the teachers. Then in my research of the book and how it was used, I told Dr. Nilsen, talk to Dr. Gillen. He told me he had 50 copies donated and used them as references in his classroom. Q. Who is this? A. Dr. Gillen, who taught at Tomball in Texas. So I had that information. I think 50 is the first number. And then I remember Dr. Nilsen talking about 50 as the number of books that we might look as -- when it moved from teacher resources to classroom resources, 50 was the number we were talking about. That number wasn't changed until I met with the board curriculum committee to finalize the curriculum language for XI- A. And at that point it was decided we had three classrooms, there would be 20 put in each classroom, so the number was then 60. I think what we were doing and I really wasn't -- I wasn't involved with -- Dr. Nilsen pretty much handled the book and getting information out. I was involved initially in buying, you know, sample copies that the teachers reviewed. And I don't even remember -- I can't tell you, I mean, I don't think we bought the books through the district. I'm pretty sure we didn't. But I think we were getting information for someone to do that, though. Q. But you were the ones researching for the anonymous donors, where they could get the book and how much it would cost? A. Well, we were researching this to give to our board members to give to whoever was going to buy these books, yeah. Q. And you were doing that on the instruction of the board, doing this research? A. Well, Dr. Nilsen told me to do it. Q. So Dr. Nilsen told you, find out how much 50 copies -- A. Right, right. Q. So that the donor will know how much it will cost? A. Right. THE COURT: Mr. Rothschild, we can stay with this from my standpoint. I don't know if you have any shot at getting finished today, but I'm willing to -- MR. ROTHSCHILD: I don't, Your Honor. This would be a perfectly good -- THE COURT: Well, no, I think we ought to go a little longer. Why don't we go to quarter of and use the time. I think we should. MR. ROTHSCHILD: Okay. THE COURT: And even if you don't get finished today, let's call it quits at 4:45. MR. ROTHSCHILD: Sure. BY MR. ROTHSCHILD: Q. Now, we talked about all the problems that the teachers had with Pandas, faulty science, outdated, not appropriate grade level. Correct? A. Yes. Q. And you and Dr. Nilsen knew about that. Right? A. I don't know if I -- I knew about that. I don't know if I shared that information with him or not. Q. And the board members on the curriculum committee, they were aware of that, as well, that that was the teachers' position? A. I believe we talked about that at the August meeting when we were looking at how they use the book. Q. And despite all these misgivings by the teachers, Dr. Nilsen sought to have it accepted as a reference text as a way of compromising with Mr. Buckingham. Correct? A. That's correct. Q. And the teachers acquiesced to that? A. Yes. Q. They certainly weren't advocates, were they? A. Their first preference would be, right, not to have the book. Q. So if anyone suggests that Pandas was a good addition to the science curriculum because the teachers accepted it, that wouldn't be a fair representation of the teachers' position, would it? A. I'm sorry? Q. If anyone were to suggest that they felt Pandas was a good addition to the science curriculum because the teachers accepted it, that's not really a fair representation of the teachers' position. Would you agree? A. I'd agree that the teachers, in looking at getting Miller and Levine, the teachers agreed to have Pandas placed in the curriculum as a -- placed in the classroom at this point we're talking, we're not doing the curriculum yet, at least placed in the classroom as a set of reference texts. Their preference would be not to have to do that, but they would do that so that they could get Miller and Levine. Q. There's absolutely no way you could construe the teachers as having supported Pandas in any way. Correct? A. I think that's correct, yeah. Q. Let's move forward to the development of curriculum change. Alan Bonsell wanted something put in the curriculum that would require teachers to teach that there are holes in Darwin's theory, wanted the teachers to show the flaws? A. Yeah, gaps and problems specifically. Q. And, again, Mr. Bonsell never paid any attention to any other aspect of the science curriculum in that way, correct, identifying gaps and problems? A. No, I don't remember anything else. Q. Now, as we've looked at, you wrote the first draft of the change to the biology curriculum. Right? A. Yes. Q. And you showed it to the teachers? A. Yes. Q. And that was the version that didn't have intelligent design or Pandas in it. Correct? A. The teachers, what they returned to me? Q. Why don't we get the exhibit. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. I'm showing you what's been marked as Plaintiffs' Exhibit P73, and you probably looked at a similar document with a defendants' exhibit number on it. Now, this has a memo that says, Here's the recommended change for biology, the changes were reviewed by the science department. Correct? A. Yes. Q. Now, you wrote the first draft of this document. Correct? A. Right. Coming out of the August meeting, I was directed to work with the teachers to develop curriculum language. So to get the ball rolling, I wrote a first draft and sent it to them, and they returned this to me. Q. Now, when you say "they returned this," are you talking about the next page which has the Bates stamp 29? A. Yes. Q. Now, I'm a little confused because I understood from your testimony earlier that you were the only person who created this format of document. A. Right. Q. So the teachers didn't actually go into the system and create this physical document. Right? A. No, they would have given me this language and I would have put it into the curriculum. Q. And your suggestion that we haven't seen your initial draft, there's something different about this draft, which says, Students will be made aware of gaps in Darwin's theory and of other theories of evolution? Is there something different between this language and the language you proposed? A. Yeah, that's what I don't know. There's only one -- the curriculum is kept in my secretary's computer. And there's only one version of that, because you don't want to keep multiple edits of the curriculum where you don't know which one is the proper one. So whenever I would give her language to change it, she would write over the existing document, and unless there was a hard copy produced of what was prior, I wouldn't have a record of that. Q. So you don't know whether there was any difference between what we see on the Bates stamped 29 and the language you initially proposed? A. That's correct. Q. Or maybe they changed -- added a period to -- A. I don't know -- I'm not sure what I would have given them. Q. And certainly it is the case that you started the process? They didn't say, here's something we want in the curriculum, you said, here's a curriculum change, and then they reviewed it. Right? A. That's correct. Q. And that's true of every aspect of this change to the teaching of evolution, none of this was initiated by the teachers, they were reacting to it? A. Well, I created the draft language for the teachers to review, but when it comes to the statement, that was something they requested that they have created for them. Q. We'll get to that. A. Okay. Q. But in terms of these curriculum changes, you were the one who started the ball rolling by coming up with a curriculum change? A. Right. They're not initiating these changes. Q. Thank you. And you were initiating them because you were doing what you understood was your assignment from the board. Correct? A. That's correct. Q. Then we have this meeting on October 7th, right, the meeting of the curriculum committee on October 7th? Right? A. Okay. Q. You know what we're talking about there? A. With just the board curriculum committee? Q. Correct. A. Yes. Q. And the teachers were not invited to that meeting. Correct? A. That's correct. Q. Now, in your experience at Dover, usually it's the teachers who develop curriculum. Isn't that right? A. Well, they did. And the purpose of that meeting was, I had the teachers' recommendation, I had the language they wanted. What I had prior to October 7th is, I had Mr. Buckingham suggesting some language, Mrs. Brown suggesting some language, and Mr. Bonsell suggesting some language. And what I needed to get was a consensus from them to agree on the language that they wanted so that I could then take that back to the teachers for the teachers to review. Q. And you used the phrase "what the teachers wanted." It wasn't really what the teachers wanted, it's what the teachers had agreed to. Isn't that fair? When we're talking about the teachers' version here, it's not what the teachers wanted, it's what they agreed to in response to the proposal you had initiated? A. That's correct. Q. And there was a discussion of the various proposals from the administration and teachers and the various board members, correct, at this October 7th meeting? A. Yes. Q. And ultimately the result from the board curriculum committee married the language of Mr. Bonsell, which had gaps and problems, with the language of Mr. Buckingham, which had intelligent design. Correct? A. Right. Q. And this was all decided in a matter of minutes. Correct? A. It was decided fairly quickly. Q. I think in your deposition you said a matter of minutes. A. I don't remember if I did, but I know it didn't take long to come to an agreement on what the language was. Q. Now, fast-forwarding to October 18th, as you said, Mrs. Spahr got up at the meeting to speak up against the change recommended by the board curriculum committee. Correct? A. Yes. Q. And she gave a somewhat lengthy speech? A. Yes. Q. And you didn't stand up and disagree with what she had said? A. Right. Q. And neither did Dr. Nilsen? A. Yeah, that's correct. Q. And, in fact, you supported the teachers' position at that meeting? A. Yes. Q. You understand that they're the science education experts in the district? A. Yes. Q. And you also recognized, as you testified earlier, that they were acting in the best interests of the students. Isn't that fair? A. Yes. Q. And you felt the board should have approved one of the compromised resolutions that the teachers agreed to? A. Yes. Q. And not the change that included intelligent design? A. Correct. Q. You still feel that way, don't you, Mr. Baksa? A. Yes. Q. At the board meeting there was -- no outside speakers were brought in to discuss the relative merits of intelligent design. Correct? A. Correct. Q. Nobody on the board explained to other members what intelligent design is or why they should support it? A. I don't remember hearing that. Q. Or why it would improve science education? A. I don't remember hearing that. Q. Nobody explained what intelligent design's status was in the scientific community. Correct? A. Which board meeting? Q. October 18th. A. In October? After Mrs. Spahr and Mrs. Miller talked, pretty much the discussion just dealt with amending the original language. I don't remember -- Q. So nobody except for, perhaps, the science teachers who opposed intelligent design explained what intelligent design's status was in the scientific community? A. Right, I don't remember any talk of that. Q. And other than Pandas, you're not aware of any materials that were distributed that would aid the board in their decision. Correct? A. Yeah, I know we made Of Pandas available to them. I'm not sure if the DVDs from Discovery were available or not. Q. And that's all you can think of? A. Yes. Q. Now, the only change that did get made to the curriculum committee recommendation was the statement, Origins of life is not taught. Correct? A. Could you ask again? Q. The only change that was made before the final vote to the board curriculum recommendation was the note, Origins of life is not taught? A. Right, that was added from C to A. Q. And, again, by "origins of life," you understand that to mean that the teachers don't teach macroevolution or speciation. Correct? A. Yes. Q. And that's your understanding of how the board understands that term. Correct? A. I think so, yeah. Q. You can't teach them, for example, that men have common ancestors with other nonhuman creatures. Correct? A. I don't remember Mr. Bonsell using that specific language. I do have language like that from my notes from Mr. -- meeting with Mr. Buckingham. That's one of his concerns. MR. ROTHSCHILD: Your Honor, this would be a good time. I won't be able to finish this afternoon. THE COURT: All right. I had hoped we would finish with Mr. Baksa today. I'm sure that was his fondest hope, as well. And we did not. So I think there's going to have to be some discussion, given the time constraints that we've imposed on ourselves -- and I would urge you to discuss that as we get into tomorrow. I think that the end point, in any case, for testimony has got to be right around the noon hour on Friday. So carve it up as you wish, but I want everybody to have a fair exchange. So we don't want an imbalance between direct and cross-examination. Give that some thought, because we have two additional witnesses, as I understand, Mr. Gillen. Is that correct? MR. GILLEN: You are correct, Your Honor. THE COURT: And I don't know how much longer we have, but there's obviously the potential for redirect with -- and some recross, I guess, with Mr. Baksa. So we'll try to finish him up. Now, I do have one matter I have to attend to tomorrow, so we're going to start at 9:15 tomorrow, and that further takes some time out, but we can probably capture that at the back end or have a shortened lunch, if we need to, tomorrow. And I assume that we're going to start with Mr. Baksa tomorrow and not call him out of order, which I'm sure, besides being illogical, probably violates some convention against torture in making him come back again. Anything further for today? MR. ROTHSCHILD: No. THE COURT: All right. We'll be in recess until 9:15 tomorrow morning, and we'll reconvene with Mr. Baksa's continued testimony at that time. (Whereupon, the proceedings were adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 20 (November 3), AM Session, Part 1 (9:22 a.m., convene.) THE COURT: All right, good morning to all. We resume with continued cross examination of Mr. Baksa. And Mr. Rothschild, whenever you're ready you may proceed. MR. ROTHSCHILD: Thank you, Your Honor. (Mr. Baksa resumes witness stand.) CROSS EXAMINATION (Cont'd.) BY MR. ROTHSCHILD: Q. Good morning, Mr. Baksa. A Good morning. Q. When we left off yesterday we were discussing an aspect of what was approved on October 18th, which is the note that origins of life is not taught. Do you remember that? A Yes. Q. And as we discussed, that means that in addition to whatever effect it had on intelligent design, it also means that teachers in Dover won't teach what we call macro evolution and speciation, correct? A They -- in the past they had not taught that. Q. Okay. And that was something that when the board found out about that, that was something that satisfied some of their concerns, correct? A Yes. MR. ROTHSCHILD: Your Honor, may I approach? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, what I've just given to you is what we've marked as plaintiff's exhibit 31, which is the Miller and Levine textbook for 2004 that is now being used in Dover High School. Could you turn to page 381 of that book? If you look at the bottom of the page, there's a heading "Descent with Modification"? A Okay. Q. And it says, "Darwin proposed that over long periods natural selection produces organisms that have different structures, established different niches, or occupy different habitats. As a result, species today look different from their ancestors. Each living species has descended with changes from other species over time. He referred to this principle as descent with modification." Under the board's policy that origins of life is not taught, that aspect of evolution cannot be taught to the Dover High School students, correct? A That I wouldn't know. The teachers make decisions on the content in the chapters and the material -- they choose the material they use to teach to the instructional goals that they've set for the course. Whether they would include this information, I wouldn't know that. Q. Okay, but it does say each living species has descended with changes from other species over time. Do you -- you understand that to be speciation, right? A Yes. Q. Okay. And as we've discussed, under the board s policy stating that origins of life is not taught, speciation is out, right? A Well, again, I would defer, I mean that's -- I m not a science teacher, and the manner in which they would use this content, I wouldn't know. I don't know if there's an appropriate manner they would be able to use with the curriculum change or not. I think they would be the best to determine that. Q. Certainly any science teacher faced with a policy from the board that says origins of life is not taught, and the understanding that, by that, the board means no speciation or macro evolution, a teacher would have reason to believe that he or she couldn't teach this aspect of the Miller-Levine textbook; would you agree? A My understanding from what -- in my meeting with teachers is that the curriculum change would not affect any of the past instructional objectives they've had, or the teaching that they've done in the past. They would teach the same course, same materials, same instructional goals as they had in the past even with the new curriculum change. Q. But you would agree that whatever their practice was in the past, that discretion has now been removed from them and now it is policy, origins of life is not taught? A Yes. Q. And if you could turn to page 40 It's headed, The Process of Speciation. Based on your understanding of the note origins of life is not taught, that subject matter is also off limits for the teachers, isn't it? A Again, I don't know how the teachers would use this content and if it would be permissible or not. Again, that would be their -- their professional judgment on choosing the materials and the content. Q. Including their judgment about what the board's policy means, correct? A I would think they would have to make a judgment on that. MR. ROTHSCHILD: Matt, could you pull up exhibit P-210. May I approach, Your Honor. THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, do you recognize P-210? A Yes. Q. Could you turn to page 13 of that document. Actually, if you could turn to page 12 first. A Okay. Q. And you see that it's section 3.3, Biological Sciences? of the textbook. 4 A Yes. Q. And it has objectives for grade ten and grade 12? A Yes. Q. And if you turn over to the next page, under subheading D, there are instructional goals for the theory of evolution? A Yes. Q. And for tenth grade, which is the second to the right column, it says, "Explain the mechanisms of the theory of evolution," right? A Yes. Q. And under that it says, "Analyze data from fossil records, records, similarities in anatomy and physiology, embryological studies and DNA studies that are relevant to the theory of evolution." You understand that those are all types of evidence that are relevant to the issue of macro evolution, don't you? A Yes. Q. And based on what we've discussed, the note origins of life is not taught, these aspects of the standards would be outside the Dover High School curriculum, correct? A No. My understanding is, I remember in one of the meetings with the board curriculum committee, I remember Mr. Eshbach saying that when talking about common ancestry, that the way they presented it is the evidence in DNA. And I remember his explanation of how they present it, that linkage was satisfactory to the board. So I do remember our teachers talking about they do teach about the DNA. Q. You were here when Mr. Bonsell testified, right? A Yes. Q. And what he said was his understanding of what the teachers do, and what was memorialized in the note origins of life is not taught, is that the teachers would only teach micro evolution, change within a species, correct? A Yes. Q. And not the fact that different species had common ancestors, correct? A Correct. Q. And if he had that understanding, it's reasonable to believe the teachers had that understanding, wouldn't you agree? A Well, the teachers did say they were teaching DNA as to demonstrate common ancestry. And they did say that to the board curriculum committee. Q. You would agree at best there's a -- there's uncertainty about whether teachers can teach these various pieces of evidence for common ancestry? A My understanding is that the -- even as we were drafting the language with the teachers, that the teachers did not feel that the new language would in any way inhibit them or prohibit them from teaching any of the content that they ve taught in the past. Q. Could you go down to the third bullet point under D in the second to right column. A Okay. Q. It says, "Compare modern day descendents of extinct species and propose possible scientific accounts for their present appearance." Would you agree that that is an analysis that relates to the issue of speciation? A From that, I wouldn't know. Q. And then if you go over to the objectives for twelfth grade, under D, "Analyze the theory of evolution," it says, "Examine human history by describing the progression from early hominids to modern humans." Do you see that? A Yes. Q. So that would require students to learn about common ancestry of humans with prior species, correct? A Well, I don't know -- I don't know that -- I'm not familiar with the term hominids, if that is a species that is different, in this standard, to modern humans. So I don't know how our staff does approach that and if that would present a problem to them. Q. Sitting here today you don't know whether under the policy established by the school board, whether teachers could teach, consistent with that policy, the objective -- this objective in the Pennsylvania state standards? A Right. I would have to rely on the teachers, whether they felt there was anything that prohibited them from teaching any of the standards. Q. And as we discussed, the teachers would have to make a judgment whether, in doing that, they would be violating the board's policy, correct? A Correct. Q. Going back to the October 18th meeting. You did observe Mrs. Yingling, Angie Yingling, being told that she would be an atheist or unChristian if she did not vote for the intelligent design resolution? A No. Q. Mr. Baksa, could you turn to your March deposition, page 174. And, Mr. Baksa, you were under oath that day when you -- when you gave your testimony at that deposition? A Yes. Q. And you did your best to tell the truth? A Yes. Q. Could you look at the question on line ten of page 174. I asked you, "In articles, after the resolution was voted on, Angie Yingling has been quoted as saying that members of the board suggested that she would be atheist or unChristian if she didn't vote for the intelligent design resolution. Did you observe any remarks of that kind?" And you answered, "Yes." Is that right? A Yes. Q. And that was your truthful testimony that day, correct? A Yes. And what I'm answering is you began the question -- this is my understanding -- you said, "In articles after resolution." I did read about that in the articles and that's how I answered the question. Q. Mr. Baksa, I asked you, did you observe any remarks of that kind? A And I'm telling you, I understood that question to be preceded within articles, because then you asked me about Casey Brown, whether I did anything, but you don't use the word "in articles" in there, and I said no, I did not hear any personal remarks to board members. Q. In any event, you're not aware of anybody trying to correct that allegation by Ms. Yingling in that newspaper, is that true? A Yes. MR. ROTHSCHILD: May I approach? THE COURT: You may. MR. ROTHSCHILD: Matt, could you pull up P-91. BY MR. ROTHSCHILD: Q. Mr. Baksa, do you recognize P-91? A Yes. Q. What is it? A It's an e-mail to me from Brad Neal, one of our Social Studies teachers. Q. And then also a response from you to Mr. Neal, correct? A Yes. Q. And what Mr. Neal -- and this e-mail was sent to you in the morning of October 19th? A Yes. Q. And that was the morning after the resolution was passed, correct? A Yes. Q. What Mr. Neal wrote to you is, "In light of last night's apparent change from a, quote, standards-driven, close quote, school district, to the quote, living word-driven school district, Mr. Hoover and I would like some direction in how to adapt our judicial branch unit. It's apparent that the Supreme Court of the United States has it all wrong. Is there some supplemental text that we can use to set our students straight as to the, quote, real, close quote, law of the land? We will be entering this unit within the next month and are concerned that we would be polluting our students minds if we continue to use our curriculum as currently written in accordance with the PA standards." That's what Mr. Neal wrote to you? A Yes. Q. And you responded to him, right? A Yes. Q. And what you wrote is, "Brad, all kidding aside, be careful what you ask for. I've been given a copy of the Myth of Separation by David Barton to review from board members. Social Studies curriculum is next year. Feel free to borrow my copy to get an idea of where the board is coming from. Thanks." That's how you responded, right? A Yes. Q. You responded to the Social Studies teacher, I have some information, I'll let you know where the board is coming from. A Yes. Q. And when you talked about getting a copy of this book, Myth of Separation, by David Barton from board members, I think you told me at your deposition it was actually a particular board member. A I believe Dr. Nilsen gave it to me and told me that it came from Mr. Bonsell. Q. Right. And you did take a look at that book, right? A I didn't -- I glanced through it. Q. And you understand that this book was an argument against the principles of separation of church and state, right? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, what I'm going to hand you is exhibit P-179, which is the Myth of Separation by David Barton. And this was the book that you were passing on to Mr. Neal so he would get an idea where the board is coming from on the issue of Social Studies curriculum, correct? A Yes. Q. Can you turn to page 46 of the book. And if you look at that -- A Yes. Q. -- last paragraph, could you read the first sentence of that? A The very last paragraph? Q. Yes. A "The doctrine of separation of church and state is absurd; it has been repeated often; and people have believed it. It is amazing what continually hearing about separation of church and state can do to a nation." Q. And then if you go to the next page, page 47, the title of the chapter is, "We Are a Christian Nation," correct? A Yes. Q. And then if you could turn to page 82 of the book. The last sentence of the chapter reads, "Our fathers intended that this nation should be a Christian nation, not because all who lived in it were Christians, but because it was founded on and would be governed and guided by Christian principles." Correct? A Yes, sir. Q. And then if you could turn to page 260, this is a paragraph -- a chapter titled "The Solution." If you look in the first full paragraph, what Mr. Barton writes in the book that Mr. Bonsell is recommending is, "We must recall our foundation and former values and establish in our thinking the conviction that this nation's institutions must return to their original foundation -- the principles expressed through the Bible." Is that correct? A Yes. Q. And one more passage. This is at page 264. A Okay. Q. I'm sorry, 265. And what Mr. Barton recommends is part of the solution is that -- if you could highlight that first sentence -- "Morality acquired only with emphasis from religious principles must again become an emphasis in education." This is where the board was coming from, right Mr. Baksa? A Mr. Bonsell -- my understanding is that when I received the book from Mr. Bonsell, and in my earlier conversations with him when I first came to Dover, I did have conversations and Mr. Bonsell expressed to me a desire to make sure that our students learned about the founding fathers in the constitution. I mean that's the extent of my knowledge of, you know, his emphasis on the founding fathers. Q. And this book? A Yes. Q. And the emphasis on the founding fathers in this book is about this being a Christian nation and that morality in education should be acquired only from religious principles, right? A Well, I haven't read the whole book to agree with the emphasis. Certainly the passages you pointed out point to that. Q. And so these are the two areas of curriculum that Mr. Bonsell has devoted his attention to, alternatives to the theory of evolution, and telling the students that this nation was founded as a Christian nation and must return to that condition. A Well, I don't remember Mr. Bonsell ever telling me that we need to -- this nation is a Christian nation and we need to return to that. I remember him talking about making sure that we devoted sufficient time to teaching about the founding fathers and the constitution. Q. And the one book that he gave you to explain what he meant was this book, the Myth of Separation? A That's correct. Q. After the October 18th meeting you prepared a draft statement to be read to the students, correct? A Yes. MR. ROTHSCHILD: Matt, could you pull up D-65. May I approach, Your Honor? THE COURT: You may. MR. ROTHSCHILD: Could I approach and get the other copy of the book? THE COURT: Sure. MR. ROTHSCHILD: Appreciate it. BY MR. ROTHSCHILD: Q. D-65 is your first draft of the statement that would be read to students. A Can I read it? Q. Yeah, sure. A Yeah, that's my original draft. Q. And then as you said, Mrs. Miller -- you gave it to Mrs. Miller to review. A Yeah. Well, I think I gave more than one -- I might have given it just to Mrs. Miller but I might have given it to all of the biology teachers though Mrs. Miller. Q. Certainly Mrs. Miller, right? A Yes. Q. And you directed her to review it, correct? A Yes. Q. And she made some suggestions about how to edit it, correct? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. MR. ROTHSCHILD: Matt, could you pull up exhibit, defendant's exhibit 90. BY MR. ROTHSCHILD: Q. And exhibit D-90 has your handwritten notes on it, correct? A Yes. Q. Okay. And it says, "Teachers response to the original draft by M. Baksa -- or Mr. Baksa"? A Yes. Q. And the bolded text is -- reflects the teachers edits, correct? A Yes. Q. And, for example, in the first paragraph it adds the words "eventually take a standardized test" and that's in there because actually they weren't going to take a standardized test for a few years, right? A That's right. Q. And then if you go to the next paragraph, Mrs. Miller, or the teachers added the language to your language, "Darwin's theory is a theory," by saying, "there is a significant amount of evidence that supports the theory, although" -- and then it continues with your language -- "it is still being testing as new evidence is discovered." Right? A Yes. Q. And then the teachers also added some text in terms of how intelligent design was going to be presented, correct? A Yes, and that the theory is not a fact. Q. Okay. And actually that is not entirely their language. If you go to your draft exhibit D-65. A Okay. Q. You had the language, "the theory is not a fact, nor the only one." And they just changed that to "the theory is not a fact," correct? A Yes, it's correct that they didn't delete it. Q. Right. And they -- you had language in your draft about intelligent design being another theory of evolution. And they changed that to be an explanation of the origin of life that differs from Darwin's view, right? A Yes. Q. Now, the version that you drafted didn't become the final version, correct? A Right. Q. And the version that we see on defendant's exhibit 90, which incorporates some suggestions by the teachers, also didn't become the final version, correct? A That's correct. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, I've shown you defendant's exhibit 91. A Yes. Q. And that has your handwritten notes on it, correct? A Yes. Q. And it indicates that there are edits by you and the board? A Correct. Q. And when we talk about the board here, who on the board is editing these drafts? A The board, I believe we were in the executive session, and the board -- I distributed the initial draft to the board and asked for their feedback. And then I remember suggestions from Mrs. Harkins and Mrs. Geesey. Q. So when we see lines striking some of the text here, those reflect suggestions by Mrs. Harkins and Mrs. Geesey? A Correct. Q. And the rest -- and the rest of the board in executive session agreed with those changes? A Yes. Q. And let's look -- A Well, my edit is the -- in the first paragraph, the deleted first sentence is a board edit. Q. Right. A My edit -- I believe the second paragraph is my edit. Q. All right. Let's discuss the first edit first. You had actually suggested this language, "Darwin's theory of evolution continues to be the dominant scientific explanation of the origin of species." Right, that was in your original draft? A Yes, sir. Q. And when the teachers reviewed it, they didn t excise that language. A Yes. Q. You had every reason to believe that's actually an accurate portrayal of Darwin's theory of evolution, right? A Yes. Q. But the board required you to take that out. A Yes. Q. If that language had been left in, students would have learned from their teachers, or whoever read the statement, that Darwin's theory of evolution is the dominant scientific explanation of the origin of species, right? A Yes. Q. And you would agree that the message to the students -- and this language did not make it into the final version, correct? A Correct. Q. And you would agree with me that the message to the students about the soundness of the theory of evolution is very different without this language than with it, wouldn't you? A Well, this is a one-minute statement, and the teachers are teaching the content in Miller and Levine, which I think reading those chapters, the students would get that information. Q. Okay. But this is the first thing that students are told when they start the subject of the theory of evolution, correct? A That's correct. Q. You thought it was a good idea, and the teachers agreed with you, to communicate to the students this is the dominant scientific explanation, this is what the scientific community accepts, right? A That's correct. Q. But the board didn't want that language in, correct? A That's correct. Q. Okay. And then there's the strike of the language, "There is a significant amount of evidence that supports the theory." And you said that was your own edit, right? A Yes. Q. Now, that was something that Mrs. Miller or the teachers added to your draft statement, correct? A Yes. Q. And you recognized them to be the scientific experts in the community, right? A Yes. Q. And you had no reason to doubt that this is actually an accurate portrayal of Darwin's theory, because Darwin's theory is a theory, there is a significant amount of evidence that supports the theory, although it is still being tested as new evidence is discovered. You had no reason to believe that this wasn't an accurate statement of Darwin's theory of evolution? A Correct. Q. But you removed this language, right? A Yes. Q. And you did that because that's -- because the board didn't want language like that, right? A Well, the -- actually, the board only had my copy, and this was now the board's edit and the teachers edit that I'm combining, so I don't think the board ever saw that language. But from my meeting with the board previously where they striked out "dominant scientific explanation," I didn't think they would be supportive of that language, so I took it upon myself to delete that language. Q. Because you thought that reflected the board's views? A Yes. MR. ROTHSCHILD: May I approach, Your Honor? THE COURT: You may. BY MR. ROTHSCHILD: Q. Mr. Baksa, I've shown you two exhibits, the first is defendant's exhibit 96. And do you recognize that as a handwritten note -- handwritten notes of a conversation you had with Mr. Buckingham? A Yes. Q. And what he's doing there is suggesting language about the intelligent design aspect of the statement, correct? A Yes. Q. And it says, "In an effort to gain an understanding of what intelligent design actually involves" -- I think that's an addition to the previous sentence about Pandas, and then, "As is true with any theory, you are encouraged to keep an open mind." Correct? A Yes. Q. And then if you look at defendant's exhibit 97, that language is in fact added to this draft version, right? A Yes. Q. And that language became a part of the final version? A Yes. Q. And then if you go above that in defendant s exhibit 97, you see there's a strike of the word "yet." Correct? A Yes. Q. Your draft, the one you prepared and that the teachers reviewed, said, "Gaps in the theory exist for which there is yet no evidence." Correct? A Yes. Q. But the final version just says, "Gaps in the theory exist for which there is no evidence." Correct? A Yes. Q. And when you struck that language, that was, again, doing the will of the board members, correct? A Yes. Q. Mr. Buckingham's will? A Yes. Q. And you would agree with me that, again, that change in the sentence conveys two very different things to students, right? A Yes. Q. Because your version actually says, hey, you know, there's certain things we don't know, there's yet no evidence, it may come, right? A Yes. Q. But the language as it reads in the final version just says there's no evidence, right? A Correct. Q. So to summarize, the board took out language proposed by the administration and by the science faculty that would suggest that the theory of evolution is a sound theory; would you agree? A I agree that the board took out language that I think my understanding is that they felt, and one of their main concerns was they felt that the Darwin's theory was being overstated in the text. And my understanding is that language in this statement, they were again concerned about maybe the same issue, not overstating Darwin's theory. Q. You didn't feel that way about the statement that you and Mrs. Miller developed? You didn't feel like it was overstating it? A No, I agreed with the original language that I proposed. Q. And also with Mrs. Miller's suggestion? A Yes. Q. And obviously the teachers felt better about this language, about the theory of evolution, than what they ended up with, right? A Well, I don't know that, but certainly some of their suggestions weren't included. Q. And what was left was the language that is pretty negative about the theory of evolution. A Well, I wouldn't characterize it as negative. Q. There's gaps, right? Theory not a fact? A There's gaps in Miller and Levine's textbook. Q. Right, but it's only -- and I'm not suggesting there aren't gaps, but it's only the things in the draft statement that were negative about evolution, not positive about evolution. That's how it ended out, right? A I don't see it that way -- I mean. I don't see it that way. I see that the edits that were done by the board or the absence of some of the language that the teachers wanted included, that that language would have been stronger in support of Darwin's evolution, and the language that was ultimately adopted isn't as strong, but I don't see it as negative. Q. In any event, from the teachers perspective, the end result was that language they had suggested and language you had suggested that they were comfortable with, was excluded from the final statement? A Some, yes. Q. You can understand why the teachers wouldn't want the public, including their students, to believe they had ownership over this process? A Well, if you're going back to, you know, their reaction to Dr. Nilsen's press release, again, I even thought that the press release was simply what was being reported in the papers was that teachers weren't involved, that we weren't answering any of their questions. It sounded like we weren't working with them, that they had nothing to do with the process. They certainly had something to do with the process. Did it result in language here in the statement exactly as they would have wanted it? No, it didn t, you know, there were edits to it. So there's involvement that way, and I don't -- I didn't think the press release tried to make a point of saying that the teachers had signed on fully supportive of everything that happened, just that they -- they were aware of what was happening. Q. They were aware, they made suggestions, and many of their important suggestions were rejected, right? A That some of their language was not included, that's correct. Q. And in fact, it's fair to say that from the perspective that they were operating from, the statement got worse from the time you gave it to them, until the final version? A Well, again, some language that they wanted was not included. I don't ever remember having a conversation at the end of the day after the final language was drafted, with their opinion of what finally was done. So I don't -- I can't answer, you know, how they felt at the end of the day with the final language. Q. Now, you agree that students are not told that any other theory taught in science class in the Dover School District is a theory, not a fact, right? A I'm not aware of any. Q. And students are not told that other theories have gaps, correct? A I'm not aware; I don't know. Q. Or because they're theories, they're still being tested? A Again, I'm not aware of that, right. Q. And no one has ever explained to you why evolution is being singled out from all of the scientific topics taught to Dover students in this way? A By? Q. Why? A I said by, singled out by? Q. Singled out by the board and the administration, why evolution is being singled out for this treatment, different from all the other scientific concepts taught to Dover students. A Just -- I just know the concerns that were expressed to me from some board members that they felt that it was overstated in the textbook and they had that concern. Q. And nobody has explained why, you know, you know, a half dozen or dozen other scientific theories that are presented to Dover students aren't also -- the students aren't also told them about them; it's a theory, not a fact. You don't know why evolution gets that special treatment? A That's correct. Q. And obviously there's no language in the statement suggesting that there are any gaps in intelligent design, right? A No. Q. Now, further down the road, after this statement was in effect, you actually warned the science teachers that they could be putting themselves in a risky position by standing up to the board on the issue of what is being taught in biology class, correct? A I had a conversation with -- a private conversation with Mrs. Miller at which the teachers had been on a couple forums for discussing the issue, and the implementation of the new curriculum change and talking about ID. And I felt that it was -- wasn't necessary for them to put themselves in the middle of this. The board had made a decision. Once a board makes a decision, whether you agree with that decision or not, it's our responsibility to implement that and not continue to publicly protest their decision. Q. And the reason you were telling them this is because you were looking out for them, right? A Well, yeah, I didn't think they needed to put themselves in a risky position, correct. Q. And one of the things that you thought might put them at risk was the position they took about not reading the statement, correct? A No, they were okay about that, because they had -- they had requested from Dr. Nilsen that they not read the statement, and Dr. Nilsen granted that request. What happened after that is they had agreed to distribute the opt-out forms to students, and never communicated to Dr. Nilsen or myself that they weren't going to do that. And I explained that a legal -- were there to be given a legal opinion about their actions and whether that constituted insubordination or not was iffy, and that they put themselves at risk by doing something like that and not communicating. Q. But you also, I mean, you told me at your deposition they were putting themselves at risk by taking the position not to read the statement, right? A I don't believe I said that. Q. Could you turn to page 98 of your March 9 deposition. At line ten I asked you, "Is one of the things that they had done that you thought might put them at risk, does that include the position they took that they did not want to read the statement?" And you answered, "Yes." Correct? A But if you read further, I kind of clarify that and again I go back to saying, if you look at line 17, I say, "Because I felt that they did not have -- it wasn't the statement so much as we had come to an agreement about the procedures for implementing the reading of the statement at a meeting with the teachers, we reviewed how we were going to do that, and they were in agreement with that. After that, they submitted a request not to have to do that, and the superintendent responded that he would make that accommodation in this particular instance. What they failed to do was on Friday they were to distribute the forms for students to be excused from classes without informing anybody of that. I felt that that action was risky in that there was an administrative understanding for them to do so, and they didn't do so. And if examined by counsel, that could be determined to be an act of insubordination which would put them at risk." So I think I clarified it. Q. Sure. But in any event you felt that, as a general matter, that they needed to be careful in terms of standing up to the board on the biology curriculum, correct? A Yes. Q. And similarly, you felt that you would be putting yourself in a risky position if you stood up to the board about the biology curriculum, isn't that right? A No. MR. ROTHSCHILD: No further questions. THE COURT: Redirect, Mr. Gillen? MR. GILLEN: Thank you, Your Honor. REDIRECT EXAMINATION BY MR. GILLEN: Q. Good morning, Mike. A Good morning. Q. Mr. Rothschild has asked you a number of questions and I want to make sure the record is clear on some of your responses. The first area I would like to ask you about is your attendance at the seminar given at Messiah College in 2003. As a result of your attendance at that seminar, did you learn anything about the legality of teaching creationism? A Just that teaching creationism would be illegal. Q. And did that information received at that seminar shape your actions at every stage in this process that we scrutinized in this litigation? A Yes. Q. And at any point in that process did you entertain an illegal objective? A I'm sorry? Q. At any point in that process did you believe that you were entertaining an illegal objective? A No. Q. Mr. Rothschild has questioned you about Allen Bonsell's objections to evolutionary theory. When Mr. Bonsell expressed his objections, did he accompany his objection with more specific information? MR. ROTHSCHILD: Objection, Your Honor. He's been leading every question in this redirect. MR. GILLEN: All right, let me rephrase, I suppose. THE COURT: So you concede the point? MR. GILLEN: I guess. I'm not sure it's leading. It's a preliminary. THE COURT: Saving me ruling on the objection. MR. GILLEN: I'm eager to save you work, Judge. You'll have enough soon enough. BY MR. GILLEN: Q. Let me ask you this, Mike. In your conversations with Mr. Bonsell about his objection to evolutionary theory, did he give you additional information? A When Mr. Bonsell was expressing his concerns to me about the treatment of evolution in the text, my understanding is that he also talked about having read an article about -- that cast out on carbon 14 dating. He did talk about seeing a video that showed an earlier, a bear changing through evolution into a whale, which he thought was improbable. And but just generally thought that the treatment in the book portrayed it as a fact with no room for any doubt whatsoever on any aspect of the theory. Q. How about discussions of the statistical improbability of cellular life, biological life emerging? Did he ever provide you with information about that? A No. Q. Okay. Did Mr. Bonsell ever discuss with you how he describes evolutionary theory to his children? A No. Q. Did he ever explain whether he taught his children about the statistical improbability of life? A No. Q. Ever tell you how he explains to his children about problems in evolutionary theory? A No. Q. Was there ever any discussion about what he tells his children about gaps in evolutionary theory? A No. Q. I would like to ask you to look at defendant's exhibit 286. A Do I have that? Q. I believe Mr. Rothschild provided you with a copy. THE COURT: If you could ask Matt to put that up on the screen. It's helpful to me, if you don't mind. THE WITNESS: I don't think I have that. THE COURT: It should be on your screen if you can see it. If not we can get you a hard copy. MR. GILLEN: Thank you, Your Honor. BY MR. GILLEN: Q. Can you see it, Mike? A Yes. Q. You've been asked some questions about this. I want to ask you a few more. What knowledge concerning creationism or the teaching of creationism did you have at the time that you drafted this document? A Well, I'm -- at this point I had gone to Messiah, and there the presenters were -- you know, did put forth that thought, the discussion of other theories or other explanations other than Darwin, that those made for a good discussion in the classroom. And at this time I did know that the teachers had been giving some explanation before they started teaching evolution that they were mentioning creationism. Q. When you drafted this document, did you believe that it would require a departure from existing practice in the classroom? A No. Q. Mr. Rothschild has noted that the language of exhibit 286 includes "demonstrate awareness." Was there any particular reason that you used that language in this draft document? A Well, I remember -- I remember when looking at the language of all of the other -- for instance, right above "students will be able to list," and what I tried to do is simply, when you write instructional objectives for students you put some type of action verb in there that students will list or demonstrate or identify. So I was just trying to duplicate the language that you use, the verbiage you use when you create an instructional objective. Q. Well, there's been a great deal of discussion of the curriculum change that was adopted by the board on October 18 . Do you see a difference between the language you employed in this document and the language that's incorporated in the curriculum change that was actually approved by the board? A Yes. Q. Tell us what that difference is. A Well, the language simply says, "Students will be made aware of," and the language "to demonstrate anything" is removed. Q. Mr. -- now, let me ask you this, is that language choice on your part related to the distinction you ve addressed between teaching and making aware? A Well, if you have language in there that says to demonstrate, then you don't -- that language could lead you to believe that students will be assessed in some way to be able to demonstrate that. So students -- we weren't teaching it. They weren't going to be assessed, so that language wasn't necessary. Q. Let me ask you to look at defendant's exhibit 19, and -- A Is that -- do I have that? THE COURT: Let's put that up too, please. BY MR. GILLEN: Q. You should, Mike, it's this. A Okay. I have it. MR. GILLEN: Thank you, Matt. BY MR. GILLEN: Q. If you look down that page there, Mike, you'll see a handwritten notation, "intelligent design instead of creationism." A Yes. Q. Who put that notation there? A I believe I did. Q. And why did you do that? A At this meeting we were trying to come to some understanding of what would need to be done on a number of our parts for Bill to move forward for approval of the books. And there had been talk of creationism, and we said, well, teachers had been mentioning creationism, but we ll simply replace that with intelligent design instead of creationism. Q. And when you did that, did you think this change would have any impact on teacher instruction in the classroom? A No, I didn't think they would do anything differently than they did before. Q. Did you think it would have any impact on what they taught and assessed in the classroom? A No. Q. Speaking of intelligent design, did you ever -- did teachers ever communicate with you concerning whether they were trained to teach intelligent design? A Well, I remember one of their concerns was that, when we were talking about the introduction of anything, is that their educational background and schooling is in the biological sciences and Darwin's theory of evolution, that they're not schooled in any other material and especially when it came down to the possibility of them having to answer questions, they didn't feel that they were able to answer questions about intelligent design. Q. At any point in this process did they give you a detailed scientific criticism of intelligent design theory? A No. Q. I would ask you to look at defendant's exhibit 20. And if you direct your attention to the bottom most notation underneath the strike out. I'd ask you to read that, Mike, since you it's your writing and you should be responsible for it. A Which part do you want me to read? What is -- Q. It looks like it's "mention" to me, but I don't want to put words in your mouth. Underneath the strike out on defendant's exhibit 20. A Oh, okay. "Mention other theories of evolution including but not limited to intelligent design, mentioned existence of," dot, dot, dot, I didn't complete that. Q. Did you put that note there? A Yes. Q. And why did you do that? A It was my understanding at the end of this meeting that we were going to, that we agreed to put some language into the curriculum, and I thought I remembered reading this back -- this was at the very end of the meeting, and I thought I remember reading this back and that everybody was in agreement with that. Q. Was there any particular reason that you chose the word "mention"? A Because we weren't going to teach it, and teachers were mentioning creationism already, so we were just replacing that with intelligent design. Q. Let me ask you, there's been some discussion of the comparison between the 2002 and 2004 editions of the Miller and Levine, and at the time that review was conducted you had some complaints about the text from Mr. Buckingham. So I want to ask you, did the comparison of the text influence the way you viewed Mr. Buckingham s objections? A Well, I guess what was interesting is, if you look at all of Mr. Buckingham's original list, and when you go to those pages and those sections in the new edition of Miller and Levine, they actually were addressed. So some of his concerns about common ancestry and gaps and problems in overstating the evidence, that there was actually changes made that he had identified earlier. Q. You were questioned about some statements that Mr. Buckingham made at public meetings, and I wasn't quite clear on this and wanted to make sure the record was clear. Do you ever remember Mr. Buckingham making a statement to the effect that the country wasn't founded on evolution? A No. Q. Do you ever remember Mr. Buckingham mentioning Muslim beliefs and evolution in the same sentence? A No. Q. Mr. Rothschild has questioned you about the meetings that the teachers attended and some concessions they made. I want to ask you about those meetings. When the fall 2003 meeting with Mr. Bonsell broke up, how would you describe the parting of the parties? Was it collegial, cordial or hostile? A It was very friendly. Q. How about the meeting in June of 2004, same question, at the -- after that meeting when the parties broke up, how would you describe their attitude towards one another? A Well, we felt we had an agreement to move forward for the text, so everybody was very satisfied with the results of that meeting. Q. Speaking of pressure, did there come a time when the teachers were asked to implement the board's policy adopted on October 18 , 2004? A Yes. Q. And do you know whether they did so? A They didn't want to read the statement, so we ended up reading that, and they didn't want to hand out the excusal forms, so we also did that then too. Q. So they did not feel pressure to do that so far as you know? MR. ROTHSCHILD: Objection, calls for speculation, Your Honor. MR. GILLEN: So far as he knows. He's entitled to his opinion. THE COURT: I'll overrule the objection, but I ll clarify, if you know. Do you know? THE WITNESS: Can you restate the question? MR. GILLEN: I'll take the question as clarified by the Judge. BY MR. GILLEN: Q. So far as you know, if you know, did the teachers feel pressured to implement the statement? A No, I don't think so. Q. Mr. Rothschild asked you some questions about a document, defendant's exhibit 35. And your testimony I thought was somewhat confusing, Mike, no offense, but I want to ask you, did you ever read that document? A I don't believe so. Q. That's what I thought. Did you collect that from your files for the purpose of complying with the discovery request? A Yes. Q. Mr. Rothschild asked you some questions, I believe, about plaintiff's exhibit 73. This document is your September 20, 2004 memo to the board curriculum committee. A Okay. Q. And he asked you some fair questions about the process whereby this document was produced. I just want to make sure the record is clear on this. If you look at the first page, Mike, with the Bate stamp number 28 on it, I'd ask you to read the description you provided beneath the re. A "Attached is a recommended curriculum change for biology. The changes were reviewed by the science department." Q. And then if you would look at the attached document, and I think we all agree that the proper attachment is Bate stamp 29. A Okay. Q. Looking at that, Mike, is the description of the document contained in the memo true and accurate to the best of your recollection? A Yes, this is the language that the teachers would have proposed. Q. So based on that description do you believe that the teachers had reviewed this language in this document? A Yes. Q. Mr. Rothschild has drawn attention to the concessions that the teachers made as the curriculum policy at issue was hashed out, and I want to ask you a few questions about that. From your perspective as the administrator, plainly someone who was in the middle, do you believe that the board made concessions in this process? A Well, yeah, we ended up at a far different place than the board -- some board members originally intended us to go. Q. Well, let me ask you this. You've mentioned that the administration went on record in support of either of the two versions that the teachers were willing to work with. Am I correct that those are the versions that are Roman 11-B and Roman 11-C? A Yes. Q. And I want to ask you now, why did you do that? Was it a principled objection to intelligent design or something else? What was the basis for your position? A Well, in -- especially in schools, in that culture, whenever you implement a change, if the change is going to be successful and effective, there has to be a demonstrated buy-in by those that are going to be most affected. So it's absolutely critical that if the teachers are going to have something that's affecting their curriculum, that they're supportive of that, otherwise the chances of it being implemented the way it's proposed and being successful are severely diminished. Q. Mr. Rothschild asked you some questions about the Social Studies curriculum and a book that Mr. Bonsell provided. Let me ask you, did he ever ask you to implement any change to the Social Studies curriculum? A No. Q. Are you familiar with the debate over the separation of church and state in legal cases? A Not really. Q. Mr. Rothschild has questioned you about the various versions of this statement and the way they were drafted out. At the time that process was playing itself out, did you have an understanding concerning whether the board saw the statement as related to the text in its presentation of evolutionary theory as designed to address some aspects of the text they thought should be addressed? A The statement -- Q. Yes? A -- addressing aspects of the text? Q. Well, what I'm asking you is, you talked about balance and so on in the presentation of evolutionary theory in the text. Did you see the statement as related to the board's view of the presentation of the evolutionary theory in the Miller-Levine text? MR. ROTHSCHILD: Objection, Your Honor, leading. THE COURT: Not only is it leading, but I think -- and I understand, Mr. Gillen, you're trying to clarify points in his testimony, but I think we're starting to plow up areas that have pretty well been clarified. Why don't you rephrase. I'll sustain the objection. If you want to stay on that point, you'll have to rephrase, but we've been down this road. MR. GILLEN: Well, if you believe we've been down the road, Judge, I'm not going to go down there again. BY MR. GILLEN: Q. Let me ask you, Mike, one final question then, or a few. You've forthrightly given your opinion that the teachers were acting to promote what they saw as the best interests of the children in their judgment. And I would like to ask you for your same opinion with respect to the conduct of the board. Do you think the board was proceeding in a like manner? A Yes. Q. Based upon your education and experience as an administrator, do you have an understanding concerning whether the board or the teachers have the final say when they differ in judgment concerning whether a given curriculum policy is in the best interest of the children? A Yes. Q. What is your understanding? A The board has the final say when it comes to curriculum. MR. GILLEN: I have no further questions, Your Honor. THE COURT: Thank you, Mr. Gillen. Recross by Mr. Rothschild. MR. ROTHSCHILD: Very brief, Your Honor. RECROSS EXAMINATION BY MR. ROTHSCHILD: Q. Mr. Baksa, did you meet with counsel last night to discuss the testimony you had given in prior days or to discuss the testimony you would give today? A Yes. Q. For how long did you meet? A We met over dinner. Q. And did you discuss the testimony you had rendered over the prior days? MR. GILLEN: Objection, Your Honor. I don't -- he can say whether we meet, he can't ask how long -- THE COURT: That's a yes or no question. You may answer the question. The objection is overruled to the extent that the witness can answer yes or no. The objection, so you understand, Mr. Baksa, went to what was the substance of your discussion. But you may answer yes or no whether you discussed your testimony with Mr. Gillen. THE WITNESS: From yesterday? MR. ROTHSCHILD: Yes. THE WITNESS: Yes. BY MR. ROTHSCHILD: Q. And did you discuss the questions he would ask you today on -- MR. GILLEN: Objection, Your Honor. He's not allowed to inquire into what we talked about. And what's more, it's my client, so whatever -- whatever I do to advise him is legal advice. MR. ROTHSCHILD: Your Honor, again, it is a yes/no question. And furthermore, it is my view that it is what is improper to meet with Mr. Baksa while he was on cross, just as it was improper to meet with Mr. Bonsell after his cross was concluded. THE COURT: Well, you've made that point. I understand that point, and that's for me to do with what I need to do with. But setting that on the side burner for the moment, the issue of whether they discussed his questions today may traipse over into the privilege. MR. ROTHSCHILD: I think a yes/no answer to that question does not, Your Honor. That would be my position. THE COURT: No, I'm going to sustain the objection, but I note your point. BY MR. ROTHSCHILD: Q. Mr. Baksa, Mr. Gillen -- you testified under Mr. Gillen's redirect that the end result on what the policy would be was a far different place than some board members intended to go. What board members were you referring to when you made that statement? A Well, when you look at what was originally proposed, Mr. Bonsell had mentioned, you know, a fifty-fifty split, side by side, time for time with evolution; that didn't happen. Our teachers taught evolution and nothing else at the end of the day. Mr. Buckingham wanted the Pandas, side by side with Miller-Levine, and for teachers to be teaching out of both; that didn't happen, the book ended up in the library. So -- and the board wanted initially a discussion, we would mention other theories and there would be a discussion and then we'd get onto teaching. Well, at the end of the day we drafted a statement that did not allow for any discussion or any questions. So that looks very different than what some of the board members intended earlier on. Q. And Mr. Buckingham, in June, also mentioned having a textbook with creationism in it, correct? A I remember him mentioning creationism at the board meeting in response to Mrs. Callahan's questioning why we don't have a textbook. I don't specifically remember that -- I mean, I don't remember the context other than him saying that. Q. Now, you have testified that it was your understanding that science teachers mention -- their prior practice had mentioned creationism, right? A Yes. Q. Now, you never thought that they were mentioning or presenting creationism as a scientific proposition, did you? A Well, I don't think I had any understanding other than they were mentioning that to accommodate possibly the beliefs of their students and to explain to them what they would be teaching, what they wouldn't be teaching. Q. They would be teaching the scientific theory of evolution. A Correct. Q. They would not be teaching creationism. A Correct. Q. And they were not presenting creationism as a scientific theory, correct? A That I don't know. Q. Well, if you heard that they were presenting creationism as a scientific theory, you knew from attending Messiah College that that would be illegal, right? A I knew that teaching creationism would be illegal, but the -- you know, all the information that I ever got from teachers was that they did mention it. What they said about it or -- I just don't have that information. Q. No reason to believe that they were presenting it as a scientific theory. A Okay. Q. Do you agree with that? A Well, again, I don't -- I don't have any other information than that they said that they did mention it. Q. Fair enough. And it is clear to you that intelligent design is being presented as a scientific theory to the students of Dover, correct? A I don't know how the students would -- you know, the language talks about an explanation other than Darwin s. I'd have to go back and look at the statement language, but I don't think the statement language goes as far as to say intelligent design is another scientific theory. So what the students understanding would be after the statement is read, I wouldn't know that. Q. Now, the board sent a newsletter to the entire community of Dover, correct? A Yes. Q. And it communicates to the community of Dover, including the parents of these school children, what's going on at Dover regarding this -- the teaching of evolution and the presentation of intelligent design, correct? A Yes. Q. And in that document the board is very clear, intelligent design is a scientific theory, correct? A Just from the documents that have been displayed during the trial here, I think I remember you pointing out that it says intelligent design is a scientific theory in that document. Q. You understand that to be correct? A Yes. MR. ROTHSCHILD: No further questions, Your Honor. THE COURT: All right, Mr. Baksa, I just have a couple questions before we have you step down and end this interesting, but I'm sure unwelcome, interlude in your life. My questions are these -- Matt, if I could ask you to put up 286 again, please, which is the curriculum from 03. I think -- I assume that's D-286. Thank you. EXAMINATION BY THE COURT: Q. I'm a little unclear, and if you answered this, Mr. Baksa, I'm sorry, I just didn't get it, but I'm a little unclear as to your recollection as to when you -- and I know you may not know precisely, but when did you develop that? A I found the document, it was not dated, but when I found it there were papers with this document dated August of 2003. Q. All right. And tell me again what your best recollection is of the development of that. A Well, I didn't remember it, developing it. Q. No, I recognize that, and I recognize you found it in your papers. But having found it, your recollection of developing it, if any, is what? A Well, if I would have developed this, as I've said before, I would have developed this thinking that I might need to use language like this to address a concern of a board member. Q. So your best guess is August of 03 -- A Yes. Q. -- based on papers that surrounded this in the file? A Yes. THE COURT: All right. And if you could put up D-19, please. BY THE COURT: Q. There is a notation on this that I don't think you were asked about, and I presume it's your writing, but I want to ask you. If you would highlight for me what appears to be, on the left side it says, "no mural ever again," if I'm reading that correctly. Is that your handwriting? A Yes. Q. What does that mean? A These were some of the concessions that we were agreeing to, to move forward to purchase Miller-Levine. And Mr. Buckingham did not ever want to see a mural that depicted -- that was in the science class and was removed, he didn't want to see a mural like that ever again in the classroom. Q. So it was a concession that you were extracting from whom? A That's Bill saying he didn't want to ever see a mural like that again. And -- Q. Saying that to who? A The science teachers. And then as a result of that, Mrs. Brown was going to develop language -- language in our gift policy that made sure that anything displayed in the classroom aligned to the content. Q. So the quid pro quo or the exchange, if you will, or an exchange for using the Miller and Levine textbook was that there would never be a mural of the type that depicted evolution portrayed again? A Yes. Q. And was that agreed to? A Yes. Q. And, again, in exchange for the book? A Yes. Q. If I understand your testimony -- THE COURT: You can take this down. Thank you. BY THE COURT: Q. If I understand your testimony correctly, around October 19th of 2004, Mr. Bonsell gave to you and others the book, the Myth of Separation, is that correct? A October 19th when? Q. I picked up that date from something in the testimony, and I'm not sure where I got it, but is that approximately the time that you received a copy of the Myth of Separation? A I believe I received it my first year. So I started in 2002-2003, and sometime during that period, it might have been fall or spring. Q. Of? A 2002-2003. Q. From Mr. Bonsell? A I received that book then. Q. Was it later distributed to a wider group of people? I'm not sure why I have the date of October 19, 2004. Was it given -- was it distributed more widely in 2004? MR. ROTHSCHILD: Your Honor, if I could be a little bit of help. That was the e-mail exchange between Mr. Neal -- THE COURT: Thank you, I combined the two. That s why I have that date. I apologize for that. So let me then clarify, because obviously I was confused. BY THE COURT: Q. Tell me when, again, because I'm unclear, and I'm sorry to have you repeat this, but tell me when you believe you got that book, the Myth of Separation? A I believe I probably got it in the fall of 2002. Q. From Mr. Bonsell? A Yes. Q. To repeat. And if I understood your testimony correctly, you were aware that it was distributed -- that copies or a copy was distributed to someone else? A What I know is that I had a copy. I don't believe I gave my copy to anyone. But Mr. Hoover, Doug Hoover is another Social Studies teacher, and I do know from talking to him that he had read it. Whether -- Q. And that's what your note references in 04, if I understand it correctly? A Yes. Q. But were other board members, to your knowledge, given a copy of that book? A That I don't know. Q. You don't know that. When you were given the book by Mr. Bonsell, do you remember the circumstances? A Well, I believe I got it from Dr. Nilsen. Q. Dr. Nilsen, I'm sorry. And I do recall you now saying that, who had been given it by Mr. Bonsell. When Dr. Nilsen gave it to you, was it with any instructions, if you can recall? A I don't remember, just that this is an area Mr. Bonsell is interested in, I might want to take a look at it. THE COURT: All right. Thank you, Mr. Baksa. I'll give counsel the opportunity to ask brief follow-up based on the Court's questions. Your witness, Mr. Gillen, you go first. MR. GILLEN: Thank you, Your Honor. REDIRECT EXAMINATION BY MR. GILLEN: Q. Just one question, Mike. That was 2002, we're in 2005, just want to make it clear. Has Mr. Bonsell ever insisted that any faculty read that book for the purpose of a curriculum change? A Not that I know of. MR. GILLEN: No further question. MR. ROTHSCHILD: No questions. THE COURT: All right. Thank you, you may step down, sir. We have a great number of exhibits. Let's take those before we take a morning break. All right, I have -- you both ready to go through this? MR. GILLEN: Give me a minute, Your Honor. MR. ROTHSCHILD: Your Honor, would it make sense to confer over lunch about exhibits and maybe we can -- THE COURT: That's fine. As I look at it, I m thinking the same thing, because we're going to impede our ability to continue to take testimony. Why don't we take a 15 minute break at this point, and then you've got your next witness ready to go after that. Do you think we can get that witness on and off by lunch? MR. GILLEN: I do, Your Honor. THE COURT: Why don't we try to do that, and then we can start with your expert hopefully right after lunch. All right, we'll be in recess for 15 minutes. THE DEPUTY CLERK: All rise. (Whereupon, a recess was taken from 10:39 a.m. to 10:58 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 20 (November 3), AM Session, Part 2 THE COURT: All right, we'll take the next witness by the defense. MR. GILLEN: Thank you, Your Honor. The defense calls Robert Linker. ROBERT LINKER, called as a witness on behalf of the defendants, having been duly sworn or affirmed according to law, testified as follows: THE DEPUTY CLERK: If you can state your name and spell your name for the record. THE WITNESS: Robert Linker. R-O-B-E-R-T, middle initial S, L-I-N-K-E-R. MR. GILLEN: Your Honor, I would request permission to lead the witness with respect to preliminary matters for the purpose of establishing that his interests are adverse such that leading questions are appropriate. MR. WALCZAK: We're going to object to him taking Mr. Linger as adverse. We don't object to him doing some preliminary inquiry on that. MR. GILLEN: Perhaps more background, Your Honor? THE COURT: Yeah, because I'm inclined to allow leading, given the time constraints we have. But your objection goes to calling him as an adverse witness? MR. WALCZAK: He -- under Rule 611(c), Your Honor, I don't believe that he fits the definition of an adverse or a hostile witness in this case. I mean he is actually employed by the defendants in this case. THE COURT: All right. Why don't you elaborate, Mr. Gillen? MR. GILLEN: Certainly, Your Honor. Mr. Linker is a teacher. He is indeed employed by Dover Area School District. As an employee of the school district he has a contractual duty to implement the policies that are enacted by the board. In this case he and his colleagues in the science department have failed to do so. They have refused to read the statement called for by the curriculum policy. They have refused to distribute letters and the opt-out form, which they were required to distribute in connection with the implementation of the policy by the administration. They have retained counsel to represent them in their discussions with the administration due to threats or fear of liability both to third parties and from the district in connection with the implementation of this policy. Under those circumstances, Your Honor, I fail to see how he cannot be deemed adverse. MR. WALCZAK: Your Honor, the hiring of counsel by the teachers is true. The same limitations that was put on the defense has been put on plaintiffs counsel. I have never met Mr. Linker. I've never spoken to Mr. Linker before today. I was introduced shortly before the trial. Clearly not an adverse party as that term is used under 611(c). MR. GILLEN: Not so. THE COURT: Well, wait, that's in the -- that's in the disjunctive. He doesn't have to be adverse. He can be hostile. He could be a witness identified with an adverse party. MR. GILLEN: Precisely, Your Honor. And the teachers have cooperated with the plaintiffs in a number of matters. They've met with them. THE COURT: Let me ask you, what's the harm? MR. WALCZAK: Your Honor, I'm not sure where he's going with that, but part of the -- THE COURT: Well, here's what we're going to do. I'm going to let him lead for the apparently narrow purposes as it relates to the implementation of the policy, because we're going to move along here. I'll hear your objections, though, and -- but I will allow the leading questions -- let me ask you this. Are you indicating that the witness was not disclosed? MR. WALCZAK: No, the witness was disclosed. It was not disclosed to us until this morning when we walked into court that they were going to call him as if on cross. I mean I did not meet with Mr. Linker. Had I known that they were going to call him as if on cross we might have prepared this case differently. The other point I would just like to make in terms of -- I think it's clear that certainly that three part test under the last sentence of 611(c) is in the disjunctive. He -- and clearly it's not an adverse party or witness identified with an adverse party. The question is whether he's a hostile. He was deposed, Your Honor, in this case. THE COURT: The hostile witness is a judgment I've got to make, and I don't know, and that's why I say, let's defer, and if it appears that he's not, I'll hear a renewed objection. But let's keep moving. MR. WALCZAK: Just note my objection. THE COURT: I note your objection. We'll overrule your objection at this time. You may renew your objection if circumstances warrant during the examination. And Mr. Gillen, you may proceed. MR. GILLEN: Thank you, Your Honor. DIRECT EXAMINATION BY MR. GILLEN: Q. Mr. Linker, I just want to establish a few facts here as we get started. You are an employee of Dover Area School District? A Correct. Q. As an employee you have a contractual duty to implement the policies of the school district? A Correct. Q. In this case you have refused to implement the curriculum change enacted by the board on October 18, 2004, correct? A Correct. Q. You have refused to read the statement called for by the curriculum policy, correct? A Correct. Q. You have refused to distribute letters and opt-out forms that the administration called for to be distributed in connection with the implementation of the curriculum policy, correct? A Correct. Q. You have retained counsel to represent you in connection with this matter? A Correct. Q. You have retained that counsel to represent you, vis-a-vis the administration and school board? A Correct. Q. And you have retained counsel to represent you here in connection with your testimony in this case, correct? A Correct. Q. Mr. Linker, you attended a board meeting in the fall of 2003 with Alan Bonsell which pertained to the presentation of evolutionary theory in schools at Dover? A It wasn't a board meeting. Q. A board curriculum committee meeting? A In -- in an actual room. Q. Yes. A Correct. Q. And during that meeting you described how you presented evolutionary theory to the students. A Actually Jenn Miller was our spokesmen for that. Q. Jenn -- Jenn did do some description, but so did you, correct? MR. WALCZAK: Your Honor, I am going to renew my objection to leading questions here. THE COURT: Overruled at this time. BY MR. GILLEN: Q. Mrs. Miller did do the bulk of the talking, but so did you, Mr. Miller -- I mean Mr. Linker, correct? A At that meeting I was asked if I taught it the same way, and I said yes. Q. Okay. And you also provided some information about how you present evolutionary theory, correct? A Not at that particular meeting. Q. Well, did you indicate that you presented evolutionary theory in a manner similar to Jenn Miller? A Yes. Q. You described how you started out teaching evolutionary theory, you took the chalkboard and you drew a line down the middle, correct? A Not at this meeting. The meeting that I drew the line down, that was with Mr. Baksa. Mr. Bonsell was not present at that one. Q. Okay. MR. GILLEN: Your Honor, may I approach? THE COURT: You may. MR. GILLEN: Thank you. MR. ROTHSCHILD: Your Honor, for the record, Mr. Linker's counsel is going to join us at counsel table. THE COURT: All right. I was going to mention that, and I think that's a good idea. Why don't you enter your appearance for the record. MS. PENNY: Thank you, Your Honor. My name is Jane Penny. I'm from the law firm of Killian and Gephart. THE COURT: All right, nice to see you. We'll note your appearance and allow you to interject any objections or comments on the record that you want to. MS. PENNY: Thank you, Your Honor. THE COURT: Proceed. MR. GILLEN: Thank you, Your Honor. BY MR. GILLEN: Q. Mr. Linker, I would ask you to direct your attention to page 17 of your deposition, line 21. As a preliminary matter I'd ask you, do you recall that I took your deposition on June 10th, 2005? A Page 17? Q. Yes, line 21. A Okay. Q. Okay. And before we go further, Mr. Linker, I would ask you, do you remember that I took your deposition on June 10th, 2005? A Yes. Q. And prior -- as the deposition began you were placed under oath? A Correct. Q. Do you recall that? And you had a duty to tell the truth, correct? A Correct. Q. And you understood that? A Yes. Q. And you did so? A Yes. Q. Okay. I'd ask you to look at line 21. And you'll see there is a question there, "How about, let's look at the fall of 2003; do you remember a meeting with Mr. Bonsell." Do you remember your answer? A Yes. Q. And there you indicate that the meeting did occur, correct? A Correct. Q. And is that the meeting in which you described how you taught evolutionary theory? A That was the meeting with Mr. Bonsell. That was the meeting that Jenn was our -- Jenn Miller was our spokesperson. And how I taught evolutionary theory, more specifically was with Mr. Baksa. Q. Okay. I'd ask you to direct your attention to line -- page 19, line 17. If you look at line 14 you'll see I asked you this question. "I remember more so the meeting that Mr. Bonsell -- like the people sitting around and I can believe." That was your answer, correct? A Correct. Q. If you look beneath that I asked you a question, "Tell me what you can, in brief, about what you told Mr. Baksa, about the way you presented evolutionary theory." And you continued to answer. Isn't that with reference to the meeting with Mr. Bonsell? A I didn't -- the meeting with Mr. Bonsell I did not tell anything about dividing the chalkboard. Q. Okay, then let's talk about the meeting with Mr. Baksa. During that meeting you told Mr. Baksa that at the beginning of your presentation of evolutionary theory you drew a line down the middle of the board, correct? A Correct. Q. And you wrote evolution on one side, correct? A Correct. Q. On the other side you wrote creationism, correct? A Correct. Q. And you started out saying that creationism was based on religion and writings in the Bible, correct? A Correct. Q. And you said you were not going to talk about creationism because you were not an expert in it, correct? A Correct. Q. You said your training was on the other side of the board, in science, correct? A Correct. Q. You said on this side were facts based on science, the fossil record, DNA and the like, correct? A Correct. Q. The teachers at Dover never taught origins of life, correct? A Correct. Q. And Bert Spahr was at this meeting with Mr. Bonsell, correct? A Correct. Q. And she brought a stack of legal papers relating to the discussion with Mr. Bonsell? A Correct. Q. And those related to the presentation of evolutionary theory, correct? A Yes. Q. And the presentation of creationism, correct? A Correct. Q. During the meeting with Mr. Bonsell he did not criticize your teaching method? A No. Q. When you left the meeting you felt that his concerns had been addressed? A Correct. Q. You felt that nothing would result from the meeting? A Correct. Q. From the end of 2003, from that meeting, in the fall, through the end of 2003, you had no discussions with anyone in the administration about the presentation of evolutionary theory, correct? A Correct. Q. Later on, around June of 2004, you remember being asked to review a video, correct? A Yes. Q. And you believe Mr. Baksa provided that video to you? A Correct. Q. Personally you wanted to watch the video because it talked about gaps in the theory of evolution with many prominent scientists, correct? A Correct. Q. It went through all the gaps in evolutionary theory as you knew them, correct? A That was the, truthfully, it was the first time I saw a lot of gaps. Q. Okay. Some of the gaps were gaps you actually taught about, correct? A I never taught gaps, but the gaps that they talked about were the topics that I taught in class. Q. Okay. And you thought it was neat to get the other side of the story when you viewed this video, correct? A Correct. Q. You left -- you left speaking to your colleagues and indicating that the video was good? A Correct. Q. With reference to the curriculum change, when we speak about the note that says origins of life are not taught, you knew that the teachers didn't teach origins of life, correct? A Correct. Q. You recognize that intelligent design addressed the origins of life, such that the note would prohibit the teaching of intelligent design, correct? A Correct. Q. When the curriculum change was being voted on, your thought was that you would spend zero days teaching intelligent design, correct? A Correct. Q. You recognized you weren't an expert on intelligent design, so you believed you couldn't teach it, correct? A Correct. Q. You had a concern about being sued by a parent, correct? A Correct. Q. You asked the administration, the teachers -- including you, the teachers including you, asked the administration to tell them what they were supposed to do about implementation of the curriculum change, correct? A Correct. Q. When you drew that line down the middle of the board and put creationism, and you mentioned that to students, did you know that creationism, teaching creationism, was against the law? A Correct. Q. Did you believe that you were doing something illegal? A No. MR. GILLEN: No further questions, Your Honor. THE COURT: All right. Thank you, Mr. Gillen. Mr. Walczak. CROSS EXAMINATION BY MR. WALCZAK: Q. Good morning, Mr. Linker. A Good morning. Q. You've been teaching biology at Dover Area School District for a long time now? A Correct. Q. How long have you been teaching? A This is my twelfth year. Q. And you've been teaching evolution as part of that biology? A Correct. Q. And you have taught for many years now with Jenn Miller? A Correct. Q. Rob Eshbach? A Yes. Q. Now, prior to the fall of 2003, had any administrator, any Dover Area School District administrator, questioned you about how you teach evolution? A No. Q. Had any board member ever questioned you about how you teach or present evolution? A No. Q. Had any board member or administrator questioned you about how you teach anything in biology? A No. Q. Had you ever met with a board member prior to the fall of 2003? A No. Q. Now, besides being a biology teacher, are you involved in other activities with the school district? A Yes, I'm the head wrestling coach. Q. Are you involved in other athletic endeavors or coaching endeavors in the township? A Yeah, I volunteer for football for littler kids. Q. So is it fair to say that you don't spend all of your time thinking about or teaching biology? A Correct. Q. Now, I want to turn to the fall of 2003, and I want to clarify just a little bit about the chronology of what happened at that time. Now, you had two meetings about evolution that fall? A Correct. Q. And one of them was with Mr. Baksa? A Correct. Q. And another one was with Mr. Baksa and Mr. Bonsell? A And a lot of other people. Q. Let's take the one with Mr. Baksa first. Do you remember when that meeting occurred? A No, I'm not real good on dates. Q. Well -- and I can appreciate that, because I have exactly the same problem. Let's see if we can narrow it down. Was it while school was in session? A Yes. Q. So was it before wrestling started? A I'm saying yes because I was available. Q. So September or October of 2003? A Yes. Q. And how did you find out about this meeting, do you remember? A Almost all meetings, it was either e-mailed to me or my department head would tell us we have to have a meeting, or -- I'm not sure in this meeting, it could have been an in-service day. Q. So you don't remember how -- do you remember going into the meeting whether you knew what the purpose of the meeting was? A I can't remember that. Q. And do you remember where the meeting took place? A Probably one of our classrooms. Q. And do you remember who was at the meeting? A I know Jenn Miller was there, and I'm pretty sure my department head, Bert Spahr, was there. Q. And was anybody there from the administration? A Just Mr. Baksa. Q. And there was no board members at this meeting? A No. Q. And do you remember Mr. Baksa taking charge of the meeting? A Yes. Q. And do you remember what he was curious about or him telling you why you were meeting? A He just wanted to know some information on how we taught the subject of evolution. Q. Now, biology consists of a lot of different subjects, correct? A Correct. Q. I mean, there's a lot of different theories that you teach as part of biology? A Correct. Q. And the only one he was concerned about was evolution. A Yes. Q. And what kind of questions did he ask you? A He was -- just asked how we presented it. I had no problem telling him. Q. And so did you respond -- did you tell him how you presented it? A Yes. Q. We'll come back in a little bit and talk about how you presented it. Did other teachers also explain how they presented it? A Yes. Q. Now, you then had a second meeting that fall with Mr. Bonsell. A Correct. Q. Do you remember in relation to this first meeting, when that meeting with Mr. Bonsell was? A I would say it was a short time afterwards, a week, two weeks. Q. And do you remember how you found out about the meeting? A I remember this one was during the school day, so that would have probably came from my department head. It was during second period. Q. And why is it that you remember it was during the school day? A I have a prep period second period, and if I had duty time, I would have had to get somebody to cover. I remember one of the teachers, Leslie Prall, was actually in class during that -- they had to get somebody to cover for her. Q. So this meeting was so important that you were pulled out of class -- your regular classroom duties? A Well, it was prep period for me so -- Q. But another teacher was actually pulled out -- A Yes. Q. And Ms. Prall is a biology teacher? A Correct. Q. And had you gotten warning of this meeting in advance? A Warning for days, no. I think I got it pretty quick, maybe the day before, maybe the morning. Q. And where was this meeting, do you remember? A It was in the office, the principal's -- one of the conference rooms of the principal's office. Q. Do you remember who was at that meeting? A I know Jenn Miller was present, she was beside me; Mr. Bonsell, Mr. Baksa, Mr. Rehm, Bert Spahr, Mr. Miller, which was our assistant principal, he's presently our assistant principal; Leslie Prall, and the only one I'm not sure of is Mr. Eshbach. Q. And who is Mr. Rehm? A Mr. Rehm was a science teacher. He was the STS teacher, science/technology, it was more environmental. It was more on the environmental side. We still have that class. Q. And this was the first time I think you said you had ever met with a board member? A Correct. Q. And did one individual take charge of running the meeting or moderating it? A Mr. Baksa pretty much introduced us and introduced Mr. Bonsell. And I just remember him saying he's just interested in how you teach the subject of evolution. Q. Do you remember him saying those words? A Yes, pretty similar to that. Not exact words. Q. And did the teachers identify a spokesperson for them that day? A For the biology department we identified Jenn Miller as our spokesperson. Q. And do you remember what kind of questions were asked of Ms. Miller? A By whom? Q. By either Mr. Baksa or Mr. Bonsell. A I think Mr. Baksa just said we're going to go around and you can express how you teach the subject of evolution. And I remember Jenn saying well, I'm going to talk for the biology teachers, so it's not everybody. Q. And do you remember whether Mr. Bonsell asked any questions? A I can't remember any specific questions, but I know Jenn Miller had to repeat some of what she told him, because it had to do with the origin of species compared to origin of life. Q. And can you tell us what the difference there is? A Origin of life is where life came from, came about, when it came about. Origin of species is how, how a species becomes another species, for lots of different reasons. Q. And do you recall what Ms. Miller explained to Mr. Bonsell? A Pretty much what I just said. Q. And -- A In order -- Q. And that was fine? A Yeah, that was fine. Q. And did you add anything to what Ms. Miller was saying or what she had told Mr. Bonsell? A No. If I remember correctly, he looked at me and said, he said, is that how the biology teachers teach it. And I remember him looking at me and I said yes. Q. Do you remember saying anything else at that meeting? A Huh-uh. Q. Do you remember intelligent design coming up at that meeting? A No. Q. Do you remember creationism coming up at that meeting? A No. Q. Now I want to go over with you about how, if at all, your presentation of evolution changed after these two meetings, the one with Mr. Baksa, one with Mr. Bonsell. So what I'd first like to do is go over how you had been teaching evolution at the time before these meetings. Okay. Is that clear? A Clear. Q. And as Mr. Gillen discussed with you, you apparently drew a line on the chalkboard? A Yes. Q. And in this -- is this the first thing you did when you introduced the subject of evolution? A Correct. Q. And as I understood your testimony, on one side you wrote creationism, and on the other side you wrote evolution? A Correct. Q. And then what did you say about the creationism side? A Creationism was based on Bibles, religion, Biblical writings. And I remember saying that we're not going to cover this side because I'm not certified, and it's illegal for me to talk about that side in a public school. And then I said, this is the side we're going to talk about, the evolution side. And then the facts on this side were things such as fossil records, DNA, and then I would go into what does everybody think evolution is. Q. And at any time did you either tell or suggest to students that creationism was a scientific theory? A No, I might have said it was a theory. Q. Not a scientific theory? A No. Q. And you certainly didn't teach creationism? A Correct. Q. And beyond what you just told us about what you said to the students, did you bring up creationism again in the classroom? A No. Q. And did you ever get questions from students about creationism? A They could have asked a question but I told them I couldn't talk about it. Q. And that was your practice before the meeting with Mr. Baksa, and then the meeting with Mr. Baksa and Mr. Bonsell? A Correct. Q. Now, after this meeting, did you stop doing this? A Yes. Well, I stopped dividing the board in half and writing creationism on one side. Q. And now, they didn't tell you to do that, right? A No. Q. But you stopped anyway? A Um-hum. Q. Why did you do that? A I just felt there was some controversy, because I had to go to two meetings, and for like the first time, tell how I taught a particular subject. I didn't know if I was really doing something wrong with writing that creationism word on the board, so I just figured I would stick to the exact book pretty much. Q. And before your meetings, these two meetings in the fall of 2003, did you used to show a videotape as part of your discussion on evolution? A I've showed a lot of tapes, actually. Q. And do you find videotapes are an effective way to teach students? A Yes. Q. And, I mean, this is kind of the MTV generation, but so you find students pay particular attention to videotapes? A Yes, if they're good ones. Q. And the tape that I believe you showed before the meetings in the fall of 2003 was a Discovery Channel tape? A Yes, a lot of them were Discovery Channel. Q. And have you found that to be a good and reliable source? A Yes. Q. And something that is accessible to the students? A Correct. Q. And do you remember the name of the tape you showed? A One of them -- I show more than one. The exact titles I'm not sure. Some were of common descent, fossil records, others were of evolution and DNA. Q. Did you show one entitled Apes to Man? A Probably, to some classes. I remember that title because it's always -- somebody says Apes to Man, and that's the controversial statement that kids think evolution is right away. And it's a good tape because it shows that apes are not from man. Q. So you did, prior to the fall of 2003, on occasion show those tapes? A Yes. I'm not sure if I showed that one every semester or, you know, it all depended on timing too, how much time. Q. And after these two meetings in the fall of 2003, did you stop showing those tapes? A Yes, I don't show any tapes on that subject anymore. Q. You still show tapes on other subjects? A Correct. Q. But not on evolution? A No. Q. Now, are you aware of any other biology teachers changing the way they teach evolution after these two meetings? A I know Jenn Miller used to do a time line, there was a time line on, probably origin of species, and I don't think -- she doesn't do that anymore because they used to do it in the hallway. Q. So she would go out in the hallway and -- do you know what it is she had students do? A Yeah, like going on a register tape, the thin tape, they would lay it all through the hallway, and because of how many millions of years things, origin of species and other origins, and they would actually get dates and draw and write in the actual name of the species. Q. And one of the things I would assume that this exercise did was to really emphasize how old the earth is and the huge period of time over which change has occurred? A Correct. Q. But after these meetings she stopped doing that? A I -- yes, because I don't see her -- I don't know if I ever asked her if she did, I just don't see her any more doing it. Q. Now, I want to talk a little bit about the curriculum change. And let me just, so I understand, you were not particularly involved or involved at all in discussion of the biology textbook change? A Just to view some of the copies that we could get. Q. But at some point did you just tell Ms. Miller that since you all taught the subject in a similar way, that she could just sort of speak for you? A Correct. Q. So you didn't attend a lot of the meetings that -- in early, mid 2004 about the biology textbook? A I don't think I attended any of those. Q. So the -- the next time that you kind of get drawn into the saga here was around the curriculum change? A Correct. Q. And were you involved in meetings around the curriculum change? A Yes. Q. And you met with other teachers to discuss it? A Yes. MR. WALCZAK: Matt, could you put up P-84, please. I think it's P-84-B. May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. I show you what's been marked as plaintiff s exhibit P-84B. And if you could turn to the second page of this exhibit, Mr. Linker. Do you recognize this? A Yes. Q. Now, the State of Pennsylvania made some changes to its standards on biology a few years ago, is that right? A Correct. Q. And was it you and Ms. Miller who were asked to review this curriculum plan and make sure that it was in accord with the new state standards? A Pretty much had to write the whole thing. Q. And so you had actually rewritten the standards or made some changes to them within the past few years? A Yes. Q. Do you remember when that was? A That was over a series -- maybe even more than one year, because we did a lot of it during our in-service time. Q. Now, as you look at what's been marked as plaintiff's exhibit 84B, the changes that you all had made or eventually approved, were in the second column, down to the second to last line, is that correct? A Correct. Q. So that's what the science teachers had adopted, and what the -- and I guess what the board had eventually approved? A Correct. Q. So the change we're talking about is that last one in the second column. A Yes. Q. Now, it reads here, "Students will be made aware of gaps in Darwin's theory and of other theories of evolution." Is that something that teachers wanted to add? A Not necessarily. We just wanted to keep it the same as it was prior to this. Q. So you really didn't want to add anything to the curriculum here? A Correct. Q. And so you were doing this because you were getting pressure from the school board? A I don't know if you want to call it pressure, but they kept bringing in different papers and saying that they wanted it this way. Q. So you were reacting to what either Mr. Baksa or somebody was bringing to you? A Correct. Q. Now, in this draft, do you recall whether this is in fact the compromise that the teachers had agreed to? If you look at the last paragraph in column two, does that look familiar? A Yes. Q. Now, it says, "Students will be made aware of gaps in Darwin's theory." So you all had agreed to the word "gaps"? A Yes. Q. Were you teaching gaps in Darwin's theory? A No. Q. But you weren't teaching evolution as a fact anyway, right? A No, I mean, there are no -- I mean -- Q. Theories aren't facts, right? A I don't use the word "fact". Q. And were the teachers opposed to using the word "problems" in that sentence? A I don't remember with the "problems," I don't remember that being a big issue. Q. Now, I don't see the word intelligent design there. Were the teachers opposed to using the word intelligent design? A Yes. Q. Was there any disagreement among the biology teachers about that? A No. Q. So there wasn't one biology teacher who said, you know, wait a minute, this is an alternative theory, maybe we should be teaching this? A No. Q. I want to focus on what happened immediately after October 18th, which was when the curriculum change was passed by the board. Did you and your colleagues have concerns about what the curriculum change meant for the teachers? A Yes. Q. And what was that concern? A If it's in the curriculum, me, personally, if it's in the curriculum, we should be teaching it. And there was something in there that we didn't want to teach. Q. And at some point after October 18th, did you -- did the science or biology teachers have a meeting with Mr. Baksa to talk about how you would address this curriculum change? A We had several meetings after that. Q. And at one of these meetings did you raise a concern that you didn't know anything about ID and how you should teach this? A Correct. Q. And did Mr. Baksa, in fact, respond to you that maybe we'll have to get you seminars or classes to learn about ID? A Yes. Q. And this was after the curriculum was passed, right? A I would say yes. Q. So -- so did it appear to you that the school district actually was going to give you instructions so that you could teach intelligent design in the classroom? A At least to know what it was. Q. And then at some point after that the notion of reading a statement came up? A Correct. Q. But initially, right after the curriculum change was made, they were trying to figure out how you were going to present this in a classroom. A I don't think it was ever -- we asked that question, but it was never told directly to us. Q. I want to ask you about your understanding of intelligent design. Had you ever heard the term before this controversy in the fall of 2004? A No. Q. So it's not something you had ever taught? A No. Q. Do you know whether any of your fellow biology teachers had ever taught it? A No. Q. Do you know biology teachers in other school districts? A Yes. Q. Do you know whether any of them have ever taught intelligent design? A Not the ones that I've personally talked to. Q. When did you first learn about intelligent design, do you remember? A I think mine, me personally, was when I saw these curriculum changes come in front of me. Q. Now, had you ever, prior to fall of 2004, had you ever heard of the textbook Of Pandas and People? A I think I saw that from these papers also. Q. And at some point did you get a chance to look at Of Pandas and People? A Yes. Q. And you didn't -- you weren't asked to review that in the summer of 2004, were you? A No. Q. You weren't involved in that whole textbook dispute? A That was summertime. Q. And that was just fine with you. And do you remember your -- THE COURT: Good answer. BY MR. WALCZAK: Q. Did you study Pandas when you finally got it or did you just kind of skim it? A I remember skimming it -- reading different parts of it, not too much. Q. And was that your first exposure to intelligent design? A Yes. Q. And do you remember what your reaction to the book was? A I remember it was tough for me to read. I remember reading a section one or two more times to try to get a picture in my mind. And then I remember going to another section of the book, and -- which I think it was the first chapter, and I said well, maybe this will be a little easier, and it said the origin of life. And I thought, well, we don't teach that; and that's pretty much where it ended. Q. And did you see in the book where it talked about an intelligent designer or a master intellect? A Yeah, that's in the first part. Q. And what was your reaction to that? A Intelligent designer, higher power, I thought -- I thought of God. Q. So that was your immediate reaction? A Yes. Q. Now, when you were still in school, not as a teacher but as a student, where did you get your degree at college? A York College undergrad. Q. And what was your major? A Secondary Ed. Biology. Q. Did you take science education classes? A Yes. Q. Did you take a school law class? A School law, yes. Q. And did they teach about separation of church and state there? A I'm sure it was some part of it. They were -- school law was mostly court cases dealing with everything a teacher could get in trouble for. Q. And did you think that teaching intelligent design might get you in trouble? A Yes. Q. Why is that? A Because in my mind it had to do with God or religion, and I knew you weren't allowed to do that in a public school. MR. WALCZAK: Just a few more questions here, Mr. Linker. Matt, if you could put up plaintiff's exhibit 121. May I approach, Your Honor? THE COURT: You may. BY MR. WALCZAK: Q. Mr. Linker, I show you what's been marked as plaintiff's exhibit 121. Do you recognize this document? A Yes. Q. What is it? A It's the document that we signed opting out of reading the statement. Q. And is this a document that you reviewed before you signed onto it? A Yes. It was explained to us. Q. And were you forced to sign this in any way? A No. Q. And so did you agree with what was contained in this letter? A Yes. MR. WALCZAK: Matt, if you could highlight in the first paragraph starting with, "this request." BY MR. WALCZAK: Q. In the middle of that first paragraph, and let me just make sure I understand, this -- this was the teachers request to not read the four-paragraph statement that had been developed by the board and the administration. A Correct. Q. And in that sentence you say, "This request is based upon our considered opinion that reading the statement violates our responsibilities as professional educators as set forth in the Code of Professional Practice," et cetera. Did you believe that was true, that for you to read that statement would violate your Code of Professional Ethics? A Yes. MR. WALCZAK: Matt, if you could highlight the next paragraph there. BY MR. WALCZAK: Q. Could you read that paragraph into the record, please, Mr. Linker? A "Central to teaching act and our ethical obligation is the solemn responsibility to teach the truth. Section 235.10; number two, guides our relationships with students and provides that, the public educator may not knowingly and intentionally misrepresent subject matter and curriculum." Q. Is that something that you were also taught in science education classes? A If I can remember that far back, yes. MR. WALCZAK: And Matt, if you could then highlight the paragraph below that. And the first sentence there says, "Intelligent design is not science." Do you agree with that? A Correct. Q. As you sit here today, you still believe that's true? A Yes. Q. And then the next sentence says, "Intelligent design is not biology." Do you still feel that's true? A Yes. Q. "And intelligent design is not an accepted scientific theory." Do you believe that's true? A Yes. MR. WALCZAK: And Matt, if you could turn to the next page. BY MR. WALCZAK: Q. And Mr. Linker, if I could just ask you to read that -- that first paragraph on the second page of plaintiff's exhibit 121, please? A "I believe that if I, as the classroom teacher, read the required statement, my students will inevitably and understandably believe that intelligent design is a valid scientific theory, perhaps on par with the theory of evolution. That is not true. To refer the students to Of Pandas and People, as if it is a scientific resource, breaches my ethical obligation to provide them with scientific knowledge that is supported by recognized scientific proof or theory." Q. And you agreed with that in January of 2005? A Correct. Q. Do you agree with that today? A Correct. Q. Do you believe that if you were required to teach students in your biology class the theory of intelligent design, that you would be bringing religion into the classroom? A Yes. MR. WALCZAK: No further questions. THE COURT: All right. Thank you, Mr. Walczak. MR. GILLEN: Thank you, Your Honor. REDIRECT EXAMINATION BY MR. GILLEN: Q. A few questions, Mr. Linker, by way of follow up. We've discussed the video that you saw in the June 2004 period and Mr. Walczak just asked you a little about gaps. When you saw the video about gaps in evolutionary theory, you knew there were gaps, correct? MR. WALCZAK: Your Honor, objection. Outside the scope of the cross. I did not ask him about this video. MR. GILLEN: He asked him about gaps. THE COURT: Well, no, your question gets into what's in the video. You'll have to rephrase. It is beyond the scope, so I'm going to sustain the objection. BY MR. GILLEN: Q. Mr. Linker, you were teaching students at least something about gaps, correct? A No. Q. I would ask you to look at your deposition, page 46, line 22. Do you see that I asked a question and you gave an answer. Let me read it for you, line 22. Speaking about the video you say, "It went through all the gaps that we actually even teach, some of it talked about." Were there gaps you actually taught? A No, that's the topics that we taught, that I taught in class. The video showed gaps in the topics that I taught. But I never taught gaps, and that was truthfully the first time I seen someone present gaps. That's what I meant by that sentence. Q. Well, and I accept your answer today. But you thought it was neat to see those gaps, correct? A Yes. Q. Now, Mr. Walczak questioned you about the statement, the truth of the matter is, you really don't know when the statement first came up, do you? A Which statement? Q. The statement that was read to implement the biology change; you don't know when the idea of the statement first came up? A No. Q. You said that when you saw the term intelligent designer, you thought it was God, correct? A Correct. Q. That was your interpretation, correct? A Yes. Q. You didn't read the whole book of Pandas to see whether the book took that position, did you? A No. Q. You've testified to your belief that intelligent design is not science, correct? A Correct. Q. But you didn't even read the whole book of Pandas, correct? A Correct. Q. And you don't have a Ph.D. in science? A No. MR. GILLEN: No further questions, Your Honor. RECROSS EXAMINATION BY MR. WALCZAK: Q. Could you just tell us what your education background is? I know you mentioned that you had, I guess it was a biology education degree from York College? A Yes, Secondary Ed. Biology from York College, and then I have 36 graduate credits after that. It's called a masters equivalency because it's not an actual program. Q. And what kind of courses did you take for that masters equivalency? A Probably three quarter of them -- three quarters of them dealt with biology/environmental. Q. And were you taught intelligent design in any of those classes? A No. MR. WALCZAK: No further questions. THE COURT: All right, sir. That completes your testimony. You may step down. THE WITNESS: Thank you. THE COURT: Liz, do we have any exhibits? THE DEPUTY CLERK: No exhibits. THE COURT: It's quarter of 12. I don't know what your pleasure is. I suppose we could get started, but I'm not so sure we shouldn't start an early -- you're going to take the expert, Mr. Muise? MR. MUISE: Yes, Your Honor. THE COURT: We could break now, I would suggest until one o clock, and then pick the expert up at one o clock. MR. GILLEN: That makes sense because I have to do some setup and check the electronics and so forth. THE COURT: That will give us a nice long afternoon of expert testimony. MR. MUISE: You're going to love it, I guarantee. THE COURT: Forwarned is forearmed, for all of those who visit this courtroom today. All right. We will recess at this point until 1 p.m., and we will pick up the witness -- the expert witness at that time. We'll be in recess until one. THE DEPUTY CLERK: All rise. (11:48 a.m., court adjourned.) Kitzmiller v. Dover Area School District Trial transcript: Day 20 (November 3), PM Session, Part 1 THE COURT: Be seated, please. All right, good afternoon to everyone. We have the first witness then of the afternoon. MR. MUISE: Your Honor, I know there was a discussion during the lunch break over the exhibits, and if we perhaps maybe could move for those admissions, I believe there's no objections on any of the exhibits. THE COURT: Do you want to do them now? All right, sure. MR. MUISE: So it might be worthwhile to get that housekeeping measure taken care of. THE COURT: All right, I'll just read the numbers and not describe them if you think there's no objection, and you can for the sake of speed, D-4, D-5, D-7, D-9, D-10, D-19, actually these are all defendant's, 20, 21, 24, 25, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 54, 164, 284, 286, 287, 85, 86, 100, 116. What did I miss on the defendant's exhibits? MR. MUISE: I believe that's the complete list. I don't think Mr. Gillen reviewed -- THE COURT: Say again? I'm sorry. MR. MUISE: Yes, I believe that was the complete list, Your Honor. That's all the exhibits. MR. ROTHSCHILD: Your Honor, you said 285, and I didn't have that on my list. So -- THE COURT: No, if I said it I misspoke. and 286. If I said that I misspoke. MR. ROTHSCHILD: And then I thought there was an Exhibit 50, and I don't remember what it is, but I have that on my list. THE COURT: What is D-50? Why don't we check? MR. ROTHSCHILD: D-50 is -- COURTROOM DEPUTY: It's already in. It's already in. MR. ROTHSCHILD: My mistake. Thank you. THE COURT: You got to get up pretty early to keep up with Liz, Mr. Rothschild. MR. ROTHSCHILD: 5:20 this morning, Your Honor. THE COURT: Anything else? Any objections? MR. MUISE: That's it, Your Honor. MR. ROTHSCHILD: No objection. THE COURT: All right, they're all admitted the. Cross, P-817, P-91, and P-179. Any additional exhibits that I've missed? And are you moving for those, or are you moving those in I should say. MR. ROTHSCHILD: Those we are moving in, and if you could just give me just one moment, I believe that's everything. (Brief pause.) MR. ROTHSCHILD: That's it, Your Honor. THE COURT: All right. No objection? All right, then they're admitted as well. All right. Having covered that, we're ready. MR. MUISE: Thank you, Your Honor. Defendants call Dr. Scott Minnich. (Dr. Scott Minnich was called to testify and was sworn by the courtroom deputy.) COURTROOM DEPUTY: State your name, and spell it for the record, please. THE WITNESS: My name is Scott A. Minnich. S-C-O-T-T, middle initial A, M-I-N-N-I-C-H. DIRECT EXAMINATION BY MR. MUISE: Q. Good afternoon, Dr. Minnich. A. Good afternoon. Q. Your Honor, may I approach? THE COURT: You may. (Brief pause.) Q. Dr. Minnich, I've just provided you with two binders. One of them is a black binder marked as exhibits, which have some of the exhibits that we'll be using for the course of your testimony to assist you in your reference. In the blue binder is a copy of the demonstrative exhibits that we'll be using through the course of your testimony again to assist you from the witness stand. Sir, where do you reside? A. In Moscow, Idaho. Q. And, sir, I'd ask you if you could please open up that exhibit binder, the black binder if you could, to Exhibit 201-A, as in Alpha. It should be under Tab 1? A. Got it. Q. Is that a copy of your curriculum vitae, sir? A. It is. It's an abbreviated form for a grant that was submitted. Q. I want to, I want you to refer to it as we go through some of your background and qualifications to give expert opinions in this case. Sir, what is your profession? A. I'm an associate professor at the University of Idaho in microbiology. Q. Are you a tenured professor? A. I am. Q. And you said you teach at the University of Idaho? A. Correct. Q. How long have you taught there? A. Since 1989. Q. Where else have you taught? A. I was at Tulane for a year previous to that. Q. And what subjects have you taught at the University of Idaho? A. General microbiology for undergraduate majors. Food microbiology, molecular genetic techniques. I currently teach a 600 level course, six credit course in infectious disease for first year medical students. Q. And what other subjects do you presently teach? A. Infectious disease and general microbiology. Q. You've been teaching science at the college and graduate level for approximately eighteen years, is that correct? A. Correct. Q. You said you're a microbiologist. Could you explain for us what it is that you do as a microbiologist? A. Well, the primary focus is microorganisms, in my particular case pathogenic organisms or infectious disease agents. All the biological sciences, you know, the disciplines have kind of bled together. So we do molecular biology, biochemistry, and are even doing a little bit of cell biology, but primarily molecular genetics is my bread and butter. Q. And how would that different at all with say a biochemist? A. Again, you know, those are somewhat artificial distinctions. I mean, we're more focused at genetic programming of organisms and how they respond to their environment, biochemists may be looking at specific, you know, organelles or suborganelles and how they're assembled, and we do a little bit of that as well. Q. How would a microbiologist then differ from a cell biologist? A. A cell biologist is looking at more global effects, you know, cell responses, involves generally a lot of microscopy, and we don't do a lot of that. Q. And I know during the course of your testimony we're going to be using some difficult scientific terms and so forth, so I would ask if you could, we need to speak slowly and loud and clearly so our court reporter here can do his best job taking all this down, okay? A. I'll do my best. Q. What is the name of the department that you teach in at the University of Idaho? A. My department is microbiology, molecular biology, and biochemistry. Q. Does that department then include all three of those disciplines that we discussed, cell biologists, biochemists, and microbiologists? A. Correct. Q. Now, sir, in your work and in your profession do you conduct experiments? A. I do. Q. What is the focus of your experimental work? A. Right now we're focused on I'd say the discipline of host parasite interactions. So we work on bacterial infectious agents and how they adapt during the infectious process. Q. Does that focus on the bacterial flagellum and the type three secretory systems? A. It is. We've worked on that for the last ten years in terms of these are two systems that in our organism the genus Yersinia have opposing regulations. So outside the host the cells build a flagellum. Once they inspect a mammalian host, flagellum biosynthesis is turned off and you turn on the weapons systems that these organisms have. So we've used those two aspects kind of as opposing markers to follow regulatory events. Q. So the focus of your experimental work, I assume also the focus of your research, and that would include the bacterial flagellum and the type three secretory systems? A. Correct. Q. Sir, do you incorporate intelligent design into your experimental and research work? A. I think the principles of intelligent design are what we would call reverse engineering would be, you know, a very prominent part of what we do. Q. And we're going to get into a little bit more detail about that later in your testimony. Sir, I want to talk about your education. What degrees do you hold and where did you get them from? A. I have an undergraduate degree, a BS in bacteriology and public health from Washington State University. Q. What year was that, sir? A. Good question. 1975. Q. If you want to look at your CV to help refresh -- A. Okay. Q. Okay, go ahead. A. I obtained a masters degree in microbiology from the University of Idaho, and a Ph.D. from Iowa State University in 1981 in microbiology. Q. Now, when you got your Ph.D. in microbiology, what was the dissertation that you wrote? A. My research dissertation was on the development of a rapid immunoassay for the detection of salmonella. So it was really the first application of enzyme immunoassays, which are kind of a standard diagnostic procedure now, to detecting salmonella. Q. Would you give us a thumbnail sketch of what this was about? A. Yeah, it's an antibody based assay, and our goal was to make something that was very rapid. So the problem that we had, you know, particularly in the food industry that it could take up to a week using conventional microbiological techniques to verify, detect and verify that salmonella was present. This was a rapid screening procedure that reduced that time period to about 24 to 36 hours. So for the food industry there was, you know, incredible savings in terms of warehousing costs before food is released. The FD A has zero tolerance with respect to salmonella in foods. So the test was developed as a prototype as a graduate student, and then through the next four years it was commercialized and applied to the food industry. Variants of that procedure are still used today. Q. You got to see your work go from the inception of an idea through the experimental all the way to the commercialization of the idea? A. Correct. Q. Did this work also include work on the bacterial flagellum? A. It did, because the antibodies we were using were directed against the flagellar filament, which is distinctive for the salmonella. We had to have an assay that incorporated the detection of over 2,400 different what we call serotypes, or variants, of salmonella. Q. Sir, do you belong to any professional memberships? A. I do. I'm a member of the American Association for the Advancement of Science and the American Society for Microbiology. Q. I want to talk about some of you, we have listed here positions and honors. That's how you have it listed in your CV. You were on a sabbatical from October of 2003 to May of 2004, is that correct? A. That's correct. Q. And for what purpose? A. I was a subject matter expert for the Defense Intelligence Agency in Iraq. So I served with the Iraq Survey Group looking for weapons of mass destruction. Q. What was the purpose of the need for a microbiologist to be part of this survey group? A. Well, that was the focus of the Iraq Survey Group based on the intelligence that Iraq had reestablished both their chemical and biological weapons, or their nuclear, but we weren't part of that aspect, but their programs. So our job was to travel around the country and look for these materials. Q. How were you selected for that position? A. I had a phone call in September of 2003, actually August of 2003, asking if I had any students in my laboratory that had military experience. In part because we're registered with the Center of Disease Control to work with select agents, and that requires now with the new regulations after 9/11 that everybody in my laboratory has FBI clearance, and so I think we were on a checklist of people that worked with organisms that were of concern and, you know, my remark was no, I didn't have any students that fit that category, but in subsequent conversations, you know, I was intrigued by the idea, and volunteered. Q. And why did you volunteer? A. I volunteered because I grew up in a military family. Both my father and father-in-law are West Pointers, and it's an area that I'm very interested in. Obviously, I mean, it's work that we do, and it was an opportunity to do field work and serve my country at the same time. Q. Sir, you said you've been teaching at the University of Idaho since 1989 in microbiology, correct? A. Right. Q. Is that correct? A. That's correct. Q. You also were a post-doctoral fellow at Princeton University from 1984 to 1987, is that correct? A. That's correct. Q. Could you tell us what that was? A. This was after my doctorate, working in a laboratory, the primary focus was developmental regulation of flagellum biosynthesis, and one of the model organisms for this system, caulobacter crescentus. Q. So during this period of research you worked on flagellar biosynthesis, is that correct? A. That's correct. Q. And you also were a post-doctoral fellow at Purdue University from 1981 to 1983, is that correct? A. That's correct. Q. And what did you do there? A. There I was working in a molecular genetics laboratory. The project focused on cloning and studying the regulation of a toxin made by bacillus thuringiensis. So that sounds kind of esoteric, but this is the BT toxin that was put into plants by Monsanto. So really the first application of genetic engineering in agricultural crops. So we cloned the gene, studied its regulation, we handed it over to Monsanto, it was modified, put into maize, soybeans, you name it, cotton. Q. Now, when you were at Purdue University doing this work did you also engage in any collaborative efforts with other faculty at Purdue University? A. Yes. There was an individual in the food science department, Dr. Swaminathan, that had worked on for years on salmonella detection. We knew each other's work, so we started collaborating. And I actually took my graduate work ideas that he had as well and took our assay to the next level. So it was a very profitable interaction. Dr. Swaminathan I think is just retiring this year as branch chief for enteric disease at the Center for Disease Control. Q. During that collaborative effort did you work on the bacterial flagellum? A. We did. Again this was the focus of what we called the antigen that we were trying to detect. Q. Now, you've published articles in peer reviewed science journals, is that correct? A. I have. Q. Approximately how many? A. 25 to 30. I'm missing a few on here, but -- Q. And what are some of the journals that you've published in? A. Proceedings of the National Academy of Science, Journal of Molecular Biology, and Molecular and Microbiology, and Journal of Bacteriology, which are really the primary journals for what I work on. Applied Environmental, there are a few others. Q. Has there been a focus of your peer reviewed science journal articles? A. Over the last ten years we've focused on flagellum biosynthesis and type three secretory system regulation and pathogenic organisms. Q. And again this is the focus of your experimental work? A. Correct. Q. Through your experiments, your research, and your writings have you become familiar with the scientific evidence as it relates to Darwin's theory of evolution? A. I have. Q. Would it be fair to say that your focus is principally on the molecular level? A. Correct. Q. So you're a fellow with The Discovery Institute, is that correct? A. I am. Q. And what does that mean? A. My name is on one of their web pages listed as a fellow. So it's more of a networking opportunity, you know, for people that are interested in this area of intelligent design. Q. Are you an employee of The Discovery Institute? A. No. No, I'm not. Q. Do they have any control over the work that you do? A. None whatsoever. Q. Do they direct your work? A. No. Q. So is it fair to say that you're not on The Discover Institute payroll? A. I'm not. Q. Has anyone ever accused you of that? A. Yeah, there was an incident in 2003 in May when Robert Pennock was invited to give a seminar -- MR. HARVEY: Objection. Relevance, hearsay. MR. MUISE: Your Honor, we'll all say we've been hearing a lot of testimony today, or throughout the course of this trial, vilifying Discovery Institute, you know, talking about this grand agenda. Some of it's been expressed by their experts. I'm going through his qualifications and I'm just demonstrating that a lot these accusations aren't true, that these are independent scientists who are working on this for scientific reasons. THE COURT: But he's not being offered to defend The Discovery Institute. MR. MUISE: That's correct, Your Honor, but the fact is in terms of his, in terms of his background and qualifications, I mean this is how they've been really vilifying these individuals -- THE COURT: I say again, I understand that, and in another time and in another place he might be competent to talk about how as a fellow The Discovery Institute ran into some difficulties, but for today I think it's stipulated, his credentials are stipulated to, and now we're going to get sidetracked on why his bona fides as a fellow at The Discovery Institute were called into question, and I just don't think that's relevant. I understand, it is not central or necessarily important to me that we engage in an independent debate on The Discovery Institute. It's just not helpful to me, and I'll tell you that. So why don't we proceed. I'll sustain the objection. BY MR. MUISE: Q. Sir, you're an advocate for intelligent design? A. I am. Q. Is Darwin's theory of evolution inconsistent with your private religious beliefs? A. No. Q. Do you have a religious equipment to intelligent design? A. I don't. Q. Why did you get involved with intelligent design? A. I read Mike Behe's book soon after it was published, and of course he uses the bacterial flagellum as a paradigm for, you know, his term irreducible complexity, and I had arrived at some of these same conclusions. So it intrigued me, there was a friend I had in the physics department that was interested in these questions as well. So I think together we started looking into these questions and what intelligent design was and what it claimed, and so it kind of blossomed from there. Q. So how long have you been involved with or associated with intelligent design? A. Probably since about 1997, `98, or so. Q. Have you ever been involved with creationism or creation science? A. No. Q. Why not? A. You know, I'm old enough that I was around during those debates, and I never participated because I don't agree with the approach. I don't think you mix religion with your science. I don't think you use Genesis as a filter of how you interpret your scientific data, you know, empirical evidence. Q. So what is your commitment then to intelligent design? A. I think it fits. I think it's a good paradigm. We can discuss that as we go through some of the slides, but it's consistent with the empirical evidence and standard scientific reasoning that we employ. Q. Do you perceive efforts on the part of opponents of intelligent design to equate intelligent design with creationism? A. I think there is. You know, often times when it's mentioned in the press it's referred to as intelligent design creationism, anti-evolutionism, you know, these types of terms are often equated, and I think that's a misrepresentation. Q. Sir, is there unanimity amongst biologists regarding all aspects of Darwin's theory of evolution? A. No, there isn't. Q. Is intelligent design different in that respect? A. No. There's a broad spectrum of people in terms of, you know, how they interpret the data. Q. Does intelligent design continue to develop? A. Yes. I mean, it's I think developed quite a bit since my involvement, and maybe if you trace it back to the early 90's. Q. Now, sir, you testified that you authored numerous peer reviewed articles, many in scientific journals, and I believe you testified the one area in which you published the most was on the topics of molecular biology and in the past ten years specifically the bacterial flagellum and the type three secretory system. Is that fair? A. Correct. Q. Have you authored any articles appearing in peer reviewed science journals that make intelligent design arguments? A. Not directly. Q. You say not directly. Are there articles that provide support for intelligent design arguments that you've published? A. I think so. I think all of them do. I think they're, you know, dissecting intricate components of subcellular organelles that support the general contention of irreducible complexity and design. Q. I want to ask you if you agree with this testimony that was provided by Dr. Miller. He testified that, "It is a standard scientific practice for scientists to point to the scientific literature, to point to observations and experiments that have been done by other people in other laboratories, have been peer reviewed, have been published, and to cite to that evidence, cite to those data, and to cite to those experiments in their arguments." Do you agree with that? A. I agree with that. That's standard practice in scientific, you know, endeavors. Q. And is that what intelligent design is doing? A. Yes. Q. This is something that scientists do routinely? A. Oh, yes. It's critical. Q. I want to ask you if you also agree with Dr. Miller that the question is not whether you or any other scientists have done experiments in your own laboratories that have produced evidence for a particular claim, the question is whether or not the inference that you or other scientists drawing your analysis from that data are supported. Do you agree with that? A. I do. I think, you know, that's part of the scientific endeavor. I mean, either you're doing your own experiments and the data that you generate you try to fit into the general knowledge that's available, whether it's consistent or inconsistent, and you can look at other people's data through this published and view it perhaps from a different perspective and come up with a new interpretation. And that's standard. I think Watson and Crick are examples of that in terms of doing minimal experiments, but at the same time taking information from various sources and melding it into an explanatory model, and so that can be profitable. Q. Explain for us what you -- you mentioned Crick and Watson. What are you referring to? A. Well, the fact that, you know, they really didn't do any wet lab experiments. They took Shordhop's work from Columbia University, Rosalyn Franklin's x-ray crystallography data coordinate in terms of the structure of nucleotides and built models and came up with a double helical structure, so -- Q. And those are the two that received the Nobel prize for -- A. Right. Q. -- developing the architecture I guess of the double helix, DNA? A. Right, solving instruction. Q. Now, is this method, this process, is this what intelligent design advocates are engaged in? A. Well, I don't want to equate it with, you know, in terms of something that is critical as a double helix, but at the same time we're looking at across the landscape of empirical data and asking the question does it fit with the Darwinian mechanism of mutation and natural selection to generate, you know, the deep diversity of life. Q. Now, you testified previously that you though do experiments that you believe supports intelligent design? A. I do. I do. Q. Are there peer reviewed articles that make arguments for aspects of intelligent design that you're aware of? A. I think there are around ten of them now that are in the literature that address this, I'm not sure of an exact number, but within the last couple of years. Q. Do you perceive a bias against publishing intelligent design articles in science journals? A. I think there's -- MR. HARVEY: Objection, Your Honor. Speculation. MR. MUISE: I'm asking for his perception, Your Honor. THE COURT: I think it's a fair question. I'll overrule the objection. You can answer. THE WITNESS: I think that's on public record, there's a paper published by a journal from the Smithsonian Institute last summer by Stephen Meyer. Brixter and Berg was the editor, and I think it was a -- MR. HARVEY: Your Honor, objection. Hearsay. He has no firsthand knowledge of it. THE COURT: Well, the question was a yes or no question. The answer was yes. That was accepted. The objection was overruled on that basis. If he gets into the particulars he may be getting into hearsay. MR. MUISE: But he testified as to perception. If he has an understanding, he said it's a public record. I mean, you're saying that -- THE COURT: A newspaper article is not a public record, and you've certainly argued vigorously in this case that it's not, and we've spent a lot of time on that. Mr. Muise. You want to tell me now it's a public record? We can spare a lot of argument tomorrow if it is. MR. MUISE: Your Honor, I mean, a public record not in the sense of I think the term that you're using with the hearsay. THE COURT: No, it's not in the way that I'm using it. It's the way that we've argued it. Don't insult my intelligence. It's not. The objection is sustained. MR. MUISE: I understand, Your Honor. And I certainly did not intend to convey any message that I was -- THE COURT: I understand that. Let's keep going. Proceed. BY MR. MUISE: Q. Sir, you authored an article entitled Genetic Analysis of Coordinate Flagella in Type Three Regulatory Circuits and pathogenic Bacteria, correct? A. I did. Q. And was this article published? A. It was published in the proceedings of a meeting in 2004. Q. And who was it published by? A. The Wessex Institute. It's an institute of higher education in the U.K. Q. It's not a religious organization? A. No. Q. This article was part of a conference, is that correct? A. That's right. It was a conference titled "Design In Nature II" that was held in Rhodes, Greece in July of that year. Q. And what was this conference about? A. The conference I think would fit under the broad category of a new area in science called biomimetics where engineers, architects are brought together with biologists to, as a mechanism of cross fertilization. Engineers are recognizing that biological systems have solved some pretty difficult problems, and so there's a lot in terms of nanotechnology structural analysis that can be gleaned from biological systems. Q. Do you consider this article to be an intelligent design article? A. Primarily it's a review of our work looking at coordinate regulation in type three systems, but there's a section where I address intelligence aspects of it. Q. Who attended this conference? I believe you said there were engineers and scientists? A. Biologists, engineers, design engineers, aircraft engineers, architects. Q. Was this a creationists conference? A. No. Q. Now, this article that was published by the Wessex Institute, was it peer reviewed? A. There was, you had to submit the paper before it would be accepted or before you could provide or present it at the conference. So I actually wrote that when I was in Baghdad, communicated it by e-mail, and it was peer reviewed, I'm not sure what the peer review is, it's not as rigorous as, you know, a primary journal article, but there is that process. Q. Could you just briefly explain for us what this article is about? We're going to be talking about it in more detail later in your testimony, but if you could just give us sort of a thumbnail sketch? A. Well, it looks at the work that we've been involved with why bacteria repress motility in a mammalian host environment and how they activate type three secretion systems and why these systems are segregated. It also addressed the question that had come up in these debates on intelligent design that the type three secretory system represented a structural intermediate for the flagellum, and Ken Miller has published on this. And so there were arguments against that position in particular. Q. Did this conference demonstrate the utility of intelligence design as a scientific theory? A. I think so, in terms of our approach and what we found out. Q. How so? A. Well, again the types of the questions we asked looking for reasons why these two systems would be regulated in an opposing manner, the reverse engineering techniques that proved profitable. We also, although I don't want to bore everybody with the details, but in part to me the most interesting aspect is that one of the organism we work with, yersinia pestis, which causes the bubonic plague, so this is an organism that's estimated to have killed two hundred million people in recorded history, activates its virulence genes by temperature. So we were interested in terms of what's the thermostat, how does the cell sense temperature and how does it shut genes off and turn others on, and it turned out through a genetic approach mutational analysis that the trigger, from one sense you can look at this almost as kind of dissecting the trigger of a nuclear weapon in terms of its potential effect, turned out to be DN A itself, which was a surprise to us. It told us that the DN A molecule is just not a reservoir for digital information, but the three-dimensional structure that it can conform to under different environments imparts information as well, and that was a surprising observation and I think we did that by reverse engineering and looking at temperature parameters of DN A molecules. Q. Sir, are you familiar with the book Of Pandas and People? A. I am. Q. Did you contribute to any portions of this book? A. I did not. Q. Are you aware of any prior drafts of this book? A. No. Q. I take it then you didn't contribute to any prior drafts of the Pandas book? A. I didn't. Q. Sir, is it your understanding that this book Pandas is part of the controversy in this lawsuit? A. I'm aware of that. Q. What is your understanding of how this book will be used at the Dover High School? A. It's mentioned in a short statement read to students before the, to biology students, 9th grade biology students, and it's also on deposit or reserve or in the library as, you know, a reference in the library. Q. Now, this book was published in 1993, correct? A. That's correct. Q. Would you recommend that it be used as the primary text for a biology class? A. No, I would not. Q. Why not? A. Well, it's not a primary biology text, and I think that's stated in the introduction. Q. And the other reason? A. Well, it's outdated as well. It's an old book. I mean, in the course of biology ten years is light years now in terms of our progression. Q. Would you recommend that it be used in the manner that Dover High School is using it? A. I do. Q. Do you have experience with this book being used in a biology course at the high school level? A. I do. I had children that attended private school in Moscow, Idaho. Being a scientist they asked me to review their biology curriculum. They had, you know, a curriculum that I thought was inadequate. I recommended that they use Miller and Levine, which I think is the same book that's being used in Dover, and supplement it with Pandas and People. Q. What year was this? A. I'm not sure exactly. I'd say `95 or `96. Q. Are they still using the Pandas book? A. They still have it. In fact, I got a copy from them. Q. Why did you recommend Pandas as a supplement? A. It addresses some of the aspects of Darwinian evolution from a different perspective in terms of the fossil record, in term of other interpretations of homology, molecular aspects. There was I think in this book a brief introduction to, although not stated, but irreducible complexity, the blood clotting system, that Mike Behe contributed. Q. Did you think it was beneficial for the students to have exposure to this book? A. Yes. I think any time you expose students to, you know, different interpretations it's good. It promotes critical thinking. Q. Have you subsequently had any experience with these students from this school since recommending this curriculum change? A. Two of the students came through our department and have since graduated, and they were excellent students. Both of them I think had published peer reviewed papers by the time they had finished their undergraduate degrees, which is an outstanding achievement for undergraduates. Q. Do you have any way of assessing their critical thinking skills compared with other students? MR. HARVEY: Objection, Your Honor. Beyond the scope of the expert report. I have not objected for a few questions here, figuring a little latitude is appropriate, but it's clearly not the area with which he's been proffered and the content of his expert report. THE COURT: Mr. Muise? MR. MUISE: I'm going to move on, Your Honor. I think what it's establishing is obviously with regard to his expertise from the perspective of science education. I haven't proffered him obviously yet as an expert. THE COURT: Well, just the critical skills of the students who would have, along with his own child -- MR. MUISE: I'm sorry, Your Honor? THE COURT: Whose critical skills are we talk about? MR. MUISE: The students'. THE COURT: The students in his own child's class? MR. MUISE: No, these are students who have gone through this biology course where the curriculum included Pandas as part of the supplemental books, and -- THE COURT: That would appear to be beyond the scope of this report. I think you can probably concede that point. MR. MUISE: Well, in the report he specifically talks about Pandas being a good book and it promotes good science education. THE COURT: If I recall the testimony correctly, correct me if I'm wrong, sir, this is a school that your child attends and they use Pandas as an ancillary resource? THE WITNESS: Right. I mean, my children have since graduated, but -- THE COURT: But when they were there they used it? THE WITNESS: They did, right. THE COURT: I don't know what basis he could judge -- well, I do know the basis he could judge, but it does appear to go outside the report, Mr. Muise. Unless you can, if you can point me to something in the report, and it's a long report, if there's something in there that you want to hang your hat on, I'll listen. MR. MUISE: Well, it's not just the report. He was asked about these same questions during his previous deposition, and on his report he said, "I read and am familiar with the text of Pandas, it's a good text, it critically analyzes various aspects of Darwin's theory, it asks critical questions in terms of the evidence and mechanism required to drive evolution. Such questions are essential for the advancement of science, makings students aware of the controversy in the science community, it's good to students and it's good to science." COURT REPORTER: Mr. Muise? Mr. Muise? THE COURT: Yes, we have lots of time. Slow your cadence down if you could. MR. MUISE: Your Honor, I mean I can, I think I've got through the testimony of the part that I wanted to and I can move on to the next -- THE COURT: Well, that may be a fair question once we get out of the -- we're still on qualifications, are we not? MR. MUISE: We are. THE COURT: All right. Why don't you -- I'll reserve judgment. If you want to come back around and lay a foundation for that question on your examination, I'll hear any objection Mr. Harvey has at that time. So why don't we move on. I'll sustain it, but with needs to reassert it, I think there's maybe a foundational problem with the question, too, but that wouldn't stop you necessarily from asking it under different circumstances. BY MR. MUISE: Q. Dr. Minnich, do you think that schools should teach students the theory of evolution? A. Absolutely. Q. Why? A. It's critical. I mean, it's critical to biology to have a firm foundation in evolution. Q. By advocating intelligent design is it your goal to not have the theory of evolution taught in a biology class? A. Not at all. Q. Has that ever been your goal? A. No. Q. At this point do you believe that intelligent design should be fully integrated into a science curriculum? A. I don't. Q. Why not? A. Well, you've got an old textbook and you lack the standards for teachers and assessment for students. Q. You think it's appropriate to supplement the science curriculum by making the students aware of intelligent design as Dover has done in this case? A. Yes, I think it's advantageous. Q. There's one last area on your CV I want to address, and that's the research support. A. Correct. Q. What is significant about research support for a scientist? A. Well, to be successful and to do experiments you've got to have extramural support and, you know, it's to be likened to running a small business within a research community. You know, I have to pay my graduate students, technicians, pay for supplies, animal care, and there's overhead associated with it as well. So funding is very important. Q. Have you been awarded any significant grants? A. Well, right now we have an NIH grant for five years for, with myself and two collaborators, for 1.8 million dollars. Q. And what is significant about NIH grants? A. Well, I mean for infectious disease that's the primary source for funding. It's competitive. Q. Now, the research that you're being funded by NIH, does that include research on the flagellum and the type three secretory system? A. It does. MR. MUISE: Your Honor, may it please the court, I tender Dr. Scott Minnich as an expert in microbiology, evolution, intelligent design, and science education. MR. HARVEY: Your Honor, I don't believe this expert was proffered previously in science education, and I'm not aware of that. His reference in the expert report to Pandas and People being good science, and his general statement about it being good to make students aware of the controversy, but there's no reference to an expert in science education. MR. MUISE: Your Honor, I mean we stipulated to the qualifications of the matters that were covered in the expert report. He testified that using Pandas, making students aware of intelligent design, was good for science education. He's been teaching science for eighteen years at the college level. THE COURT: Did you have a, and I may have known this and forgotten it, but was there a written stipulation as to the expert or just simply an understanding? MR. MUISE: There's a written stipulation I believe, I don't have a copy in front me, but I believe it says effective of the matters that were covered in the expert reports, that their experts would testify as to the matters addressed in the expert reports. MR. HARVEY: Your Honor, addressing the defendant's pretrial memorandum, it says will testify, it says questions, in other words critical questions in terms of the evidence and mechanism required to drive evolution are essential to the advancement of science and that making students aware of the controversy in the science community is good for students and is good for science. THE COURT: Well, we're having a bench trial, and your objection is that he's being offered on science education. But it seems to me that the real objection gets to potential testimony that would be outside of his report, isn't it? MR. HARVEY: That's correct, Your Honor. And I don't believe he has been qualified in the area of teaching at the high school level for example. THE COURT: Well, I understand that, and that may go to a specific objection, but so we don't waste time on this, which becomes at some point a semantical argument, I'll take a precise objection as it goes to his testimony on that point, but I'm going to overrule your objection at this point and allow him to testify on that basis. I think that's the better course rather than to try to split hairs at this point as to what he's qualified to testify, what area he's qualify to testify. And you have his report. If you have an objection as to an individual question or an area that Mr. Muise gets into, I'll hear your objection on that, all right? So we accept him for the purposes and qualifications as set forth by Mr. Muise, and Mr. Muise, you may proceed with your examination. BY MR. MUISE: Q. Thank you, Your Honor. Dr. Minnich, I want to first review with you the opinions you intend to offer in this case before we get to the basis for these opinions. Sir, do you have an opinion as to whether intelligent design is science? A. I do. Q. What is that opinion? A. It is. Q. Do you have an opinion as to whether intelligent design makes testable scientific claims? A. I do. Q. And what is that opinion? A. It does. Q. Do you have an opinion as to whether intelligent design causes a causative argument for design? A. I do. Q. What is that opinion? A. It does. Q. Do you have an opinion as to whether intelligent design requires the action of a supernatural creator? A. I do. Q. What is that opinion? A. It does not. Q. Do you have an opinion as to whether intelligent design is creationism? A. I do. Q. What is that opinion? A. It is not. Q. Do you have an opinion as to whether intelligent design is a religious belief? A. I do. Q. And what is that opinion? A. It is not. Q. Do you have an opinion as to whether Darwin's theory of evolution is a fact? A. I do. Q. And what is that opinion? A. It is not. Q. Do you have an opinion as to whether there are gaps and problems with Darwin's theory of evolution? A. I do. Q. Sir, what is that opinion? A. There are such gaps. Q. Do you have an opinion as to whether making students aware that Darwin's theory is not a fact promotes good science education? A. I do. Q. And what is that opinion? A. I think it does. It does. Q. Do you have an opinion as to whether making students aware of the existence of gaps and problems with Darwin's theory of evolution promotes good science education? A. I do. Q. And what is that opinion? A. It does, definitely. Q. Do you have an opinion as to whether making students aware of intelligent design promotes good science education? A. I do. Q. And what is that opinion? A. It does. Q. Sir, do you have an opinion as to whether providing students with the opportunity to review the book Of Pandas and People promotes good science education? A. It does. Q. Do you have an opinion on that? A. I do, and it does. Q. Thank you. Sir, I want to talk now about the, turn now to the nature of the intelligent design argument, and I believe you have provide some demonstratives to assist in your testimony here, is that correct? A. That's correct. Q. Sir, what is intelligent design? A. We have summarized here in the first slide. I'll just read it, "Intelligent design is a scientific theory, and it holds that the deep complexity and clearly evident design in organisms is the result of an intelligent agent or cause. Given that even the simplest cells are comprised of nanomachines that currently defy our own intelligent capability to produce, yet have the general features of many machines we have made on a larger scale, intelligent design theory is simply an inference to the best explanation as to the origin of the design." If I could just summarize this perhaps in a more simpler form? Q. Yes. A. All biologists recognize design in nature. So I think the question boils down to whether or not it's real design or apparent design, as some people hold. Thirty years ago we didn't know about molecular machines and this concept of irreducible complexity, which we'll talk more about. We didn't know the sophistication of the information storage system in nucleic acids of RN A and DN A that have been likened to digital code that surpasses anything that a software engineer at Microsoft at this point can produce. Certainly Darwin didn't know about this. So we don't have a Darwinian mechanism to explain these things in terms of natural selection and mutation or variation. On the positive side, because these are similar to machines that we have made in a macro scale, we know what it takes to make them. We know digital information storage systems that we can infer design, looking at the empirical evidence, and maybe a uniformitarian aspect of cause and effect in the world that we live in, when we find these things they're the product of intelligence. So we're looking at the empirical evidence. We find irreducible complex systems. When we find these in any other context they're the product of intelligence, we infer by standard scientific inference or reasoning that these systems are also the product of intelligence, and we leave it at that. Q. Is intelligent design based on any religious beliefs or convictions? A. No. Again, it's looking at the public evidence or the empirical evidence. Q. And if you could just summarize the intelligent design argument, I know you have an exhibit to assist you. A. Yes, we'll just go this, we infer design when we see parts that appear to be arranged for a purpose. The strength of the inference is quantitative. The more parts that are arranged, the more intricately they interact, the stronger our confidence is for design. The appearance of design in aspects of biology is overwhelming by the community's own admission. Since nothing other than intelligence cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims notwithstanding, the conclusion that design seen in life is real design is rationally justified. Q. Does intelligent design make a causative argument for design? A. Again it does. I mean, there's a negative aspect in the sense that for any of these systems that we'll talk about we don't have a Darwinian mechanism to explain them. The positive side is we do know where such systems originate from our own experience of cause and effect. Q. The purposeful arrangement of parts? A. The purposeful arrangement of parts in molecular machines that have the appearance of machines that we make that are the product of intelligent design engineers. Q. Now, does the book Pandas make this point? A. It talks about, and there's a quote here, the ordering of independent pieces into a coherent whole to accomplish a purpose which is beyond any single component of the system is characteristic of intelligence. So this is kind of a prestatement I think before the coining of the term irreducible complexity. Q. And the quote you read was from page 144, is that correct? A. Correct. Q. And that's Defendant's Exhibit 220. Sir, is intelligent design science? A. It is. Again just to restate, it's looking at the empirical evidence, the public evidence. Q. And from this empirical evidence it makes inferences, is that correct? A. Right, using standard scientific reasoning of cause and effect we see machines that in every aspect look like machines that engineers produce. We don't have a Darwinian mechanism to explain these things in terms of the intermediates. So we can infer that these are the product of intelligence. Q. Sir, can you give us an example of design at the molecular level? A. Yeah, I've got a couple of slides, you know, this is I'm sure has been hammered to some degree already, but this is a bacterial flagellum. This is a system that I work on. THE COURT: We've seen that. A. I know. Q. You're going to see a little bit more of it, Your Honor. A. I kind of feel like Zsa Zsa's fifth husband, you know? As the old adage goes, you know, I know what to do but I just can't make it exciting. I'll try. THE COURT: Any further questions, Mr. Muise? MR. MUISE: He's doing fine right now, Your Honor. THE COURT: For our last witness we get stand-up. You may proceed. A. All right, this is out of a standard biochemistry textbook that's used for the advanced graduate, or undergraduate and graduate students, Voet and Voet, but it's a cartoon of bacterial flagellum from a grand negative organism, and this is what we refer to as the parts. I mean, we've got a drive shift here, this is the hook protein, or the U joint, it spins. This is the propeller, or the filament. We've got bushings, we've got a stator and a rotor. This thing self assembles from the inside out in a programmed manner. Most of my research has focused on the genetic programming of when to make these things, and also on the assembly of the filaments. But it's a true rotary engine. The size of is about 45 nanometers. So forty-five billionths of a meter in size. Q. You specialize your focus and research on the flagellum, is that correct? A. That's correct. Q. And you've done experiments on flagellum? A. I have. Q. And have written peer reviewed articles about it? A. Yes. Q. Now, as your prior testimony intimated there's been a good deal of focus on the bacterial flagellum. I guess we could probably call this the bacterial flagellum trial. Why the focus on this particular organelle? A. Well, I think it's, I mean it's just a logical thing, because of all the molecular machines that we know about in biological systems, we know more about the bacterial flagellum than any. I mean, this was first discovered in E. coli and salmonella, which are really the gold standard for doing molecular genetics, and teasing apart these types of machines. This in terms of organelle development synthesis, we know an incredible amount about it. It's also been a primary model system starting in the early days for signal transduction, a field of biology in terms of how an organism reads its environment and makes appropriate decisions in terms of, you know, in this case directional flow. So it has served us very well in terms of working out simple signal transduction systems which have paid off an astonishing coin as we've applied the same principles of their study to higher organisms. So in essence this is a system that will maker or break, you know, intelligent design, because it's the one we know the most about. Q. So it's a system that we have a lot of data available, correct? A. Correct. Q. And it's a well defined system? A. It's well defined. I mean, we know all the genes involved, we know a lot about its assembly, but there's still questions about how the motor actually works, some of the biophysics, but other than that I think of any molecular machine this one is the most well understood and most defined. Q. Sir, would it be fair to say that this is not just an organelle that intelligent design proponents have randomly selected to use for their arguments? A. No, no, not at all. Q. Is it fair to say that if you were going to find support for your arguments or support against your arguments, this would probably be the organelle that you would have to address in the literature? A. Sure. Q. Now, Dr. Behe and you just covered some of the components of the bacterial flagellum, and they appeared to be identified or named in using names that we sort of recognize as part of engines and as part of machines. Are those labels that scientists actually apply to these components? A. Right. I mean, again this is out of a textbook, and you know, some may say that well, if you draw something to look like a machine it becomes a machine, but this is a true rotary engine, and by definition it's got to have a rotor and stator and drive shaft and U joint for propulsion. It's an amazing engine I don't think just to me, but, you know, the people, those of us that work on it are fascinated by it. In E. coli these things will rotate at about 17,000 RPM's on average, although there's some marine vibrios where these engines have been blocked at 100,000 RPM's. It's essentially a massless engine, so it can reverse direction in less than a quarter turn of the rotor. So, you know, it's got two gears, forward and reverse, water cooled, battery powered. It's a fascinating system. Q. Now, the conclusion that something was designed, does that require knowledge of the designer? A. No. Absolutely not. Q. Why not? A. Well, I mean, we can infer design, but the science isn't going to tell us anything about the designer unless it's, you know, signed on one of these components, and we haven't found that yet. Q. So is it accurate for people to claim or to represent that intelligent design holds that the designer is God? A. No, absolutely not. Q. Has science answered this question, the source of design -- A. No. Q. -- in your view? A. No. Q. Now, we're going to, we'll be returning to the bacterial flagellum a little bit later. I put up here a quote that I believe we heard already once in this trial from Theodosius Dobzhansky, did I pronounce that right? A. Correct, Russian evolutionist. Q. It says, "Nothing in biology makes sense outside the light of Evolution." Do you agree with this quote? A. I don't. Not to belittle the importance of evolution, but this hasn't been my experience. Q. Why? A. Well, let's go to the next slide, and I've got a couple of quotes that I picked from my expert report. This is from a review by Carl Woese, it was published last year. He talks about this aspect, if could read it, "Molecular biology's success over the last century has come solely from looking at certain ones of the problems biology poses (the gene and the nature of the cell) and looking at them from a purely reductionist point of view," and this is part of Carl's point, you know, he disagrees with reductionism. "It's produced an astounding harvest." So a reductionist approach to biology has been astounding. "The other problems, evolution and the nature of biological form, molecular biology chose to ignore, either failing outright to recognize them or dismissing them as inconsequential as historical accidents, fundamentally inexplicable, and irrelevant to our understanding of biology. Now, this should be cause for pause." So here you have, you know, Carl Woese really saying that there's this period in the last fifty years when molecular biology has kind of reigned that we've ignored the question of evolution, and this is a period I think where we've had the greatest increase in our understanding of biological systems I'd say probably over the whole millennium beforehand. Q. And who is Carl Woese? A. He's a professor at the University of Illinois, a prominent evolutionary biologist. I have utmost respect for him. Q. He's not an intelligent design advocate? A. No, no. Q. And if you'd just note, this is, it's listed here as Defendant's Exhibit 251, if you can just confirm that that's the exhibit that you're referring to, and it should be in your exhibit binder under Tab 5. A. Yes, that's correct. Q. And that's the article A New Biology For A New Century? A. Correct. Q. I believe you have some additional demonstratives to make this point? A. Yes. The next slide, this is a paper published in Cell in 2000. So Cell I think is most prestigious journal for biologists to publish in. Primary research articles of some length. It won't go into the nature of science. Simon Conway Morris is a paleontologist at Cambridge University. This is the introduction to his paper which is a review titled Evolution: Bringing Molecules Into the Fold. "When discussing organic evolution the only point of agreement seems to be: `It happened.' Given, therefore, this history and the most recent and spectacular advances in microbiology, it may seem curmudgeonly, if not perverse, to even hint that our understanding of evolutionary processes and mechanisms is incomplete. Yet, this review has exactly that intention." So again this is one of the most prominent paleontologists, worked on the Burgess shale, Cambrian explosion, remarking that molecular biology had spectacular advances and, you know, I think with this knowledge, and going back and addressing fundamental questions in terms of evolution is justified. When you consider that statement, you know, the only consensus seems to be that it happened. Beyond that, you know, mechanisms, our understanding of mechanisms, processes, are incomplete. Q. In this article, I believe it's marked as Defendant's Exhibit 255, and it's Tab 9 in your exhibit binder, can you verify that for us, sir? A. That's correct. Q. I'll move to the next exhibit, which is a paper by Lenski, et al., and I believe it's marked as Defendant's Exhibit 252, which will be under Tab 6 in the exhibit binder that you have. Are you familiar with this paper and its findings? A. I am. Q. What does this paper purport to conclude? A. Well, if you go to -- well, this is a paper addressing evolutionary origin of complex features, really looking at the infusion of new genetic information in organisms and trying to look at, you know, the mechanism of that. Q. Now, Professor Pennock is one of the co-authors of this paper, is that correct? A. That's correct. Q. And he's an expert who testified for plaintiffs, and he appeared rather giddy about the results that they achieved in this paper. Do you share his enthusiasm? A. I like the paper, and I like the quotes. The thing that I hesitate when I bring this up first you all is, and I'll show you in the next slide, but this is out of Richard Lenski's lab, and they've been doing experiments over the last twenty years, long-term evolutionary of E. coli and hemostats or fermenters, looking at changes over, up to 40,000 generations, and -- Q. These are on living -- A. Living, on escherichia coli, again our standard model for these type of studies, and this in less than 20,000 generations they see the infusion of new information, but this is a mathematical model. These are virtual organisms. So I think there's a limitation, which I mentioned in my expert report. Q. How do the results of these digital organisms compare with Lenski's results with living organisms? A. Well, again you see change at a faster pace than the real experiment, so I think it's somewhat backward, I'm not a computer scientist, I don't understand the software, so there's limitation there as well and I'm the first to admit it, but as I read this paper it seems like there's a targeted logical program that these organisms can adapt to by mutation, much like viruses in your computer systems. So that's what they're measuring this change to. Q. You picked a particular quote from this paper I guess to emphasize your points regarding that quote from Dobzhansky, is that correct, on this next line? A. Right. That, and also the fact that students are often confronted with the absolute statement that Darwinism is fact, or if not evolution is fact and, you know, this is from the introduction of this paper that was, you know, in Nature. From the outset Darwin realized that organs of extreme perfection and complication, such as the eye, posed a difficulty to his theory." I mean, this is the argument of design. "Such features are much too complex to appear de novo, and he reasoned that they must evolve by incremental transitions through many intermediate states, sometimes undergoing changes in function." This is variation in natural selection. "Now, there exists substantial evidence concerning the evolution of complex features that supports Darwin's general model. Nonetheless, it's difficult to provide a complete account of the origin of any complex feature, owing to the extinction of intermediate forms, imperfection of the fossil record, and incomplete knowledge of the genetic and developmental mechanisms that produced such features." So in summary, if you go to the next slide, there's this admission in this paper, in Simon Conway Morris's paper, Woese addresses these facts as well, that we lack intermediate structures, we lack fossils, we don't have an adequate knowledge of how natural selection can introduce novel genetic information. That's the point of this paper with virtual organisms and mathematical and computer simulation, and then from my own experience going back to Dobzhansky's quote, "Nothing in biology makes sense outside the light of information," I have my own experience as well that I would like to -- Q. Please tell us your experience with regard to that quote that nothing makes sense in biology in light of evolution. A. In my entire academic training as an undergraduate or graduate student or as a post-doc at Purdue and Princeton University, I never once took a formal course in evolution. In fact, when I requested it as a graduate student, you know, to include it on my graduate student study plan, it was refused by my committee with a, you know, you don't have time to do it, it's not necessary. So that has been my experience as a biologist and a practicing, you know, experimental biologist, I've never been required to take a single course in evolution. My exposure formally was in my undergraduate 100 and 200 level introductory biology classes were we got basic evolution, you know, Haeckel's embryos, peppered moths, founder effect. So the basis tenets were there, but in terms of really looking at this in detail, I haven't. Now, this isn't unique to me. When I, in my department of molecular biology, microbiology, and biochemistry there's only one other faculty member, although we've had three or four that have joined the department in the last year, so I can't say that absolutely, but since my tenure there in 1989 one person has took an actual course in evolution as a graduate student. So I find this amazing that, you know, we're doing hard-core molecular biology, and this was never part of our training. I'm the only person and one other faculty member that have read Darwin, which again, you know, I think is a problem. I would like to correct that. I think it should be required that all students in biology read Darwin's Origin of the Species and be required to take a rigorous course at some level, preferably early on in their undergraduate degree careers, in evolution, because, you know, I find this ironic situation that although I've never been required to take this material, you know, in my training, the point now where I'm questioning its importance in my discipline, you know, has been quite an amazing experience. Q. How so has it been quite an amazing experience? A. Well, it's difficult to say. I mean, it's almost like you're a heretic in the camp. I mean, I'll put it like that. Q. So to sort of summarize through some of these quotes from prominent evolutionary biologists and from your own experience, we had the greatest advances in biology perhaps in this last half century, and it's been primarily at the molecular level, is that fair to say? A. Correct. I mean, molecular biology is focusing primarily on E. coli first and then extrapolating what we learn there to more difficult systems, eukaryotic systems, yeah, it's been an incredible period. Q. Yet evolution has been practically inconsequential in the development of this information that we've gathered? A. Carl Woese states that in his paper. I mean, some people considered it inconsequential. It was ignored, a historical accident. MR. MUISE: Your Honor, I'm going to start moving into another area. I don't know if this may be a time to break. THE COURT: Yeah, why don't we, I think that makes good sense. Why don't we break here for about twenty minutes, and we'll resume with the witness's testimony after that intermission, and we will return after the break. Thank you. (Recess taken at 2:14 p.m. Proceedings resumed at 2:36 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 20 (November 3), PM Session, Part 2 THE COURT: Be seated, please. You may resume. BY MR. MUISE: Q. Thank you, Your Honor. Dr. Minnich, when you were defining intelligent design earlier in your testimony you noted the "deep complexity and clearly evident design in organisms." Do other scientists recognize this complexity in evidence of design? A. Yes. All biologists see design in nature, and this is really part of this central question, is it real design or apparent design, and how do we differentiate between the two. This is a cover of Cell again, this is our premier journal. From a review issue, once a year they run a review issue, this is from 1999 I believe. Q. I believe it's 1998. A. `98, okay, I can't remember, but macromolecular machines, this dealt with the machines of life, and I think the cover really sums it up. Across the landscape of biological systems we find these incredible macromolecular machines. Q. And they dedicated an entire issue? A. Exactly. The entire issue is looking at specific machines in the cell that we knew a lot about. Q. And just I guess for purposes of the record this cover can also be found as Exhibit 203-C, Charlie. I believe another slide from an article that appeared in there in this particular journal, this issue, from Bruce Alberts, is that correct? A. Correct. Bruce Alberts at the time was National Academy of Science president. He's an evolutionist, so you know, I don't want to misinterpret his position on any of this, but it's an interesting article titled The Cell as a Collection of Protein Machines: Preparing the Next Generation of Molecular Biologists. Some of the things that he notes, the complexity of the cell's macromolecular machines was not anticipated." In the introduction of this article he states as a graduate student in the 1960's they looked at the, you know, cells that they were working on, E. coli at the time, as really a bag of enzymes operating on the second order of kinetics, or diffusion kinetics, "Our current view of the cell is vastly different." In fact, he says, "We've always underestimated the cell in this review." More complex than the view of the cell when Dr. Alberts was a graduate student, okay, so I covered that. Dr. Alberts advocates in this article incorporating the principles of design engineering into biology curricula for this next generation of molecular biologists as a means to dissect the interactions of macromolecular machines now identified in even the simplest cells. The point being that for us to get to the next level of understanding at the cellular and subcellular level, how all these molecular machines not only function independently in and of themselves, but how they're coordinately regulated as a consortium machines to carry out the cell's duty will be the job more of the design engineer or a systems analyst. These are true factories. So I find it incredible. In fact, in the acknowledgments he acknowledges Jonathan Albert, I don't know the relationship, for the information in terms of how design engineers approach these types of problems. We're going to need this, you know, the age of cloning and sequencing is over, to get to the next step. We're going to incorporate design engineering. Q. And again this article is marked as Defendant's Exhibit 253, and I just want to verify if you look under Tab, I believe it's Tab in your exhibit binder if you would, in the black binder, if you'd verify this as the article you're referring to? A. Correct. Q. I believe you have another section from this issue of the journal that you want to use to emphasize your points? A. Right. Can I just read one quote out of this article, because again it's important to understand that Bruce Alberts is an evolutionist. In fact, he's co-author of the book on how to teach evolution at the secondary level, published by the National Academy. But on the first page of this article at the bottom, why do we call -- Q. I'm sorry, you're referring to Exhibit 253? A. Correct, 253, on the first page. "Why do we call the large protein assemblies that underlie cell function protein machines? Precisely because like the machines invented by humans to deal efficiently with the macroscopic world, these protein assemblies contain highly coordinated moving parts. Within each protein assembly intermolecular collisions are not only restricted to a small set of possibilities, but retain, reaction C depends on reaction B, which in turn depends on reaction A, just as it would in the machine of our common experience." So emphasizing that this is almost a definition of purposely ordered parts that you find in Pandas and People or it might be a used definition of irreducible complexity, highly ordered parts that perform a function. Q. And you have another demonstrative aid? A. Right. Q. I guess another excerpt from this journal itself, right? A. Correct. I think this is what I just read, isn't it? Oh, no, this is actually from the table of contents for this issue. "Again, like machines invented by humans to deal efficiently with the macroscopic world, protein assemblies contain highly coordinated moving parts. Reviewed in this issue of cell are the protein machines that control replication, transcription, splicing, nucleocytoplasmic transport, protein synthesis, protein assembly, protein degradation, and protein translocation, the machines that underlie the workings of all living things." Across the landscape again these are the machines that are performing every function in the cell. Highly sophisticated machines, many of which when we dissect them have all the hallmarks of machines that design engineers have made in our macro world. So again the inference, you know, we have the question the appearance of design, is it real or just apparent? We don't have a Darwinian mechanism to explain the appearance of these in a step-wise manner. At the same time we do know from our common experience, you know, cause and effect in the world, that when we find these types of machines, they're the product of intelligence, and these surpass anything that yet, you know, that we can make ourselves. It's an inference, it's a logical inference. Q. I believe we have another slide with our friend, the bacterial flagellum. A. Right. Again this is my machine, and David DeRosier at Brandeis University has done an incredible amount of work on this. In a review article in Cell in 1998 he wrote, "More so than other motors, the flagellum resembles a machine designed by a human," all right? So there's question of design. As biologists we all recognize it. It's a true rotary engine. Q. Is that an understatement by Dr. DeRosier? A. Yeah, I guess you would have to say, because we have yet engineered a machine that can self assemble and function, you know, actually have its own software written that can call up and decide when and how many of these to make, where to put them, etc. So it's incredible, I mean, when you look at the parameters of this machine. Q. And this, and again for reference purposes this is from Defendant's Exhibit 274, and if you can just look in your exhibit binder, I believe it's Tab 11, is this the article from which you're quoting from? A. Correct. That's correct. Q. Now, you indicated these living organelles are described as machines by you and by these scientists. Are they in fact machines? A. They are. I mean, again they have all the components of a rotary engine. Rotor, stator, U joints, bushings, drive shaft, that's how they're described, and by definition a rotary engine has to have these components, regardless of the scale. I want to point out, too, you know, just for the record that we didn't know these things existed twenty or thirty years ago this was the surprise. Again emphasizing what Bruce Alberts says, our conception of the cell has changed radically in the last twenty to thirty years. In terms of how we view the cell he says that we've always underestimated it, I have another quote here by some colleagues, but I think it's perfectly legitimate to go back and ask is natural selection mutation sufficient to prove or to build this type of sophisticated machinery. Q. But the bacterial flagellum isn't the only machine in a cell, correct? A. No, no. Q. And I believe you have some additional exhibits to point out some other machines? A. Yeah, I've included another rotary engine, the ATPase we find in prokaryotic and eukaryotic cells. This is a description of the torque generated in the transfer of this energy to ATP synthesis. ATP is the energy currency of a cell, is generated by oxidation reduction reactions in the cell, and essentially what you do is you push protons across a membrane, much like you would collect water behind a dam, and then you bleed through ATPase, which acts as a turbine. For every third of a turn, or 120 degree turn of this rotor, you generate essentially one adenine triphosphate molecule. The point being here I think is this group conceded all, makes this point in their article in Cell that if one ATP consumed for 120 degrees is one of, one may anticipate from the make of this motor the efficiency of our ATPase is nearly 100 percent, far superior to a Honda V-6. This is a direct quote out of this article. So it's approaching 100 percent efficiency in these machines that are being produced by the random events and selection of Darwinian mechanism. Q. I believe you have a schematic here of ATP? A. Yes, this is a cartoon, again it's a rotary engine like the flagellar, it's a much smaller scale, but you can see that you've got a stator here and a rotor with arem ATP is generated as this turbine turns around up here. Q. Are engineers studying these machines? A. Right, I think that's -- the fascinating thing to me, and this is in part why I participated in this conference in Rhodes in biomimetics is that engineers and architects have recognized that biology, systems in biology have solved some pretty complex problems, and when you consider nanotechnology, the application of this, computer applications, pharmaceutical applications, engineers are coming to biologists to learn about these systems and how they may, you know, practically apply them. So when you consider the bacterial flagellum, the speed at which it rotates, the fact that it can, you know, reverse direction in less than a turn, I mean that's like any time you have a machine that can stop and start, it's the equivalent in machine language of a one and zero. I mean, you can have that application in terms of designing computers that are biologically based. Q. Have you been asked to give presentations to engineers about these molecular machines? A. I have in my university, the University of Idaho, I've given one talk to the physics department just based on the bacterial flagellum as a nanomachine. They're interested in the fluid dynamics of the system and how it operates at this scale, and also to, I believe it was a mechanical engineering department. Q. And I believe you have a few other examples of design in nature? A. Yeah. So the other thing that I think caught us by surprise is the sophistication of the information storage system of the cell. DN A and RN A are really information systems that store digital information just like our computers do. This is out of a textbook, this is a genetic code that was solved in the 1960's by Caron at Harvard and Nirenberg at the NIH, and essentially you have as we all know from basic biology there are four nucleotides that make up genetic information, and there are twenty amino acids. It's combination of three of these letters that determine each amino acid if this translation is occurring between nucleotide language to protein language. So for instance U in the first position, we call this the five prime positions, the center position U, and U in the third position codes for phenylalamine. UUC also codes for phenylalamine. With four digits there are 64 combination. So we have 64 three letter codons. Now, when this was determined in the 60's, so this is really the Rosetta Stone of genetics, when this was determined in the 60's there was an intuitive recognition that there seemed to be a bias in the code for amino acids that if you had a point mutation, for instance if you have UUU and you changed this last U to a C, you get the same amino acids. So there's redundancy. UCU or UCC, UCA, UCG all code for a series. You either get the same amino acid or a similar amino acid in terms of its chemical properties. So that was intuitively obvious. Now, if this is a product of arbitrary chance and necessity, to quote Minot, then there's no reason that this code is chosen over any other. Francis Crick referred to this as a frozen accident. Carl Woese in his paper "Owed to the Code" states that the genetic code has not evolved. Now, with computer analysis we can actually look at all of the random codes that can be generated. There are millions of codes that can be generated with the parameters of twenty amino acids and four nucleotide bases, and ask is there a bias, is there a better code to minimize the effect of point mutations, because that's really what we're seeing in this code, and it turns that the natural code according to this author Hays when this has been analyzed against millions of other arbitrary codes is optimized to minimize the effects of point mutations, okay, the very thing required to drive evolution. We have a code that from the get go is optimized to minimize the effects of point mutation. Now, that to me, and my colleagues, too, when we've discussed this causes them to pause. I mean, people just stop and get reflective. That to me has a signature of design on it, okay, that you have a, this is a sophisticated, this is the most sophisticated information storage system that we know of. It's true digital code we've got, it codes for algorithms. Now we're talking about the cell working on fuzzy logic, which is non-linear, which is much more complicated than we considered in the past, and if this is a product of undirected chance and necessity, I find that difficult, you know, that nothing that Microsoft and Bill Gates's engineers yet have come close to producing an information storage system like this. That's what we're talking about in terms of design and looking back. We didn't know about this system fifty years ago I mean, when the code was broken in the 60's. Certainly Darwin didn't know about it. So you have this most sophisticated information storage system coupled with macromolecular machines that are also highly sophisticated, with ordered parts that we by definition call are irreducibly complex, it's appropriate to go back and ask is a Darwinian mechanism sufficient to account for the appearance of these. Q. You said that the DN A has been shown to resist point mutations, is that correct? A. It's not that it resists it, but if you have a point mutation, which is common either in replication or just exposure to the environment, perhaps mutagens or UV, light that you can get a mutation in one of these codons, you know, to convert a U to a C, or what we call a transition or a transversion mutation, and often you'll get either the same amino acid or an amino acid that's related in terms of its chemical properties so that you don't disruption of that protein that's produced with that mutational event. Now, it doesn't eliminate it completely, but there is, we recognize that there is this bias. This is optimized to negate the effect of point mutation. Q. So it's optimized to negate point mutations which are necessary for that selection to function? A. Right. That's one of the driving forces obviously of evolution. Q. Dr. Minnich, why isn't this just the argument from incredulity? A. I mean, that's -- Dawkins makes that argument that because I can't imagine a mechanism that would produce this that I suffer from incredulity, and I'm, darn it, you know, we are trained to be skeptics. We are trained to look at things through, you know, a very narrow lens. We're to be our own worst critics, and it seems like in any other practice of science that's how we operate, except when it comes to an explanation of the origin of these systems, and then we're accused of being, you know, suffering from incredulity because we can't imagine how these came about. We don't have the intermediates. Again for any biochemical pathway we don't have the phylogenetic history for any biochemical pathway or subcellular organelle. Yet as a scientist I am supposed to accept this without blinking that this is a product of a Darwinian mechanism, and I'm sorry, these are highly sophisticated systems, and I know from experience that when you see a machine, a rotary engine, in any other contest, you would assume that there's an engineer around, and those are the arguments that we're making. Q. I believe you have another example, you described the sliding clamp. Could you describe this? A. This is DN A polymerase on the right, so this is the copying mechanism for DNA replication. What I find interesting, actually this was a paper that was given to me by a colleague who we disagree with in terms, but he thought I'd be interested in it. The clamp protein here, which forms this donut around this double helix of DNA, in eukaryotic organisms or higher organisms there's a dimer. We call it in yeast PCN A protein. In E. coli we also have a clamp protein, this is a prokaryotic, a more primitive organism, it's a trimer. It's a beta subunit of E. coli polymerase. Now, if we compare the protein sequences that form this structure between E. coli and yeast, we wouldn't pick them up as being similar in a computer search. Now, this is, all organisms are required to replicate their DN A. You would think that this would be a highly conserved process by definition if prokaryotics eventually evolved eukaryotes from some common ancestor, but what we find is a protein that has almost an exact superimposable structure, one on the other, forming the same function, but completely different amino acid sequences. This is a remarkable example of convergence, and there are many examples of this coming out now at the molecular, and as we'll talk about Simon Conway Morris says even at the organismal level. We can't, at present we don't understand the properties of protein folding, so we couldn't make a protein to form this structure as a base for the assembly of the other components of DN A polymerase. Yet we find in nature that this has happened twice for the same function, the same structure, but a different amino acid sequence. I mean, that's an incredible finding. Q. Is that what you mean by convergence? A. Convergent, right. Q. I believe you have another example, a gated portal. Could you explain what this is? A. The gated portal, so this is looking from the nucleus of a eukaryotic organism, and I don't think it shows up with that well on this slide, but this is a portal, or actually a gate, so you have to have traffic material from the nucleus to the outside, from the outside back into the nucleus. These are proteins of nucleic acids, and we have these gate systems or turnstiles, and we find that there's a very sophisticated postal system in the cell that components of the cell will have, you know, a molecular zip coding that will direct them, first of all allow them to go through this portal, and then afterwards direct them to their location wherever they're required in the cell. That whole postal system of zip coding, how, you know, a protein made of a cytoplasm is directed to the membrane or to endoplasmic verticulum is an incredible area of research and interest as well, and -- Q. So this is an informational transport system, is that -- A. Correct, correct. So there's, you know, this is a cross section of that. So here would be the nuclear membrane and the components that have been defined by mutational analysis that dictate what can come through or what can go back through the nucleus. So proteins synthesized in the cytoplasm and in the ruthear have to come back through if they're regulatory proteins and interact with DN A. So there's a very important regulatory system in terms of recognizing these proteins and directing them to their locales. Q. Dr. Minnich, it appears from your testimony and sometimes from the prior quotes you have from other scientists that our understanding of the complexity of life has, especially at the molecular level, has probably advanced exponentially in the last half century. Is that fair to say? A. Oh, for sure. For sure. Q. Dr. Alberts acknowledged that in the article that you cited to, is that correct? A. Right. Q. Are there other scientists as well that make that observation? A. Right, I have a quote from the journal Bacteriology, you know, from Richard Losick at Harvard and Lucy Shapiro who works on an organism that I used to work with. I know Lucy, but -- Q. Where is she now? A. She's at Stanford. She's department chair in developmental biology at Stanford, Changing Views on the Nature of the Bacterial Cell from Biochemistry to Cytology. She would be a contemporary of Bruce Alberts having gone through I think graduate training in the 60's. So these people that are kind of reaching retirement age are starting to reflect back on their careers I think during the most fruitful research period in the history of biology, and these are not uncommon statements. So let me read what these two individuals say, "How profoundly our view of the bacterial cell has changed since we first started our lifelong fascination with life's smallest creatures." They're both microbiologists. "Who would have imagined that bacteria have proteins that assemble into rings, that cluster at the poles of cells, that localize delocalize as a function of the cell cycle, or that bounce off the ends of the cell with a periodicity of tens of seconds. "Who would have suspected that the origins replication move to the poles of cells, that the machinery for replicating DN A is stationary, and that it is the chromosome that moves through the chromosome duplicating factory, or that plasmas would jump from the cell center or the cell quarter points following their replication." The point I just want to make is that our view of the cell, even the simplest cell, has changed profoundly, and we are, there are scientists that have come through are, you know, awe struck in terms of the beauty and complexity of the systems that we're studying. Q. How is this relevant or implicate intelligent design? A. Again the molecular machines that we find that I work on were not anticipated, they weren't predicted. They have the appearance of machines that engineers make. I'm going to hammer this point home, but I think it's critical to understand that we don't have a Darwinian mechanism for the step-by-step intermediates to get there or build these machines, and we know from definitional work on these machines that they're irreducibly complex, and we'll go over that in the next section. But again you take away one component, you trash the machine. That's how you study them. That's how we figure out what the parts are in each individual system that, you know, is our pleasure to work on. Q. I believe we have one last quote which I believe we've seen already in this trial. A. Right, from Mr. Dawkins and The Blind Watchmaker. "Biology is the study of complicated things that give the appearance of having been designed for a purpose." As biologists we all see the design, and you can be like Richard Dawkins and argue that it's only apparent design. If there is a natural mechanism, a Darwinian mechanism, a variation on the mutation that can produce it, I'm more reserved, I guess more conservative and say, you know, to me it's real design, and it's a scientific argument. Q. And I believe you've prepared a summary? A. Okay. Our view of the cell is vastly different from when Darwin's theory was first proposed, let alone our view over forty years ago. The cell is now recognized as being orders of magnitude more complex and sophisticated than Darwin envisaged. While our understanding of the complexity of the cell has increased by orders of magnitude, the mechanism to generate the complexity, mutation and natural selection, has remained constant, although there's some new avenues of research that I find very exciting in this last part. It's reasonable to revisit the question, again it's reasonable to revisit the question as to whether natural selection is sufficiently up to the task of design engineering this recognized sophistication we find in even the simplest of cells. Q. Do other scientists who are not intelligent design advocates recognize the lack of an adequate Darwinian explanation for this complexity in evident design? A. I have a quote from Carl Woese in that paper that was cited earlier alluding to this fact, and I don't think I'm taking this out of context. "The creation of the enormous amount of and degree of novelty needed to bring forth modern cells is by no means a matter of waving the usual wand of variation and selection. What was there, what proteins were there to vary in the beginning? Did all proteins evolve from one aboriginal protein to begin with? Hardly likely. "Evolution's rule, to which there are fortunately a few exceptions," which he doesn't give, "is that you can't get there from here. Our experience with variation and selection in the modern context does not begin to prepare us for understanding what happened when cellular evolution was in its very early rough and tumble phases of spewing forth novelty." All right, so Carl Woese is saying essentially in these early stages of evolution, whatever parameters were at work are not present today, which again, I mean, bears on the question of doing the science. I mean, there were conditions by admission perhaps that we can't reproduce. You know, we've got to recognize that, and I think it's important for students to recognize that, but maybe the important thing here, evolution's rule to which there are fortunately a few exceptions is you can't get there from here. It means we can't, we don't have the intermediates to account from how we got from the simple to the complex. Q. And this article you're quoting from, if you can again refer to your exhibit binder, Defendant's Exhibit 251, and it should be I believe at Tab 5, is that the article you're referring to? A. I'll check. That's correct. Q. I just need to backtrack because I don't believe we identified the exhibit number for the article from Losick and Shapiro that you referred to previously, and I believe it's at Defendant's Exhibit 257, which would be at Tab 10. Is that the article you're referring to by Losick and Shapiro? A. Correct. Q. Now, Carl Woese is not an intelligent design advocate, is that correct? A. Absolutely not. I mean, he's a well known and like I said respected evolutionary biologist at the University of Illinois. Q. Now, we've been talking about Darwin's theory of evolution. What's the common understanding of Darwin's theory? I should say his principal contribution. A. His principal contribution was the mechanism to account for the variation that we see. So natural selection coupled with variation, which from a neo-Darwinian perspective once we understood genetic information was that mutation, natural selection over time. Q. We're talking about the mechanism of evolution? A. Yes. Q. Is Darwin's theory of evolution a fact? A. In terms can we demonstrate mutation and selection? Yes. In terms of extrapolating that to larger systems or going from, you know, the evolution of some of these machines that we're talking about, we don't have the evidence. Q. Are there gaps and problems with the Darwinian theory of evolution? A. There are. Q. Is there a principal contention that you have for the ability of this mechanism of natural selection to explain the origin of life that concerns intelligent design? A. Right, when you look at the origin of life problem, yeah, I mean, you know, we don't, we can't reproduce it. It's a lot of speculation. Q. Let me perhaps rephrase that question because it wasn't as clear as I wanted it to be. Is there a principal contention you have with the explanatory power of the theory of evolution that is particularly relevant for intelligent design? A. I'm not quite sure what you're getting at, and other than the fact that we've got to explain, you know, these machines which I say by definition are irreducibly complex. Q. Can natural selection account for the origin of these complex molecular machines? A. Not at present. Again, we don't have the mechanism. I think that natural selection can preserve them, and this is in part I think where we may, you know, if I could look at in a crystal ball and see a melding of these two ideas. Natural selection is definitely a preservative. The question is whether or not it's generative and if it can produce these novel structures de novo, but certainly once these structures are around it has a preservative effect, which is very, very, very important in our study of biology. Q. Well, can natural selection account for the information storage systems required for the production of these molecular machines? A. No. No. We have no understanding in terms of how nucleic acid information systems evolved, and in fact in our chemical experiments, looking at primordial conditions we can't get cytosine in all of the methods that have been tested to date. Q. How about do we have a phylogenetic history of the single biochemical pathway for things such as the flagella? A. No. Again I think I stated this that, you know, Jim Shapiro at the University of Chicago, Harold, a retired microbiologist at Colorado State, says we don't have a single phylogenetic history of a biochemical pathway or a subcellular organelle. A lot of conjecture, wishful thinking I think to paraphrase their view. Q. And who was that view that you were just paraphrasing? A. Harold is a microbiologist, although Shapiro has made similar statements. Jim Shapiro in an article that I just read last week, a fascinating article, said there's no contrivance of man that comes close to the simplest cell or one of the subcellular organelles. Q. Now, the theory of evolution, particularly natural selection we've been talking about here, has it been able to explain the existence of a genetic code? A. No. Q. Has it been able to explain the transcription of DNA? A. No. Q. Has it been able to explain the translation of M-RNA? A. No. Q. Has been it been able to explain the structure and function of the ribosome? A. No. Q. Can it explain the existence of motility organelles such as the bacterial flagellum? A. No. Q. Can it explain the development of the pathways for the construction of organelles such as the flagellum? A. No. Like I said, we have to phylogenetic history. I've worked on the bacterial flagellum for years and there's to my knowledge not a paper that can tell me, you know, the evolutionary assembly of this by a step-wise mutation selection program, and we may never know it. That's the problem. Q. Is it fair to say that under this relatively broad category of difficulties that we just went through lies much of the structure and the development of life? A. Oh, for sure. Q. And does this then cause you to question whether a Darwinian framework is the proper way to approach such questions? A. That's why I'm testifying here. I mean it's because of the scientific constraints I see in Darwinian explanation. Q. Some of the plaintiffs' experts have described intelligent design as a science stopper. Would you agree with that? A. Absolutely not. I mean, turn it around. If you just say, you know, like Woese, wave a magic wand of variation and selection, where does that get you? You know, I think from my own personal perspective, having something designed implies that there's purpose and, you know, I can start teasing apart that purpose and apply that in different ways, like a design engineer or a systems analyst would approaching the machine where you don't have the blueprints, you don't have the owner's manual, and that's the beauty of it. Q. So you're a working scientist, I mean you kind of roll up your sleeves and go into laboratories and conduct experiments quite regularly? A. Yeah. That's my passion. Q. Do you know employ principles and concepts from intelligent design in your work? A. I do. Q. And I'd like for you to explain that further. I know you're prepared several slides to do that. A. Okay, this is just a reiteration in terms of how we function in the laboratory during the last half century, we've gained a greater understand of biology at the molecular level than the entire history of efforts in the proceeding millennia, and I don't think that's an overstatement. The vast inroads we have made in our understanding of the cell came by techniques essential to a design engineer. Q. If you can read on from "our understanding of the cell"? A. All right. I lost my place, let's see. Came by techniques essential to a design engineer, not elements derived from the theory of evolution. The mainstay technique of modern biology has made use of the concept of irreducible complexity of the cell's subsystems. And if I can have the next slide I'll iterate on what I mean by that. Q. This concept of irreducible complexity, that was coined by Dr. Behe, is that correct? A. Right, right, but I think any working molecular geneticist recognizes that this really explains the approach that we take. This is from Mike's, one of his publication, but I co-opted it here, "By irreducibly complex I mean a single system which is necessarily composed of several well-matched interacting parts that contribute to the basic function and where the removal of any one of the parts causes a system to effectively cease functioning." Q. Is this your understanding of the concept of irreducible complexity? A. Correct. Q. And I just want to know that this was from an article written by Dr. Behe which has I believe already been admitted as Defendant's Exhibit 203-H, for hotel. Is irreducible complexity one of the, I guess one of the arguments or components of the intelligent design argument, is that correct? A. Right. And I find it difficult when, you know, even this definition is challenged, whether or not it's real or not, because to me as a geneticist this is really restatement of Beadle and Tatum's principle back in the 30's, the two individuals that got molecular genetics going in the last century, you know. One gene, one enzyme, the idea you can use mutational analysis to knock out as individual gene and produce a phenotype, all right -- so if we can go to the next slide. Q. Let me just ask you one question before you move on. You have here in this definition, this system, underlined, bold, and in capitals, what purpose was -- A. I think because often this is the part that's misunderstood in terms of some of the people that debate these issues, you know. It's not, we're not saying that you can't find components of a given molecular machine associated with another machine and another function. I mean, I have no problem with microevolution co-opts and the certain parts, there are plenty of examples like this. The point being the system that's being studied, the bacterial flagellum, if you take out one of the components of the type three secretion system of the flagellum, we know that we can build it, the cells don't move. That's not to say that you can't have a type three system involved in another function in the cell. But for the system that's being addressed it's irreducible and complex when the fact that we've identified all the components based on mutational analysis. Q. Do you find that those who argue against this concept of irreducible complexity change the definition to create a straw man to knock it down? A. You know, I don't know if I'd say straw man or it's intentional. I mean, it's one way you can construe it, but I think it's a subtle but important definition that we're talking just about one system of the cell that we're addressing through mutational analysis, and again you can have components that may be similar in other systems that could be addressed separately, but it's a key point. Q. If you could, I know we have another slide for this, break down for us this concept of irreducible complexity and how you employ it in your work in the lab. A. Okay. Molecular machines are comprised of a core set of components that are arranged for a purpose essential for function of that machine. If one of these components is removed from the machine, there's a resulting overall loss of function. If there's no function, then there's nothing to select, you know, from a Darwinian perspective, or you have to assume that there would be some selective advantage for an intermediate, but this implies that mutations in genes encoding pieces of a molecular machinery will yield selectable phenotypes based on this loss of function. Q. Could you explain that? A. Selectable phenotypes for a geneticist means that you mutagenize these cells. The hard part for us is coming with a screen or a selection to separate all the mutations that have occurred from the ones that you want to study in the system that you're interested in. I'll show you a picture of how this works in the lab really simply to get this point across, but this process of using mutagenesis and devising genetic screens and selections to identify loss of function has yielded astonishing findings over the last sixty years. This is the bread and butter of molecular genetics. If these systems we worked on weren't irreducibly complex, we would know very little about them. This is a mechanism how the fact that we want to identify all the components of a given molecular machine, we make mutants that trash the system, sort out, map the mutations, how many genes are involved, and then start piecing it back together. It's a very reverse engineering procedure more attuned to, you know, this concept of intelligent design or reverse the design process to understand how these systems work. Q. Break down for us further this concept of mutagenesis, and I believe you have a slide -- A. Sure. All right. I work on the bacterial flagellum, understanding the function of the bacterial flagellum for example by exposing cells to mutagenic compounds or agents, and then scoring for cells that have attenuated or lost motility. This is our phenotype. The cells can swim or they can't. We mutagenize the cells, if we hit a gene that's involved in function of the flagellum, they can't swim, which is a scorable phenotype that we use. Reverse engineering is then employed to identify all these genes. We couple this with biochemistry to essentially rebuild the structure and understand what the function of each individual part is. Summary, it is the process more akin to design that propelled biology from a mere descriptive science to an experimental science in terms of employing these techniques. Q. Do you have some examples employing this particular concept of the flagella? A. I do, in the next slide. Hopefully this will cut to the chase and show you what we're talking about. This is an organism that my students and I work on. This is a petri dish about 15 millimeters size, filled with this soft auger food source for the organism. It's soft in the sense the organisms can swim in it, but it has some rigidity that they just don't slosh around. Now, each one of these areas showing growth were inoculated with a toothpick of cells, the wild type parent here. So this is yersinia enterocolitica, a good pathogen, double bucket disease if you ingest it. Q. That's the center? A. Yeah, that's the center, okay? So it can swim. So it was inoculated right here, and over about twelve hours it's radiated out from that point of inoculant. Here is this same derived from that same parental clone, but we have a transposon, a jumping gene inserted into a rod protein, part of the drive shaft for the flagellum. It can't swim. It's stuck, all right? This one is a mutation in the U joint. Same phenotype. So we collect cells that have been mutagenized, we stick them in soft auger, we can screen a couple of thousand very easily with a few undergraduates, you know, in a day and look for whether or not they can swim. Q. I'm sorry, just so we're clear on the record, the two you're talking about on the bottom left, the first one was the bottom left and the second one was the bottom right? A. Right. Q. Where you took away a portion of the flagella? A. We have a mutation in a drive shaft protein or the U joint, and they can't swim. Now, to confirm that that's the only part that we've affected, you know, is that we can identify this mutation, clone the gene from the wild type and reintroduce it by mechanism of genetic complementation. So this is, these cells up here are derived from this mutant where we have complemented with a good copy of the gene. One mutation, one part knock out, it can't swim. Put that single gene back in we restore motility. Same thing over here. We put, knock out one part, put a good copy of the gene back in, and they can swim. By definition the system is irreducibly complex. We've done that with all 35 components of the flagellum, and we get the same effect. Q. And those top left and the top right were restored bacterial flagellum -- A. Right. Q. -- with the one missing part? A. This is an essential aspect of doing these types of study to show that it's a single component you're dealing with. You complement with only that gene and show that you restore function. Q. I believe you have another diagram? A. In this manner we've, in other labs, so this would be a compilation of work done in a number of laboratories around the world. We've contributed to part of this right here and the front end up here, but this is a blueprint for building a flagellum. You know, you have a master control switch that's turned on when it's appropriate. To make a flagellum, turn on the first set of genes, you lay down, you know, a base plate on the inner membrane, and you start assembling from inside of the cell out. So we're putting in, you know, a drive shaft, another ring, our U joint. There are checkpoint controls like just in the assembly of any machine. If there's a defective part there's a feedback loop that will shut down expression of all the succeeding genes to conserve energy in the cell. Eventually you have this rotary engine with a propeller that can extend about five to ten lengths of the cell. Q. So this is a blueprint of the flagellum that was developed through using this mutagenesis technique that you're referring to? A. Right. That and biochemistry and cell biology, I think David DeRosier's done a lot of work with the mutants, you know, showing their assembly. You get these, we call them rivet-like structures. So different mutants you can actually isolate these structures at various stages. Q. Would it be accurate to say then the design principle which I believe you referred to them as work because these systems are irreducibly complex, is that correct? A. By definition. Again, you know, this is how we do this type of work. Q. Now, there are some scientists, and Dr. Miller is one of them, that claim that the bacterial flagellum is not irreducibly complex, and he'll point to the type three secretory systems to make his argument. Are those arguments correct? A. I think they were a valid argument when they first came out. In fact, we worked on type three secretion systems. So when we're talking about that, this structure over here on the right side of this slide, this is an electron micrograph, this is essentially a micro or a nano syringe for the plague organism, like I said, this has killed two hundred million people alone, and most Gram-negative pathogens have them. We were working on the regulation between motility in yersinia enterocolitica and expression of virulence genes which involved a subset of these proteins back in the early 90's, and in fact we made the hypothesis that the toxins made in this system, we didn't know about type three secretory systems at the time, actually using Occam's Razor would be the flagellum. I mean, we had good genetic evidence that the flagellum could be used for other than secretion of flagellar proteins, but there's a subset of proteins involved in both of these at the base that dictate what proteins are secreted through these structures. You build a flagellum from the inside out, all the components are transported through this hollow core and assembled at the distal tip, and with this nano syringe you make toxins and they're actually injected into your white blood cells when you make contact. They're a subset of common proteins between those, and so after reading Mike's book I actually corresponded with him and said, you know, we may have an intermediate for the flagellum. That's a possibility based on our early studies of this. These structures were identified in 1998 by electron microscopy finally, and Dr. Miller, Ken Miller has said that these are the intermediate structure for flagellum biosynthesis, and I was willing to entertain that view. But since then our own work and work in other laboratories I think is showing that it's actually the other way around, that the type three system if anything has been derived from he flagellum. In one of my papers I make that argument. So really to explain this structure you have to presuppose the very thing you're trying to explain. In fact it's being derived from a more complex system. Q. Are both of these systems irreducibly complex? A. By definition I mean all the components for the type three system were identified by mutational analysis, and in this case attenuation of virulence. Q. Would it be fair to say that if the type three secretory system was found to have preceded the bacterial flagellum, we'd still have difficulty with trying to determine how that one system that functions as a secretory system could then become a separate system that functions as a motor, flagellar motor? A. Right. I mean, that would be a positive argument, I mean, in the sense that it could be an intermediate. But again I think the evidence is falling heavily against it. But sure, but having a nano syringe and developing that into a rotary engine, you know, is a big leap. Q. You wrote a paper, and we showed it up here on this next slide, they referred to previously, "The Genetic Analysis of Coordinate Flagella in Type Three Regulatory Circuits and Pathogenic Bacteria," and I believe it's listed as Defendant's Exhibit 254, which should be under Tab 8 in the exhibit binder. If you can confirm that that's the article? A. That's correct. Q. Could you explain a little further this article, its findings and its implications for intelligent design? A. Again it's a review of the reason, you know, that we've teased out why pathogenic organisms regulate production of a flagellum in a host environment, and they switch between these type three systems. We show in this paper that there is a logical reason for this, because if you operate these systems simultaneously, in other words if we artificially express flagellum protein, which makes up the filament of the flagellum in the host environment, it will be recognized and secreted by that nano syringe. In fact, will be injected into a white blood cell. Since over the last three to four years we've come to recognize that the sentinel cells of our innate immune system, white blood cells, neutrophils, dendritic cells, have on their surface a receptor looking for bacterial flagellum as a pattern recognition molecule of an invader, and if that receptor gets tickled with flagellum it will induce the innate immune response and an inflammatory response. So the whole point I think it comes into play is why a lot of organisms shut off motility in the host environment is to hide this protein from invading cells, or from the sentinel cells, the white blood cells, that they're going to encounter. That has lots of ramifications. It explains yersinia pestis, the bubonic plague organism, is nonmotile even though it has residual flagellar genes in tis chromosomes. Flagellar dysentery, the organism that causes bacterial dysentery, has flagellar genes in its genome, but it's nonmotile. Bordetella pertussis, which we were all immunized for as kids, whooping cough, has flagellar genes in its chromosome, but it doesn't express them because they all operate type three systems. The point being if the type three system is going to be an intermediate, there would be to have sometime in their history where they would both be operational, and that would really work against the organism. I'm going into detail and I don't want to bore people with it, but I find it, you know, fascinating that these important pathogens have lost flagellar synthesis over time, and there's a reason for it in terms of this. We're actually taking purified flagellum, knowing this interaction and why it's dangerous to expose white blood cells to flagellum. We can take purified flagellum, expose a mouse by aerosol or internasal, and the next day challenge it with ten lethal doses of yersinia pestis or francisella tularensis, which causes tularemia, and it shows significant delay time to death or even protection. I mean, this has been, this is really going to change things in terms of how we look at the initial stages of disease -- THE COURT: Did you get that, Wes? THE WITNESS: Am I boring you, judge? THE COURT: Oh, you're not boring me, but I'm concerned about his ability to get -- Wes of course drew the short straw in the court reporter pool for the afternoon, and I'm just concerned that Wes got that. You're going to have to, when you get to a term, what my concern is when you get to a term like several of the terms to try to spell that. Not to protract things, but -- THE WITNESS: I apologize. BY MR. MUISE: Q. If you could go back, you mentioned several diseases and bacteria. If you could restate those perhaps spell to help us out. The disease for the whooping cough and some of the others that you've mentioned. A. Okay, in terms of you yersinia, Y-E-R-S-I-N-I-A, pestis. That's the bubonic plague organism. Shigella, S-H-I-G-E-L-L-A, bordetella, B-O-R-D-E-T-E-L-L-A, so these are all organisms that operate type three systems that have lost the ability to make a flagellum over time. But the point I'm trying to make is that by approaching this kind of in a systems analysis way it suddenly make sense why organisms regulate these systems, why they're not displaying those proteins, and then we can take advantage of this in terms of our understanding of the innate or nonspecific immune response and manufacture really novel vaccines. New adjuvants, we can use flagellum, you know, packed with epitopes for plague or tularemia or other organisms, and -- Q. Can you spell those, too? Tularemia was one. A. Right, T U-L-A-R-E-M-I- A I think. I almost have to see it to write it. From Tulare County. Okay, so the point being that this has all kinds of applications in our own work. Q. And so you, by looking at this from our perspective of real design you're finding a great deal of utility in applying that approach to it in terms of actually perhaps providing some antibodies or some way to resist these things that will be beneficial to, beneficial results for the community? MR. HARVEY: Objection. Leading. I think he's summarizing a lot of testimony. He's not developing the testimony or moving it along there, which I wouldn't object to, because it does tend to move things along. I think he's testifying, and that's not proper when you've got your own witness, particularly an expert witness, who should be able to explain. MR. MUISE: Your Honor, it was an attempt to summarize, we had some fits and starts with the spelling of these bacteria, and it was just an attempt to summarize -- THE COURT: I think -- it's a close call, but I think it's a fair summary at this point. I understand the point. So I'm going to overrule the objection. You can proceed. MR. MUISE: Do you recall the question? THE WITNESS: Repeat the question. THE COURT: Wes, why don't you read the question back for us. (The record was read by the reporter.) THE WITNESS: Close enough. BY MR. MUISE: Q. Do you have an answer to that question? A. Yes, I agree. I think, you know, going back to Bruce Alberts that we're looking at this thing kind of from the systems perspective and -- Q. Dr. Minnich, another complaint that's often brought up, and plaintiffs' experts brought it up in this case, is that intelligent design is not testable. It's not falsifiable. Would you agree with that claim? A. No, I don't. I have a quote from Mike Behe. "In fact, intelligent design is open to direct experimental rebuttal. To falsify such a claim a scientist could go into the laboratory, place a bacterial species lacking a flagellum under some selective pressure, for motility say, grow it for ten thousand generations and see if a flagellum or any equally complex system was produced. If that happened my claims would be neatly disproven." Q. Is this an experiment that could be done in a lab? A. It could be, and I, you know, would say that, you know, up the ante. I'll give somebody a time three secretory system intact and the missing proteins required to convert it into a flagellum and let them go, see if you can get a flagellum from a type three system. That's a falsifiable doable experiment. That's just the type of experiment that could be subjected to this type of analysis. Q. Would this be an experiment that you would do? A. You know, I think about it, I would be intrigued to do it. Knowing the tolerance limits for these proteins and how they would assemble I wouldn't expect it to work. But that's my bias. Q. You think natural selection could account for that, take the type three secretory system, the additional proteins, and see if natural selection can build a bacterial flagellum from that? A. I'm not convinced that it could, but again it's a plausible experiment. They should write a grant and see if we can do it. Q. One of the examples that had come up in the course of this trial and I know you're somewhat familiar with, you addressed it in your expert report, it's listed "Icon of Evolution: Antibiotic Resistance." Is this a good example of evolution in practice? A. I don't think so. Q. Why not? A. Because it really, it's an extrapolation from the data. It's a good example of adaptation, you know, and here I'm talking about point mutations conferring resistance to specific antibiotics like streptomycine, which is commonly used as a demonstration. You can show a population of cells are sensitive to this drug, put them under selective pressure, isolate mutants that are resistant. It comes with an extreme fitness cost. You know, from my own experience in this you can almost, almost a doubling of the generation time required. These organisms have a difficult time competing. Once the selective pressure is removed you can get compensatory mutations, and this has been shown in the literature, that restore the growth rate, but only for the conditions in which you're doing the experiments. In actuality in biology we have a term for this referred to as Mueller's Ratchet, and that essentially says that when you have a mutation that you turn the ratchet once you're limiting the organism's ability to respond to the next environmental condition required for an adaptational response. And so the more environmental insults or mutations that occur, you're turning this ratchet down tighter and tighter to the point where you're going to limit the organism's ability to eventually survive. So you can show this in this laboratory, it's a beautiful demonstration of adaptation in mutation, but to extrapolate this to the general principles of going from the simple to the complex I think it's out of bounds. If anything it's showing limits or the shortcomings of mutation. I don't think it has anything to do with the complexifying mutations required to drive evolution. Q. I guess quoting from Carl Woese, you can't get there from here? A. Yeah, that's exactly it. Q. Now, based on your testimony thus far it would seem that the new information about molecular biology calls into question some of the previous assumptions about evolution, is that fair? A. I think that's definitely fair. Q. And do scientists other than intelligent design advocates recognize this? A. Yes. This was in the literature. I can go back and look at this paper by Simon Conway Morris, again this is a paleontologist at Cambridge University, well known, this article titled Evolution: Bringing Molecules into the Fold, you know, this is the one where he says that he's going to do this perverse thing about addressing the problems in evolution in the abstract, and he goes through the problems that we have. We cannot still differentiate phenotype from genotype. In other words, the outward expression, the morphology of an organism from its genome, we have a problem in terms of phylogenetic assignments and looking at phylogenetic histories, related histories of derived from molecular clocks versus the fossil record. They're out of sync. Molecular clocks tend to indicate the organisms are much more older than fossil record. The paleontologists argue their interpretation is correct. Molecular biologists will argue that their interpretation is correct. This has to be resolved. When we look at molecular data we get conflicting phylogenies. If you compare a cytochrome amino acid sequences, which was done back in the 60's and the 70's, compared the ribosomal RNA sequences, compared the superoxide dismutates, other essential conserve genes or proteins in the cell, you'll generate a different phylogeny depending upon whether you're looking at one individually or in combination, and this is now being superseded by comparing entire genomes. So bioinformatics is going to be critical in this next stage. You have this question of convergence that we mentioned before again with a beta protein, beta subunit of DN A polymerase, Morris remarks in a couple of examples in this paper and even says if evolution is channelled, in the sense that it's always coming up with the same solution being different routes, pretty complex problems, in his mind teleology is back on the table for discussion. Now, this is a paper in Cell, and he says it's interesting that physicists are reaching the same conclusion in terms of the anthropic principle or the fine tuning principles of the universe. He cites Barrow and Tipler, one of which is a design proponent. As physicists he also cites a reference in terms of biology of Michael Denton, who has been involved in intelligent design and wrote a book previously to the one cited in this article, Evolution: A Theory in Crisis. So here you have a well known paleontologist looking at the problems of evolution, recognizing that they're real, and considering maybe this word teleology, purpose, should be back on the table for discussion. Q. Does he use that term in the paper? A. He does. In the discussion at the end. Q. Dr. Minnich, I'd like you just to sort of summarize some of these points that you've been discussing here. A. I think if you look at the Carl Woese's paper and read it carefully, he says that nothing in evolution should be not subject to intense review. He even says common descent was a conjecture, an idea of 19th century biologists, that somehow got set in stone. We shouldn't be stuck to it. But I think in terms of my experience, we're dealing with dogmatism versus science and where the data is leading us. Again to emphasize, we can't differentiate genotype from pheno. I read a paper last week, you know, one of the best phylogenetic histories we have is fossil horses in North America. These have been, you know, from the Pleistocene and Miocene time period, and I'm not a paleontologist, but I'm interested in the molecular analysis. These have been well characterized in terms of their phylogenetic history and taxonomy, molecular techniques, isolation of fossil DN A comparing to mitochondrial sequences shows that this phylogeny is artificial, that they're all in the same taxa, perhaps even in the same species. It can't explain the origin of information. This is still a major question in biology, and we're dealing with the most sophisticated information storage system that we know about. We can't explain how life initiated. Origins. We can't explain the existence of the genetic code, this frozen accident I referred to. Convergent examples in evolution are causing people to question, and this is at the molecular level, the organismal level. So I would say that quoting Tulkinghorn, we're in a situation much like the physicists were at the end of the last century, and we suffer from this triumphal arrogance where we think everything can be explained by our Darwinian methodology, just like physicists, everything can be explained in Newtonian mechanics. I think we're at a turning point, and that's not to say that all the work before is not valuable. I think it's critical. I think -- I love reading evolution, and these are important contributions to understanding of life, but I'm convinced there's something more there, and that's why I'm here. Q. Dr. Minnich, I want to sort of shift our focus a little bit and talk a little bit about creationism. Is there a popular understanding of this term? A. Creationism has to deal with viewing scientific or the empirical evidence through a literal interpretation of Genesis, six-day creation event. Q. What is creation science? A. Again these are scientists that are limiting how they interpret the data through a scriptural context of Genesis, a literal interpretation of Genesis. Q. Plaintiffs countering that intelligent design is not science but rather creationism, are they correct? A. No. We have don't have any precommitment to any scripture, revelation, religion. Just looking at the empirical data and using scientific, standard scientific reasoning of cause and effect and asking is it real design or only apparent design. Q. Dr. Miller made a claim that if the bacterial flagellum was designed, then it had to be created and therefore it was special creationism. Is that accurate? A. I don't agree with that. I mean, it doesn't say anything about how it was designed, over what time period it was designed, how it's been modified, you know, over time in terms of evolutionary events. So I would disagree. Q. Could the bacterial flagellum be designed over time under intelligent design theory? A. Yes. I don't think we're limited by that. Q. May I approach the witness, Your Honor? THE COURT: You may. Q. Dr. Minnich, I've handed you what's been marked as Defendant's Exhibit 220, a copy of Of Pandas and People, and I believe you testified previously you're familiar with this book, correct? A. I am. Q. If I could direct your attention to page 99? A. Okay. Q. Towards the bottom and then continuing on to the next pages it says, "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., " and it goes on to say, this is the next page, "Some scientists have..." -- A. Can I interrupt? You're on 99? I don't see that on page 99. Q. Page 99 at the bottom if you look, I'm sorry. A. Okay. Q. Look at the last paragraph. A. Mine says, "Darwin has subjected a view of intelligent..." -- Q. Correct. A. Okay. Q. Keep going down five lines. A. Okay. Q. So we're at, "Intelligent design means"? A. Right, intelligent design means. Q. Let me read this again for you again. "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." And it goes on to say, Some scientists have arrived at this view since fossil forms first appeared in the rock record with their distinctive features intact and apparently fully functional rather than gradually developing." Do you see that? A. I see that. Q. Sir, is it your understanding that creationism requires an abrupt appearance of life on earth? A. Creationism, you know, scientific creationism, yeah, ex nihilo appearance of life forms. Q. Is this ex nihilo appearance of life forms, is that a theological concept? A. Yes, yes. Out of nothing. Q. Does this statement in Pandas that I just reviewed with you, does this make intelligent design creationism? A. No, I don't think so. I mean, this is a literal interpretation of the fossil record where you see the sudden appearance of these forms, you know, fish with fins, etc. in a geologic record. From my interpretation this isn't ex nihilo, you know, creation from nothing. Q. Are you familiar with other scientists who are not intelligent design advocates making statements regarding the fossil record using the term abrupt appearance? A. Right. I mean, this is common in paleontology literature. From my understanding Woese even talks about it in the one paper saltational events. Q. What's a saltational event? MR. HARVEY: Your Honor, I'm going to object. A question or two on paleontology might have been not something to object to, but this man isn't a paleontologist. He has no expertise in paleontology whatsoever. MR. MUISE: He's testifying here also about this particular book and that intelligent design science is not creationism. He mentioned in Carl Woese's article which he's been testifying to -- THE COURT: Heard that. Heard the last thing. Isn't he getting into paleontology? MR. MUISE: All I'm asking him, Your Honor, he used the term saltational event. I asked him what does he mean by that, and that's the end of the question. THE COURT: Well, whether it's the end or not, isn't that paleontology? MR. MUISE: Well, he used the term, and I'm asking him what he means. THE COURT: Well, the objection is that he's not qualified. Tell me why he is. Tell me where it's in his report. Tell me -- it's a technical objection, but it's an objection that's founded in the lack of qualifications. MR. MUISE: He's testifying about the book, Your Honor. That's what he's, about it being good for science, and he said so in his report. He used the term, all I asked him was the term about saltational events and what did he mean by saltational events. He's familiar with the literature. He cited from Carl Woese's article. Carl Woese is a person he's been relying on in most of his testimony. THE COURT: All right. That's your argument. I'll sustain the objection. You'll have to ask a different question. BY MR. MUISE: Q. Dr. Minnich, is intelligent design a religious belief? A. No. Q. Why not? A. Because again there's no precommitment to any religious tenet or system. Q. Is intelligent design inherently religious or advance a religious belief? A. No. Again, I think we're looking at the empirical evidence and asking, you know, specific questions in terms of the Darwinian mechanism and alternative interpretations. Q. Do creationists in the sense that plaintiffs and their experts have used in this case require physical evidence to draw their conclusions? A. No, I mean I think by definition if you're a creationist, you're going to rely on the authority of scripture regardless of any evidence that's presented. Q. Is that different from a proponent of intelligent design? A. Yes. Q. How so? A. Again we're looking at the evidence first and not making any precommitment or filtering it through any revelation or religious position. Q. Are intelligent design's conclusions or explanations based on any religious, theological, or philosophical commitments? A. No. Q. Sir, do you adhere to the literal reading of the Book of Genesis? A. I don't. Q. Does intelligent design require adherence to the literal reading of the Book of Genesis? A. It does not. Q. Do you believe that the earth is no more than six to ten thousand years old? A. I believe the earth is according to the estimates 4.5 billion years old. Q. Is that the estimate that's accepted by the scientific community? A. Yes. Q. Does intelligent design require adherence to the belief that the earth is no more than six to ten thousand years old? A. It does not. Q. Sir, do you adhere to the flood geology point of view which is advanced by creationists? A. I don't. Q. Does intelligent design require adherence to the flood geology point of view advanced by creationists? A. No. Q. I have to -- let me strike that and go back because I misstated my question. Do you adhere to the flood geology point of view advanced by creationists? A. No. Q. And let me again ask does intelligent design require adherence to the flood geology point of view advanced by creationists? A. No. Q. Does intelligent design require the action of a supernatural creator acting outside the laws of nature? A. No. Q. Now, in your deposition you claim that the NAS A SETI project, which stands for the "Search for Extraterrestrial Intelligence," that that program was seeking a supernatural explanation by searching for intelligence from space. Do you recall that? A. I do. Q. And you also indicated that Nobel laureate Francis Crick's claim of directed panspermia was a supernatural explanation for the origin of life, do you recall that? A. I do. Q. In what sense were you using supernatural to describe these explanations? A. I think in my deposition I made it clear that these were above our normal experience, or natural experience. So I categorized them as if they're are not natural to our experience they would be supernatural in that limited sense of the word. Q. Is it not true that from a scientific perspective these explanation are actual natural explanations? A. They would be, right. Q. Does intelligent design rule out these sort of explanations for the source of design? A. Not at all. Q. Can science identify the source of design at this point? A. No. Q. Does intelligent design rule out a natural explanation for design foundation? A. It doesn't. Q. We heard quite a bit of testimony during the course of this trial about methodological naturalism, and I believe you indicated in your deposition you see that as placing limits on intelligent design, is that correct? A. It does. It can. In the sense that it limits explanations it can be advanced, but it has the same kind of stricture on other avenues of scientific research as well. Q. Does methodological naturalism necessarily exclude intelligent design from the realm of science? A. No, it doesn't. Q. Why not? A. Again, I mean, there could be a natural cause for the systems we're trying to explain. Q. Sir, are you aware that there's a statement that is being read to the students which is part of the controversy in this case? A. I am aware. Q. I'd like to read that to you here in a moment. This is a statement read to the students from the January 2005. "The Pennsylvania academic standards require students to learn about Darwin's theory of evolution and eventually take a standardized test of which evolution is a part. Because Darwin's theory is a theory it continues to be tested as new evidence is discovered. "The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well tested explanation that unifies a broad range of observations. Intelligent design is an explanation of the origins of life that differs from Darwin's view. The reference book Of Pandas and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves. "With respect to any theory, students are encourage to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards driven district, class instruction focuses upon preparing students to achieve proficiency on standards based assessments." Sir, did I read anything to you in that short statement that in your expert opinion will cause any harm to a student's science education? A. Not in my opinion. Q. Sir, let me ask you, I want to go through a couple of these sentences. "Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered." Is that true? A. That's true. Q. A theory is not a fact, is that true? A. I think we talked about that today, yes. That's true. Q. Gaps in the theory exist for which there's no evidence. Is that true? A. That's true. Q. And a theory is defined as a well tested explanation that unifies a broad range of observations. Is that a good definition of a theory? A. Yes, it is. Q. It says, "Intelligent design is an explanation of the origin of life that differs from Darwin's view." Is that true? A. That's true. Q. Sir, in your expert opinion should students be made aware of this information? A. Yes. Q. Do you believe it will promote science education? A. I do. Q. Dr. Alters, who testified on behalf of the plaintiffs, made the following comments about in his opinion the effect or impact of this statement. I want to read you from his testimony, and he's referring to this, the statement I just read to you. "Now, what this policy is doing is saying that there's this other scientific view that belongs, it belongs in the game of science, and it's the one that most students will perceive as God friendly. It has an intelligent designer. Evolution doesn't. "Now students are going to be in there discussing out on the playground, discussing in their class, among themselves or whatever, that the unit that they're now about to hear about, the evolution unit, that's now coming up is the one that's not God friendly, the one scientific theory that doesn't mention God. But this other so-called scientific theory, intelligent design, is God friendly because there's a possibility that God has this other theory. "What a terrible thing to do to kids. I mean, to make them have to think about defending their religion before learning a scientific concept, how ridiculous. This is probably the worst thing I've ever heard of in science education." What's your reaction to that those comments? MR. HARVEY: Objection, Your Honor. Outside the scope of his expert report. He didn't submit an export report in rebuttal to Dr. Alters' report. No mention of the statement in the expert report. I don't think it's proper. MR. MUISE: Your Honor, it's all in line with why he believes this is good science education. We've had one expert making these claims, and I'm asking him to comment on those claims as part of his opinion to demonstrate why this should be a part of science education. This was testimony from trial. To say he didn't have it in his expert report is -- THE COURT: What was testimony from trial? MR. MUISE: What I just read, Your Honor. THE COURT: Well, I understand that. That begs the question, the question has been raised by Mr. Harvey's objection is, is it in his export report. I do not believe it is. I think you can probably concede that point. Obviously it can't be because the report was prepared prior to Dr. Alters' testimony. Now, the objection then states that there's no rebuttal report that contains this. So in effect he's claiming I think that he's not qualified, and surprised. What do you say about that? MR. MUISE: Your Honor, he's testifying about the -- THE COURT: I know what -- MR. MUISE: I understand that. THE COURT: I know exactly what he's testifying about. Don't reiterate what he's testifying about. Tell me why I should allow the testimony based on the fact that it's not in the report and that it's, well, fundamentally not in the report, and I think there's a qualification objection inherent in this that I allowed Mr. Harvey to reserve. Dr. Alters in his testimony could take this one step further, he's qualified in that area to render that opinion. Was he not? MR. MUISE: Dr. Minnich is also rendering an opinion that he's qualified regarding this particular policy at issue and whether intelligent design is science and whether it's beneficial for the students. THE COURT: No, that makes no sense what you just said. Dr. Alters was qualified prior to his testimony on the subject of, in the realm of whether he could testify as to whether or not this was good practice to read this statement to 9th grade students. Now, I understand the purposes of this witness generally, but you haven't qualified him on that point. It's on education, and -- MR. MUISE: I'm saying you accepted him for science education. Is that -- THE COURT: I accepted him subject to, don't misunderstand what I said, subject to objections by Mr. Harvey. Now, the objection goes generally to qualifications and -- it goes broadly to qualifications, but it goes precisely now to a statement outside the report. Now, you had the ability, and in fact you have the obligation if he's going to render an opinion in this area to supplement the report and you didn't do that. So strictly speaking it appears to me to fall considerably outside the report. He may have an opinion on this, I understand that, but it's both outside the report and it's both that and not within the qualifications as I perceive them to be. I also said if you lay a foundation I might consider it. There is no foundation for the opinion, and therefore the objection is at this point sustained. BY MR. MUISE: Q. Dr. Minnich, should schools such as Dover make students aware of intelligent design as a scientific theory during their class instruction on Darwin's theory of evolution? A. Through the reading of this one-minute thing, yeah, sure. Q. Why? A. I think it promotes critical thinking. It indicates to students that there's important problems that are being discussed in this important area of biology, and it will serve their education well. Q. Should schools such as Dover make Pandas available to students as a reference book? A. Yes. Q. And why? A. I think it's a valuable resource. It's another way of looking at empirical evidence and how it can interpreted, whether it's a fossil record or molecular data. Q. In your expert opinion does the Dover policy at issue in this case promote good science? A. Overall I think it does. MR. MUISE: No further questions, Your Honor. THE COURT: Thank you, Mr. Muise. All right, it's about eleven after 4:00. Do you want to get into cross today, or do you want to -- MR. HARVEY: I'm happy to give it a start. THE COURT: We might as well use the time we have and go until 4:30. So you can proceed, Mr. Harvey. MR. HARVEY: Your Honor, may I approach the witness? THE COURT: You may. CROSS EXAMINATION BY MR. HARVEY: Q. Dr. Behe -- excuse me, that was a Freudian slip. A. We're clones. Q. I didn't, that was not on purpose, I assure you. THE COURT: Obviously the flagellum has you mixed up. Q. Dr. Minnich, did anyone help you prepare your expert report in this case? A. No, actually I wrote this over a fairly short period of time, so it reflects I think some of that speed. Q. Now, you and Dr. Behe both, or together, you make the same claim, the claim of irreducible complexity? A. Correct. Q. And essentially if I understand your contention, it is that an irreducibly complex system is one in which it cannot function unless all the parts are there, and you take away one part and the system ceases to function, correct? A. Correct. Q. And the point that you're trying make for purposes of evolution is that irreducibly complex systems in your view cannot evolve? A. I think it's a problem for evolution. In other words, for each intermediate part you have to have some selective advantage to that intermediate structure, and that hasn't been demonstrated. We know that if you remove one part you have no function, and then if you have no function you've got nothing to select. Q. You didn't originate this idea of irreducible complexity as a problem for evolution, did you? A. No. I think Mike Behe coined the term, but underlying is the basic argument of design is to account for these complex structures that we find in nature to have the appearance of design, is it real design or apparent. Q. Well, and in support of your argument today you spent a certain amount of time with pictures of what you called motors. Did I understand that correctly? A. Correct. Q. And you told us that the bacterial flagellum was a true rotary engine, right? A. By definition in the literature that's what we find. Q. And I wrote in my notes that you said it was incredible, is that correct? A. Right. Q. Do you remember that? A. I used that. Q. And you said it has all the components of a rotary engine? A. Correct. Q. I guess what I'm trying to say is you're really convinced that this looks a lot like a machine that a human would make? A. Right, and I think the literature supports that. Q. Now, Dr. Behe did not originate the concept of irreducible complexity, putting aside the word irreducible complexity, but the concept of irreducible complexity as a problem for evolution, did he? A. I don't know, you know, the entomology of the phrase, so -- Q. Are you aware that that specific problem was posed in the creationist literature, the creation science literature, as a problem for evolution? A. No, I'm not. I'm not aware of. Q. Take a look at what's been marked as P-853. A. 853. Q. Please, and Matt, if you can bring it up. A. Are these in order? Q. It's towards the back. I can help you if you like. THE COURT: You can approach. A. I got it. Q. Dr. Minnich, I'm showing you a publication of the Creation research Society Quarterly from June of 1994. Do you see that? A. I do. Q. That's two years before Dr. Behe published Darwin's Black Box, isn't it? A. I'll take your word for it. Q. You don't know what year Dr. Behe published Darwin's Black Box? A. `96, `97, I'm not -- Q. I'd like to -- have you ever seen this publication before? A. No, I haven't. Q. Well, I'd like you to go to pages, there's page numbers in the upper, in the corners, in the upper corners, and I'd like you to look at pages 16 to 21. I'm not going to ask you to read it, but I'd just like you to look at it and see -- Matt, if you could page through beginning with page 16 to 21, we'll go through it, I'll invite you to read it if you'd like to, but if you see on page 16 there's a section that begins "bacterial motility"? A. I see it. Q. And then on the next page if you turn the page you'll see, Matt, if you can just highlight the language in the lower right-hand column? Yeah, right there, the words "bacterial flagellum," and it's a description of the bacterial flagellum in this piece of literature from this creation science organization, and then if you turn the page again to page 18, there's a description there of the bacterial flagella rotor. Can you highlight that lower paragraph there, Matt? And you'll see it says, "As resolved by electron microscopy, it consists of a series of flanges, grooves, and wheels, yes, wheels, mounted on an axil and turning on bearing surfaces with an efficiency that would be the pride of any industrial research and development operation." Do you see that? A. I see it. Q. And then if you'd just please turn the page one more time, there's a diagram, and it's actually Figure 9 in this, and Matt, if you could blow up Figure 9? You have to go to the next page. I'd like the language at the bottom, please. And then if you could, would it be possible to put up Dr. Minnich's slide 18? (Brief pause.) Q. And I'd like to ask you just to look at that. Do you see on the Figure 9 from this creation research society publication that there's a picture of the motor rotor complex of the bacterial flagellum? A. Yes, I see. Q. And that's very similar to the picture you put up of the bacterial flagellum, isn't that correct? A. Well, I don't know in terms of the labeling of the parts. I haven't read the -- Q. Well, actually that's what I'd like you to look at for just a second. You'll see that you have labeled something called the universal joint on your, that's D-274, right? A. Right, and again this is, this picture is out of a biochemistry textbook, Voet and Voet. Q. I understand. A. Okay. Q. I understand. But I just want to -- you have a picture of the universal joint? A. Right. Q. And then if you look to the picture that's in the creation research society publication, you'll see that there's, that that diagram has a universal joint as well. Do you see -- actually if you look at the bottom and the language at the bottom. A. What's the letter designation? Q. It's actually "H," letter designation "H". A. Okay. Q. It's called the connective hook universal joint. A. Right. Q. And that's the same as in your diagram? A. Correct. Q. And then if you look, there's in this Figure 9 from P-853 there's something that's designated "MR," and that's the motor ring? A. Okay. Q. And you have motor rings in yours as well, is that right? A. Okay. Q. Do you agree? A. I agree. Q. And then there's something called, in this Plaintiff's Exhibit 853 there's something called a stationary ring, and in yours you have, also have something in that same place, except it's called an "S" ring, is that right? A. Now we know that that's a single structure in the "S" ring. Q. In this Plaintiff's Exhibit 853 there is something that's designated with "AX," and it's called the axil. Do you see that? A. Correct. Q. And in yours you have the same thing except it's called the drive shaft, right? A. Right. Q. You see that's the same function, right? A. Right. Q. Do I have that right? And of course they both have what's been marked as "F," which is the filament. Do you see that? A. I see it. Q. Now, and if you turn to page to the next page of this publication, on page 20 -- Matt, can you bring this up? On the left-hand side of the page, about one-third of the way down there's a reference there to bacterial nanomachines. Do you see that? A. I see it. Q. And that's the same way you referred to the bacterial flagellum, isn't it? A. I referred to it as a nanomachine or a macromolecular machine. Q. A bacterial nanomachine? A. Right. That's explained in the literature, right. Q. And then here's where the claim of essentially what I believe is irreducible complexity comes in, if you look on the right-hand side of the page it says -- it's actually the first full sentence on the right-hand side underneath the diagram, it says, "However, it is clear from the details of their operation that nothing about them works unless every one of their complexly fashioned and integrated components are in place." Do you see where it says that? A. I see it. Q. And then finally, and I'll bring this to a close, if you go to the abstract on the page, page 13? Matt, if you could just highlight the second half of that, beginning with the word "in terms of biophysical complexity"? I'll read it to you, it says, "In terms of biophysical complexity, the bacterial rotor flagellum is without precedent in the living world. To the micromechanician of industrial research and development operations it has become an inspirational, albeit formidable challenge to best efforts of current technology, but one ripe with potential for profitable applications. To evolutionists the system presents an enigma. To creationists it offers clear and compelling evidence of purposeful intelligent design." Do you see that? A. I see it. Q. And I'd like you to agree with me, Dr. Behe, that that is essentially the same argument -- A. Minnich. Q. I did it again, I'm sorry. I'll just ask the court reporter just when he hears that to just put in Minnich. I'd like you to agree with me, to know whether you agree with me that that is the same argument that you have advanced here today in your direct testimony. A. Right, I mean in terms of -- I don't have any problem with that statement. And I would add that Howard Berg at Harvard University refers to the bacterial flagellum as the most efficient machine known in the universe. So across the board whether, I don't -- what are we arguing here? Q. I'm just, you're just confirming for me, and I think you just did, that what we have just reviewed in this Plaintiff's 853 is the, precisely the same argument that you advanced today in support of your, in your direct testimony, isn't that correct? A. Yeah, in essence I mean I don't disagree with you. If you're trying to make a connection with creationism though I would disagree. MR. HARVEY: Well, let's take a look at another exhibit. Could you please go in your binder to what's been marked as -- Your Honor, am I going to be able to run over for a few minutes? Because if not I might as well stop. THE COURT: Why don't we -- Wes has been out here a while, because we've had an extended second session this afternoon because we started early, so I think this would probably be a good time to break. We'll invoke the mercy rule for Wes's benefit because of a lot of complicated testimony this afternoon. All right, you're going to be able to wrap up obviously it would appear to me your cross and any redirect comfortably within the morning tomorrow? MR. HARVEY: It's very much my intention to do so. THE COURT: All right. Let's try to shoot for that. We'll reconvene for what appears to be our final day at 9:00 a.m. tomorrow. We will have all morning to complete this witness's testimony. My best guess is that we would reconvene after lunch and we'll have the evidentiary arguments as we spoke about yesterday, and then we will follow with the closing arguments by counsel in the afternoon. MR. ROTHSCHILD: Your Honor, one question. What is your plan or ascertation for the order of closing arguments? THE COURT: Well, it's your burden. MR. ROTHSCHILD: Right. THE COURT: So -- MR. ROTHSCHILD: My view is that we would then go second if that's acceptable. MR. THOMPSON: Your Honor, I believe the plaintiffs have always gone first. THE COURT: Yeah, why would you go second if it's your burden? MR. ROTHSCHILD: I think my understanding it was my burden, and I was not planning on rebuttal, but that I would go second. THE COURT: No, I would allow you to reserve for rebuttal if you want, but the way I see it you'd go first and I'll allow you to reserve time for rebuttal. I think that's appropriate under the circumstances for the plaintiff to do that, but I think you ought to go first, I agree with Mr. Thompson in that regard, and then we'll hear from the defendant, defendants, and then if you want to carve out part of your time for suitable rebuttal, and you're aware of, if you're not Liz will tell you how much time you have left out of the hour that each side appropriated for your openings, closings, and in the case of the plaintiff the rebuttal, there will be one rebuttal as to the plaintiff. If we didn't make that clear before, that's the way we should do it. All right? Anything further? MR. HARVEY: No, Your Honor. THE COURT: All right, we'll see you all at 9:00 a.m. tomorrow. We'll be in recess until then. (Court was adjourned at 4:27 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 21 (November 4), AM Session, Part 1 THE COURT: All right. Good morning to all in what, I believe, will prove to be the final day of this case. And we remain in the cross examination of the expert witness, and I'll turn it back over to you, Mr. Harvey. You may proceed. CROSS EXAMINATION ( CONTINUED) BY MR. HARVEY: Q. Good morning, Dr. Minnich. A. Good morning. Q. I'm willing to pretend that we're doing this in front of an empty courtroom, if you are. That will make it a little bit easier for me; perhaps for you, too. A. Okay. Q. When we left off yesterday, we were talking about the argument of irreducible complexity and where it finds its origins. And I'd like you to turn to what's been marked as P-845. And, Matt, if you could bring that up on the screen. Please let me know when you have that in front of you. A. Okay. I've got it. Q. Or you can look on the monitor, if that's easier for you. This is a publication from the Institute for Creation Research in 2005, and it's authored by a man named Dr. Henry Morris. Have you ever heard of Dr. Henry Morris? A. I have. Q. He's actually the founder and president of the Institute for Creation Research, isn't he? A. That's my understanding, yes. Q. And he's really the founder of the creation-science movement, is that your understanding? A. I haven't followed that movement that closely, but I'll take your word for it. Q. And what he's got here is, he's reviewed a book called The Design Revolution by William Dembski. And I'd like to just ask you some questions about some of the things that are said in here, but first, have you read this review before today? A. I haven't. I haven't seen it. Q. Well, if you turn to the first page -- and, Matt, if you could bring it up -- there's a statement on the right-hand side where he says, We do appreciate the abilities and motives of Bill Dembski, Phil Johnson, and the other key writers in the intelligent design movement. They think that if they can just get a wedge into the naturalistic mind set of the Darwinists, then later, the Biblical God can be suggested as the designer implicit in the concept. Do you see that? A. I do. Q. And I would like to know if you agree with me that, that's what the design proponents are trying to do? A. No, I don't think so at all. I mean, that's a pretty subjective statement. Q. Well, if you just turn to the second page of that, there's a statement there -- and I'm going to ask Matt to highlight this, too. It begins with the word second. It is not really a new approach. Matt, can you bring that up? Referring to the intelligent design approach, it says, quotes, Second, it is not really a new approach, using basically the same evidence and arguments used for years by scientific creationists but made to appear more sophisticated with complex nomenclature and argumentation, end quotes. Do you see that? A. Yeah, I see it. Q. Do you agree that's a true statement? A. Well, I would -- in terms of the context, I'd rather read the whole article. I don't agree that's necessarily true at all. Part of it is true. I think some of the arguments that the creationists proffered back in the '80's are legitimate and they can be used, just looking from the scientific approach. Q. Well, I'd like to ask you about another statement in this article by Henry Morris, and it's in the right-hand side, and I'll ask Matt to flag that as well. Highlight it, please. And I want to know whether this -- you know this to be true. Quotes, These well-meaning folks did not really invent the idea of intelligent design, of course. Dembski often refers, for example, to the bacterial flagellum as a strong evidence for design, and indeed it is, but one of our ICR scientists, the late Dr. Dick Bliss, was using this example in his talks on creation a generation ago, close quotes. Did you know that a man named Dr. Dick Bliss, who's affiliated with the Institute for Creation Research, was using -- MR. MUISE: Objection, Your Honor. He's asserting this as a statement of truth. And this is a hearsay statement. If he wants to ask him if he agrees with that statement, that's something totally different, but he's asserting this to be a truthful statement. THE COURT: Let's let him finish the question, and I'll take the objection. Finish you shall your question, please. BY MR. HARVEY: Q. Dr. Minnich, I'd like to know whether you know that a man named Dr. Dick Bliss, who was affiliated with the Institute for Creation Research, was using the bacterial flagellum as part of his argument for creationism years before the intelligent design movement picked up on it? THE COURT: All right. The objection is overruled for the record. You can answer the question. THE WITNESS: No, I wasn't aware of it, but I'm not surprised. Again, like I asserted yesterday that, the bacterial flagellum is one of the organelles that we know the most about of any. And so it's natural to look at this structure as a model for either evolution or irreducible complexity. So I'm not surprised. I didn't know it, but I'm not surprised. BY MR. HARVEY: Q. Now you and Dr. Behe claim that the bacterial flagellum is irreducibly complex and thus could not evolve. Is that a fair statement of your position? A. Correct. There is some -- right. It's irreducibly complex in terms of the genetic analysis of the structure. Q. Please tell me whether you agree with this statement. Neither you nor Dr. Behe has set out to do any original research to show that the bacterial flagellum could not have evolved, as you contend? A. I think the work that I've published on for the last 12 years bears on this question of irreducible complexity, but I'm not aware of specific experiments addressing, you know, I mean, real lab experiments addressing the evolution of this structure. There have been plenty of publications comparing the flagellum with the type III secretory system and whether it's an intermediate. So, in that sense, I think some of my work bears on that as well. Q. So in other words, you agree with the statement I said? A. Repeat the statement. Q. Neither you nor Dr. Behe has set out to do any research to show that the bacterial flagellum could not have evolved? A. I want to qualify that. You know, the thing that's interesting to me was, back in 1994, my laboratory, my students and I were the first to propose that the bacterial flagellum could be used for other than secretion of flagella proteins. We were the first to actually predict that the type III secretory system, which we didn't know existed at that time period, would either be the basal body of the flagellum or a structure that looked very much like it. Okay. So I think that I have had some impact in this area directly. And the ironic thing is that, presenting this at scientific meetings and in grant proposals, it was considered a whimsical idea because there was no apriority evidence that the secretion of virulence factors or the flagellum had anything to do with each other. Q. Well, would it be fair to say that, neither you nor Dr. Behe has published any papers in scientific journals on whether -- on the evolution or not of either the type III secretory system or the bacterial flagellum? A. I'm not funded to look at the evolution of the flagellum. I'm funded to look at its effect in terms of regulation and virulence and type III secretion. Q. In other words, the statement I just said was true? A. That's not the emphasis of my work. Q. Now you did publish a paper, you told us about in your direct testimony, with Steven Meyer, correct? A. Correct. Q. That was published in some conference proceedings with respect to a conference that took place in Greece? A. That's correct. Q. And Steven Meyer is not a biologist, correct? A. He's not. He's a philosopher of science. Q. So he's not a scientist? A. Well, he's a philosopher of science. He's trained as a physicist, my understanding, and work in that area for a while. Q. Now this was a conference for engineers who used natural mechanisms to devise new technologies, do I understand that correctly? A. Correct. Q. It wasn't a conference for biologists or it wasn't a conference on evolutionary biology, was it? A. It was a conference that included biologists and engineers and architects, as I discussed yesterday, looking at design in nature. Q. And the paper that you published was only minimally peer reviewed, isn't that true? A. For any conference proceeding, yeah. You don't go through the same rigor. I mentioned that yesterday. But it was reviewed by people in the Wessex Institute, and I don't know who they were. Q. I'd like you to take a look at what's been marked as P-837. Matt, if you could bring that up. A. May I just look off the screen? Q. Yes. And in that paper, you cite several peer reviewed papers, including a paper in the Journal of Molecular Biology that suggests that the bacterial flagellum was the evolutionary pre-cursor to the type III secretory system, isn't that correct? A. Correct. Q. And this actually is the paper you cite? A. Correct. Q. And from this paper, and this is in your report at -- you stated this in your report at page 9. We'll bring that up. It's P-614. Matt, could you highlight the sentence that says, neither standard neo-Darwinism, in the bottom paragraph. It begins with -- it's the third sentence. It begins, Given that neither. And from this paper, P-837, you draw the conclusion, as stated in your report, and this, I believe, is a quotation from the article, the conference proceeding paper, that, quotes, Neither standard neo-Darwinism nor co-option, has adequately accounted for the origin of these machines, or the appearance of design that they manifest. One might now consider the design hypothesis as the best explanation for the origin of irreducibly complex systems in living organisms. Isn't that true? A. Yes, that's correct. Q. Now the paper that we just looked at, the one that you were relying on, that's a paper in a peer review journal, isn't that right? A. That's correct. Q. And actually, you're aware that there are a number of papers in peer review journals on this same subject? A. I am. Q. For example, please take a look at what's been marked as P-284. A. Got it. Q. And if you look in the abstract, there's a sentence that I just want to bring you to, that I think it summarizes what we need to discuss. It's the fourth sentence in the abstract, Matt. The one that begins, Our analysis. This says that, Our analysis indicates that the type III secretory system and the flagellar export mechanism share a common ancestor, but they have evolved independently from one another. Do you see that? A. I see it. Q. Unlike your paper, that is a peer reviewed scientific paper, correct? A. In that -- in that sense, yeah. Again, mine is a conference paper, so -- Q. This is a true peer reviewed paper, correct? A. Correct. Q. Now I'd like you to look at another, if you turn to Exhibit P-740. This is another paper in a peer reviewed scientific journal called Trends in Microbiology, is that correct? A. Correct. Q. I think I'd like to go to the second page of this, the paragraph on the right-hand side that begins on the right-hand side, Matt, about halfway down that paragraph, the sentence beginning with the words, regarding the bacterial flagellum, and the rest of that paragraph. Now this says that, quotes, Regarding the bacterial flagellum and the TTSS's, we must consider three, and only three, possibilities. First, the TTSS came first. Second, the flagellar system came first. Or third, both systems evolved from a common pre-cursor. At present, too little information is available to distinguish between these possibilities with certainty. Do you see that? A. I see it. Q. Now I could show you, and I have in my notebook, a number of other peer reviewed scientific journals that discuss this subject. But would you agree with me that the -- that how the bacterial flagellum and the type III secretory system evolved is an unsettled scientific question? A. Well, that's part of why we're here. It's a good scientific debate. And that's how science works. I think if you read -- if you read the conclusion of this paper, Bill Sayer is favoring the fact that the flagellum came first. And I think that the arguments and the evidence, not only the ones that we proffered in our conference paper, but the new evidence that's comes out, favors that, that scenario. I mean, this is -- the type III secretory system is limited, to our knowledge now, to a narrow group of gram negative organisms, that the type III secretory system, from what we know now, only is designed to effect eukaryotic organisms either in a symbiotic relationship or a parasitic relationship. So eukaryotic organisms evolved after prokaryotic organisms. The structure is directly to eukaryotic organisms. And you have to postulate that all the other bacteria, as they evolved, lost this TTS system, and that was only retained by this select group, you know. So I think the evidence is getting to the point that we're going to side with the fact that the flagellum came first, more complex structure came first before the TTSS. Q. There's actually a number of scientific papers that go the other way, isn't that correct? A. Well, I think so. I think it's part of the nature of this debate. I mean, there's some subjectivity to it. If you look at Bill Sayers' first paper, just based on the sequence analysis, there's much tighter similarity between the type III secretory system proteins than there are in flagellum, which is an indication in evolutionary terms that these came later. They haven't evolved as much as the flagellar system. Q. The point is not that the chicken or the egg came first, Dr. Minnich, it's that a lot of highly qualified scientists are looking at this question and trying to determine the evolution of the type III secretory system -- A. You bet. Q. -- and the bacterial flagellum. That's a true statement, isn't it? A. That's a true statement. Q. There's a number of papers that have been published in peer reviewed scientific journals on both sides of this question, and the papers are inconclusive, correct? A. They're inconclusive, but I think if you look at the more recent ones, you know, the gavel is falling on the side of the flagellum first. Q. Well, the real point of this is that, none of those highly qualified scientists who are doing research and publishing in peer reviewed scientific data are suggesting in any way that these systems did not evolve, but were instead created abruptly by an intelligent design agent? A. I never said that the flagellum was created abruptly. I have no idea in terms of how it came about. I just look at the structure. And it has the signature of irreducible complexity and design. It's a true rotary engine. I just come back to that. It doesn't say anything about where it came from, when it was made, or who was involved in it, or what was involved in it. Q. Let me reask the question again, leaving out the word abruptly. None of the many highly qualified scientists who are doing research in this area right now and publishing in peer reviewed scientific journals are in any way suggesting that these systems, the type III secretory system and the bacterial flagellum, did not evolve, but instead were created by an intelligent designer, right? A. No, we're looking at the function of these systems and how they could have been derived one from the other. And it's a legitimate scientific inquiry. And it's good. I mean, I have no problem with that. Q. In your direct testimony, you showed us pictures and made reference to macromolecular machines, right? A. I did. Q. You call them nanomachines, as we discussed yesterday? A. These refer to either way in the literature. Q. You are not suggesting, are you, Dr. Minnich, that these are actually machines, are you? You're saying that they're like machines, aren't you? A. If you read Bruce Alberts' review article, he specifically states -- and we can look it up, if you want. Why do we call them machines? Because they are machines. Q. You think that Dr. Alberts says, these are machines? A. Well, let's look at the paper. Q. Well, actually, I just want to know what your understanding is. I was under the impression that machines were created by human beings, that a machine was, by definition, something created by a human being. Do you agree with that? A. Yeah, I mean, that's our -- that's our reference. Q. And you're not aware of any machines that were created by any being other than a human being, are you? A. Well, isn't that what we're talking about? Isn't that the surprise that, when we open up the cell and we find these macromolecular machines, that all of my colleagues refer to them as, or nanomachines, that these were unanticipated. So we've got to -- and they function as machines, invented like humans, as David DeRosier says, or these other people. Q. Well, my question to you is, are you aware of any machines that were invented, created, or designed by anyone other than a human being? A. I think it would boil down to a definition of a machine, you know. Some animals can put together some, you know, crude devices to, you know. Q. With the exception of possibly animals and human beings, are you aware of any other beings that have ever created, invented, or designed a machine? A. No. Q. Now you relied in your testimony and the argument that you presented in your direct evidence, in your direct testimony, excuse me, on quotations from a number of eminent scientists, isn't that true? A. I did. And I think I qualified as well that these are all individuals that are evolutionists. So I'm not trying to, you know, put words in their mouths or say they agree with me. I'm just looking at what their statements say. Q. The three scientists you mentioned were Dr. Woese, Dr. Alberts, and Dr. Simon Conway Morris? A. Correct. Q. Those are three of the most eminent scientists in the world, would you agree? A. I agree. Q. And let's talk about Dr. Woese for just a second. In your testimony, you rely on an article by Woese and two quotes in particular. Matt, please put up slide number 10. This was a quotation from Dr. Woese that you cited in your direct testimony, correct? A. In my direct or my deposition, I think I had included past this last phrase here. Q. And you also rely on another quotation from Dr. Woese, which is slide 28, Matt, please. Do you remember talking about this in your direct testimony? A. Yes. Q. Now, Matt, please put up D 251 at page 176. In the upper left-hand corner, Matt, the first two-thirds of the paragraph. Dr. Minnich, would you agree with me that Dr. Woese, this eminent scientist, completely rejects the machine analogy. Would you agree with that? A. I think, in this article, he is really objecting to the point from molecular biology, looking totally at the cell as a reductionist point of view, because from a reductionist point of view, you do end up looking at organisms as machines. In that sense, I think he's referring to it, that in his view, the organism is more than the sum of its parts, and this has in part been ignored by molecular biology, and he wants to bring things back to the higher level in terms of organismal biology and evolutionary studies in terms of the origin of these. Q. Please tell me. I'm going to read a passage to you, and tell me if I've correctly quoted Dr. Woese in a peer reviewed scientific journal. Quotes, Let's stop looking at the organism purely as a molecular machine. The machine metaphor certainly provides insights, but these come at the price of overlooking much of what biology is. Machines are not made of parts that continually turn over, renew. The organism is. Machines are stable and accurate because they are designed and built to be so. The stability of an organism lies in resilience, the homeostatic capacity to reestablish itself. Did I read that correctly? A. Right. Q. Dr. Woese rejects the machine analogy, correct? A. He rejects the machine analogy because, you know, this is based on our -- and I brought up this point yesterday in terms of the bacterial flagellum. When it's referred to as a machine that looks like it was invented by a human more than any other machine is an under statement because of these very parameters as well. It is resilient. It can self-assemble. We can't make anything like it. So our analogy, I think, is limited more than anything else. Q. Matt, pull up slide 16, please. This is a slide that you used in your direct testimony? A. Right. Q. And this is referring to an article in the journal Cell by Dr. Alberts? A. Correct. Q. And Matt, please pull up slide 17. And you rely actually on the table of contents from that journal in support of your argument that these are like a machine, right? A. I have that quote in there, right, directly from the table of contents. Q. Right. And if you look at the article itself, as opposed to the table of contents, although I think it's clear from the table of contents, he's quite clear in saying that, these protein assemblies that he's discussing in his article are like machines invented by humans, correct? A. Correct. Q. And are you aware that, moving from the machine analogy just to the overall substance of intelligent design, that Dr. Alberts completely rejects the conclusions that you purport to draw from his work? A. Oh, I'm aware that he is a strong advocate of evolution. He's even co-authored a manual for teaching evolution at the secondary level in high school. Q. Matt, please pull up P-852. You can either look on the screen or you can look in your book, whatever is more convenient for you. A. What was the number again? Q. 852. A. Right. Q. This is a letter to the editor that Dr. Alberts, who, by the way, was the president of the National Academy of Sciences for 12 years, right? A. I am aware of that. Q. This is a letter to the editor that Dr. Alberts published in the New York Times. And I'm going to read it to you. An please tell me if I've quoted it correctly. In Design for Living, on February 7, Michael J. Behe quoted me recalling how I discovered that the chemistry that makes life possible is much more elaborate and sophisticated than anything we students had ever considered some 40 years ago. Dr. Behe then paraphrases my 1998 remarks that the entire cell can be viewed as a factory with an elaborate network of interlocking assembly lines, each of which is composed of a set of large protein machines. That I was unaware of the complexity of living things as a student should not be surprising. In fact, the majestic chemistry of life should be astounding to everyone. But these facts should not be misrepresented as support for the idea that life's molecular complexity is a result of intelligent design. To the contrary, modern scientific views of the molecular organization of life are entirely consistent with spontaneous variation and natural selection driving a powerful evolutionary process. In evolution, as in all areas of science, our knowledge is incomplete. But the entire success of the scientific enterprise has depended on an insistence that these gaps be filled by natural explanations, logically derived from confirmable evidence. Because intelligent design theories are based on supernatural explanations, they can have nothing to do with science. Were you aware that, that's Dr. Alberts' position on the subjects that you've discussed in your direct testimony? A. I am aware. I haven't read this letter until now, but I'm not surprised. I would disagree with the bottom though. Because intelligent design theories are based on supernatural explanations, they can have nothing to do with science. You know, we're not -- I'm the first person to say, we look for a natural explanation, but this is -- the entire success -- the scientific enterprise has depended on an insistence that these gaps be filled by natural explanations. We don't have a natural explanation yet for these macromolecular machines. That's the whole point. And again, going back, I think Dr. Alberts perhaps was caught in his own language. All right. And I find this amazing that, you know, we use this language, this description of machines, and elegant chemistry, and then go back and say, but this is entirely derived from natural process of evolution and change over time. Q. Matt, will you please pull up Exhibit P-848. And Dr. Minnich, you can take a look at that either on the screen or in your book. A. Okay. Q. This P-848 is an article that Dr. Alberts published with a man named Jay Labov in a journal called Cell Biology in the summer of 2004, isn't it? A. Right. Q. And in this article, Dr. Alberts summarizes the efforts of the National Academies of Science to address challenges to the teaching of evolution in the nation's public schools. Isn't that true? A. I haven't read this article. Q. So you weren't aware of that? A. Oh, I'm aware of it, right, that he's -- his position. Q. Dr. Alberts has made it very clear in the scientific community that he does not believe that intelligent design qualifies as science, correct? A. Again, I haven't read the specifics of this. I don't know what he's basing his conclusion on. Q. Well, I'm asking you if you knew that Dr. Alberts has made it very -- A. I'm aware that the National Academy of Science has come out against the teaching of evolution, as well as the AAAS and a number of other societies. In fact, I was even informed Saturday before I came out here that the American Society for Soil Science had come out making a statement against intelligent design, which I find incredible. Q. We discussed Dr. Woese just a couple minutes ago. And you, in your reports, cite and quote from a 2004 article by Dr. Woese to suggest that the modern day supports of evolutionary theory are ripe with problems. That's true, right? You said that in your expert report? A. Correct. And I also quoted, I think, more of a light on Morris's papers as well illuminating that the problems that we have in evolution. Q. We'll talk about Dr. Simon Conway Morris in just a minute. But you're aware that Dr. Woese completely rejects the idea that intelligent design is science, right? You're aware of that? A. I haven't talked to Dr. Woese, so I'm not sure of his personal opinion. I know he's an evolutionist, so it doesn't surprise me. But you're asking if I know specifically, and I don't. Q. I haven't spoken to him either, although I'm sure it would be a fascinating conversation. A. I would like to. Q. If you could turn to what's been marked as P-847. And this is an article from an online publication called Wired Magazine? A. Right. Q. Have you ever heard of this publication? A. I have. Q. And if you go to page 6 of this, there's a quote from Dr. Woese in there, and I just want to know if you were aware that he had said this? MR. MUISE: Objection, Your Honor. Again, it's an assertion that he is asking whether he's aware that he said that. He's asserting he actually did say this. We don't have any foundation for this. It's obviously trying to be offered for the truth that he actually asserted this statement. He said he doesn't have any personal knowledge of this statement. MR. HARVEY: I am trying to determine whether he knows that Dr. Woese actually made a statement in here that completely rejects and rebuts the position that this witness offered in direct testimony. He can either say he's aware of it or aware of the position or he's not. THE COURT: Why doesn't it go to the truth? MR. HARVEY: Actually, I am not offering this for the truth. I am asking this witness if he's aware of that. And that tends to impeach his direct testimony. THE COURT: Well, I think the proper way to do it is to ask him if he's aware of a statement without reference to the exhibit. I think that will cure the objection for the moment. MR. MUISE: Well, the way he asserted it, are you aware that he made this statement. He is asserting that Dr. Woese actually made that statement. THE COURT: I think the proper phraseology for the question is a statement that, and I'll allow that, without reference to the article. And I'll sustain the objection to that extent. BY MR. HARVEY: Q. Well, Dr. Minnich, are you aware that Dr. Woese has stated that, To say that my criticism of Darwinists says that evolutionists have no clothes is like saying that Einstein is criticizing Newton, therefore Newtonian physics is wrong. Intelligent design -- MR. MUISE: Again, Your Honor. THE COURT: Hold on. Hold it. That's not consistent with the ruling on the objection. I don't want you to read the statement into the record. I'll allow you to paraphrase this statement without reference to the article. That's the only way we're going to be able to do this. If his answer is in the negative, then we move on. MR. HARVEY: I misunderstood your ruling. BY MR. HARVEY: Q. Dr. Minnich, you're not surprised -- you wouldn't be surprised at all to learn that Dr. Woese has stated publicly that intelligent design is not science, would you? A. Again, I haven't talked to Dr. Woese specifically on this area, so I'm not aware of the statements. Q. So you're not aware at all that Dr. Woese has come out publicly and said that intelligent design is not science? A. I haven't. MR. MUISE: Objection, Your Honor. He's making an assertion. Does he know? Do you know if? I mean, I'll -- THE COURT: I'll allow that question without reference to the article. No, the objection is overruled. And the answer stands. BY MR. HARVEY: Q. You mentioned Simon Conway Morris. Simon Conway Morris is a leading paleontologist, correct? A. He is. Q. He is perhaps the foremost expert on the Cambrian explosion? A. Right, based on his work on the Burgess Shale. Q. And he's a renowned evolutionary biologist? A. He's written extensively on the subject, yes. Q. Are you aware that Dr. Simon Conway Morris has taken the position that intelligent design is not science? A. I am not aware of that. But again I would like to, you know, for the record, state, in his paper, the problem of convergence in evolution, the channeling, in his mind, brings up the question of teleology, directly quoted from his paper, and he cites two authors that have been involved in intelligent design. So I think he's looking at the possibility, you know, as a scientist and looking at the claims. Q. You're aware that in the paper you're referring to, Dr. Conway Morris said that, if, with the underline on it, if evolution is in some sense channeled, then this reopens the controversial prospect of teleology? A. Correct. Q. Now I'd like to ask you about some other questions. In your direct testimony, you said that you infer the existence of intelligence by standard scientific reasoning. Did I hear you correctly? A. Correct. Q. And is the explanation of intelligent design that you provided to this Court similar to the presentation that you would make if we were a group of scientists and you were trying to persuade us that ID, intelligent design, is scientifically valid? A. Yes. Q. And you testified that it's a legitimate scientific practice to draw conclusions from published studies or data that are different than those drawn by the scientists who actually compiled the data, correct? A. It happens all the time. Q. And you cited Drs. Crick and Watson as an example, correct? A. Right. Q. They relied on data published by another scientist, and they drew their own conclusions about that data? A. There's always the cross fertilization of data and ideas, and somebody will synthesize a new model, and it can be tested. Q. Drs. Crick and Watson won a Nobel Prize for the conclusions they drew from that other scientist data, correct? A. Correct. Q. Now the way they did that is, they published their thinking in peer reviewed scientific journals for the scrutiny of their colleagues, true? A. In a one-page article in 1953 in Nature, right, the first publication on the structure of DN A. Q. Nature, that's a peer reviewed scientific journal? A. It is. Q. Is that the probably the number one most respected peer reviewed scientific journal in the world? A. I think Nature, Science, PNAS, Cell, would all fit in that. Q. Now Dr. Crick and Watson didn't win a Nobel Prize by trying to convince school boards, average citizens, lawyers, the press? A. I made that clear yesterday, that I wasn't equating what we were doing with the work of Watson and Crick. I'm not so presumptuous or arrogant to make such a comparison. Q. Well, it's important to publish your scientific conclusions in peer reviewed journals so that other scientists, people who are qualified to evaluate those conclusions and the evidence from which those conclusions are drawn, so that those people, your colleagues, so that they can look at your conclusions and determine whether they make sense or not? A. I agree. Q. Hence the expression, publish or perish, right? A. Right. And publish and perish as well. Q. That's your second very good joke in this -- leading all expert witnesses. A. I'm concerned, you know. There's a risk involved. That paper that I published for the conference proceedings ran a lot of risk in terms of the implications and how people would review my work based on the conclusions that I was making. And that's part of the problem, is that, to endorse intelligent design comes with risks, because it is a position against the consensus. And science is not a democratic process. But peer review works both ways. And it is, like I said, it's dangerous. I'm taking a risk in putting these ideas out, as well as everybody else in this area that's trying to get published. Q. And that's because the, really the entire scientific community rejects the idea that intelligent design is science, isn't that correct? A. That is correct, at this point. And that is the history of science as well. Q. And this explains why you have not published any articles on intelligent design in any peer reviewed scientific journals, correct? A. By your definition, no. But I have one in a conference proceedings, so I'm willing to put my ideas out there. And, but again, my focus in my laboratory is on pathogenesis. That's my primary concern. And that's what I publish on. And that's -- you know, I have to keep my lab funded. The implications, I think, contribute to our idea of intelligent design. And I certainly don't hide my feelings or arguments as well. I mean, I've talked about this. I've been open about it with my colleagues. I think the more we discuss it, the merits of some of these things are understood, and they're not dismissed outright before being weighed, which is the tendency. Q. Dr. Minnich, you're not aware of any research articles advocating intelligent design in any peer reviewed scientific journals, are you? A. I think yesterday there was, as I mentioned, there were around, between, I don't know, seven and ten. I don't have the specific ones. But Dr. Axe published one or two papers in the journal Biological Chemistry that were specifically addressing concepts within intelligent design. Mike Behe had one. Steve Meyer has had one. So, you know, I think the argument that you're not publishing in peer reviewed literature was valid. Now there are a couple out there. How many do we have to publish before it is in the literature and being evaluated? I mean, do we have to have 25? 50? I mean, give me a number. Q. Let's just talk about Dr. Axe. Those papers don't advocate intelligent design, do they? A. That's the intent in terms of looking at protein sequence and domains and sequence space. Q. He doesn't mention the words intelligent design anywhere in those articles, isn't that correct? A. There's a reason for that. Q. And you mentioned something by Dr. Behe, is that right? A. Correct. Q. That's the article with Snoke? A. Yes. Q. That wasn't in a scientific journal, was it? A. Well, refresh my memory. I haven't read the papers. Q. So you don't know -- if Dr. Behe testified that that wasn't in a scientific journal, you wouldn't question it? A. I wouldn't dispute it, no. Q. Intelligent design posits the existence of an intelligent agent who devised a plan, a pattern, a blueprint for living things, isn't that correct? A. I don't agree with that definition. I think intelligent design is looking at nature and asking, are the complex structures that we find possibly developed by natural cause alone or not? Is a design real or apparent? Q. You testified about the book Of Pandas and People in your direct? A. Right. MR. HARVEY: Your Honor, may I approach? THE COURT: You may. BY MR. HARVEY: Q. I've handed you a copy of Of Pandas and People, opened to page 14. In the lower right-hand side, there's a statement there? A. Okay. Q. It's actually the last sentence on that page. Intelligent design, by contrast, locates the origin of new organisms in an immaterial cause, in a blueprint, a plan, a pattern devised by an intelligent agent. Isn't that what the book says? A. Right. I mean, in that sense, yes, there's an intelligent cause behind the specified complexity that we find in nature. Q. And intelligent design also, another way of saying the same concept is that, intelligent design posits the concept of a master intellect, isn't that right? A. To a degree, yes, but it doesn't indicate or identify master intellect, who it is. Q. Now you think that the intelligent agent is the God of Christianity, isn't that true? A. Are you asking me personally? Q. Yes. A. Okay. Yes, my personal opinion, but that's not based on a scientific conclusion. Q. You're affiliated with the Discovery Institute, right? A. I'm a fellow. Q. And you're proud of your association with the Discovery Institute? A. Yeah, it's a good network for -- Q. And you're familiar with Philip Johnson? A. I am familiar with Philip Johnson. Q. He also thinks that the intelligent designer is the God of Christianity, isn't that true? A. That's my understanding, yes. Q. And Michael Behe is a fellow of the Discovery Institute? A. He is. Q. And he also thinks that the intelligent designer is the God of Christianity, correct? A. I haven't asked Mike directly, but he's a Catholic, I know, so I assume so. Q. William Dembski, you know that he thinks the intelligent designer is the God of Christianity, right? A. Correct. But again, these are personal opinions that aren't based on looking at the science. Q. I understand. Dean Kenyon is a fellow with the Discovery Institute? A. I'm not sure, but I'll take your word for it. Q. Do you know Charles Thaxton? A. I know Charles Thaxton. Q. He's a fellow with the Discovery Institute, right? A. I believe so. Q. Do you know he thinks the intelligent agent is the God of Christian? A. I'm aware of that. Q. Nancy Pearcy. She's a fellow with the Discovery Institute? A. Correct. Q. And she thinks that the intelligent agent is the God of Christianity, isn't that right? A. Correct. Q. Now I want to ask you about -- we talked just about the term intelligent design. As I understand it, intelligent design, as an argument, is saying that this intelligent designer not only designed living things, but also built living things. Do you agree? A. Repeat the question. Q. Sure. Intelligent design, as a concept or an argument, is saying that the intelligent designer not only designed living things, but the intelligent designer built living things? A. I haven't heard that inference before. I mean, there are parts of that I would agree with, but in terms of aboriginal forms or whatever, there is nothing in terms of the mechanism implicit in intelligent design that I'm aware of. Q. Well, the statement that I said, that's -- that flows logically from the concept? A. Right. Q. You're not saying that the intelligent designer drew up this blueprint and then set it aside, are you? A. No, no, no. Q. The intelligent designer designed and built these things? A. Correct. Q. Designed and created these things, correct? A. Well, your use of the word created, invented, whatever. I mean, it was a creative process at some point, whoever the designer was. Q. But you would agree with me, whether we want to say built or created, made, constructed, put together, it's all the same thing? The intelligent designer designed and created these living things. That's the logical implication of intelligent design? A. Again, I go back to what Ii said yesterday. As biologists, all of us look at nature and we see design. It's overwhelming by our own admission. The question is, is it real design or only apparent design? Or is it a combination of both? You know, and I think those are legitimate scientific questions to be asked. Q. I'm anxious to explore that with you, but first I have to get this cleared up. You agree that it's intelligent design and construction, building, creation, it's both concepts, correct? A. Correct, given some of the structures we find in the simplest cells that supersede anything that our engineers can build at present, yeah, I would say it's a source of intelligence. Q. Wouldn't it be more correct to call the argument or the theory, intelligent design and creation? A. No. You know, I think I resent the consistent misrepresentation of intelligent design with creationism. Q. Well, intelligent design and construction, would that be better? A. Okay. Q. You can accept -- A. At some point. All we can say is that, there's design -- I think it's real. There's a designer. I don't know who it is or what it is, you know, from the science that I'm deriving that assertion from. Science isn't going to tell me. Q. Have you ever worked with an architect, for example, on your house or -- A. You bet. Q. They refer to themselves -- sometimes you can go to an architect that design, and then you can go to a contractor, or you can go to one that does it all together, and that's called design build. Are you familiar with that? A. Correct. Q. And that's really what you're saying here, is that the intelligent designer designed and built, correct? A. Right. Q. Now you have stated that intelligent design has a positive case and a negative case? A. Correct. Q. And the positive case is based on the appearance of design in nature. Is that true? A. Correct. Q. And according to you, we infer design when we see a purposeful arrangement of parts? A. Correct. Q. Like a hand or an eye? A. We're really restricted to the molecular level at this point. We don't know, you know, all of the variables involved in the eye or the hand. We look at molecular machines. Those are well-defined. All the parts are known. I'll leave it at that. At the molecular level. Q. The focus of your thinking has been on molecular machines, I recognize that. But more broadly speaking, the intelligent design position asserts, as an illustrative proposition, that, for example, the hand is a purposeful arrangement of parts and, therefore, we can infer that the hand was designed? A. I haven't made that assertion. Q. Are you familiar with the Reverend William Paley? A. I am. Q. And Reverend William Paley posited the argument for the existence of God based on design in nature, correct? A. Correct. Q. And that's often times referred to, and if you look it up in the dictionary, you'll find it referred to as the teleological argument, right? A. Correct, purpose. Q. And you would agree, that's not a scientific argument? A. Again, I think it is. It's addressing the question, is the design real or apparent? There are two answers to the question, both of them very interesting, and both of them are packed metaphysically. So, right. I think we can look now and start dissecting what are the properties of real design. Q. So you understood -- you understand today, Dr. Paley's argument, as it's expressed in academic circles, as a scientific argument? A. It's a philosophical argument looking at nature in that sense. It was the argument, I think, that was really important for Darwin to address. I don't think we can really understand Darwin's contribution until we understand the argument of design, that he was really supplanting with natural selection and variation. Q. And intelligent design is making essentially the same argument that Dr. Paley made, except that it leaves God out, correct? A. It doesn't identify who the designer is, okay. But I think the arguments are a little bit more sophisticated based on what we know now compared to what Paley knew. Q. I'm anxious to discuss that with you, but it is essentially the same argument with God left out, correct? A. To a degree in terms of addressing nature and asking -- seeing design and asking, is it real or just apparent. Q. And just let me see if I understand the argument. A. And it goes back to the Greeks. I mean, this argument didn't initiate with Paley. Q. I just want to make sure I understand the argument. I'm walking through a field, and I find a cell phone. I pick up the cell phone. I say, that cell phone was obviously designed and, therefore, there must be a designer. That's the inference that I draw. And that's the basic argument of intelligent design, right? A. That's the argument from Paley using a watch instead of a cell phone, but, yeah. Q. I thought I'd modernize it. A. Yeah, okay. Were there any minutes on it? Q. That's essentially the same argument -- and just in its essence, the core, the reasoning, I'm asking, that's essentially the same argument intelligent design is making, right? A. I'll agree with that. Q. And in that argument, we see something created by -- the cell phone is, of course, created by a human, right? A. Correct. Q. So the design theorist sees an item that's designed by a human and the theorist knows about the creative and designing capacities of humans, right? A. Right. Q. And so it's a very logical inference to say, I know that that was designed by humans. I also know something about the creative or designing capacities of humans. And it's a very logical conclusion to say, that was designed by a human -- designed by intelligence and, therefore, there must be intelligence, right? A. Correct. Q. Now when we move into the natural world, things get a little different, because when we -- we don't know when we pick up a natural object whether it was designed by an intelligent agent, right? I mean, I recognize -- A. That's the question. That's the question. Q. That's the question. A. That's the question at bay here, right. I mean, we know what it takes to write software for an algorithm for your program to call up a specific routine. I'm saying, when I work with cells and look at the instructions, the algorithm to make a flagellum, it's pretty darn sophisticated. In fact, it's more sophisticated than anything Microsoft has come up with yet. I know what it takes for software engineers, to a degree, although I'm not one, to write code. And here's a code that's much more sophisticated. Is this a product of the natural random events of chemistry and physics or is there a design behind it? When we find information storage systems, in our own experience of cause and effect, day-to-day, by scientific reasoning, standard scientific reasonings, we can say, if we find code, that there's an intelligence associated with it. Again, where there's an alphabet, musical scale, numerals or symbols involved with mathematics, and here we have a true digital scale or code that's more sophisticated again than -- so that's -- yes, that's the argument. Q. Let's return to that field for just a minute. And this time, let's -- we don't find a cell phone, but instead, we find a mouse. And we pick up the mouse. And we can feel the mouse's heart beating in our hands. And we want to know something about this mouse. Well, would you agree with me that we don't know -- at the beginning of the argument for design, we don't know who created that mouse, who designed that mouse? A. Correct. Q. And we don't know anything about the capacities, desires, intents, or other characteristics of any designing intelligence, correct? A. Not from looking at the mouse. Q. And so, therefore, wouldn't you agree with me that the analogy between the cell phone and inferring the existence of human intelligence is not at all similar to looking at something in nature and inferring the existence of some intelligent agency? Wouldn't you agree with me? That's just not logical? A. I disagree with you. I mean, you're dealing with a life organism versus an inanimate construct or contrivance by a human. In one sense, yes, they're different. But in terms of teasing them apart and looking at the inner workings of individual cells, I think we can infer, if we see the arrangements of parts for a purpose, that, in our own experience, we can infer design. It's perfectly legitimate. Tell me why it isn't. Q. Luckily, or unluckily, for you, you're the one answering the questions today. A. Correct. Q. Now a few minutes ago, I suggested to you that intelligent design is just a strip down version of Dr. Paley's argument without the reference to God, right? A. I wouldn't call it strip down. I think it's a little more sophisticated than Paley's original arguments. In fact, I find it interesting that Anthony Flew, who is the leading apologist for atheism in the UK, looking at the arguments from intelligent design, has decided that atheism is no longer a valid position for him, having, as a philosopher, worked in this area for 60, 70 years. He's in his 80's. It didn't require any religious conversion. Q. Well, what I'm trying to explore with you, Dr. Minnich, is that -- and we'll talk about molecular biology some more at length in just a few minutes -- but that intelligent design, in its essence, is making, as you agreed with me previously, is making the same essential fundamental argument that Dr. Paley made, except it's not inferring the existence of God, it's just inferring the existence of design, correct? A. Correct. Q. And now you said -- and Matt, I'd like you to pull up that slide I just handed you. Second bullet point. You said in your direct testimony that the strength of the inference is quantitative. The more parts that are arranged and the more intricately they interact, the stronger is our confidence in design. Correct? A. Correct. Q. Now if I understand your argument, what you're saying is that, and this is what distinguishes your argument from Dr. Paley and the point you were just trying to make a minute ago, is that, you claim that science has discovered a lot more design than was around in Dr. Paley's time and, therefore, it's fair and logical to revisit this argument, although albeit without the reference to God, correct? A. Correct. Q. And, in fact, you say that the inference is quantitative, right? That's the word you used? A. Right. Q. That quantitative means, obviously, a quantity? A. Right. I think it's -- the argument goes from our own experience with machines to the more complex a machine, the more difficult it is to modify. Q. Well, I'm trying to get Dr. Paley's argument without God up in the modern times to understand it. And at the time that Dr. Paley wrote, there was very complex natural systems known then, correct? A. Well, qualify that statement for me. What do you mean, in terms of -- Q. I'll give you an example from one of my -- I'd like to think he's an eminent forebear, but I'm not sure. Dr. William Harvey. Do you remember that name? A. Correct, studied blood circulation. Q. Right. He discovered the circulatory system for the blood, right? A. Correct. And actually, he used the design inference to do it, because he saw the way that the blood system was constructed and looked at it as a plumbing problem really. Q. And Dr. Harvey died in 1657, didn't he? A. Correct. Q. And so at the time that Dr. Paley was thinking about these issues, there were, in fact, some very complicated systems in nature that were known to him? A. I would qualify that. I mean, they were complicated systems, especially based on the knowledge they had, whether you're talking about the eye, which we still view is very complicated, or circulatory systems. But I don't think -- I don't know what you're inferring. Q. Well, you said in your direct testimony that there have been developments in the last 30 or 40 years, I forget what you said, in molecular biology that indicate a design that is much more than was previously known, and from that, it's fair to revisit this argument? A. Well, I think just looking at Dr. Alberts' statement in his article, that his view of the cell as a graduate student, and his statement that we've always underestimated the cell. And that's -- I think that's a true statement. Q. So there's been something that's happened over the last 30 or 40 years that, in the scientific world, that causes you and others to revisit the essence of the argument advanced by Dr. Paley? A. Correct. That's fair to say. Q. In fact, you claim that's developments in molecular biology? A. Correct. Q. And I think you said in your report that we've -- the last 30 or 40 years have been the golden age of molecular biology? A. Correct. Q. Now I'd like to know whether there was some event or some -- strike that -- some quantitative measure at which point it became appropriate to revisit the design argument? A. That's a good question. No, I think it's a culmination of information from a number of different fields and the fact that you're seeing kind of a convergence in physics as well to come to some of these conclusions. Q. So when we say quantitative as scientists -- A. I'm talking about specific molecular machines in reference to this. I'm not saying that there's a quantifiable number of papers that are going to trip the scale to intelligent design revisited versus our adherence to evolutionary biology as a sole explanatory source for what we see in nature. Q. Well, you're also, or you'll admit, there's no quantifiable amount of design. We don't get to a certain amount of design after Dr. Paley and say, there's an objective measure of design, and we passed it, correct? A. I think you can look and do it comparatively, maybe qualitatively compared to what we know that human engineers design compared to what we find in subcellular systems. Q. There's no objective measure for design, true or false? A. I think there is an objective measure for design. I mean, we use it. I think design engineers use it all the time. Q. There's no objective quantifiable measure for design, true or false? A. False. Q. You agree with me -- let's move to a different subject now, Dr. Minnich. You agree with me that evolution is generally accepted in the scientific community? A. I do, and I think it's a critical subject in my discipline, and I am -- I want to state for the record that I am fully behind the teaching of evolution, and I think that part of the problem is, we haven't taught it enough and critically enough. Q. Would you agree with me that, in a public high school, it's appropriate to teach evolution? A. Absolutely. Q. Would you agree with me that, at a public high school, it's appropriate to teach all aspects of evolution, including the common ancestry between humans and other species? A. Absolutely. Q. Now a few minutes ago, we talked about the positive case for intelligent design, and I'd like to now talk with you about the negative case for intelligent design, right? A. Okay. Q. There is a negative case for intelligent design, right? A. Well, let's discuss it. Tell me what you have in mind. Q. Well, the negative case for intelligent design, according to you, is based on the inability of evolution to explain the overwhelming appearance of design in nature? A. Correct, I made that statement. Q. And have you ever heard of the two-model approach? A. Yes, I have. Q. And wouldn't you agree with me that, that negative argument for intelligent design is based on the two-model approach? A. Not necessarily. I'd qualify it. Q. Well, you're essentially saying, are you not, that we purport to be able to disprove or challenge evolution, and if evolution is wrong, therefore, it must be intelligent design? A. No. I'm saying, I think that there are aspects of evolution that are very important in our understanding of nature, and I think intelligent design really addresses the mechanism of natural selection and variation as the generative force behind going from the simple to the complex. It doesn't address common descent or even macroevolution. I think a lot of us are satisfied with that as well. But we lack the mechanism in the intermediates at this point. Q. So intelligent design accepts some degree of change over time? A. Oh, nobody is even debating that. Q. But intelligent design is also suggesting that other aspects of the theory of evolution are either wrong or subject to challenge, correct? A. In the aspect of natural selection and variationism mechanism to drive evolution from the simple to the complex. Q. And the contention of intelligent design is, if that's true, what you just said, that evolution can't explain that, then that's proof for intelligent design? A. I think it's consistent with an intelligence behind the complexity that we find in nature. It's a valid argument or derivative from that, yes. Q. Wouldn't you agree with me that, it logically doesn't follow to say, if one proposition is untrue, that is the propositions about evolution that you purport to challenge, that from that it flows that it must be intelligent design? That's not logical? A. No, it's perfectly logical. I'm saying that there is -- as I said yesterday, I think natural selection and variation is very important in terms of preservation of phenotypic characteristics. I'm not convinced it can generate the deep complexity of life that we find. Let me put it this way. If you're a materialist or a naturalist, essentially, you believe in spontaneous generation. You believe that the Earth in its primordial condition produced all of the pre-cursors that allowed for the assembly of the first replicating organism that was dependent upon those pre-cursor compounds in this soup for its survival, and then turned around and taught itself how to do biochemistry and organic chemistry at a level that's more sophisticated than any chemist on this planet in terms of the specifities of the reactions, the yields, and the overall intricacy of those things. So that's what -- that's at the level in terms of the logic that we're dealing with here. Okay. Do you believe that? Q. Well, let's just say, suppose for just a second that the theory of evolution was proved to be wrong today. Then you would agree with me that that is no support whatsoever for the theory of intelligent design, right? A. No, I would disagree. I would qualify that. If evolution is disproven -- I don't know what you mean by disproven. Common descent, macroevolution, adaptation. No one is questioning adaptational responses of organisms. Spontaneous generation or the first appearance of life, the origin of life. If that's disproven, then you can infer an intelligence. But that doesn't rule out a natural cause. All you can say is, there may be an intelligence behind it at some level from the science. Q. So you would draw from that negative argument about evolution a positive argument about intelligent design? Do I understand you correctly? A. The positive argument is that we know when we find irreducible -- irreducibly complex systems or information storage and processing systems, from our own experience of cause and effect, that there is an intelligence associated with it. And so, it is logical to assume, when we find these systems in a cell, if we can -- if the flagellum is irreducibly complex, then, yes, there's an intelligence behind it. That's a uniformitarianism deduction from cause and effect that we know from our everyday today experience. Q. I'd like to discuss that with you, but it's a long subject, and I think it might be appropriate to take a break right now. THE COURT: All right. Let's do that. We'll take our mid-morning break at this time. We'll return in about 20 minutes, and we'll pick up Mr. Harvey's examination. Are we on track, Mr. Harvey, to get this witness finished this morning? MR. HARVEY: Yes, Your Honor. I have every intention. THE COURT: With an appropriate time for Mr. Muise to engage in redirect and recross. MR. HARVEY: Yes, Your Honor. THE COURT: Do you want to say something? MR. MUISE: No, I'm just waiting for the, all rise, Your Honor. I'm anticipating the break. THE COURT: All right. See ya in a bit. (Whereupon, a recess was taken at 10:15 a.m. and proceedings reconvened at 10:40 a.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 21 (November 4), AM Session, Part 2 THE COURT: All right. You may resume, Mr. Harvey. CROSS EXAMINATION ( CONTINUED) BY MR. HARVEY: Q. Dr. Minnich, through the peer review process, I learned that I misspoke in my examination, and that the Snoke-Behe article was, in fact, in the peer reviewed publication? A. Okay. Q. That was your understanding, that it was in a peer reviewed publication? A. It was. Q. But it doesn't actually mention either intelligent design or irreducible complexity, correct? A. Right. Q. And have you read it? A. I read the abstract. Q. So you didn't read the actual paper itself? A. I haven't. Q. And this morning, I was talking with you about whether there was an objective quantifiable measure for design, and I'd just like to restate the question. Are you aware of any objective quantifiable measure for the design of biological systems? A. There are a lot of numbers that have been proffered, but they're all based on assumptions in terms of mutation rates and functions. So -- Q. No, I mean, for design. Are there -- there's no objective quantifiable measure for the design of biological systems, in other words, how much design there, is there, correct? A. Well, that's a good question. You know, not that I'm -- I can't put my hand on a number, but -- Q. I couldn't either. A. But again, I think -- let's look at it. It's an intuitive -- Q. Let's actually look at slide 13. This is a quote that you used in your direct testimony, and this comes from the paper by Lenski, Pennock and others, correct? A. Correct. Q. You focused on last, the highlighted quotation there? A. I did. Q. You bolded it as a matter of fact? A. I did. Q. Now to be fair, you did read the entire quote, including the sentence before it, but I want to just emphasize it. It does say, quotes, There now exists substantial evidence concerning the evolution of complex features that supports Darwin's general model, close quote. That's in there, correct? A. These are, again, inferences. I don't know of the step-by-step, you know, mutation, selective scenario for any biochemical pathway. Q. Right, but that statement is in there? A. Right. Q. And now I'd like, Matt, if you could bring up slide 14. And from that article and the quotation that I just read and the entire quotation, you draw the conclusion that we lack intermediate structures, we lack fossils, and we don't have adequate knowledge of how natural selection can introduce novel genetic information, correct? A. Correct. Q. Now with respect to fossils, you're not a paleontologist, right? We already talked about that. A. I am not a paleontologist. But you read the literature, and that's one of the problems, that the intermediates are not present. Q. But if a qualified paleontologist came into the courtroom and said, that's not true, you wouldn't be in any position to rebut that, would you? A. I could look at some of the papers that I quoted, in Morris in particular. I mean, there are some molecular biologists that have hypothesized the lack of intermediate fossils was due to homeotic gene mutations in the production of hopeful monsters in that they never existed to explain why we can't find that. That hasn't panned out. But it's a recognized problem in terms of the fossil record. Q. Now you said in your direct testimony with respect to intermediate structures, you said yesterday that we don't have the phylogenic history of any biochemical pathway or subcellular organelle? A. Correct. Q. The mitochondrion is a subset of your organelle, right? A. That's correct. Q. Please turn to Exhibit P-841 in your notebook. That's an article that was published in Science magazine in March of 1999? A. Correct. Q. And that's, of course, one of the leading peer review journals in the world, correct? A. Correct. Q. I'm going to ask Matt to highlight some of the -- the third sentence in the abstract, Matt, that begins, gene sequence. You're not aware of this paper, are you, Dr. Minnich? A. I'm trying to remember if this was one that was mentioned in my deposition. Q. I think it may have been. But in any event, this says, quotes, Gene sequence data strongly support a monophyletic origin of the mitochondrion from a eubacterial ancestor shared with a subgroup of the alpha-proteo bacteria, closed quotes? A. Correct. Q. Then if you would please look at figure 2 in this publication. Matt, could you go to figure 2? And actually, if you could highlight the first sentence. That says that, that neat little chart that we're looking at there is a tree of the phylogenetic relationships among mitochondria and alpha-proteo bacteria, correct? A. Correct. Q. So we do have the phylogenetic history of the mitochondrion? A. No, we don't. This is inferred from sequence comparisons, and there's all kinds of problems inherent with this type of approach that some of the papers I use address this. If you look at ribosome-- COURT REPORTER: Could you slow down, please, and repeat that? THE WITNESS: Sorry. If you look at -- you can get one phylogenetic tree. If you use some other parameter sequence or protein analysis, you can get another phylogenetic tree. So to say that this is the true phylogenetic history of mitochondria is incorrect. BY MR. HARVEY: Q. You've never published that in any peer reviewed scientific literature, have you? A. No, I haven't. Q. So you reject what this scientific, these scientists have published in Science magazine in favor of your subjective conclusions that have been published nowhere and shared with none of your scientific colleagues, true or false? MR. MUISE: Objection, Your Honor. First of all, the question is extremely argumentative. I understand it's cross examination. But -- and it's assuming evidence that was not introduced into this testimony -- into his testimony. All -- he said, he gave his specific example of why this did not, does not purport to reach what it reached. And then he asked him a question, and we have to go back and review all the additional components he added to it, but it was certainly assuming facts not in evidence. THE COURT: He asked whether he rejected what the scientists published. MR. MUISE: That's correct, Your Honor. Then there was the follow-up question is my objection. THE COURT: No, within the question that you objected to, he asked him whether he disagreed with what the scientists had published. MR. MUISE: That's a fine question, Your Honor. I have no problem with that. THE COURT: Then he went on to, in the balance of his question, he then went on to describe his methodology, and it is argumentative, but as you characterize, it is appropriate cross examination, and on that basis, I'll overrule the objection. Do you recall the question? THE WITNESS: Could you -- THE COURT: We can have it read back. THE COURT: Wendy, if you would. MR. HARVEY: Let's see how argumentative it was. I forget. THE COURT: Don't prompt me. I can reconsider. (Whereupon, the court reporter read back the referred-to question.) THE WITNESS: I want to qualify that, Steve. I mean, I can respect this type of work, but remember, when we're studying evolution, we're trying to figure out, you know, from a historic perspective, looking way back in time, and this is one tool that can be used in terms of sequence comparison. But as I mentioned, and I'm not denigrating the work that these scientists have done. I mean, I respect what they've done. But we have to recognize that these types of studies have been done for the last 30 and 40 years. And as we get more information, it's revised. My point is, the phylogenetic history, the true phylogenetic history is not revealed in this sequence comparison. It's an inference that may or may not be correct. Okay. And even in this point in terms of whether a prokaryotic organism can evolve into a mitochondria, I don't have any problem with that, you know, in terms of an evolutionary scenario. I'm just saying, to use this and say, this is, you know, hard fact, this is how it happened, I don't even think these scientists would come to that conclusion solely on this. BY MR. HARVEY: Q. Well, they've published this article saying that these are the phylogenetic relationships? A. Under the criteria that they're using to measure it. Then there are assumptions and inferences built into that, that I'm sure they would, they probably have qualified in this paper someplace. I haven't read it. Q. So you're not agreeing with these scientists, are you? A. I'm not disagreeing with them. I'm just saying that this -- when I say, a phylogenetic history, I mean, a true history, a historical account that we actually know. And we may never know it. And this may be the best guess. But that's the point. Q. So are you looking for detailed explanation and evidence of every step along the way? Is that what you would need before you would accept that? A. Not to that degree. But, I mean, a consistent history. There's a lot of inference in these types of things, and we've got to recognize that. Q. These systems evolved, Dr. Minnich, over many years. Agree? A. Oh, I agree. That's part of the problem. Q. Over a billion years, correct? A. Correct. Q. And that's part of the problem, your testimony exactly, because it's hard to put together through science precisely what happened over a billion years ago? We don't have a video camera running? A. This is the problem that we have in terms of studying evolution. As Ernst Mayer says, and I quoted him in my expert report, the normal laws in the natural sciences, experimental sciences don't apply to evolution when we're trying to figure out what happened at a deep distance in time, just built-in assumptions and inferences, and that's what we have. Q. So the scientific community actually has done a lot of work in these questions of intermediate structures, but it's your testimony, it's just not enough because we haven't gotten far enough, is that correct, in the scientific world, I mean? A. To a degree. I mean, I would qualify it. Q. Okay. A. I mean, again, if you're -- and I'm the first one to say that we look for a natural cause first, but -- Q. We'll come back to that. But you also testified about biochemical pathways, and you said we don't understand the evolutionary history of any biochemical pathway? A. A complete pathway. There are adaptational responses that have been reported, and it's good science. You can take a recalcitrant molecule chlorinated by phenol that normally isn't broken down by organisms and expose organisms under selective condition and you can get a modified enzyme that will now cleave off that chlorine or introduce a new -- I mean, there are some slop in enzymes that can broaden in terms of sub straight recognition. Q. So scientists have been looking at and do know a certain amount about the evolution of biochemical pathways, and that's reported in the peer reviewed scientific literature? A. Adaptive responses for sure and looking at sequence comparisons of highly conserved pathways like glycolysis or the Krebs cycle. But in terms of the origin of those, we don't have a good history of it. Q. Well, take a moment to look at what has been marked as P-842. A. Got it. Q. You've seen this paper before, haven't you? A. I have. I think this was in my deposition. Q. And these are some research from the Air Force Research Laboratory who did some work on the biochemical pathway by which certain bacteria breakdown a substance called DNT? A. Correct. It's very important. Q. That's like TNT, except this is dinitroluene, correct? A. Uh-huh. Q. These researchers, this was published in a peer reviewed scientific journal? A. Yes. Q. And if you look on -- at figure 1, which is on page 113. And Matt, perhaps if you can bring that up for us. These researchers, based on their own original data, have published the organization and evolution of the bacteria that breaks down DNT? A. Right. This is an adaptational response. Q. And that's a DNT -- this process by which these bacteria breakdown DNT, that's a biochemical pathway? A. Correct. Q. So we do have published information in this scientific literature about the evolution of biochemical pathways? A. Steve, you're extrapolating from the data here. I mean, not all these enzymes evolved specifically to break down this compound. I mean, you're mixing and matching enzymes, I'm sure, from pathways that had some other property. Q. You're not disagreeing with these scientists from the Air Force Research Academy, are you, Dr. Minnich? A. This is an adaptational response, okay. This is microevolution. I have no problem with that. That's not what we're discussing. These enzymes were present. You probably modified one or brought some in by lateral gene transfer from another system that can attack these problems. I mean, this is critical. The Air Force is working on this because TNT reservoirs in their munitions dumps are a problem for environment. And, yes, we can take organisms that -- and adapt them by selective pressure to modify enzymes that they have and attack these compounds. I have no problem with that. Q. Well, you're the one who said, we lack intermediate structures, and now -- and you specifically mentioned subcellular organelles and biochemical pathways, and now we've seen literature that's in the scientific literature that addresses these points exactly. And if I understand your testimony, it's just not -- we just don't know enough to satisfy you that natural selection can drive the evolutionary process? A. I don't think you understand my position, okay. I mean, this is an adaptational response. This entire pathway didn't evolve to specifically attack this substraight, all right. There was probably a modification of two or three enzymes, perhaps cloned in from a different system that ultimately allowed this to be broken down. I mean, I've got good colleagues in my own department that are working on the same problem. And I don't think they pretend to know that the evolution of the pathway from start to finish in their system. Q. There's a lot of work in this area of intermediate structures, isn't that true? A. Right. Q. Now if you go to -- well, actually let's just think back for a minute. One of the claims you made in addition to no fossil record and lack of intermediate structures, you also said that we don't have adequate knowledge of how natural selection can introduce novel genetic information, right? A. The problem -- information is recognized in biological sciences as one of the major areas that we don't fully comprehend. Q. I'm not talking about the origin of the gene or the origin of the genetic code. We may talk about that, if we have time later. But you said that we don't have any information -- we don't have adequate knowledge of how natural selection can introduce novel genetic information. That was your testimony, according to that slide, right? A. That was the purpose of the Lenski paper addressing that specific paper with virtual organisms. Q. That was your testimony, you say we don't have that, right? A. It's a qualified statement. You know, I'm not going to make an absolute. Yes, you can get gene duplication. You have the immune system that can generate by cassette shuffling and differential in electron splicing. An incredible amount of diversity. Q. Please look at has been marked as P-245. A. Is it up front or -- Q. It's to the front. And we can bring it up in the system. A. Got it. Q. Do you have that in front of you? A. Yes. Q. You've seen this article before, haven't you? A. Yeah. I think this was at my deposition as well. Q. This is an article that was published in Nature Reviews, which is affiliated with Nature, the journal, and it's by a scientist by the name of Manyuan Long and others, right? A. Correct. Q. Manyuan Long is at the University of Chicago, isn't he? A. I'll take your word for it. Q. Well, he's a very eminent scientist as well? A. Right. Q. He's done a lot of work on the origin of how natural selection can introduce novel genetic information, isn't that true? A. That's not my specific area, but, right. Q. And I'd like to just read you a quote from Dr. Long's paper here, the paper with others. The first, not the abstract, Matt, but the first paragraph of this paper. These scientists say, quotes, Although interest in evolutionary novelties can be traced back to the time of Darwin, studies of the origin and evolution of genes with new functions have only recently become possible and attracted increasing attention. The available molecular techniques and rapidly expanded genome data from many organisms means that searching for and characterizing new genes is no longer a formidable technical challenge. Also, molecular evolution and molecular population genetics have provided useful analytical tools for the detection of the processes and mechanisms that underlie the origin of new genes. Do you see that? A. I see it. Q. And wouldn't you agree with me that, there is a great deal of scientific information that's published in the literature by Dr. Long in particular, but others as well, on the subject of how natural selection can introduce novel genetic information? A. Correct. Q. In fact, this paper cites 122 references. Do you see that? A. Well, I'll take your word for it. Q. Now turning to the subject of design engineering, which you covered in your direct testimony. I'm afraid we won't have time to discuss the subject of your testimony in as much detail as I'd like. I'd probably take more than a day, but -- THE COURT: We can only hope not. We'll keep within our time frame. MR. HARVEY: No, Your Honor, actually we've spoken together, and I'm going to try to stop by 11:30, if not sooner. THE COURT: All right. MR. HARVEY: Matt, can you bring up that slide, please? BY MR. HARVEY: Q. This is the slide you used in your direct testimony, isn't it? A. Correct. Q. And so it's your testimony, as set forth on this slide, the last bullet, that Dr. Alberts advocates incorporating design engineering into our biology curricula as a means to dissect the interactions of the macromolecular machines now identified in even the simplest cell, right? A. Correct. Q. Yesterday, you told me that you put your report together in a hurry, didn't you? A. I did, yeah. I had a time constraint. Q. Did you have a chance to examine Dr. Alberts -- did you read Dr. Alberts -- A. I read Dr. Alberts' paper and, in fact, if you want to -- I'm inferring this from one section, if you want me -- Q. Yeah. Please, Matt, pull up P-725. A. Okay. Q. Now this is Dr. Alberts' paper that you were referring to, correct? A. Correct. Q. And if you go to the end of this, the very last page of the paper, Matt, please, of the text. Now you say this paper stands for that Dr. Alberts advocates the incorporation of design and engineering into our biology curriculum. What Dr. Alberts says actually is, quotes, Most important for the future of our field, the departmental structures at most universities seem to have thus far prevented any major rethinking of what preparation in mathematics, what preparation in physics, and what preparation in chemistry is most appropriate for either the research biologist or the medical doctors who will be working 10 or 20 years from now. The result is a major mismatch between what today's students who are interested in biology should be learning and the actual course offerings that are available to them. It is largely for this reason I believe that so many talented young biologists feel that mathematics, chemistry, and physics are of minor importance to their career. It is my hope that some of the young scientists who read this issue of Cell will come to the realization that much of the great future in biology lies in gaining a detailed understanding of the inner workings of the cells, many marvelous protein machines. With this perspective, students may well be motivated to gain the background in quantitative sciences that they will need to explore this subject successfully. Do you see that? A. I do. Q. He's not talking about design engineering, is he, introducing design engineering into the biology curricula? A. If you look at the acknowledgments, I am indebted to Jonathan Alberts for his explanations of how engineers analyze machines. On the other part, if I can find the right quote, at the heart of such methods is a simplification and the idealization of a real world machine as a composition of discreet elements. Engineers recognize certain fundamental behaviors in nature and then create an idealized element to represent each of those behaviors. Most simply, they classify elements as those that store kinetic energy, and those that store potential energy, and those that dissipate energy. Any particular part of a machine might be modeled as consisting of one or more of these basic constituent elements. It seems reasonable to expect that different, but analogous approaches, could probably be applied to the protein machines that underlie the workings of all living cells. This is an engineering approach to looking at the intricate coordinated interaction of molecular machines. And I agree with him. The reason that we need chemistry and physics and mathematics is because these are required rigorously in an engineering curriculum. Q. But my point was a little different. My point is that, you have rather fundamentally misread Dr. Alberts and fundamentally not stated correctly what he's saying in this paper. He nowhere advocates the incorporation of design engineering into our biology curriculum. He's clearly discussing physics, mathematics, and chemistry. Isn't that true? A. No, it's not. If you read this paper carefully, he's saying that we have to approach the intricacies of the cellular machines much like an engineer systems analyst approaches the workings in a factory or some other assembly. Q. We don't have time to read the paper together, but -- so we'll perhaps, later today we can do that. But -- MR. MUISE: Your Honor. The witness has answered the question, and he interrupted him. I'd like to have the witness completely answer the question before he interrupts him. THE COURT: Did you finish your answer? THE WITNESS: I did. I want to say that, I read this paper carefully. I think it's profound, and I agree with Dr. Alberts, you know, as he's saying in here, the age of cloning and DN A sequencing is over. We're going into (inaudible) and the hard core analysis of these machines, and we're going to have to take a different approach. So -- THE COURT: I'm sorry. You can finish. THE WITNESS: I'm done. THE COURT: All right. Next question. BY MR. HARVEY: Q. Just one final point before we move off this article. On the first page of this -- and, Matt, if you could go to the first page. In the lower left-hand column at the bottom, where it says, ordered movements. And he says, quotes, Why do we call the large protein assemblies that underlie cell function protein machines? Precisely because, like the machine invented by humans to deal, etc. So just to rehit a point that we hit this morning. This is talking about being -- these protein assemblies being like machines invented by humans, correct? A. That's correct. Q. Now you claim that intelligent design can be tested, correct? A. Correct. Q. Matt, please bring up slide 40. And that's your claim right there that you put up during your direct testimony to state that intelligent design can be tested, right? A. Right. I think it's falsifiable. Q. And neither you nor Dr. Behe have run that test, have you? A. We talked about that yesterday. And I even, I think, gave a -- an experiment that would be doable. And in thinking about it last night, I might try it to see if I can get a type III system to change into a flagellum. Q. You haven't run that test, right? A. I've done parts of it. I know that the type III secretory system will secrete flagellum. Q. True or false, you haven't done that test? A. No. Q. Correct? You haven't done that test? A. What's the point? I mean -- Q. I'm asking you whether you have done the test that you propose for intelligent design? That's a yes or no question. A. No, I have not. Q. Okay. Now Dr. Behe hasn't either, has he? A. I'm not aware of it, no. Q. And yesterday, Mr. Muise read a statement to you that was read to the Dover High School biology students that said that a scientific theory is a well-tested explanation, correct? A. That's part of the definition, yes. Q. And you agreed that, that was the definition of scientific theory, it includes the concept of being well-tested, correct? A. Again, I would qualify that by saying, we're in a different arena when we're talking about evolution. The experimental sciences aren't necessarily -- can be directive of this. It's a historical science. Q. I'm just asking you if you agree, just asking you, reminding you and asking you to confirm that yesterday, you said that a scientific theory has to be well-tested, correct? A. Well-tested or consistent with the information that we have. This, again, I think, in this situation, a lot of evolutionary science wouldn't fit your definition of science as well. Q. And I take it, you see where I'm going with this. Intelligent design, according to you, is not tested at all, because neither you nor Dr. Behe have run the test that you, yourself, advocate for testing intelligent design, right? A. Well, turn it around in terms of these major attributes of evolution. Have they been tested? You know, have they been tested in terms of identifying macroevolution? You see what I'm saying, Steve? I mean, it's a problem on both sides. Q. Actually, we're going to talk about that in just a minute. But right now, I'm just asking you to agree with me that intelligent design doesn't qualify as a scientific theory, because it's not well-tested, it's not tested at all? A. I wouldn't say that it isn't tested at all. There's some papers that have been published that deal with some of the questions of evolution and from a design perspective. Q. You told us, this was the test, didn't you? A. This specific test, no, has not been done. Q. Now this test actually is not a test of intelligent design, it's a test of evolution, isn't it? A. Yes. Q. And what you're suggesting here is that, scientists should try in their laboratories to grow a bacterial flagellum, to watch it evolve and develop in their laboratories, right? A. The point of this point is that, if the flagellum is not irreducibly complex, you should be able to develop one. Q. In a laboratory? A. In a laboratory. Q. Now some scientists live to ripe old ages, right? A. Yeah, they do. Some don't. Q. How long have bacteria been on the Earth? A. Since -- I think 3.8 billion years is the estimate. Q. So you're suggesting that, to prove evolution, someone should in a laboratory do what it took the entire universe or could have taken the entire universe and billions of years to accomplish, isn't that what you're suggesting? A. No, not really. This is -- I mean, let's be realistic here. Getting an organism versus an organelle is quite different. And like I said, I would say, take a type III system with a missing flagellar components and see if they can assemble into a functional flagellum. That's a more doable experiment than Mike has proffered here. Q. Yesterday, you said that evolution cannot explain the origin of life, the origin of the genetic code, or the structure and development of life. Did I hear you correctly? A. Correct. Q. And would you agree with me that those are some fundamental scientific issues? A. They are. Q. And they're fundamental scientific issues that have not been answered by science, right? A. People are working on it. Q. That's right. Scientists are working on these and many other fundamental questions of science, right? A. Correct. Q. Intelligent design can't answer these questions, can it? A. They can be inferred. I mean, look at it this way. We know that the smallest free living organism, the microplasma, have on the order -- (inaudible) is doing these experiments right now on the order of 350,000 nucleotides in their genome. So to be an independent, free-living organism, you've got to have that much information. He's doing mutagenesis to find how many genes can actually be knocked out in this smallest free-living organism to determine that irreducibly set of genes required. That's a problem. To be a replicating organism, you've got to have all this information at a minimum. Q. You're not aware of any scientists that are trying to use the theory of intelligent design to solve these fundamental scientific issues, are you? A. I think that -- from a theoretical standpoint, looking at these in terms of developing the questions and the systems to look at. I mean, give us a chance, all right. Q. None of that research is going on right now, is it? A. Some of the work. The theoretical work is. I mean, Mike Behe published this paper. Axe published his paper in terms of evolution and proteins. That addresses these issues. Q. Would you agree with me that a fundamental proposition of intelligent design is that it wants to suggest that an unspecified intelligent agent is responsible for -- let me withdraw that and restate it -- A. Okay. Q. -- so that you can agree with it. Would you agree with me that a fundamental proposition of intelligent design is that it wants to insert an unspecified intelligent designer as the answer when it finds questions which science has not yet answered? A. I would qualify that again, Steve. I guess I can see where that seems to be a leading question. In other words, you're saying, it's an argument out of ignorance. And I don't think it is. Again, it's an argument out of our common cause and effect experience where we find these machines or information storage systems. From our experience, we know there's an intelligence behind it. Q. So, for example, with the -- with respect to the origin of life -- actually, let's make sure we understand. When we say, the origin of life, we mean the beginning of life on this planet, correct? A. Right, if it's 3.8 billion years, there was prokaryotes that appeared, and they were independent self-replicating organisms. Q. Some people refer to this loosely as the prebiotic soup? A. Prior to that, yes. Q. Are you saying that intelligent design posits that the source of the origin of life is the intelligent designer? A. Yes, yes. It doesn't specify who it is. I mean, you can have panspermia, according to Crick, Spores being blown in by solar winds. But I think -- Q. But the scientific answer to the question of the origin of life or the origin of the genetic code or the development in structure of life is not that the intelligent designer did it, it's that science is still looking at these fundamental scientific questions, working on them, and thinking that, some day, we might have the answers to these questions. Isn't that a scientific approach to that question? A. Steve, I said yesterday, as a scientist, you always look for a natural answer first. But I have in my hotel room a textbook that I am reviewing on genomes. In there, there is a chapter on the origin of genomes. I wish I had it to read to you. It's all conjecture and assumption and given this, then this. There's not a lot of fact there. Okay. So this has been a very recalcitrant problem. And we're dealing with again the origin of information. And we know again, from our experience, information-rich systems are associated with intelligence. So we look for a natural explanation, but we're drawing blanks. Q. So if I understand this, we have fundamental scientific questions, science looks for natural explanations, has many, many scientists working on this, publishing in peer reviewed journals, and doesn't have any definitive answers. Intelligent design says, the intelligent designer did it. That's really what we're talking about here, isn't it, Dr. Minnich? A. It goes back to the basic question. The design that we see in nature, is it real or apparent? Okay. Is there a natural explanation for what you're asking? To this point in time, there isn't. Now I don't think that's a negative statement, but I again would emphasize, from our experience of cause and effect, when you have a code, you've got a coder behind it. And this is the most sophisticated code that we're talking about. Q. Does intelligent design make any scientific predictions? A. It does. Q. Like what? A. Well, I wish I had my computer with me. I've got a whole list of them in terms of predictions that people in this area are working on. My prediction in working on type III secretory systems before was that flagellum could be used as a machine to secrete other than flagellar proteins. Before we even knew what type III secretion systems were, we were predicting that the TTSS was either the flagellum basal body or something that looked exactly like it. That turned out to be true. Yersinia passasist is non-modal. We made a prediction that it would (inaudible) the organism to express flagellum inside a host cell, and I think we have good evidence for it. E-coli 0157, very virulent strengths coming out of Czechoslovakia and Germany are non-modal. I had a bet over a beer with a microbiologist, director of microbiology at the FDA, that the mutation would be in -- COURT REPORTER: Hold on, please. THE COURT: While she's doing that, we'll think about what the things are that people bet over. THE WITNESS: I got a beer out of it. So in terms of, you know, junk DNA, I mean, there's some predictions in that area as well. In terms of mutational rates, there's some predictions. BY MR. HARVEY: Q. You're referring to work that you do in your laboratory, right? A. The work, the stuff that I just referred to, yes. Q. Now you made three claims here in your testimony. You claim that some -- you may have made others, but these are three you've made. You've claimed that some biological systems are irreducibly complex, right? A. Correct. Q. And you claim that irreducibly complex systems cannot evolve, right? A. I didn't say that. I didn't say that. Q. Well, you're claiming that irreducibly complex systems were intelligently designed, right? A. It's a hallmark of intelligence. When we find them, by experience, there's an intelligence associate with them. You can have an aboriginal structure, and it can evolve or adapt as required of the organism. And I am not against the fact that the type III secretory system could have been co-opted from the flagellum. Q. But in your work as a scientist, your day job, if you will, you only -- the only principles you use are the principles of what you call irreducible complexity, right? A. I think that's -- as I mentioned, that's -- it uses a molecular in terms defining genes involved in a specific system. Q. And some people in the, who do what you do, would refer to these as knockout techniques, right? A. Pardon me? I didn't hear. Q. Some people who do what you do would refer to these as knockout techniques? A. Correct. Q. And they're -- the specific techniques are mutagenesis and genetic screen and selections? A. Correct. Q. And these are standard techniques used in biology and microbiology? A. They go all the way back to Beatle and Tatum. Q. Would you agree with me, if you ask most scientists who work in the field and use these techniques, if they use intelligent design principles, they would not know what you are talking about? A. I don't think they would interpret them in that reference. But it's consistent with the idea of irreducible complexity. If these systems weren't irreducibly complex, you know, mutagenesis wouldn't work. Q. Does intelligent design recognize the age of the Earth? A. Does intelligent design recognize the -- Q. Yeah, does the intelligent design theory recognize the age of the Earth? A. I'm not sure what you mean by that question. Q. The Earth is 4.5 million years old, give or take a year or two, right? A. Right, I don't have a problem with that. Q. Does intelligent design theory accept the age of the Earth? A. Yes. Q. Are you familiar with Of Pandas and People? A. I am. Q. We already looked at that. Please take a look at page 92. It's your understanding that Pandas is a representative of intelligent design, right? A. Yes, although, as we mentioned before, it's dated. Q. Matt, if you -- actually, we can pull it up on the screen. Matt, at the lower right-hand corner. The sentence that begins, while design proponents. It says that, While design proponents are in agreement on these significant observations about the fossil record, they are divided on the issue of the Earth's age. Some take the view that the Earth's history can be compressed into a framework of thousands of years, while others adhere to the standard old-earth chronology. Do you see that? A. I see it. Q. So that says that design proponents are split on that topic? A. There are some young-earth creationists in the intelligent design community. Q. Does intelligent design tell us how things were designed or created? A. No, they're inferred. Q. Does intelligent design tell us how the bacterial flagellum was designed or created? A. No. Q. Intelligent design doesn't ask who the designer is, does it? A. No. Q. That's a religious question? A. Correct. Q. There are no studies or experiments that can be done to find out the nature of the intelligent designer, correct? A. Correct. Q. Does intelligent design ask any questions about the abilities of the intelligent designer? A. Not that I'm aware of. Q. Is that a religious question? A. Yeah, I would assume so, right. Q. And the same with the limitations of the designer. The intelligent design doesn't ask any questions about the limitations of the designer, does it? A. I'm not sure what you mean by limitations. Q. Ability to do things or limits on abilities to do things. Does the intelligent design tell us anything about the limits on the abilities of this intelligent designer to design and create? A. Not that I'm aware of, no. Q. Does intelligent design tell us when the intelligent designer designed and created life and living things? A. No. Q. Do you believe that the intelligent designer intervened at various points in the history of the Earth? A. Are you asking me personally or from a -- from the intelligent design community? I mean, there's -- Q. From the intelligent design community? A. I mean, there's positions all over the spectrum. Q. Is it -- does intelligent design tell us how many designers there are? Is it just one or could it be more? A. It could be more. Q. So it could be a whole family of designers, right? A. I suppose so. Q. It could be competing designers? We could have one designer who's designing good things and another designer who's designing bad things, right? A. I don't -- yeah, what's your point? Q. Well, does intelligent design tell us whether there could be -- A. No, no. Q. -- both multiple designers? Are they all working for the same purpose? Does intelligent design tell us anything about that? A. No, it doesn't. Q. So it's possible that there is an evil designer, isn't that true? A. The problem of the Odyssey is a theological question. I don't know where you're going with this, Steve. You know, I suppose so. I mean, from our common experience, yeah, technology is double-edged. Q. Is there any scientific intelligent design research program going on to determine when the designer acted or she acted or they acted; how he, she, or they acted; why he, she, or they acted; or who he, she, or they are? A. No. No. Q. Would it be fair to say that intelligent design does not exclude the possibility of a supernatural cause as the designer? A. It does not exclude. Q. And, in fact, a designer could be a deity, correct? A. It could be. Q. And that would clearly be supernatural, right? A. Right, but that's -- that would be a philosophical addition to that science isn't going to take, isn't going to tell us. I think I made that clear. Q. But intelligent design holds open the possibility that the designer might be supernatural? A. Flip it around. If you're a true naturalist, then you can use your data to argue for atheism or materialism. So regardless of which side you fall on this question, there are metaphysical implications. Q. Intelligent design theory specifically holds open the possibility that the designer is supernatural, true or false? A. True. Q. Do you agree that the current rule of science is methodological naturalism? A. Do I agree that that's the -- Q. That's the current rule of science, isn't it? A. That's a definition of science that has not always been in place. It's the standard technique that we use again looking for a natural cause. Q. That's the current definition of science and has been for sometime, correct, not definition, the current rule of science? A. I think the current rule is coming from the Aguillard decision in Arkansas from my understanding. Q. Well, actually in the scientific world, methodological naturalism has ruled for quite a long time before the Supreme Court made that decision, isn't that true? A. Right, but I think it's a definition that would perhaps surprise Newton and Keplar and other scientists that have -- 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. MR. HARVEY: No further questions. THE COURT: All right. Thank you, Mr. Harvey. And we'll have redirect from Mr. Muise. REDIRECT EXAMINATION BY MR. MUISE: Q. Good afternoon, Dr. Minnich. I know you've been up there for a long time, and I'll try to get through this as rapidly as I can, consistent with the court reporter being able to take down my rapid speech. Dr. Minnich, yesterday you were asked about an article, and I believe it was a -- it was marked as Plaintiffs' Exhibit 853. If you could look on the exhibit binder that you have there. And if I'm referring to the correct one, it's the one that had some explanation of the bacterial flagellum? A. I remember the paper. MR. HARVEY: We'd be happy to put them up there, if that would be helpful. THE WITNESS: I got it. BY MR. MUISE: Q. Do you have that article, sir? A. 853? Got it. Q. Is that the one that had the diagram of the bacterial flagellum? A. Yes. Q. Now during the questioning by Mr. Harvey, he was comparing the explanation, more likely the description of the bacterial flagellum in that particular article, which, I believe, was described as a creationist article, with your diagram, as he was referring to it. And I have it up here on the slide, and the diagram also is Defendants' Exhibit 203-B. And I believe you drew some comparisons of how this diagram resembled the diagram in the article as well as the way it's labeled on Exhibit 203-B and the way it's labeled in that article that was described as a creationist article. Do you recall that, sir? A. I do. Q. There are similarities in the labeling between the two? A. Yes. Q. Now the diagram that he described as your diagram, where is this diagram from, Exhibit 203-B? A. It's from a standard biochemistry textbook, because you see down in the right-hand corner, Voet and Voet. Q. Is Voet and Voet a creationist textbook? A. No, no. That's the most popular biochemistry textbook. Q. And the labels that appear on this diagram, are those labels that you put on or are those labels that Voet and Voet regarded or used to describe the aspects of the flagellum? A. Those are in the textbook. Q. And those labels that are in the textbook, are those the same labels that the scientific community uses to identify those parts of the flagellum? A. Yes. MR. HARVEY: Objection, Your Honor. Leading. I don't mind him leading to develop the testimony, but that's a -- that's beyond developing the testimony, and that's the conclusion. THE COURT: We'll note that. But he answered the question. I'll overrule the objection, and we'll move on. BY MR. MUISE: Q. Sir, in your direct testimony, we referred to an article by, I believe it's David DeRosier, is that correct? Is that his name? A. Correct. Q. It's marked as Defendants' Exhibit 274. And the title of the article was Turn of the Screw, The Bacterial Flagellar Motor. And in your testimony, you referred to a quote, More so than other motors, the flagellum resembles a machine designed by a human, end quote. Was that a direct quote from out of the article? A. It was. Q. It David DeRosier a creationist? A. Not to my knowledge. Q. And where did this article appear? A. In Cell. Q. Cell journal? A. Right. Q. Is that a creationist journal? A. No. Q. You were asked some questions about peer reviewed articles and whether there's peer review articles that mention intelligent design specifically, and you indicated in your response to Mr. Harvey that there was some risk. What are the risks? A. I think -- MR. HARVEY: Your Honor, I'm going to object on the grounds of relevance and hearsay, if that's where he's going. MR. MUISE: Your Honor, I mean, it's only fair. If he's going to challenge him about articles being in there, and he's claiming there's risks, he has every right to explain what those risks are, to complete the testimony as to why there aren't the intelligent design or calling intelligent design. And I think he's somebody that's in that community that has to publish, and he obviously feels there's risks. THE COURT: I'll give you some latitude. I'll overrule the objection. You can answer the question. THE WITNESS: There is risks. I mean, there's career risks involved. Even as -- this paper that I submitted for this conference in Rhodes Greece, we included a section on the philosophical implications of the flagellum. I thought long and hard about submitting that, because of the implications being identified publicly as a design adherence. In fact, I wrote that when I was in Baghdad, and I was ready to send it and debating whether I would do it. I think I mentioned in my deposition, we came under a mortar attack, and I hit the send button saying, I might not be here tomorrow anyway, so be it. You know, it is risky business. I think it's risky for me to be at this trial in terms of the fallout that I've had in my own institution. BY MR. MUISE: Q. Sir, you were asked a question of who you thought the designer was, and you said your personal opinion was that it was God, is that correct? A. Correct. Q. Was that a scientific conclusion or a scientific opinion? A. No. Q. Now we've heard testimony in this case that Dr. Ken Miller, one of the Plaintiffs' experts, he testified that God is the architect of the natural law, which he believes is what drives evolution. Is Dr. Miller's non-scientific personal opinion regarding God as being the architect of the laws that drive evolution, is that any different than the opinion that you're offering here? A. I would -- I'd have to -- I mean, I think Ken and I are in pretty close agreement, except on the degree of intervention from our own personal concept of a God. Q. But in terms of the nature of the opinion, being a non-scientific claim, is it similar to -- A. Right, right. MR. MUISE: May I approach the witness, Your Honor? THE COURT: You may. BY MR. MUISE: Q. I'll hand you what has been marked as Defendants' Exhibit 223. Do I have the right number on the front cover there, sir? A. Yeah. MR. HARVEY: Your Honor, may he just wait one second while I get the actual exhibit here? BY MR. MUISE: Q. Open to page 292, please. And this exhibit is a book, Finding Darwin's God, written by Kenneth R. Miller, correct? A. Correct. Q. Would you read the last three sentences on page 292? A. Starting with, there is grander? Q. No, what kind? A. Oh. What kind of God do I believe in? The answer is in those words. I believe in Darwin's God. Q. So Dr. Ken Miller believes in Darwin's God? A. That's what he says. I haven't read this book, so I don't know what that means. Q. Does that claim make evolution a religious belief? A. I don't know how to respond to that. I don't think so. Q. Now Mr. Harvey was asking you questions about the fact that -- he was using terms of construction, creation, building, and in terms of intelligent design, and how life may have first arose. In terms of evolution, at some point, life had to have been constructed, built, or created, is that true? A. True. Q. So should we describe evolution as creation-evolution? A. No, no. Q. So those sorts of labels are misrepresentative, are they not? A. Right. Q. Now you asked some questions about Paley's, Paley's arguments, correct? A. Yeah, Paley was brought up. Q. Was he making an argument based on logic or an argument that was theology? A. It was based on logic, inference to our common experience. Q. And I believe you said that went back to the Greeks, is that correct? A. Right. Q. Now you were given a hypothetical scenario about walking through the woods and tripping over a cell phone, I guess, to modernize the example, according to Mr. Harvey. Do you remember that little discussion you had with Mr. Harvey? A. Right. Q. You said, based on, I believe, the nature of that cell phone, you could infer some design, correct? A. Right. Q. Now from an evolution perspective then, if you tripped over this cell phone, you would have to conclude that at some point, there was Paley's watch, however many years ago, is that correct? MR. HARVEY: Objection, Your Honor, continue leading of the witness. This is on issues of the nature of their theory, and I don't think it's appropriate for Mr. Muise to testify in the form of cross examination. THE COURT: Why don't you rephrase? I think it was somewhat leading. I'm going to give you some latitude because of the time constraints we have placed, but I think that's unduly leading. I'll sustain the objection. BY MR. MUISE: Q. From an evolution perspective, if you came across the cell phone in the woods -- A. I think I understand. In terms of what would the pre-cursor? I mean, there would be -- you know, I don't know if I want to go there. Q. Would Paley's watch, if it came before in time, necessarily have to be some sort of a pre-cursor under an evolutionary perspective? A. Yeah, I don't know. I mean, to a degree, when we look at these machines and where they came from, you have to assume that it evolved from some pre-cursor. So it could be in a general sense equivalent to a watch evolving into another machine. Q. Using that example, has the theory of evolution demonstrated a step-by-step process by which you could have a Paley's watch become a cell phone? A. No, it hasn't. In fact, I think that's one of the interesting things in the Morris paper. When he looks at something intricate, developmental pathways, he likens it, in terms of one interpretation, as there's a tool box with a given set of tools that can be plugged into the requirements for the specific organism. It's almost -- it's kind of an analogy to an engineering type of thing. And I think Jim Shapiro refers to that in some of his more recent papers. Q. Taking that scenario to a living. I think you used a mouse. You would have to, for example, have a pathway that would develop a bacterial flagellum into a mouse, is that correct? A. Well, I mean, that's -- the first organisms were prokaryotic, so in terms of the evolutionary history, yeah, you've got to have intermediates that lead to an organism that can contemplate its own existence, I guess. Q. Do we presently have those pathways? A. No. Q. Now are you the only scientist who makes a claim that we don't have an adequate phylogenetic history of a subcellular organelle? A. No. Q. Are there others that you had mentioned in your direct testimony? A. Right. I think we referenced several of them. Q. Do you recall some of the names of those scientists? A. Harold, Shapiro. And I think it's even eluded to in the paper by Lenski. Q. Are any of those scientists intelligent design advocates? A. No. Q. Dr. Minnich, you were asked about this summary slide that I put up here, particularly that third bullet point. We do not have adequate knowledge of how natural selection can introduce novel genetic information. Are you the only scientist that has that particular view? A. No. I mean, it's an active area of research. Q. Was that a point that you derived from the Lenski paper that appeared in Nature? A. Correct. Q. I believe this article actually appeared in 2003, correct? A. Correct. Q. Sir, you were asked the question about methodological naturalism and the definition of science and whether or not the definition of science would have to be expanded to include supernatural causes in order for intelligent design to be considered. Do you recall that testimony? A. Right. Q. In what sense were you using supernatural causes in your answer? A. I think anything above our normal experience. Q. Using that understanding of supernatural causes, would that include, for example, Francis Crick's hypothesis of direct panspermia? A. Correct. Q. And would that also include the program of NASA, the SETI program, Searching For Intelligence? A. Correct. Q. Isn't it true, from a scientific perspective, those two that I just mentioned in which you consider as part of the supernatural are actually considered natural explanation? A. Right, in actuality, it would be. Q. So in essence, the definition of science need not be changed to actually include intelligent design, is that correct? A. No. Q. Is that correct? A. Yeah, that's -- Q. Is that correct, sir? A. Correct. Q. Now when you were talking about extrapolating or making logical inferences based on our common experience to reach a conclusion, a scientific conclusion, you were saying, that's sort of the logical inference that intelligent design makes, is that correct? A. Correct. Q. Though I'm hesitant to raise this, I want to revisit the Big Bang. We might as well finish with a bang, Your Honor, since it's the last day. THE COURT: We've had the flagellum, son of flagellum return, we might as well have the Big Bang. MR. HARVEY: Let me object on the grounds that any questions about the Big Bang are outside the scope of the cross examination and, I believe, also outside the scope of the original direct. THE COURT: I'll allow you to try to tie it in. MR. MUISE: It's regarding the inference, Your Honor. THE COURT: Why don't you get a question on. Then you can object to the question. The mere mention, although I understand why it has triggered an objection, is not good enough. Let's let Mr. Muise get a question on the floor. BY MR. MUISE: Q. Are you aware of the logical inference or the scientific inference that was employed in the Big Bang theory? A. Right, in terms of extrapolating back from an expanding universe to a point of singularity, but it appears to be like an explosion, from our experience. Q. Do we have any common experience of universes exploding? A. No, no. You know, if I could expand just a little bit in terms of, methodological naturalism can put a stricture on a number of scientific endeavors in terms, as you elude to, the Big Bang. Super strings employs multiple dimensions that are outside of our experience, but it doesn't stop physicists from working on these ideas. So, you know, there is some latitude in terms of scientific inquiries that are beyond the aspects of methodological naturalism. MR. MUISE: I have no further questions, Your Honor. THE COURT: All right. Thank you, Mr. Muise. Final round. MR. HARVEY: No, Your Honor. THE COURT: Giving it up? MR. HARVEY: I'm not giving it up. I think we've made our points. THE COURT: Giving up your round? MR. HARVEY: Yes. MR. MUISE: I think they ought to give up. THE COURT: I didn't read it that way. Thank you, sir. You may step down. That concludes your testimony. All right, counsel. Let's take the exhibits first, and then we'll decide what we're going to do from here. We have, with respect to Dr. Minnich, we have D-201- A. Are you ready for the exhibits? MR. MUISE: Yes, Your Honor. You said, D, correct, Your Honor? THE COURT: That's correct, D-201 A, which is the CV. D-251, which is the Woese article. D-252 is the Lenski article. D-255 is the Conway article. D-203 is the cover of the magazine or the Cell cover, excuse me. D-253 is the Alberts article. D-254 is the witness's article. D-257 is the Losick and Shapiro article. I don't have other Defendants' exhibits, but I'll take them if you have them, Mr. Muise. MR. MUISE: I was following in order, and then we kind of went out of order. Did you have 252, Your Honor? THE COURT: Say it again. MR. MUISE: Did you have 252? MR. HARVEY: Yes, he did. THE COURT: I did take 252. That's the Lenski article. MR. MUISE: Yes, Your Honor. And 255. THE COURT: I have that. That's the Conway article. MR. MUISE: And 274. THE COURT: 274, I did not have. MR. MUISE: The DeRosier article, the Turn of the Screw. THE COURT: All right. MR. MUISE: I believe that should be all of them. THE COURT: All right. Are you moving for the admission of all of those, including 274? MR. MUISE: Yes, Your Honor. THE COURT: Objection? MR. HARVEY: None. THE COURT: All right. Then all of those exhibits are admitted. On cross, we have P-853, which is the Not So Blind Watchmaker article. All of these are Plaintiffs' exhibits. 845 is the Morris review. 837 is the Nguyen article. 614 is the Minnich -- is the actual expert report of the witness. 284 is the note, bacteria type III secretion system. P-74 is the Sayer article. 852 is the Alberts article. 848 is the Alberts and Labov article. 847 is the Ratliff article. 841 is the Gray article. 842 is the Johnson and Spain article. And 725 is the additional Alberts article. What's your pleasure with respect to those -- well, first of all, do you have any others, Mr. Harvey? MR. HARVEY: No, that's it, Your Honor. THE COURT: Are you moving for the admission of all those? MR. HARVEY: Yes, Your Honor, MR. MUISE: We would object specifically to 852. That was apparently some article in the New York Times by Bruce Alberts that we had had -- THE COURT: Was that a letter? MR. HARVEY: Yes, Your Honor. MR. MUISE: It was a news article that he had written. We made the hearsay objection. You had him adjust his question, and we're objecting obviously to the article coming in. MR. HARVEY: Your Honor, withdraw that exhibit. THE COURT: All right. Then with the withdrawal of that, any objection to the other exhibits, Mr. Muise? MR. MUISE: No, Your Honor. THE COURT: All right. Then the remainder of the exhibits as named will be admitted. Save Plaintiffs' 852. On redirect, Mr. Muise, you referred to Defendants' Exhibit 223, which may be in already. I'm not sure. MR. MUISE: It should be, Your Honor. That's actually one of the books I had spoken with -- THE COURT: That's in, so we're not going to worry about it. Did I miss any exhibits? MR. HARVEY: Your Honor, just one thing. We're not moving in P-614. That is the expert report. THE COURT: I wondered about that actually as I looked at it. You don't want to put that in, I didn't assume. Okay. We'll withdraw 614. All right. Now it's just about the noon hour. And what we must do yet, in addition to hearing your closing arguments, which will be the last thing we do today is, we've got to handle the exhibits, and then have a final word with counsel on your submissions. It's my understanding that you're going to work through the lunch hour on some things that you may not yet have had an opportunity to agree upon, or have you agreed on those things? MR. MUISE: I think we had the demonstrative exhibits, that issue. I think we pretty much have it worked out. Mr. Walczyk and I have to discuss a few things. We're hoping to get that done and marked properly during the lunch hour. THE COURT: All right. MR. MUISE: I think it will be stipulated to. It will be something easy to get into the record. THE COURT: Then it would be time, it seems to me, to take that after lunch, and then we'll do that and have a word about some areas that I may want you to highlight in your submissions, and then we'll have the closing arguments at that point. MR. MUISE: My understanding, too, is, there is going to be some additional argument. Is that what you're talking about the submissions? THE COURT: The way I see it is this. I want to hear you on, obviously, the demonstrative exhibits. You think you've got that wrapped up or you will have that wrapped up. It appeared to me that, from what I've heard from you and also heard from Liz, is that you seem to have some mechanism on the deposition designations that I can work with, and that seems to be agreed. If you want to put that on the record, we can put it on the record. We need to hear some argument, final argument. There has been fairly extensive argument as it relates to the newspaper articles in the two York newspapers and their admissibility. I will tell you that, so that you don't waste the time that you can otherwise use for the exhibits that, as it relates to the editorials and the letters, and to some degree, to some parts of the articles, and I'll clarify this when we get into the argument, I'm inclined to allow you to, in particular, to allow the Defendants to further brief that as a part of your submission. I'm not sure that I'm going to rule on the admissibility of the -- I will rule on the admissibility of the articles on the disputed points, that is the statements of, in particular, various board members as reported therein and for that purpose. As the articles and the editorials and the letters go to the effect prong, I may defer a ruling on that. I'll hear additional argument, if you want to make it, this afternoon. I'm not sure that I'm prepared to rule on that, and you may want to make a submission. Certainly the Plaintiffs have made a submission. I have that. You may want to incorporate that in your argument that you're going to make. I'm not certain that I want to rule on that this afternoon. But we'll take that and -- MR. MUISE: I think Mr. Walczyk is going to be arguing that part, and I thought my understanding was, the question of the admissibility, and not so much as getting into the effect argument, but that was going to be something -- THE COURT: And that's correct, and that's precisely why, because I think they're intertwined, and I'll make that clear this afternoon. I'm not so sure that I want to render a ruling on that. I want to allow you every opportunity, and the Plaintiffs, if they choose, to elaborate on that as it goes to the effect of prong. Do you want to say something, Mr. Rothschild? MR. ROTHSCHILD: Just another issue on the designation that I just wanted to make clear on the record. We are going to submit a list of designations, counter designations, including where there are objections. And we're prepared to submit that. And the Defendants may want to respond that. Another thing, and this is not something quite -- THE COURT: Let me just stop you. But you're going to key that in a way, as I understand it, that I can -- that I can work with it and deal with it outside -- MR. ROTHSCHILD: Right. THE COURT: -- the ambit of the trial. MR. ROTHSCHILD: We're going to have page and line numbers and also highlighted transcripts, so it will be fairly reasonably easy to follow. The other thing, and this is something frankly, I think, counsel and I have not discussed. At least in what Plaintiffs have designated, there are exhibits, many of which have been introduced in this trial, but some which have not. In particular, we took the depositions of Mr. Buell and Dr. Thaxton. There were exhibits, we think, that have been properly authenticated, and we'll include that in our chart as well. To be fair to the Defendants, they may not have considered those yet and may want a chance to object to those, and we would hope that that does just happen in the following week. THE COURT: You're going to include them in what? MR. ROTHSCHILD: In addition to the highlighted -- THE COURT: In your designations? MR. ROTHSCHILD: Correct. We will indicate in the chart the exhibits that come in, that were part of the page and line testimony. We'll indicate what the exhibits are, and we probably should look at them, and there may be some that we withdraw. And Defendants, I'm sure, would want an opportunity to respond to those. THE COURT: Let me ask you this on that point. Do you need more time? I don't have to have that today. Do you need more time than today to get together on that? That's perfectly fine for me. MR. MUISE: I think perhaps in doing that, part of next week and, I imagine, we had some discussion that perhaps, if we could leave the record open so we can clean this all up, this being a bench trial, through the next week. THE COURT: That's fine. That's fine. MR. MUISE: We're going through the findings and testimony and see if there was any exhibits that might have been lost. We've been able to work out a lot of things throughout this trial, so I don't see this being any different. THE COURT: Inasmuch as my guess is that none of us were planning on laboring through this through the weekend. MR. MUISE: I don't know, Your Honor. Speak for yourself. THE COURT: Then I think, to get it right, you should do that. I'm particularly concerned about those exhibits, and you may have exhibits. That way, I get a very accurate recitation of what each of you want me to do, and I can rule that way. So that's not problematic. In fact, I -- in all seriousness, I can't begin to consider this, won't begin until I get your submissions until I get the findings, and that's about 21 days out, I guess, until I get everybody's findings. I think we're on a 14/7 time frame, something like that. Is that right? MR. ROTHSCHILD: So you don't want everybody here to be camping out outside the courthouse? THE COURT: No. No. MR. ROTHSCHILD: That's right. We have 14 days for initial pleadings, and then 7 days following for responses which, I think, we all agreed was not meant to be a paragraph-by-paragraph response, but simply an opportunity to respond to things selectively. THE COURT: Right. And so not until that period ends, or at least not until the 14-day period ends, would I need that, and if you get it in within that period of time, that's certainly fine for me. MR. ROTHSCHILD: One other loose end that I think was largely resolved yesterday. I think Defendants agreed that the Barbara Forrest reports and not-testified-about exhibits would come in for the narrow purposes of her admissibility for the -- for any appellate record, and we would -- we will plan on giving you a list of those exhibits. We'll give Liz a list and, of course, Defendants as well, so you're aware. THE COURT: Dr. Forrest's report is what exhibit number? Do you have that? MR. ROTHSCHILD: This would also include the many exhibits, numbered exhibits. THE COURT: I understand. You mean, the exhibits as referenced in her report? MR. ROTHSCHILD: Correct. 347 was the first report, and 349 was the supplemental. THE COURT: So 347 and 349 would come in based on that stipulation, Mr. Muise, is that correct? MR. MUISE: That's correct, Your Honor. THE COURT: So we don't have to cover that then this afternoon together with the exhibits. I will consider them for the purposes as stated, is that correct, as part of the record? MR. ROTHSCHILD: That's correct. THE COURT: I think that's the appropriate way to handle that. Anything else before we break for lunch? MR. THOMPSON: Your Honor, may I make a statement? I'm going to be leaving before the afternoon closing arguments, but, as the head of the Thomas More Law Center, I wanted to thank Your Honor on the record for the fair hearing we've had and for all of the indulgences that you've given us, recognizing that we're a firm in Ann Arbor, and we've been coming here. I wanted to acknowledge your patience and the fair trial, and at the same time, acknowledge the professionalism and the cooperation that the law firm of Pepper Hamilton has given us, and not only the lawyers, but the support staff. As Your Honor knows, the Thomas More Law Center and the ACLU and the Americans United for Separation of Church and State have widely different views of the establishment clause, but I must say that, both the attorneys for the ACLU and the Americans United for Separation of Church and State have given us the same professional courtesies. And for that, I wanted to thank you before I disappeared in the afternoon. I've got a long standing commitment to be in the State of Oklahoma. So again, thank you very much, Your Honor. THE COURT: I understand, Mr. Thompson. It was my intention to recognize counsel, and I will recognize counsel this afternoon. But I certainly appreciate those comments as they relate to the Court, but I also acknowledge and will again acknowledge the very professional and the cordial relations, not only between counsel, but between counsel and the Court. And your professional demeanor throughout this trial is appreciated. I understand that Mr. Gillen is not feeling well this morning. I hope that he joins us this afternoon. MR. MUISE: He'll be here, Your Honor. I'll make sure he's here. THE COURT: I trust that you'll get our friend, Mr. Gillen, rallied in time to make the afternoon session. It would be most unfortunate, having sat through this, if he missed it. But I thank you for that. MR. THOMPSON: Thank you, Your Honor. THE COURT: All right. Anything further before we break for lunch? All right. Let's break until, I'll give you an ample opportunity to go through everything and get started this afternoon. We'll comfortably finish this afternoon, and we will reconvene at 1:30 to take up the additional unresolved evidentiary matters and to then conclude the trial with the closing arguments by counsel. We'll be in recess until 1:30. (Whereupon, a lunch recess was taken at 12:05 p.m.) Kitzmiller v. Dover Area School District Trial transcript: Day 21 (November 4), PM Session, Part 1 THE COURT: All right. Consistent with what we discussed immediately prior to lunch, is your pleasure, gentlemen, to take the exhibits first? Can we do that? MR. MUISE: Yes, Your Honor. We've reached, I believe, an agreement on how we're going to handle the demonstrative exhibits for the experts. And for the defendants, the exhibits for Dr. Behe and the exhibits for Dr. Minnich, we provided them. They'll be in a binder for the Court. Dr. Behe's exhibits will be marked as Defendants' Exhibit 300, all the demonstratives. And then the ones that we've agreed to that will come in substantively we've marked as subparts with an L, 300-L, so forth. And we'll be providing copies of those binders to the Court before the close of business. THE COURT: All right. MR. MUISE: And then Dr. Minnich's exhibits are Defendants' Exhibits 301 with the subparts L through the completion. The subparts are the ones that come in substantively. I believe the plaintiffs have a similar formulation for their demonstratives for their experts. MR. WALCZAK: Yes, Your Honor, and that's agreeable to the plaintiffs. We have used a slightly different marking system, but we have binders of the entire Padian and Miller slide shows, and those will all come in for demonstrative purposes. The ones that we are moving in substantively are marked on a separate sheet of paper that we will put at the start of the exhibit binder. We also are moving in substantively about a dozen slides from the Barbara Forrest presentation. And those are graphs, those are not representations of any of the articles or cases. THE COURT: So at this point do I understand that I don't have to rule on any of the demonstratives? MR. MUISE: That's correct, Your Honor. There are none that there's any objection. We've reached agreement on all of them. All the exhibits -- all the demonstratives come in for demonstrative purposes, and the ones that are separately marked as subparts will come in substantively, move for admission of those exhibits. THE COURT: All right. MR. MUISE: And those are all separately marked. We have a different marking system, but it's fairly consistent. THE COURT: So for the record, we'll just indicate that pursuant to both of the proffers then, we'll admit them for the purposes as designated by counsel. Is that sufficient? MR. MUISE: That's sufficient, Your Honor. THE COURT: All right. Then that covers the demonstratives. Now, let's -- do you want to say something, Mr. Walczak? MR. WALCZAK: If we're moving to the newspaper articles, before we do, we just have a couple of exhibits that do not appear to have been admitted. THE COURT: All right. Let's take those up. And we'll give the defense the same courtesy if we missed any specific exhibits, non-demonstrative. MR. WALCZAK: Plaintiffs' Exhibit 124 A and B, it's not clear that both of those -- it's not clear to us if both of those are in. That's the administrator's biology statement that was read in January, January 18th of 2005. THE COURT: What do you have, Liz? COURTROOM DEPUTY: I just have they're admitted, not specifically A and B, so that's fine. MR. WALCZAK: I think the difference is that A has handwriting on it. So, for instance, where it said Mr. Riedel, it has Mr. Baksa written over that. THE COURT: So is there a 124 and a 124 A and B? MR. WALCZAK: No, there's 124 A and there's 124B. THE COURT: And, Liz, you just have a listing for 124 generally? COURTROOM DEPUTY: Yes. THE COURT: Any objection to 124 A and B from the defense? MR. GILLEN: I can't see any basis for an objection to that. THE COURT: All right. Well, then we'll admit 124 A and B clarified by Mr. Walczak. MR. WALCZAK: Plaintiffs' Exhibit 670 is the Aryani declaration that came in attendant to the chart for the letters and the op-eds. THE COURT: Any objection to that? MR. GILLEN: No, Your Honor, I have no objection to the affidavit used to establish authenticity, but our standard objection to admissibility. MR. WALCZAK: Plaintiffs -- THE COURT: Well, now, wait. Hold it. Are you moving to admit it? MR. WALCZAK: We are moving to admit it for the limited purpose of authentication. THE COURT: And I think it should be admitted for that purpose only. That's really what the basis of your objection is, isn't it? You don't want it admitted for any purpose other than authenticity? MR. GILLEN: Correct. THE COURT: All right. Well, then we'll admit it for that purpose. MR. WALCZAK: Plaintiffs' Exhibit 681 is a letter from Casey Brown to Michael Baksa dated September 22nd, 2004. I have a copy. THE COURT: My recollection is that she testified to it and she authenticated it during her testimony. MR. GILLEN: Yes. I have no objection, Your Honor. THE COURT: Well, then that's admitted. That would be 681. MR. WALCZAK: And then we have a copy of Plaintiffs' Exhibit 688, which is the Carol Casey Brown resignation speech. THE COURT: Any objection? MR. GILLEN: It's hearsay. As I recall, she -- THE COURT: I think she read it into the record. MR. GILLEN: She did. THE COURT: I'll admit it under those circumstances. You may have a technical objection, I understand, Mr. Gillen, but it's in. MR. GILLEN: That's fine. THE COURT: It's really cumulative, but we'll put it in. MR. WALCZAK: Your Honor, then we have Plaintiffs' Exhibits 671, 672, 674, 675. Those are the letters to the editor and the editorials. THE COURT: All right. We're going to wait on those. MR. WALCZAK: That's all we have. THE COURT: Now, on the defense side, do you need to pick up any exhibits that we missed? Go ahead. MR. MUISE: My understanding, Your Honor, is we are going to leave the record open so we can, perhaps, clean up some things next week. THE COURT: Yes. MR. MUISE: And that would probably be a more appropriate time. THE COURT: We'll note that. And what I would ask that you do in that vein so that we don't lose track of this is, if you determine -- and this goes for both parties or all parties -- if you determine that there's an exhibit that we missed, consult with the opposing party. And if you reach an agreement as to that exhibit, simply notify my chambers by letter, and we'll admit that after the fact. If, in fact, there is a dispute as to a particular exhibit, obviously notify us of that fact and we'll set up a conference call on the record so that you can argue that particular exhibit at that time. And wait until the process is finished so that we don't have successive small telephone arguments. We can pick it up in one wrap-around argument if that's necessary. All right? Now, moving to the articles. Now, the news articles, let's -- I'm going to ask for somebody to prompt me, and probably best the plaintiffs, someone on the plaintiffs' side. Would you give me the exhibit numbers of the newspaper articles? This is not -- I am not referring to the editorials, and I'm not referring to the letters to the editor. These are the news articles themselves. MR. WALCZAK: Your Honor, just to complicate things a little bit more -- THE COURT: Good, great. MR. WALCZAK: Some of the newspaper articles were actually referred to in separate exhibits. So many of the plaintiffs referred to the Internet printout copies of the exhibits. Steve Stough was the one who actually went through every single one of the articles. And then when the reporters testified, most of the articles they were referring to were the printouts. So I have the corresponding numbers for each of those articles, if that's useful. THE COURT: So you're saying that they duplicate? MR. WALCZAK: They duplicate, but the format is -- they appear to be different, and when the witnesses are referring to them, they may be referring to one or the other. THE COURT: Is that distinction important if the extraneous material, which I don't care about anyway -- and I recall the format. Some of them were pulled down off the Internet, some of them were photocopies of the actual articles as they appeared in newsprint. Can we take, so that we don't jumble up the record, a single copy of each article with whatever the exhibit number is, or do you not have that? MR. WALCZAK: I'd be concerned, Your Honor, without looking at the articles, that if there is some reference in the testimony to look at the third paragraph of the second column, it may not be the same. THE COURT: I understand. Okay. On that basis, that certainly makes sense. All right. I see your point. Let me tell you what I have. Liz just handed it up. Maybe this will help. We have then, with that potential duplication, as to -- and we'll take them in order of testimony. As to Ms. Bernhard-Bubb, we have P804, 805, 806, 807, 808, 809, 810, and 813. Now, as to Maldonado, we have 790, 791, 792, 793, 794, 795, 797, and 798. Now, that would probably indicate that there are others that you may have. I'm not sure. Or does that pick it all up? MR. WALCZAK: That's the universe of the articles testifying about -- or testified to by the reporters. I also have, if Your Honor would like, the corresponding numbers to the same articles testified to by the plaintiffs. Is that useful? THE COURT: Say it again. MR. WALCZAK: We were just talking about the plaintiffs referred to a different version. So, for instance, 804 is also Plaintiffs' 44. THE COURT: Well, because your concern is that they may have, if I understand it, referred to parts of those duplicates formated in a different way, why don't you recite those numbers now so we have them. Because your purpose then, based on what you said, is to move for the admission of all of them. Is that correct? MR. WALCZAK: Yes, Your Honor. THE COURT: All right. Then name the additional numbers that I didn't name. MR. WALCZAK: Under Ms. Bubb, 804 corresponds to Plaintiffs' Exhibit 44. 805 corresponds to Plaintiffs' 45. 806 corresponds to Plaintiffs' 54. 807 corresponds to Plaintiffs' 683. There is no corresponding for 808. 809 corresponds to 684. Plaintiffs' 687 corresponds to 810. And there is no corresponding exhibit for 813. On Mr. Maldonado's articles, Plaintiffs' 46 corresponds to 790. Plaintiffs' 47 corresponds to 791. Plaintiffs' 51 corresponds to 792. Plaintiffs' 53 corresponds to 793. There is no corresponding for 794. 795 corresponds to 682. 797 corresponds to 678. And there is no corresponding on 798. THE COURT: All right. MR. WALCZAK: And we would move the admission of all of those articles, both for the fact that this is what was printed and also under the Rule 607 residual hearsay exception. THE COURT: 807. MR. WALCZAK: I'm sorry, 807. THE COURT: All right. Well, it goes to both. You said for the fact of what was printed and also under 807, but I think it's not distinct, is it? You want them in for the fact of what's in the articles? MR. WALCZAK: We do, Your Honor. THE COURT: Which would be permitted under 807. You couch it "or," but it's really not, is it? MR. WALCZAK: I'm sorry? THE COURT: If you let them in under 807 under the residual hearsay exception, then it can go to the truth, can it not? MR. WALCZAK: That's right. We want them in for both. These particular articles, we want them in -- THE COURT: Both what, though? The truth and what else? MR. WALCZAK: And the fact that this is what was printed, sort of the verbal act of these articles having been printed and distributed. THE COURT: To the effect prong? MR. WALCZAK: I mean, that's a question that I understood we were leaving for another day. THE COURT: Well, that's what I thought, and I just want to make sure that I'm clear. And what I want to elicit -- and you've argued considerably. I'll add some additional argument as needed, and I think I understand expressly what the plaintiffs' position is with respect to the admissibility of the articles on the -- and we're talking about, here, the somewhat narrow or at least narrower grounds of the statements that are in dispute by the various board members and others as referenced in the articles. And I want you, on the defendants' side, I think -- Mr. White, I'm not sure if you're going to argue this -- but argue only as to the admissibility of the articles for the -- as they relate to the disputed statements as recited within the articles, in other words, the statements that were denied by the various speakers but are set forth in the articles. And we'll take up the other purposes, as I said -- and I'm going to speak to this after we're finished with that -- by a separate mechanism. So whoever is going to argue on the defense, I'll hear you on what I assume is your objection to the admissibility of the articles for that narrower purpose. MR. WHITE: Our objection to the articles being admitted through the residual hearsay exception is that these articles are hearsay. There has to be a showing that there's trustworthiness, which has not been done. THE COURT: Why hasn't it been done? MR. WHITE: Because the reporters testified that these were conversations -- a lot of them were summarized statements that they put down there. It goes through a filtering process through their perception or their perspective. So these are all slanted, as would naturally be done, statements that are then written, gone through an editorial process, unlike a situation where you have live testimony coming from people who were there and were testifying to it. But the key hurdle would be with regard to these articles are not more probative than any other evidence that could have been reasonably procured. You could have had live testimony brought in here by people who were actually there who could testify, who would then be subject to thorough cross-examination, not the limited nature -- THE COURT: Didn't we have some of that? MR. WHITE: You did. That's one reason why you don't even need these articles, since you've already had testimony coming in. And in that regard, these articles, even if they were relevant, would just be cumulative under 403. THE COURT: Aren't the articles somewhat cumulative to the testimony of the reporters? MR. WHITE: They would be cumulative to the testimony of the reporters, but the reporters weren't brought in here to be fact witnesses regarding what was going on at these meetings, it was only the -- THE COURT: They weren't? MR. WHITE: No. My understanding from your orders is that they were limited here just to testify as through their affidavit to the authenticity -- THE COURT: Well, what's the effect of their testimony? They were at the meetings. They have testified. What do you suggest that the Court does with their testimony? How do I take that testimony? They were at the meetings, and they testified expressly as to what they saw. Now, what do I consider that testimony for? MR. WHITE: The testimony was for the purposes of whether the articles come within the residual hearsay exception. That's why we were limited to how we could cross-examine them about their bias, et cetera, unlike other people who were actually -- THE COURT: Well, that's not the only reason, Mr. White, that you were limited in your examination. But if, in fact, their testimony proves that the articles are accurate and if the Court so finds, doesn't it deflect back and, in effect, make the reporters' testimony relevant for a factual determination as to who said what? Could I not consider it for that basis? MR. WHITE: Well, under the case law, exactly, the fact that the reporters can come in and testify shows that you don't need the articles. Our point as far as the testimony of the reporters should not be admitted for any fact reason just because they were brought in to authenticate and to testify to their articles, and that was the scope of your orders. THE COURT: Understand. All right. I understand your point. MR. WHITE: But beyond that, I mean, none of these articles should be brought in, I mean, as we've briefed before and as we can brief out further for you, Your Honor. THE COURT: All right. Under the circumstances, making specific reference then to Rule 807 and finding as we do in this particular case that the articles meet the tests of the residual hearsay exception in Rule 807, including that the evidence has been offered, that is, the articles, of a material fact, they are probative for a point which is offered, more probative than other evidence which the proponent could procure through reasonable efforts, we will specifically find that the interest of justice and the general purposes of the rules of evidence are served by admitting the articles. We'll find, certainly, that in this case the parties seeking to admit the articles, the plaintiffs, have notified the defendants of their intention to offer the evidence sufficiently in advance of trial in order to provide the defendants with the opportunity to prepare to meet it. Having heard the testimony of the reporters, Mr. Maldonado and Ms. Bernhard-Bubb, and understanding the broad provisions as contained in Rule 807 of the Federal Rules of Evidence, we will admit the articles. However, we do so at this time for the limited purpose of those disputed statements as have come up during the course of this trial and in order to aid the Court in making and resolving factual determinations as to those statements. Now, having so ruled, that leaves us with the use of the articles for other purposes, presumably on the effect prong under the Lemon test, and the use of the -- and, in fact, the admissibility of any editorials and letters. And as I previewed before lunch, I think it is most appropriate for counsel to address that. I do have a submission from the plaintiffs, although the plaintiffs can feel free to amend that within your submission or submissions after trial. But specifically, I would ask that the defendants speak to that issue. I think they're intertwined, and I think I would like to get more argument on that point. Yes, Mr. Walczak. MR. WALCZAK: Your Honor, before we leave the news articles, I believe that under Rule 807, the Court needs to make a specific finding that no other hearsay exception is available under either Rule 803 or 804. THE COURT: And that's so found, that's so found. And I appreciate that. But there is no other exception that would apply to admit the articles under the circumstances, which is why we deflect to Rule 807. MR. GILLEN: And we will address your concerns, Your Honor, in connection with the proposed findings of fact and conclusions of law. Is that what you envision? THE COURT: I think that's best, and I will tell you why. It's because you're going to argue, both sides, on the applicability of the -- not the applicability so much, but as to how to apply the effect prong. And intertwined with that, necessarily, would be how we use these exhibits. And if we choose to take a certain course, we may not need these exhibits. So there's no reason, in my mind, not to give you the opportunity to have a combined argument which goes to both the admissibility and obviously the use. Yes, sir. MR. WALCZAK: So there still is a question, Your Honor, about admissibility, leaving aside the relevance prong, about the letters and the articles. Because we would be moving them not for the truth of the matter asserted -- THE COURT: I understand that. MR. WALCZAK: So under 801, it's not hearsay. THE COURT: No, I understand that. And that's the argument that you've made via the submission, and I've had an opportunity to just really glance at your submission. And in fairness to the defendants, I think they should be able to meet that. But because we could argue extensively about this and, frankly, because I need more time to look at it. I think it's an important question. I recognize that it doesn't go to the truth. And then that brings up -- well, before I get to the next area, does that cover all of the exhibits we have, other than those that you may, as Mr. Muise notes, that you may want to supplement after you peruse the record and see if we've dropped any? MR. WALCZAK: The only other point is the designations, and I think by agreement of counsel we've agreed to a process whereby we will identify them in the next week or two. THE COURT: And consistent with what we discussed before lunch then, I would say, you know, anywhere within the 21-day window, you can get that to me, and there will be some key that I can follow on the submissions. All right? MR. GILLEN: Yes, Your Honor. THE COURT: Now, I want you to pay attention in your submissions, in addition to the myriad of other things that you've got to deal with and I recognize -- and I'm not attempting to narrow your focus, I'm just telling you what's on my mind as we get into this. First of all, we appear to agree, based on the submissions that I have thus far, that the entanglement prong of Lemon is not applicable. Do we agree on that? MR. ROTHSCHILD: Yes, Your Honor. THE COURT: All right. I just want to clarify that. There has been an argument interposed at various times by the plaintiffs that we should apply the endorsement test, if I understand it. MR. ROTHSCHILD: Yes, we are reserving that position, Your Honor. THE COURT: Well, I want you to flesh that out in your submission, and certainly the defendants will have the same opportunity. Are you suggesting that I perform an analysis in the alternative? MR. ROTHSCHILD: I think, Your Honor, that -- and we will brief this more, but because the Third Circuit has employed the endorsement test -- and I realize, given that we've now had more recent Supreme Court jurisprudence, the reliability of that test might be in question, but that's certainly part of what the Third Circuit has applied. You know, I know there are arguments about whether it only applies to certain kinds of establishment law cases rather than others, but, you know, based on our reading so far, I think there is -- that is something we would want to consider presenting. THE COURT: Well, I think you should pay some attention to that and give that some thought. And I say that to all parties because, to me, it's less than clear. As you know, the endorsement test combines certain aspects of the Lemon test, and I know that certain courts have performed an analysis in the alternative. You know that. I think that's a tortuous way to proceed, but it's the way that we'll proceed if we must, and we can take a look at that. Now, I know preliminarily, at least from the defendants' submissions, that you believe the endorsement test doesn't apply under any circumstances. Is that correct? MR. GILLEN: Correct, Your Honor. THE COURT: And certainly you can elaborate on that in your submissions, as well. And that will pick up any new jurisprudence, as Mr. Rothschild has referred to, so that we can take a look at that. But it is something that I'm a little bit puzzling over, and I wanted to make you aware of that. And I think both sides -- well, I understand the defense position is that the endorsement test doesn't apply at all, but from the plaintiffs' standpoint, if you're going to argue the endorsement test, tell me how you want me to do it next to the Lemon test. I may not do it that way, obviously, but I'm interested in your view of what the best way is to proceed, and then that will give defendants fair notice so they can argue particularly on that point. You understand the time constraints for the submissions, 14 days, and then seven days to respond to the -- to the counter-submission? So we should have everything in 21 days. Is that correct? Mr. Gillen has a rather pained look on his face when I say that. MR. GILLEN: Truly I do, Judge. This has been a pleasant prospect, but still, as we draw it closed, would you -- and I don't want to ask for an extension unless we need it, but looking at the size of the record we've generated over these 21 trial days -- THE COURT: I can't believe you'd say that. MR. GILLEN: -- would you be at least open to the possibility of perhaps adding a week? THE COURT: I'd like you to use your best efforts, and I'll tell you why, because as I intended to say but I'll say now, it is my strong desire to try to get this case decided this year. And the later you push the submissions, the harder it is for me to do that. MR. GILLEN: You can be assured, Judge. THE COURT: And so give it a try, and we'll take it up later. I don't want to anticipate an extension that you may not need. And these things, having practiced law myself and knowing how this is, these don't get better with age. They're best tackled at the front end rather than the back end. So do your level best, and we'll take up the issue of an extension if necessary later on. But, you know, 21 days, quite obviously, takes us right to Thanksgiving or so, and I can't do much until I get your submissions, it would appear to me. And that doesn't leave me a lot of time if I'm going to try to work -- and I'm not going to try to set a time frame that's hard and fast because as I get into it, I may need a little bit more time. But I think in the interest of justice and because this is important to everyone, I'm going to make every effort to try to get it in, at the latest I would say by early January, but hopefully, very much I hope, by the end of the year. We're going to do our level best. MR. GILLEN: We will too, Your Honor. THE COURT: All right. Anything else? Liz is giving me a note, and that says -- one other area in your briefs and prompted by Adele. Under the effects prong, or the effect prong, I want you to pay some special attention, too -- and this is the plaintiffs' burden, obviously -- on the audience issue. I know you will, but I note that anyway, because as you well know, you could construe the case law as limiting it to the intended audience that would be within the class or the much broader audience, and I'd like if you'd pay some attention to that. That's probably a superfluous reference because you're going to do it anyway, but I would mention that as it relates to the effect prong, as well. Anything further before we hear closings? MR. WALCZAK: Your Honor, just one minor point. On the additional exhibits and the deposition designations, could we ask that the Court impose a deadline of 14 days from now so that we have a closed record, and then when we're doing the replies, you know, we're not going to be surprised with new evidence after the fact? THE COURT: I did mention that I thought that was a good idea, but I didn't make that hard and fast. Can you live with that, 14 days? I think that makes sense. MR. GILLEN: I think we should be able to clean everything up in that time. THE COURT: And I think it makes sense only because then you've got -- for both sides you have the additional seven days if something comes up during that 14-day period. You don't want to extend it out 21 days and then have an issue that you need to extend the response time to. So let's say that we'll get all of those ancillary matters, identify any exhibits that got dropped for any reason within the 14-day period. So the record -- MR. GILLEN: Thank you, Your Honor. THE COURT: Mr. White, do you have a point? MR. GILLEN: The additional newspaper points will be briefed in connection with the findings of fact and conclusions of law? THE COURT: Exactly. That's understood. To clarify, Mr. White, that's something that I'll rule on concurrently with my opinion when it's handed down. What I'm interested in for these purposes are those things that you think you can agree on or, as I said, exhibits that you dropped and you're going to get it in. So we're going to close the record, let's say, in 14 days from today's date. That's game, set, match, we're done, everything should be in by that point, and so we'll close the record at that time. Anything further? Mr. Rothschild. MR. ROTHSCHILD: Thank you, Your Honor. Kitzmiller v. Dover Area School District Trial transcript: Day 21 (November 4), PM Session, Part 2 THE COURT: You may close. And you have -- you're on a loose clock of -- COURTROOM DEPUTY: 44 minutes. THE COURT: 44 minutes. And you may reserve for rebuttal. MR. ROTHSCHILD: Thank you. I think there are probably a lot of people in this courtroom who will hope that I don't. Good afternoon, Your Honor. I want to echo Mr. Thompson's comments before lunch. This has been a long and exhausting trial, but it has been a privilege to appear before you and your entire chambers. I agree with Mr. Thompson that both parties have been given the opportunity to fully and fairly present their case, and on the plaintiffs' behalf I want to summarize that case. "What am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done, and it outrages me." That's a statement of one citizen of Dover, Fred Callahan, standing up to the wedge that has been driven into his community and his daughter's high school by the Dover School Board's anti-evolution, pro-intelligent design policy. The strategy that the Discovery Institute announced in its Wedge document for promoting theistic and Christian science and addressing cultural conditions that it disagrees with is to denigrate evolution and promote supernatural intelligent design as a competing theory. This is the Discovery Institute that advised both William Buckingham and Alan Bonsell before the board voted to change the biology curriculum. This is the Discovery Institute the defendants' experts Michael Behe and Scott Minnich proudly associate with, along with intelligent design leaders William Dembski, Paul Nelson, Jonathan Wells, Stephen Meyer, Nancy Pearcey, and Phillip Johnson. This group's strategy of Christian apologetics and cultural renewal includes the integration of intelligent design into public school science curriculum, which is now on trial in this courtroom. Dover is now the thin edge of the wedge. Let's review how we got here. Beginning with Alan Bonsell's election to the Dover Area School Board in the end of 2001, the teaching of evolution in biology class became a target of the board, and teaching creationism was suggested as an alternative. As Mr. Gillen told the Court in his opening statement, Mr. Bonsell "had an interest in creationism. He wondered whether it could be discussed in the classroom." He didn't just wonder to himself, he wondered out loud about teaching creationism at two board retreats. He made his opposition to the teaching of evolution known to Mr. Baksa and the science teachers. In 2004, Mr. Bonsell became the president of the board and chose Bill Buckingham to head the curriculum committee. When the teachers and members of the community tried to get a new biology book approved, members of the board, including particularly Mr. Buckingham, but also Mr. Bonsell, insisted in public board meetings that any new biology book include creationism. There is no evidence that any of the board members that eventually voted to change the biology curriculum objected to this idea. Heather Geesey emphatically endorsed it in her letter to the York Sunday News. At the same meetings in June where he discussed creationism, Mr. Buckingham also made the unforgettable statement that, quote, 2,000 years ago a man died on a Cross, can't we take a stand for Him now, and after one meeting said to a reporter that we are not a nation founded on Muslim ideas or evolution, but on Christianity, and our children should be taught as such. Around the time of those June meetings, Mr. Buckingham received materials and guidance from the Discovery Institute, the sponsors of theistic Christian science. After that, intelligent design became the label for the board's desire to present creationism. At this trial, plaintiffs have submitted overwhelming evidence that intelligent design is just a new name for creationism discarding a few of traditional creationism tenets, such as direct reference to God or the Bible and a specific commitment to a young earth, but maintaining essential aspects, particularly the special creation of kinds by a supernatural actor. Make no mistake, the leading sponsors on the board for the change to the biology curriculum and Administrators Nilsen and Baksa knew that intelligent design was a form of creationism when they added it to the curriculum. Matt, could you pull up Plaintiffs' Exhibit 149, the second page Bates stamped 213. This is the views on the origins of the universe chart that both Casey Brown and Jennifer Miller testified that Assistant Superintendent Baksa circulated to members of the board curriculum committee and faculty. Mrs. Harkins testified that she had this document as early as June of 2004. The second column of this chart provided to members of the board curriculum committee and administration demonstrates clearly that intelligent design is a form of progressive creation or old earth creation. At the bottom of the chart of that column, the second column, under Progressive Creation and Old Earth Creation, you see the words, Intelligent Design Movement, Phillip Johnson and Michael Behe. Matt, could you pull up D35. Mr. Baksa testified in response to questions from his lawyer that he researched intelligent design and Pandas before the board adopted both into the district's curriculum and that his research included this order form from the Institute for Creation Research, which promotes Pandas, describing it as a book that contains interpretations of classic evidences in harmony with the creation model. Board President Bonsell and Superintendent Nilsen testified that they understood the definition of intelligent design found on Pages 99 to 100 of Pandas to be a tenet of creationism. Matt could you pull up P70. The district solicitor, Stephen Russell, sent this e-mail to Richard Nilsen advising Dr. Nilsen and eventually the board members who received this e-mail that, quote, Thomas More refers to the creationism issue as intelligent design. You can take that down, Matt. Thank you. Board members Jeff and Casey Brown and the science teachers also warned the board that Pandas and intelligent design are creationism or too close for comfort, and there could be legal consequences for teaching it. This information, equating intelligent design with creationism, did not deter the school board at all. It emboldened them. They rushed the curriculum change to a vote, discarding all past practices on curriculum adoption, such as placing the item on a planning meeting agenda before bringing it to a vote, involving the citizens' curriculum advisory committee with a meeting, or showing deference to the district's experts on the curriculum item, the school science teachers. The record is overwhelming that board members were discussing creationism at the meetings in June of 2004. Two separate newspaper reporters, Heidi Bernhard-Bubb and Joe Maldonado, reported this in articles about the meeting which they confirmed in sworn testimony in this court. Former board members Casey and Jeff Brown and Plaintiffs Barrie Callahan and Christy and Bryan Rehm also testified to these facts. Finally, at the end of this trial, Assistant Superintendent Mike Baksa, an agent of the defendant Dover Area School District in this case, admitted that Bill Buckingham discussed creationism at the June board meetings when discussing the biology curriculum. After a year of denying that fact, forcing reporters to testify, the truth was confirmed by defendants' own witness. And, of course, we saw Mr. Buckingham talk about creationism on the tape of the Fox 43 interview using language almost identical to the words attributed to him by newspaper reporters covering the June, 2004 board meetings. His explanation that he misspoke the word "creationism" because it was being used in news articles, which he had just previously testified he had not read, was, frankly, incredible. We all watched that tape. And per Mr. Linker's suggestion that all the kids like movies, I'd like to show it one more time. (Tape played.) That was no deer in the headlights. That deer was wearing shades and was totally at ease. Testimony from many witnesses called by the plaintiffs and the same newspaper reports established that Bill Buckingham made the statement "2,000 years ago" when discussing the biology textbook in June. After preparing together for their January, 2004 depositions, four witnesses for the defense -- Richard Nilsen, Bill Buckingham, Alan Bonsell, and Sheila Harkins -- all testified that Buckingham, Mr. Buckingham, did not make that statement at that meeting, but rather only at a different meeting in November when the Pledge of Allegiance was discussed. But every plaintiff, teacher, reporter, and dissenting board member who testified at trial about the June 14th meeting knows this is not true, and defendants' witnesses Harkins and Baksa conceded that the statement could have been made in June as the contemporaneous, unchallenged news reports suggest. What I am about to say is not easy to say, and there's no way to say it subtly. Many of the witnesses for the defendants did not tell the truth. They did not tell the truth at their depositions, and they have not told the truth in this courtroom. They are not telling the truth when they assert that only intelligent design and not creationism was discussed at the June, 2004 board meetings. They are not telling the truth when they placed the "2,000 years ago" statement at the meeting discussing the pledge and not at the June 14th, 2004 meeting discussing the biology textbook. They did not tell the truth in their depositions or, for that matter, to the citizens of Dover about how the donation of the Pandas books came about. Truth is not the only victim here. In misrepresenting what occurred in the run-up to the change to the biology curriculum, there were human casualties. Two hard-working freelance reporters had their integrity impugned and were dragged into a legal case solely because the board members would not own up to what they had said. They could have just asked Mike Baksa. He knew. Trudy Peterman, the former principal, has not testified in this case, but we know she was negatively evaluated for what she reported in her April, 2003 memo about her conversation with Bertha Spahr. And Superintendent Nilsen continued to question her truthfulness in this court, but he never asked Mrs. Spahr what she told Dr. Peterman on the subject of creationism. Had he asked her, he would have heard exactly what you heard from Mrs. Spahr in this courtroom. Mr. Baksa did tell her that Board Member Bonsell expressed his desire to have creationism taught 50/50 or in equal time with evolution. And, of course, you've heard from board members who were at that meeting, including Casey Brown and Barrie Callahan, that Mr. Bonsell did say he wanted creationism taught 50/50 with evolution. In fact, Mrs. Callahan had contemporaneous notes recording Mr. Bonsell saying just that. And Dr. Nilsen also had contemporaneous notes showing that Mr. Bonsell talked about creationism at the March board retreat, March, 2003 board retreat. Confronted with Dr. Nilsen's notes, Mr. Bonsell finally admitted he talked about creationism, at least then. Defendants' smear of Dr. Peterman is unpersuasive and inexcusable. There are consequences for not telling the truth. The board members and administrators who testified untruthfully for the defendants are entitled to no credibility, none. In every instance where this Court is confronted with a disputed set of facts as between the plaintiffs' witnesses and defendants' witnesses that the Court deems to have been untruthful, the plaintiffs' witnesses account should be credited. And furthermore, and perhaps more importantly, this Court should infer from their false statements that defendants are trying to conceal an improper purpose for the policy they approved and implemented, namely an explicitly religious purpose. The board's behavior mimics the intelligent design movement at large. The Dover board discussed teaching creationism, switched to the term "intelligent design" to carry out the same objective, and then pretended they had never talked about creationism. As we learned from Dr. Forrest's testimony, the intelligent design movement used the same sleight of hand in creating the Pandas textbook. They wrote it as a creationist book and then, after the Edwards decision outlawed teaching creationism, simply inserted the term "intelligent design" where "creationism" had been before. Dean Kenyon wrote the book at the same time that he was advocating creation science to the Supreme Court in Edwards as the sole scientific alternative to the theory of evolution. But now, like the Dover board, the intelligent design movement now pretends that it never was talking about creationism. I want to make a very important point here. In this case, we have abundant evidence of the religious purpose of the Dover School Board that supports a finding that its policy is unconstitutional. However, if the board had been more circumspect about its objectives or better at covering its tracks, it would not make the policy it passed any less unconstitutional. Your Honor, you have presided over a six-week trial. Both parties have had a fair opportunity to present their cases about what happened in the Dover community and about the nature of intelligent design. Leading experts from both sides of the issue have given extensive testimony on the subject. This trial has established that intelligent design is unconstitutional because it is an inherently religious proposition, a modern form of creationism. It is not just a product of religious people, it does not just have religious implications, it is, in its essence, religious. Its central religious nature does not change whether it is called creation science or intelligent design or sudden emergence theory. The shell game has to stop. If there's any doubt about the religious nature of intelligent design, listen to these exemplary descriptions of intelligent design by its leading proponents, which are in evidence in this case: Phillip Johnson said, "Intelligent design means that we affirm that God is objectively real as Creator and that the reality of God is tangibly recorded in evidence accessible to science, particularly in biology." William Dembski: "In its relation to Christianity, intelligent design should be viewed as a ground-clearing operation that gets rid of the intellectual rubbish that for generations has kept Christianity from receiving serious consideration." William Dembski again, "Intelligent design is just the logos theology of John's Gospel restated in the idiom of information theory." Michael Behe told this Court that intelligent design is not a religious proposition, but he told the readers of the New York Times the question intelligent design poses is whether science can make room for religion. He acknowledges that the more one believes in God, the more persuasive intelligent design is. The religious nature of intelligent design is also proclaimed loudly and repeatedly in the Wedge document. The other indisputable fact that marks intelligent design as a religious proposition that cannot be taught in public schools is that it argues that a supernatural actor designed and created biological life. Supernatural creation is the religious proposition that the Supreme Court said in Edwards cannot be taught in public schools. And it's obvious why this has to be the case. When we talk about an actor outside nature with the skills to design and create and build biological life, we are talking about God. The experts that testified at this trial admit that in their view, the intelligent designer is God. The Discovery Institute's Wedge document's first paragraph bemoans the fact that the proposition that human beings are created in the image of God has been undermined by the theory of evolution. Professor Behe admitted that his argument for intelligent design was essentially the same as William Paley's, which is a classic argument for the existence of God. Who else could it be? Michael Behe suggests candidates like aliens or time travelers with a wink and a nod, not seriously. Intelligent design hides behind an official position that it does not name the designer, but as Dr. Minnich acknowledged this morning, all of its advocates believe that the designer is God. Intelligent design could not come closer to naming the designer if it was spotted with the letters G and O. The case for intelligent design as a religious proposition is overwhelming. The case for it as a scientific proposition, by contrast, is nonexistent. It has been unanimously rejected by the National Academy of Science, the American Association for the Advancement of Science, and every other major scientific and science education organization that has considered the issue, including, we learned this morning, the American Society of Soil Scientists. The fact that it invokes the supernatural is, by itself, disqualifying. As William Dembski stated, unless the ground rules of science are changed to allow the supernatural, intelligent design has, quote, no chance Hades, close quote. In this courtroom, Steve Fuller confirmed that changing the ground rules of science is intelligent design's fundamental project, and if defendants get their way, those ground rules get changed first in Dover High School. There's a reason that science does not consider the supernatural. It has no way of measuring or testing supernatural activity. As Professor Behe testified, you can never rule out intelligent design. Defendants' comparisons to the big bang or Newton's work make no sense, for those, as with many scientific propositions, we may have at one time attributed natural phenomena to supernatural or divine action before working out the natural explanations that fall under the heading "science." Intelligent design is moving in the opposite direction, replacing a well-developed natural explanation for the development of biological life with a supernatural one which it has no evidence to support. The positive case for intelligent design described by plaintiffs' experts Michael Behe, the leading light of the intelligent design movement, and Scott Minnich over the last couple of days is a meager little analogy that collapses immediately upon inspection. Professor Behe and Professor Minnich's argument, summed up by the amorphous phrase "purposeful arrangement of parts" is that if we can tell that a watch or keys or a mousetrap or a cell phone was designed, we can make the same inference about the design of a biological system by an intelligent designer. This is, as both experts acknowledge, the same argument that Paley made, the argument that Paley made for the existence of God. Plaintiffs' witnesses Robert Pennock and Kenneth Miller explained and under cross-examination defendants' expert Professor Behe admitted that the difference between inferences to design of artifacts and objects and to design of biological systems overwhelms any purported similarity. Biological systems can replicate and reproduce and have had millions or billions of years to develop in that fashion, providing opportunities for change that the keys, watches, stone tools, and statutes designed by humans do not have. And, of course, those objects and artifacts we recognize as design in our day-to-day life are all the product of human design. We know the designer. In the case of intelligent design of biological life, however, that crucial information is, to use Professor Behe's own phrase, a black box. Because we know that humans are the designers of the various inanimate objects and artifacts discussed by Professor Behe, we also know many other useful pieces of information, what the designer's needs, motives, abilities, and limitations are. Because we are that designer, we can actually re-create the designer's act of creation. Professor Behe admitted that none of this information is available for the inference to intelligent design of biological systems. In fact, the only piece of information that is available to support that inference is appearance. If it looks designed, it must be designed. But if that explanation makes sense, then the natural sciences must be retired. Almost everything we see in our marvelous universe -- biological, chemical, physical -- could be subsumed in this description. Other than this meager analogy, intelligent design is nothing but a negative argument against evolution, and a poor one at that. This was made strikingly clear when Professor Behe was asked about his statement that intelligent design's only claim is about the proposed mechanism for complex biological systems, and he admitted that intelligent design proposes no mechanism for the development of biological systems, only a negative argument against one of the mechanisms proposed by the theory of evolution. And, of course, Professor Behe also had to admit, reluctantly, that intelligent design, as explained in Pandas, goes far beyond the argument about mechanism to attack another core proposition of the theory of evolution, common descent. In page after page of Pandas, the authors argue against common descent in favor of the creationist biblical argument for the abrupt appearance of created kind, birds with beaks, fish with fins, et cetera. The arguments in Pandas are based on wholesale misrepresentations of scientific knowledge, much of which has been known for years or even decades before Pandas was published and some of which has been developed after its last publication, demonstrating that science marches on while intelligent design stands still. Kevin Padian was the only evolutionary biologist who testified in this trial. He described massive and pervasive misrepresentations of the fossil record and other scientific knowledge in Pandas. His testimony went completely unrebutted by any qualified expert. The board members cannot claim ignorance about the flaws in Pandas. Dr. Nilsen and Mr. Baksa testified that the science teachers warned them that Pandas had faulty science, was outdated, and beyond the reading level of ninth-graders. The board members had no contrary information. They have no meaningful scientific expertise or background and did not even read Pandas thoroughly. Their only outside input in favor of Pandas was a recommendation from Mr. Thompson of the Thomas More Law Center, a law firm with no known scientific expertise. What these board members are doing then, knowingly, is requiring administrators or teachers to tell the students, go read that book with the faulty science. It's not just Pandas that's faulty, it's the entire intelligent design project. They call it a scientific theory, but they have done nothing, they have produced nothing. Professor Behe wrote in Darwin's Black Box that if a scientific theory is not published, it must perish. That is the history of intelligent design. As Professor Behe testified, there are no peer-reviewed articles in science journals reporting original research or data that argue for intelligent design. By contrast, Kevin Padian, by himself, has written more than a hundred peer-reviewed scientific articles. Professor Behe's only response to the intelligent design movement's lack of production was repeated references to his own book, Darwin's Black Box. He was surprised to find out that one of his purported peer-reviewers wrote an article that revealed he had not even read the book. But putting that embarrassing episode aside, consider the following facts: Professor Behe admitted in his article Reply to My Critics that his central challenge to natural selection, irreducible complexity, is flawed because it doesn't really match up with the claim made for evolution. It works backwards from the completed organism rather than forward. But he hasn't bothered to correct that flaw. He also admits that there is no original research reported in Darwin's Black Box, and in the almost ten years since its publication, it has not inspired research by other scientists. Professor Behe's testimony and his book Darwin's Black Box is really one extended insult to hard-working scientists and the scientific enterprise. For example, Professor Behe asserts in Darwin's Black Box that, quote, The scientific literature has no answers to the question of the origin of the immune system, close quote, and, quote, The complexity of the system dooms all Darwinian explanations to frustration. I showed Professor Behe more than 50 articles, as well as books, on the evolution of the immune system. He had not read most of them, but he confidently, contemptuously dismissed them as inadequate. He testified that it's a waste of time to look for answers about how the immune system evolved. Thankfully, there are scientists who do search for answers to the question of the origin of the immune system. It's the immune system. It's our defense against debilitating and fatal diseases. The scientists who wrote those books and articles toil in obscurity, without book royalties or speaking engagements. Their efforts help us combat and cure serious medical conditions. By contrast, Professor Behe and the entire intelligent design movement are doing nothing to advance scientific or medical knowledge and are telling future generations of scientists, don't bother. Not only does intelligent design not present its argument in the peer-reviewed journals, it does not test its claims. You heard plaintiffs' experts Pennock, Padian, and Miller testify that scientific propositions have to be testable. Defendants' expert Stephen Fuller agreed that for intelligent design to be science, it must be tested, but he admitted that so far, intelligent design had not done so. Of course, there's an obvious reason that intelligent design hasn't been tested. It can't be. The proposition that a supernatural intelligent designer created a biological system is not testable and can never be ruled out. Intelligent design does not even test its narrower negative claims. As plaintiffs' experts explained and again Dr. Fuller agreed, arguments like irreducible complexity, even if correct, only negate aspects of the theory of evolution. They do not demonstrate intelligent design. It does not logically follow. But intelligent design does not even test this negative argument. Professor Behe and Professor Minnich articulated the test of irreducible complexity. Grow a bacterial flagellum in the laboratory. The test is, as I think Dr. Minnich acknowledged this morning, somewhat ridiculous. Evolution doesn't occur over two or five or -- that evolution that doesn't occur over two or five or ten years in a laboratory population doesn't rule out evolution over billions of years. But if Professor Behe and Professor Minnich think this is a valid test of their design hypothesis, they or their fellow intelligent design adherents should be running it, but they haven't. Their model of science is, we've brought an idea, sit back, do no research, and challenge evolutionists to shoot it down. That's not how science works. Sponsors of a scientific proposition offer hypotheses, and then they test it. Consider the amazing example that Ken Miller gave. Evolutionary biologists were confronted with the fact that we humans have two fewer chromosomes than chimpanzees, the creatures hypothesized to be our closest living ancestors based on molecular evidence and homology. Evolutionary biologists didn't sit back and tell creationists to figure out this problem. They rolled up their sleeves, tackled it themselves, and they figured it out. That's real science. And, in fact, the common ancestry of chimpanzees and humans is real science. It's the real science that William Buckingham and Alan Bonsell and all their fellow board members who voted for the change to the curriculum made sure that the students of Dover would never hear. Make no mistake about it, William Buckingham was determined that Dover students would not be taught anything that conflicts with the special creation of humans, no mural, no monkeys to man, no Darwin's descent of man, his wife's sermon from Genesis. This was all focused on protecting the biblical proposition that man was specially created by God. Similarly, Alan Bonsell ensured that the entire biology curriculum was molded around his religious beliefs. He testified in this courtroom that it is his personal religious belief that the individual kinds of animals -- birds, fish, humans -- were formed as they currently exist and do not share common ancestors with each other. Macroevolution is inconsistent with his religious beliefs. The only aspect of the theory of evolution that conforms to his religious beliefs is microevolution, change within a species. He also believes in a young earth, thousands, not billions of years old. Sure enough, in the fall of 2003, as the older of his two children prepare to take biology, Mr. Bonsell sought assurances the teachers only taught microevolution and not what the board members call origins of life, macroevolution, speciation, common ancestry, including common ancestry of humans, all the things that contradict his personal religious beliefs. He received the assurances he was looking for that most of evolution wasn't being taught. On October 18, this practice of depriving students of the thorough teaching of the theory of evolution, in the minds of the board members, became board policy. Now, in fairness to the teachers, they weren't really short-changing the students to the extent Mr. Bonsell hoped. Mrs. Miller testified that she does teach speciation with Darwin's finches, her attempt to teach evolutionary theory as nonconfrontationally as possible. Mr. Buckingham and Mr. Bonsell also wanted to make sure that the teachers pointed out gaps and problems with the parts of the theory of evolution they did teach. None of the board members cared whether students knew about gaps and problems in the theory of plate tectonics or germ theory or atomic theory. But for evolution, it was essential that the students see all the purported warts. The resource the board relied upon for information about problems with evolution was not from any of the mainstream scientific organizations, but rather the Discovery Institute, the think-tank pursuing theistic science. For Mr. Bonsell, however, making sure that the teaching of evolution didn't contradict his religious beliefs wasn't enough. He then joined Mr. Buckingham in promoting an idea that affirmatively supported his religious beliefs. Intelligent design asserts that birds are formed with beaks, feathers, and wings and fish with fins and scales, created kinds just like Mr. Bonsell believes. And intelligent design accommodates Mr. Bonsell's belief in young earth creationism. He is welcome in intelligent design's big tent. And if there was any doubt that the board wanted to trash evolution and not teach it, it was confirmed by the development of the statement read to the students. There was nothing administration or faculty could do about intelligent design because that's what the board wanted. But the language they developed about evolution was actually quite honest and reasonable. "Darwin's theory of evolution continues to be the dominant scientific explanation of the origin of species. Because Darwin's theory is a theory, there is a significant amount of evidence that supports the theory, although it is still being tested as new evidence is discovered. Gaps in the theory exist for which there is yet no evidence." If this language had made it into the version read to the students, it would not have cured the harm caused by promoting the religious argument for intelligent design and directing students to the deeply flawed Pandas book, but at least it would have conveyed to students that the theory of evolution is well accepted and supported by substantial evidence. The board would have none of it. The only thing that the board -- all that language came out. The board would have none of it. The only things that the board wanted the students to hear about evolution were negative things. There are gaps, it's a theory, not a fact, language that the defendants' own expert, Steve Fuller, admitted is misleading and denigrates the theory of evolution. As Dr. Fuller and plaintiffs' expert Brian Alters agreed, the board's message was, we're teaching evolution because we have to. As if their views weren't clear enough, the board issued a newsletter which accused the scientific community of using different meanings of the word "evolution" to their advantage as if scientists were trying to trick people into believing something that there isn't evidence to support. Your Honor, you may remember Cindy Sneath's testimony about her 7-year-old son Griffin who is fascinated by science. This board is telling Griffin and children like him that scientists are just tricking you. It's telling students like Griffin the same thing Mr. Buckingham told Max Pell, don't go off to college or you'll just be brainwashed, don't research the theory of evolution. The board is delivering Michael Behe's message. Don't bother studying the development of the immune system, you're just doomed to failure. In science class, they are promoting the unchanging certainty of religion in place of the adventure of open-ended scientific discovery that Jack Haught described. How dare they. How dare they stifle these children's education, how dare they restrict their opportunities, how dare they place a ceiling on their aspirations and on their dreams. Griffin Sneath can become anything right now. He could become a science teacher like Bert Spahr or Jen Miller or Bryan Rehm or Steven Stough turning students on to the wonders of the natural world and the satisfaction of scientific discovery, perhaps in Dover or perhaps some other lucky community. He could become a college professor and renowned scientist like Ken Miller or Kevin Padian. He might solve mysteries about the immune system because he refused to quit. He might even figure out something that changes the whole world like Charles Darwin. This board did not act to improve science education. It took one area of the science curriculum that has historically been the object of religiously motivated opposition and molded it to their particular religious viewpoints. You heard five board members testify in this court. I focus today on Mr. Buckingham and Mr. Bonsell who are most explicit about their creationist objectives and who worked hardest to browbeat administrators and teachers to their will. But Mrs. Geesey's letter to the editor establishes her creationist position. Her testimony and Mrs. Cleaver's also demonstrates that they abdicated their decision-making responsibility to Mr. Bonsell and Mr. Buckingham. In Mrs. Harkins' case, it's hard to discern what her motives were beyond depriving students of the book their teachers said they needed while supplying them with books describing a concept intelligent design that to this day she candidly admits she does not understand. The board never discussed what intelligent design is or how it could improve science education. Clearly no valid secular purpose can be derived from those facts. All that remains is the religious objectives represented in Mr. Bonsell and Mr. Buckingham's statements about teaching creationism and Christian values, the same values that animate the entire Wedge strategy. Mr. Buckingham said that separation of church and state is a myth, and then he acted that way. Mr. Buckingham and his fellow board members wanted religion in the public schools as an assertion of their rights as Christians. But Christianity and all religious exercise have thrived in this country precisely because of the ingenious system erected by our founders which protects religious belief from intervention by government. The law requires that government not impose its religious beliefs on citizens, not because religion is disfavored or unimportant, because it is so important to so many of us and because we hold a wide variety of religious beliefs, not just one. The Supreme Court explained in McCreary that one of the major concerns that prompted adoption of the religion clauses was that the framers and the citizens of their time intended to guard against the civil divisiveness that follows when the government weighs in on one side of a religious debate. We've seen that divisiveness in Dover: School board member pitted against school board member. Administrators and board members no longer on common ground with the schoolteachers. Julie Smith's daughter asking "what kind of Christian are you?" because her mother believes in evolution. Casey Brown and Bryan Rehm being called atheists. It even spilled over into this courtroom where Jack Haught, a prominent theologian and practicing Catholic, had his religious beliefs questioned, not as they relate to the subject of evolution, but on basic Christian tenets like the virgin birth of Christ. That was impeachment by the defendants' lawyers in this case. It's ironic that this case is being decided in Pennsylvania in a case brought by a plaintiff named Kitzmiller, a good Pennsylvania Dutch name. This colony was founded on religious liberty. For much of the 18th Century, Pennsylvania was the only place under British rule where Catholics could legally worship in public. In his declaration of rights, William Penn stated, "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man can of right be compelled to attend, erect, or support any place of worship or to maintain any ministry against his consent. No human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishment or modes of worship." In defiance of these principles which have served this state and this country so well, this board imposed their religious views on the students in Dover High School and the Dover community. You have met the parents who have brought this lawsuit. The love and respect they have for their children spilled out of that witness stand and filled this courtroom. They don't need Alan Bonsell, William Buckingham, Heather Geesey, Jane Cleaver, and Sheila Harkins to teach their children right from wrong. They did not agree that this board could commandeer the religious education of their children, and the Constitutions of this country and this Commonwealth do not permit it. Thank you, Your Honor. THE COURT: Thank you very much, Mr. Rothschild. Arguing then for the defendants will be Mr. Gillen. Mr. Gillen, you're up. You have about 35 minutes. MR. GILLEN: Loose clock, Judge. Right? THE COURT: Loose clock. MR. GILLEN: All right. Good afternoon, Your Honor. I want to echo the sentiments of everyone who has appeared in these proceedings and thank you for your cordiality, your respect for the lawyers who appeared before you, and that of your staff. I would also compliment my opposing counsel and, of course, my colleagues. That said, I'd like to address the argument of plaintiffs' counsel. And I think that for all the magnificent vista of science and religious liberty that he has discussed in detail, what is missing is due attention to the facts of this matter. Because as I appear before you today, I am confident that upon a full deliberation and reflection on the evidence of record, not rhetoric, that, as I said at the beginning of these proceedings, you will find that the plaintiffs have failed to prove that the predominant purpose or primary effect of the curriculum change which was approved by the Dover Area School District on October 18, 2004, is to advance religion. Quite the contrary, the evidence of record demonstrates that the curriculum change at issue here had, as its primary purpose and has as its primary effect, science education. It is true that it attracts attention to a new and fledgeling science movement. But look at Steve Fuller. See it through his eyes. See it through the eyes of history and watch how he can see what may be the next great paradigm shift in science, a wholly new vista that does service to the children of this district by allowing them to put together scientific fields in a new and exciting way which is ultimately productive of scientific progress. Let's look at the facts of the matter as it relates to the conduct of these board members. Sheila Harkins does not fit the bill the plaintiffs would have her fit, a religiously motivated co-conspirator who has no interest in the welfare of the children of the district. Not at all. She voted against the text in 2004 because she was trying to save taxpayers money and knew that teachers weren't using the one they had. That's a simple, common sense reason. She was for making students aware of other theories, including, but not limited to, intelligent design because she believed it would encourage critical thinking. As she said, when those students cross the stage at Dover, it's more important we told them, you know, how to think than what to think. And she thought this small and modest measure would contribute to that. Jane Cleaver is the same. She has an eighth-grade education. She loved the kids in this district. She thought this was a good idea. She has no interest whatsoever in imposing creationism on the children of the district, and she did not. As she said, creationism is based on the Bible. That's for the church, that's for the family. Heather Geesey cannot be cast as a religious co-conspirator. She went to Christian schools and her child -- was taught creationism as a child. She knew intelligent design was not creationism because it's not based on the Bible, which she grew up learning. She thought it was good education to make students aware of other scientific theories. She voted to delay the text purchase because she thought the board could reach consensus. She took it for granted, quite rightly it turns out, that the text recommended by the faculty would be purchased. She did not vote in August to hold up the text indefinitely, she did not vote to make Of Pandas the basal text. She was voting for a supplemental text. Here again, her actions speak louder than words. Her whole point in sending her children to public school is to introduce them to those broader vistas that she did not experience as a child. And as she explained in her letter to the editor, her whole purpose was to make clear there that Dover does cooperate with parents by leaving religion to the family. At the end of the day, Alan Bonsell cannot be regarded as a creationist bent on violating the law, either. While a board member since December of 2001, he has never initiated any change to the biology text curriculum or instruction. Bonsell's questions concerning the presentation of evolutionary theory derived from his personal reading cannot be disregarded out of hand as the tendentious assertions of one with a religious agenda. He had legitimate questions, scientific questions, about the claims made for evolutionary theory, statistical probability of biological life developing through a random and undesigned process, the conclusory assertions which seem to underlie claims for change from one species to another. For that matter, he knows that Jen Miller teaches speciation through the finches, and he has no objection. True, he is not a scientist, but what of it? Highly credentialed biologists, yes, in the minority, like all discoverers are, offered highly technical expert opinion substantiating the reservations that Bonsell had based upon his personal reading. As for Bonsell's interest in creationism, this interest is not illegal and provides no grounds to void the actual policy at issue here. He understands creationism to be based upon a literal reading of the Bible, the Book of Genesis, and, yes, he does believe it. When he met with the science faculty in the fall of 2003, he learned that faculty mentioned creationism but did not teach it because they believed it would be illegal. He left that meeting pleased because teachers mentioned creationism as an introductory matter but did not teach it. He regards this as a matter for church and family. And he was pleased to see that teachers did not tell the children creationism was wrong, for as the plaintiffs' expert Brian Alters has testified, that is not the place of the science faculty. Yes, our nation does guarantee religious liberty, and Bonsell is entitled to it like everyone else. He can express his interest so long as he acts within the law, and he has done so here. More importantly, neither Bonsell nor the board can be penalized for interest because the law prescribes improper purpose, not interest. Bonsell had an interest in creationism, but the evidence shows he never took any action to require the teaching of creationism in Dover. Quite the contrary, the net result of the curriculum policy challenged in this litigation has been to absolutely prohibit the teaching of creationism. Indeed, the record shows that interest and action are two very different things, and it's an important distinction, Your Honor. Bonsell had an interest in how Dover School has treated prayer -- students have a constitutional right to pray if they want -- but he never took action requiring prayer in schools. Bonsell had an interest in the social studies curriculum. In 2002, he gave Mike Baksa a book advancing a wholly legitimate historical and legal analysis that has endured for 65 years concerning the separation of church and state and what it means, a line of argument advanced by no less than the late Chief Justice of the United States Supreme Court, William Rehnquist, a line of argument that has generated thousands of books and law review articles. More importantly, Your Honor, here we are in November of 2005, and he has never taken any action to change the social studies curriculum. Interest and action are two very different things. More fundamentally, in the areas at the very heart of this case, Bonsell's actions show that he did not let his religious convictions affect his service to the students of this district. When Bill Buckingham tried to hold up the purchase of the biology text recommended by the science teachers in August of 2004, Bonsell voted against Buckingham's motion because he believed the students should have the text recommended by the science faculty regardless of whether Of Pandas was approved. And on the night of the board policy approved here, Bonsell added a note which ensured that intelligent design was not taught in biology class as desired by the science faculty. Bonsell's motion was seconded by Jeff Brown, who opposed the curriculum change, but also shared Bonsell's goal of ensuring that intelligent design was not taught at present. And it was approved unanimously by the board, including members who opposed the curriculum change, because it was understood to have the effect Alan intended, to prohibit the teaching of intelligent design right now. Finally, any implication that Bonsell acted to influence the curriculum to shield his daughter from evolutionary theory or tailor the curriculum to his religious beliefs is wholly untenable. His daughter is in biology class. She will learn evolutionary theory as required by state standards, and he will not have his daughter opt out. Alan Bonsell is not afraid of the truth. He is afraid of something that we have seen here, science taught as dogma. Angie Yingling is another member of the board who voted for the curriculum change at issue here. The whole notion that the text selection process or curriculum change were rigged to secure a religious end is wholly undermined by her role. In August of 2004, she initially voted with Buckingham to link approval of the basal text with the supplemental text Of Pandas. Although she did so, she changed her vote in response to the reaction of the crowd, not because she had some sudden revelation that her action was illegal, but because she was responding to her constituents. In any event, we can tell that by the way she voted on October 18th, in favor of the curriculum change. There is no evidence in this case that she ever did anything for a religious purpose. Even Bill Buckingham, for all the statements attributed to him, cannot defy the great weight of the evidence in this case which has been ignored by the plaintiffs. Based upon his personal reading, he believed the biology text made claims for evolutionary theory far in advance of what had been demonstrated by science. He wanted students to be aware of intelligent design theory, a scientific theory he believed to be supported by numerous scientists. In June of 2004, biology teachers reviewed the materials he received from Discovery Institute. Yesterday you heard Bob Linker. He was glad to review the tape, a sign of his intellectual integrity, curiosity. He thought it was beneficial to receive information about gaps and problems with evolutionary theory, the same sort of information that these board members wanted children to have. Maybe that would excite them, either to fill those gaps and problems or think this is a deficient theory, we need another. Certainly that's what Mike Behe thinks. That's what Dr. Scott Minnich thinks. That also is a step to scientific progress. And, in fact, at every stage in the history of science, as recounted by Steve Fuller, is the dissatisfaction with the cumulating problems which have been testified to in this court which has become the spur for scientific advance. It's not just all fall in line and work by the guidelines established in a dominant theory. Again, Buckingham's concerns with evolutionary theory cannot be discounted out of hand. Yesterday you heard Mike Baksa, an impartial administrator with no ax to grind against evolutionary theory. Baksa's review in comparison of the 2002 and 2004 editions of Miller and Levine conducted with the science teachers tended to accredit Buckingham's concerns, for the changes to the 2004 edition of Miller and Levine implicitly legitimized many of Buckingham's complaints that the text was overstating achievements for evolutionary theory. It is true that Buckingham wanted approval of the basal text recommended by the teachers to be linked to approval of the supplemental text Of Pandas. That's true. But he never intended to block approval of the basal text. He wanted the students to have two books, not one. In a similar way, the plaintiffs cannot prove that the board was bent on a religious purpose, ramroding a curriculum change through, heedless to the science faculty or community, given the evidence of the actual process which produced the curriculum change. The starting point here must be the actual context for the development of the policy. On the day of the board administrative retreat on March 26th, 2003, the very day that Alan Bonsell mentioned creationism, Mike Baksa attended a seminar on creationism and the law sponsored by the Pennsylvania School Board Association. The presenter had a law degree from Harvard and had authored the Equal Access Act, a provision that guarantees religious liberty. The facilitator had a Ph.D. in the history of science. Mike Baksa had been sent to the seminar by Rich Nilsen, who knew that the science text and curriculum were up for review and that knowledge of the law in this area was important. At that seminar, Mike Baksa learned two things which informed his part in this policy-making process. He learned that creationism could not be taught, but also that the discussion of creationism might add to the fullness of the presentation of evolutionary theory, place it in context. We're not talking about a religious doctrine here now. It's a scientific doctrine as testified to by the defendants' experts. Five days later, after attending this seminar, Baksa received a memo from Trudy Peterman, the principal of Dover High School, indicating that teachers did discuss creationism as another theory of evolution. Mike knew that the memo was inaccurate, but the more significant point is through the Peterman memo and subsequent discussions with teachers such as Bob Linker, Mike learned that the practice of the teachers seemed to reflect the very sort of idea he had heard described at the seminar, one described as conducive to good science education, one, which it can easily be seen, would reduce resistence to scientific theory and progress by students with religious convictions. Taking Bert Spahr's assumption that Bonsell was talking about creationism, as a starting point, Mike Baksa thought he might be able to respond to Bonsell's interest by including a mention of creationism in the curriculum, but at no point did Mike entertain an illegal objective. To see him testify, unvarnished and matter of fact, yielding points to both sides as required by honesty, is to see the very administrator who stood at the center of this process and that he facilitated no agenda he believed to be illegal. And Mike Baksa was not the sole source of input into the board's deliberation. While the plaintiffs have alleged that neither the science faculty nor the community advisory committee were consulted with respect to the curriculum change, the evidence shows that both the faculty and the community advisory committee were consulted. Rich Nilsen ensured that the community advisory committee was given an opportunity to provide feedback despite the objections of Bill Buckingham, because Nilsen valued the input, and he knew, as have many in this process, that Bill Buckingham was not the board. The teachers were also consulted. The critical benchmark here is the recognition that Buckingham sought to secure balance by tying approval of the two texts together. He lost that vote. The same is true with respect to Buckingham's effort to ensure that the supplemental text Of Pandas was given to students in the classroom. He lost that vote. Teachers agreed to its use as a reference text, ultimately was placed in the library. Teachers were also consulted with respect to Buckingham's effort to secure the teaching of intelligent design theory. Members of the board curriculum committee and the science faculty met throughout the summer of 2004. Science teachers reviewed materials regarding intelligent design provided by Discovery Institute and agreed that evolutionary theory, like any theory, had gaps and problems. Teachers agreed to make students aware of gaps. The basal text mentioned strengths and weaknesses of evolutionary theory because it is good science education, on that consensus became part of the curriculum change. Here, Your Honor, you must notice that any argument to the effect that the teachers were coerced into making these concessions is belied by their own words and actions. They have adamantly refused to implement the curriculum change at issue here. Finally, the plaintiffs cannot prove an improper religious purpose given the board's consultation with teachers regarding implementation of the curriculum change. The board agreed to a statement designed to address teacher concerns with respect to that implementation. You heard Jen Miller, the senior biology teacher at Dover. In a meeting with administrators, she demanded to be told exactly what they were to say to students about intelligent design, exactly how to answer questions from students. Faced with a request plainly impossible to satisfy, Mike and the board fell back on the idea that Bert Spahr had given him when the curriculum change was discussed in the spring and summer of 2004, an informational statement. In sum, teachers were also consulted extensively in connection with the curriculum change, and their final result reflects, in very large measure, their input. In fact, the final result has much more to do with the teachers' input than Bill Buckingham's. As you decide this case, I ask you to consider this, Judge: On the one hand, the teachers resisted implementation of the curriculum change on the grounds that they were not educated in or trained to teach intelligent design, but somehow they felt qualified to opine that it was not science. What sense does that make if you're sitting on the board? Surely the board was well within its rights when it decided to resolve any doubts in favor of the likes of Mike Behe, who does have a Ph.D. and is doing work in the sciences but doesn't use intelligent design because papers that use that term can't be published. There may well have been an honest disagreement between the board and faculty, but the law on this point is clear. The board has the final say in such cases. It speaks volumes that the actual result of the deliberative process is so far removed from Buckingham's objectives as chair of the board curriculum committee. And this, in turn, shows that the plaintiffs' efforts to portray the board as a faction bent on a religious mission cannot withstand close scrutiny. In addition, the plaintiffs' effort to establish a religious purpose based on isolated comments with a religious thrust must be rejected. Carol Brown's testimony, histrionic, even if believed, provides no basis for such a claim. Can it really be claimed with any sort of integrity that comments made by two board members, friends by their own admission, who dared to mention religion on two separate occasions, are evidence of a religious purpose? Both denied, because of memory, perhaps, but both innocuous. One comment invited by Casey Brown when she visited with her friend Jane Cleaver and remarked in a religious display. The other when Bill Buckingham, in a display of charity, drove her home from a meeting. And what weight do Casey Brown's objections and complaints deserve when she's asking Sheila Harkins about Quakerism, her religious convictions, and what she believes? What weight to Jeff Brown's objections when he's voting on board resolutions because he's got a message from on high? To hear the testimony presented to the Court in this area is to realize that religious liberty cuts both ways, and it would be absurd to penalize board actions based on a few isolated comments with a religious thrust. In any event, as you well know, the plaintiffs cannot show that the defendants had a religious purpose based on statements made by individuals. What matters here is the action of the public body as a whole determined first and foremost by the actual language of the policy that is at issue and its actual effect. The purpose of a public body, likewise, cannot be proven by the evidence of the motives or purposes of third parties, whether scientists, academics, editors, authors, or publishers, because, again, the purpose of public bodies must be determined with reference to the collective purpose of the public body. Therefore, as you make your findings in this case, Judge, you must be mindful of something that is very clear and was stated throughout this case. Bill Buckingham is not the board, as Jeff Brown, Alan Bonsell, Sheila Harkins, Mike Baksa, and Rich Nilsen all took pains to point out at various points in this process we have scrutinized. Likewise, the documents in 2002 and 2003 do not satisfy the plaintiffs' burden of proof, because, again, actions speak louder than words. It is simply not the law that the mere mention of the word "creationism" is illegal in these United States. Certainly Dover's principal and biology teachers didn't think so, for they mentioned creationism in their introduction to evolutionary theory. The whole net result of this policy is to replace that introductory mention of creationism with an introductory mention of intelligent design. There is simply no meaningful way in which this outcome can be said to advance religion in any way given the nature of the statement at issue in this case, something Bob Linker acknowledged yesterday when he asserted his honest, objective, and wholly reasonable belief that mentioning creationism is not teaching it. Now, it is true that the board did not agree with all the assertions and recommendations of the science faculty or the administration, for that matter, but, of course, it's the board's right and duty to exercise its judgment when adopting measures designed to serve the citizens of Dover. After all, consultation designed to help the board perform its functions does not mean capitulation to the science faculty. Quite the contrary, the board's decision is entitled to great deference precisely because the board is elected by citizens who entrust the board with public responsibility, and it's those citizens who have the ultimate say. It is these plain facts of the matter which explain why the plaintiffs have been forced so far afield in order to advance their claims, offering evidence with no meaningful connection to this case. Although the plaintiffs have focused a great deal of attention on Discovery's Wedge strategy, there is no evidence that the defendants had ever seen this so-called Wedge document or discussed the so-called Wedge strategy with anyone at any time before they learned about it in the plaintiffs' complaint. Although the plaintiffs focus on Phillip Johnson, there is no evidence at all that the defendants know the man. Although the plaintiffs focus on the Foundation for Thought and Ethics, statements made by Jon Buell, there is no evidence that the defendants ever spoke to him or knew anything about the origins, purpose, or mission of FTE. Although the plaintiffs have focused on prior drafts of the text Of Pandas and the motives or statements of its authors or editors, there is no evidence that the defendants had any knowledge of or interest in these statements or, for that matter, the motives, purposes, or metaphysical commitments of these strangers. And that is why the main support for the plaintiffs' claim is a mountain of press clippings built on a molehill of statements allegedly made by one board member who, troubled and wrestling with the addiction of Oxycontin, occasionally allowed people to put words in his mouth. The real purpose at issue here is the purpose that underlies the four-paragraph statement that mentions intelligent design twice, that does not even describe the hypothesis advanced by intelligent design theorists, but simply informs students that it's an explanation for the origins of life different from evolutionary theory and tells students that there are books on the subject in the library. This modest result, so far removed from what various board members contemplated at different times, shows that the plaintiffs have failed to prove, as they must prove to prevail, that the actual primary purpose of the actual policy at issue here is a religious purpose. The evidence has also demonstrated that the plaintiffs have failed to show that the primary effect of the curriculum change is to advance religion. As an initial matter, the primary effect of a curriculum policy is the effect it has on instruction in the class. As you will see in our briefing, the Supreme Court has never applied the endorsement test when assessing the primary effect of a curriculum policy. It focuses on the student in the classroom, and that makes perfect sense. It is likewise clear that the primary effect of a curriculum change is not the secondary collateral and indirect effect of newspaper articles written by reporters. The effects of newspaper articles are just that, the effect of the words and deeds of third parties, third parties not authorized to speak for the defendants, not under their control, and therefore third parties for whose acts the defendants cannot in justice be held responsible. Indeed, the primary effect of the board's curriculum change is not even the district's press release or newsletter, for these were secondary and collateral consequences, by no means an integral or intended consequence of the curriculum change when it was passed on October 18th, 2004, but simply the wholly legitimate efforts of a public body to address misinformation and questions on the part of the public. Plaintiffs have failed to prove that the actual primary effect of the defendants' policy is to advance religion. Your Honor, a four-paragraph statement, an informational statement which does not detail the claims of intelligent design, may serve to prompt the curiosity of students, may lead them to the library, but it does not advance religion. Apart from this four-paragraph statement lasting about one minute, science teachers teach evolutionary theory as required by state standards. They use the basal text recommended by the science faculty, a text recommended by the plaintiffs' expert. In this way, the evidence shows that while the students are taught evolutionary theory in the class, they are merely made aware of intelligent design theory through a one-minute statement. And while students are assigned the basal text authored by the plaintiffs' expert, they are merely made aware that there is a reference text in the library dealing with intelligent design, as well as other books on the subject. And students are made aware that they will be tested on evolutionary theory. Further, the evidence has shown that to allay any concerns on the parts of parents or faculty, Rich Nilsen put in place guidelines to make sure that intelligent design theory would not be taught at present, it can't be under the policy, it is a fledgeling scientific theory, that teachers would not teach creationism, the religious beliefs of Bonsell and Buckingham, that teachers wouldn't teach their own religious beliefs, either. Indeed, the plaintiffs have not proven that the primary effect of the curriculum change is any significant change in science education at Dover. The note designed to allay the faculty's fears that they would be required to teach intelligent design was not intended to and did not, in fact, cause any change in the presentation of material. As the teachers have uniformly stated, they never taught the origins of life. And there is no evidence whatsoever that whatever changes teachers may put in place or may have already, that those changes were authorized or required by the board. Those were changes put in place by the teachers in the exercise of their discretion and changes for which the board cannot be held liable. In many respects, the most interesting result of this policy change is the addition of books to the collection of the high school library. Two donations by two different groups of individuals, both readily accepted by the board and administration without questioning the identity or motives of the donors. How can adding books to the library be a bad thing? It is not. And for this reason, when all is said and done, the circumstances surrounding the donation volunteered by a father trying to protect his son from what he saw as politically motivated attacks, must not be allowed to undermine the legitimate educational benefit those books confer. In this regard, Your Honor, it must be remembered that as the matter now stands, the text Of Pandas is counterbalanced by three texts critical of intelligent design authored by the plaintiffs' experts. Indeed, if a student goes to the Dover High School library and inputs "intelligent design" into the catalog, he'll be directed to one book, a book written by plaintiffs' expert, Robert Pennock, that is critical of intelligent design. Such results are not consistent with an effort to advance a religious agenda, but such results are quite consistent with the board's actual primary purpose here, that is, good science education. The plaintiffs have failed to prove that the primary effect of Dover's curriculum change is to advance religion for another reason. The evidence shows that intelligent design is science, a theory advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. The evidence has failed to support the claim that intelligent design is a nonscientific argument that is inherently religious. The testimony and evidence offered by Behe and Dr. Scott Minnich proved that IDT is science. It's true to say that they are confronting some of the sociological dimensions of scientific progress, dimensions that Steve Fuller and others have studied. That doesn't mean they're wrong. Only time will tell. Although the plaintiffs have objected to the defendants' observation that evolutionary theory has gaps, the evidence has shown and the plaintiffs' experts have conceded that evolutionary theory does have gaps. Indeed, it has problems. The evidence also shows that the theory of evolution is just that, a theory, not a fact, something that the plaintiffs' experts have conceded. Moreover, to hear Steve Fuller testify, Your Honor, is to see that IDT's openness to the possibility of causation, which some might classify as supernatural, at least in light of current knowledge, does not place intelligent design theory beyond the bounds of science. Quite the contrary, intelligent design theory's refusal to rule out this possibility represents the essence of scientific inquiry, precisely because the hypothesis is advanced by means of reasoned argument, based not on the Bible, but on empirical evidence and existing knowledge. As Fuller has explained, it is merely a philosophical commitment to so-called methodological naturalism, adopted as a convention by the bulk of the scientific community, which bars reference to the possibility of supernatural causation, again, at least so far as such causation is currently regarded as supernatural. Even Pennock agrees that philosophers of science, those who have examined these matters in detail, do not agree as to the viability or benefits of this so-called methodological commitment. Moreover, the evidence shows that this philosophical, nonscientific commitment is in no way an essential feature of scientific inquiry. One should be reluctant, truly loathed to impose as a matter of federal law a current convention of the scientific community when the consequences would be to greatly harm scientific progress, at least if the history of science can shed any light on its future. But that would be the practical effect of accepting the artificially narrow view of science espoused by the plaintiffs' experts. This Procrustean effort to confine science within bounds set by nothing greater than present-day convention displays a deplorable lack of historical perspective and philosophical sophistication. Such a view of science is not science, it is bad philosophy of science. This Court must eschew the plaintiffs' invitation to declare the laws of science from the bench if only because history demonstrates that all such efforts are doomed to failure. In this regard, the plaintiffs cannot hope to meet their burden of proof by changing it. Although we will brief it at length, it behooves me now to say that the plaintiffs cannot prove that Dover's curriculum policy fails the establishment clause because it is an endorsement of religion that they would attribute to Dover's policy. Of course, the endorsement test is improper because the controlling case law is clear. One need look no further than the plaintiffs' argument to see the absurd results that would follow from an effort to apply the endorsement test in this case, for by some strange alchemy, not science, it is the plaintiffs who seek to conjure an endorsement of religion from newspaper stories asserting that Dover's policy is religious when it addresses a scientific theory. By this sleight of hand, a change to the ninth-grade curriculum, which results in a one-minute statement designed to spark curiosity and lead kids to the library, becomes a policy that has the primary effect of advancing religion, not just in Dover, but anywhere the paper is read. The world, the Court, must reject this effort to equate primary effect, butterfly effect, precisely because it has no support in the law and would create chaos. In sum, Your Honor, I respectfully submit that the evidence of record shows that the plaintiffs have failed to prove that the primary purpose or primary effect of the reading of a four-paragraph statement to make the students aware of intelligent design, explaining that it's an explanation for the origins of life different from Darwin's theory, letting students know there are books in the library on this subject, does not, by any reasonable measure, threaten the harm which the establishment clause of the First Amendment to the United States Constitution prohibits, but, instead, the evidence shows that the defendants' policy has the primary purpose and primary effect of advancing science education by making students aware of a new scientific theory, one which Steve Fuller, accomplished by any man's measure, believes may well open a fascinating prospect to a new scientific paradigm. This is the very sort of legitimate educational goal which the United States Supreme Court acknowledged in Edwards versus Aguillard. For these reasons, I respectfully submit that this Court must deny the plaintiffs' request for relief and instead declare that Dover's curriculum is constitutional and enter a judgment dismissing the plaintiffs' claims with prejudice. Thank you, Your Honor. THE COURT: I thank you, Mr. Gillen, for that argument. Now, any rebuttal from Mr. Rothschild? MR. ROTHSCHILD: No rebuttal, Your Honor. THE COURT: All right. As we conclude this matter then, I'd like to make just several comments. And we will not, as we said, close the record formally for several weeks, but at least this concludes the taking of testimony in the case. I think it's appropriate to say that over the course of this extended trial, the Court has had, we have all had, the assistance of a number of individuals, and it's appropriate to say thanks to those individuals, our good court security officers, the Office of the United States Marshal, our clerk's office here in the United States District Court for the Middle District of Pennsylvania, our very able court reporters, and all of them, my staff, Liz and Adele, for their good work, and all who have worked on the logistical end of this trial. This is -- if it's not the largest trial that's been heard in the Middle District of Pennsylvania, it equates with the largest trial, certainly in recent memory. And it was no easy undertaking. I had a part in it, but there were so many who attempted to and successfully did make it a much easier enterprise. To the parties in this case and to the assembled spectators, many of whom came day after day, let me say this. It was suggested to me at the outset of this case that I should admonish the spectators that they needed to maintain a certain decorum in the case and during the time that they sat as either parties or spectators, and I declined that advice, and I did that because I generally live by the belief that people will behave themselves unless I see otherwise. And I must note that at no time during this trial, this very long trial, did I have to admonish anyone in the courtroom. I am struck by the solemnity, the dignity, the appropriateness that all of you had, and I'm talking about parties and spectators. And I appreciate that deeply. It was befitting a court of law where important issues are being discussed, and I thank you again for that. To the press, let me say that I recognize that it is not easy to do what you do and to cover an extended trial. We attempted to make certain accommodations to facilitate that. I hope that they were useful to you, and I appreciate your living within those accommodations and constraints for the duration of this extended trial and again for your professionalism in doing so. And last but not least, let me say a word to counsel. I will say to all of you that watching you during this trial, every single one of you, made me aware of why I became a lawyer and why I became a judge. Your advocacy was so impressive to me, but more than that, your ability to interact and to act collegiately, cordially towards each other in the spirit of cooperation with yourselves, between yourselves or among yourselves and the Court. When I practiced law, it frequently occurred to me that clients and observers would sometimes mistake that spirit of cooperation for a lack of zealousness and advocacy. I assure everyone that it is not that at all. Good advocates, good lawyers, can fight in the most zealous and the most dedicated manner in a courtroom but then shake hands and cooperate and leave in the highest -- keeping in mind the highest ideals of the profession. Going back to the days of William Shakespeare and beyond that, people have maligned lawyers and judges, and they'll continue to do so, sometimes with justification, but unfairly so in many cases. Those of you who have sat through this trial, parties and spectators, have seen, by each and every one of the lawyers, some of the best presentations, some of the finest lawyering that you will ever have the privilege to see. And so let me take the opportunity to return the compliments that you've given to the Court and to everyone else, and let me do that times two, because, frankly, it was a pleasure to have each and every one of you and your support staffs before me in this case. Fundamentally, it was my distinct and rare privilege and honor to sit through this extended trial. I know that this case is important to the parties. I'm extremely cognizant of that. This case has not ended for me and hard work lies ahead. And as I said in my dialogue with counsel, I will endeavor to render a decision as promptly as I can, applying the law to the facts as I find them. I assure you of that, and I assure you that I will do my duty in doing so. Counsel, do you have anything further before we adjourn these proceedings? From the plaintiffs? MR. ROTHSCHILD: No, Your Honor. Thank you. THE COURT: From the defendants? MR. GILLEN: Your Honor, I have one question, and that's this: By my reckoning, this is the 40th day since the trial began and tonight will be the 40th night, and I would like to know if you did that on purpose. THE COURT: Mr. Gillen, that is an interesting coincidence, but it was not by design. (Laughter and applause.) With that, I declare the trial portion of this extended case adjourned. (Whereupon, the proceedings were concluded at 3:28 p.m.)