Kitzmiller v. Dover Area School District
Trial transcript: Day 1 (September 26), AM Session, Part 1

THE COURT: Good morning to all. Counsel, would you enter your appearances starting with counsel for the plaintiffs.
MR. ROTHSCHILD: Good morning, Your Honor. Eric Rothschild from Pepper Hamilton, L.L.P., for the plaintiffs.
MR. HARVEY: Good morning, Your Honor. Steve Harvey, Pepper Hamilton, for the plaintiffs.
MR. WALCZAK: Your Honor, Witold Walczak, American Civil Liberties Union of Pennsylvania, for the plaintiffs.
THE COURT: All right.
MR. GILLEN: Good morning, Your Honor. Patrick Gillen from the Thomas More Law Center for the defendants.
MR. THOMPSON: Good morning, Your Honor. Richard Thompson of the Thomas More Law Center for the defendants.
MR. MUISE: Good morning, Your Honor. Robert Muise from the Thomas More Law Center for the defendants.
THE COURT: And good morning to all of you. Are you prepared to open?
MR. ROTHSCHILD: Yes, I am.
THE COURT: You may do so.
MR. ROTHSCHILD: Good morning, Your Honor. My co-counsel and I represent eleven parents who are challenging the Dover Area School District's change to its biology curriculum. That change to the biology curriculum, which is displayed on your monitor and on the screen, singles out the scientific theory of evolution, among all the scientific concepts taught to Dover High School students, as being suspect and promotes the religious proposition of intelligent design as a competing scientific theory.
Eighteen years ago, the United States Supreme Court, in Edwards versus Aguillard, held that public schools could not teach students creation science because that proposition's core concept of a supernatural creator is religious, not scientific, and therefore violates the establishment clause of the First Amendment to the United States Constitution. The Court recognized that the teaching of creation science was motivated by a religious and cultural agenda, not the improvement of scientific education.
What we will prove at this trial is that the Dover board policy has the same characteristics and the same constitutional defects as the creation science policy struck down in Edwards. You will hear testimony from members of the Dover community, these parents, teachers, administrators, and board members, about how this change to the curriculum came to be.
Board members announced their interest in the topic of evolution in starkly religious terms. They looked for a book that could provide a religious alternative to evolution, and they found one in Of Pandas and People.
They changed the science curriculum to advance a specific religious viewpoint, and in doing so, they ignored accepted scientific knowledge, failed to avail themselves of the advice of established scientific organizations, and ignored their own science teachers who opposed the change to the science curriculum.
They did everything you would do if you wanted to incorporate a religious topic in science class and cared nothing about its scientific validity. And we will show that the members of the school board that passed this policy expressed their desire to teach creationism over and over and over again. That's their word, "creationism."
As Your Honor will recall, in January, you permitted expedited discovery so these plaintiffs could decide whether to move for a temporary restraining order. We deposed Alan Bonsell and Sheila Harkins, the last two board presidents, William Buckingham, the head of the curriculum committee when the curriculum change was approved, and Dr. Richard Nilsen, the Dover Area School District's superintendent.
Other Links:
Book is focus of more debate
This York Daily Record article is one of the articles being referred to here.
All of them denied media reports that the board had spoken openly about creationism at board meetings leading up to the curriculum change. And they and other witnesses continued to deny such statements in depositions throughout this litigation.
Faced with what appeared to be surprisingly contradictory evidence about what the board members actually said, plaintiffs decided not to seek a temporary restraining order so that this Court could decide this case on a more complete record. Now we have that record.
Matt, could you pull up Exhibit 21. This is superintendent Nilsen's record of what board members said at a board retreat on January 9th, 2002. Matt, could you highlight Item C. Dr. Nilsen reported that Alan Bonsell talked about creationism and prayer at this board retreat.
Could you pull up Exhibit 25. This is Dr. Nilsen's record of what board members said at a board retreat on March 26, 2003. And could you highlight Section D, again, under Mr. Bonsell. Again, Dr. Nilsen reported Mr. Bonsell as talking about creationism.
Could you pull up Exhibit 26, please. This is Plaintiffs' Exhibit 26. This is a memorandum received by Mr. Michael Baksa, the assistant superintendent for the district, and copied to Dr. Nilsen, the superintendent, reflecting what Mr. Baksa told Bertha Spahr, the head of the Dover High School Science Department, about a board member's views on teaching evolution.
Matt, could you highlight the last sentence of the first paragraph. A board member wanted 50 percent of the topic of evolution to involve the teaching of creationism.
Could you pull up Exhibit 60, please. This is a letter that Board Member Heather Geesey wrote to the York Sunday News on June 27th, 2004. Could you highlight the last paragraph, please. You can teach creationism.
Could you pull up Exhibit 662. This is a draft change to the Dover biology curriculum prepared by Assistant Superintendent Michael Baksa. Could you highlight the bottom section, please, Matt. Creationism. And if you look at the text of this draft change to the curriculum, it's remarkably similar to the change that was actually approved, though the final version had intelligent design, not creationism.
And the entire Dover community is aware of what Mr. William Buckingham, the chair of the curriculum committee when this curriculum change was passed, has said on this subject. (Tape played.) "Such as creationism." Defendants refusal to admit their advocacy of creationism in the face of overwhelming evidence says everything about their true motives.
What the board did was add creationism to the biology curriculum under its new name, intelligent design. You will hear from Barbara Forrest, an expert on the history of intelligent design. She will describe how the textbook Of Pandas and People that the school district directs its students to was conceived and developed as a creationist book and changed the name of the concept it was promoting to intelligent design after the Edwards decision held that creation science could not be taught.
Indeed, the very definition of intelligent design found in the Pandas book used in Dover is identical to the definition of creationism found in earlier drafts of that book. The publisher of Pandas, like the Dover Area School Board, employed semantics, wordplay, to obscure its clear religious creationist project.
Dr. Forrest will also describe how the leaders of the intelligent design movement are carrying out a strategy, what they call the Wedge strategy, to overturn the rules of modern science so that you can include supernatural activity, so that science can be Christian and theistic.
You will also hear from John Haught, a theologian, who will explain that intelligent design is not new science. It is old theology, the argument for the existence of God that has been around for centuries. He will also explain that it is not a universal religious view, but rather a particular one accepted by many people of faith but inconsistent with the beliefs of many others.
Intelligent design is not identical in every respect to the creation science previously addressed by the Supreme Court in Edwards and other courts, but in all essential aspects, it is the same. Intelligent design really is a perfect example of evolution. Throughout this century, religious opponents of evolution, concerned that evolution contradicts a literal reading of the Bible and promotes cultural decay, have employed varying tactics to denigrate or eliminate the theory of evolution in the minds of young students.
They have tried forbidding the teaching of evolution, promoting creationism or creation science as an alternative to evolution, and singling out evolution for special criticism. Each of those tactics have been found unconstitutional by courts. Confronted with that inhospitable legal environment, creationists have adapted to create intelligent design, creationism with the words "God" and "Bible" left out.
They have promoted a book, Of Pandas and People, that invokes a master intellect that shapes clay into living form and then says, we're not referring to anyone in particular. This clever tactical repackaging of creationism does not warrant different treatment under the Constitution.
The intelligent design movement has argued and we expect you will hear defendants argue in this courtroom that intelligent design has improved on creationism by developing a scientific argument for design. Defendants' own experts call it science in its infancy, and if this is true, there is no educational purpose in test-driving it with high school students.
But intelligent design is not science in its infancy, it's not science at all. You will hear from Kenneth Miller, a biologist; Kevin Padian, a paleontologist; Robert Pennock, a scientific philosopher; and Brian Alters, an expert on teaching science. They will testify about how science is practiced and taught, why evolution is overwhelmingly accepted as a scientific theory, and why intelligent design has no validity as a scientific concept.
There is no data or laboratory work demonstrating intelligent design. It is not a testable hypothesis. It misrepresents established scientific knowledge. Let's be perfectly clear, there is no controversy in the scientific community about the soundness of evolution and that intelligent design is not a scientific topic at all.
Intelligent design has arguments with fancy names like "irreducible complexity" and "specified complexity," but these arguments are not a positive case for intelligent design, just negative attacks on evolution. And even those arguments have not been advanced in the way that real working scientists do every day, by publishing original data in peer-reviewed scientific journals. In fact, intelligent design admits that it is not science at all unless science is completely redefined to include the supernatural.
At this trial, you will hear the parties use the term "methodological naturalism." Methodological naturalism is the term used to describe science as self-imposed limitation, that it will only consider natural causes for natural phenomena. Science does not consider supernatural explanations because it has no way of observing, measuring, repeating, or testing supernatural events. It doesn't mean that supernatural events, including divine miracles, have not happened, just that science cannot properly make any statements about them.
But intelligent design will not accept the well-established boundaries of science and openly rejects methodological naturalism, the way science has been practiced for centuries. Why? Because it has to. In the end, no matter how many stones intelligent design throws at the theory of evolution, the only alternative it presents for the development and diversity of life, the only explanation for how a bacterial flagellum or the human eye came to be is a miracle, an abrupt appearance, an act of supernatural creation. That, by itself, establishes intelligent design as a religious argument, not a scientific argument, for the creation of biological life that cannot be taught to public school students.
The district will argue that any constitutional problem with its policy may be ignored because the statement read to students is brief and because it has promised not to teach intelligent design or even allow students to ask questions about it. This limitation, of course, raises the question, what's the point? What possible secular educational purpose could the policy have?
Plaintiffs' scientific and teaching experts will explain that there is none. Worse yet, the statement denigrates the theory of evolution in a way that one of defendants' own experts describes as misleading.
Of course, there is no such thing as a little constitutional violation, and this policy surely isn't one. The Dover board has imposed its particular religious viewpoint on the students at Dover High School and through a newsletter to the entire Dover community.
Viewed in the context of the public statements and actions by the board in developing and implementing the policy, it can only be viewed by the Dover High School students and Dover community as an expression of the board's religious viewpoint and as favoring a religious view about creation.
In the Edwards decision, the Supreme Court underscored that it must be particularly vigilant in monitoring compliance with the establishment clause in elementary and secondary schools. Families entrust public schools with the education of their children but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family.
The Dover School Board has violated these parents' trust by imposing its own religious agenda on Dover High School students and the Dover community. And it has clearly divided the Dover community, which could not help but conclude that its high school curriculum now includes a religious proposition, the 21st Century version of creationism.
The evidence that I have described this morning and much more evidence that you will hear during the course of this trial will demonstrate that the board had the purpose of promoting religion and that its policy had that effect.
For those reasons, at the end of trial, we will request that the Court enter an order finding that the Dover School Board's change to its high school biology curriculum is unconstitutional and ask you to permanently enjoin the district from implementing that curriculum change. Thank you, Your Honor.
THE COURT: All right. Thank you, Mr. Rothschild. Mr. Gillen, are you prepared to open?
MR. GILLEN: Thank you, Your Honor. Good morning, Your Honor.
THE COURT: Good morning again to you.
MR. GILLEN: Patrick Gillen again from the Thomas More Law Center on behalf of the defendants in this action, the Dover Area School District and its board of directors. Again I'd like to introduce my colleagues at counsel's table, Dick Thompson and Robert Muise. Absent from the courtroom but valued collaborators in this effort, my colleagues Ed White and Julie Shotzbarger.
Seated behind counsel's table, our clients, the Dover Area School District, through its board of directors, citizens elected by their constituents, represent the interests of the parents and families of the district, the students who are educated through the hard work of the board, the administration, faculty and staff of Dover Area School District.
Your Honor, it is our pleasure to appear on behalf of our clients today because I am confident that at the conclusion of these proceedings, you will find that the evidence shows that these citizens seated before you today were engaged in a legitimate exercise of their lawful authority where they enacted a modest change to the biology curriculum for the purpose of enhancing science education, for the evidence will show that the purpose and effect truly at issue in this litigation is the purpose and effect of a curriculum change that was worked out after a process of deliberation involving the board, the administration, the science faculty, and the public.
And it resulted in a modest four-paragraph statement which mentions intelligent design, makes students aware of the existence of the theory, makes them aware that it's a theory of the origins of life different from Darwin's theory of evolution. It explains that there's a book in the library, Of Pandas and People, that deals with intelligent design theory or IDT.
In fact, the evidence will show that the more recent statement points students to other books in the library addressing intelligent design theory and that three of those books are penned by the plaintiffs' experts and critical of the theory. This case is about free inquiry in education, not about a religious agenda.
Your Honor, the evidence will also show that this four-paragraph statement is the total actual effect that the curriculum change has on science instruction in the district, because apart from that four-paragraph statement, science teachers teach evolutionary theory as required by Pennsylvania state standards. The use of texts presents the evolutionary theory. Biology by and Levine, one of the coauthors, Ken Miller, is one of the plaintiffs' experts in this case.
In this way, the evidence will show that while students are taught evolutionary theory, they are merely made aware of the existence of another theory, the intelligent design theory, and that while students are assigned a basal text that presents evolutionary theory, they're merely made aware of the existence of a reference text in the library that deals with intelligent design theory, if they care to check it out. And they are told that they will be tested on evolutionary theory, as required by Pennsylvania state standards.
Further, the evidence will show that Superintendent Richard Nilsen, in response to concerns addressed by science faculty about the implementation of the curriculum change, issued specific guidelines that intelligent design theory would not be taught, that creationism would not be taught. Teachers would not teach their own religious beliefs.
Now, there's no question, Your Honor, that this final result was worked out through a contentious policy-making process that has led some to liken making legislation to making sausage, a process that involved, at times, heated argument by members of the public, members of the board, false charges and intemperate remarks. But the evidence will show that the consistent goal of the board, as a whole, was to pursue what they believed to be a legitimate educational purpose and to comply with the law.
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. Those questions are not evidence of unconstitutional conduct, Your Honor. They were quite legitimate.
In fact, the evidence will show that on the very day of the March 26th, 2003 board retreat, the assistant superintendent of the district, Mike Baksa, attended a seminar sponsored by the Pennsylvania School Boards Association given by a presenter with a law degree from Harvard, a facilitator who was a professor with a Ph.D. in the history of philosophy of science. They discussed the issue because it was a legitimate issue.
During that seminar, Mike Baksa heard the view expressed that it would be useful and good science education to at least introduce a discussion of creationism into the biology curriculum. More importantly, Your Honor, the evidence will show that nothing came of those questions.
During his tenure as board curriculum committee chair, Alan Bonsell never asked for any change to the biology curriculum, the text or instruction. He met with the science teachers in the fall of 2003 and learned that they didn't teach origins. It was too problematic. They focused on change within species. They mentioned creationism, but they didn't teach it, that's what they told him, because they thought it would be illegal. And that was the end of the matter. He asked legitimate questions. He got legitimate answers. That was the end.
When Bill Buckingham tried to hold up the purchase of the basal text in August of 2004, the text authored by one of the plaintiffs' experts, Bonsell voted against that because he believed the students should have the book recommended by the science faculty, quite apart from whether the board approved the use of Pandas and People.
And on the night, the very night that the board approved the curriculum change at issue here, when the science faculty expressed concerns that the inclusion of the mention of intelligent design in the curriculum would require them to teach it, although they did not teach origins, it was Bonsell who appended the note to the curriculum which made it clear that they would not be required to teach intelligent design theory.
He did that because he understood they did not teach origins, and they understood that intelligent design theory, as indicated by the subtitle of the book, Of Pandas and People, deals with the question of biological origins.
Your Honor, the evidence will show something very critical in this case, that Bill Buckingham did not exercise a determinative impact on this policy-making process. Not at all. In fact, the evidence will show that the board listened to the science faculty more than it listened to Bill Buckingham.
Bill Buckingham wanted the text, Of Pandas and People, approved with the basal text. He wanted it purchased with school money. He wanted it used in the classroom. He wanted the intelligent design theory presented side by side with evolutionary theory as if in dialogue. The teachers objected, and the board agreed with the teachers.
Now, it's true at the end of the day the board didn't agree with everything the teachers said. The board believed that intelligent design was not creationism. They knew what that was, the Book of Genesis. They concluded that intelligent design was science. They looked at the text of Pandas and People. That's not the Book of Genesis.
They believed it was a legitimate educational goal to make students aware of the existence of another scientific theory, but they agreed with the teachers' objections that for practical reasons, students shouldn't be taught intelligent design theory.
Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.
Defendants' expert will show this Court that intelligent design theory, IDT, is science, a theory that's advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education. It's good liberal education.
Dr. Michael Behe will offer you his opinion in this case. He will explain the basis for his opinion that the insights into the biochemical complexity of the cell, made possible by modern microbiology, have undermined the claims made for natural selection, the mechanism at the center of evolutionary theory.
Likewise, Dr. Behe will explain that evolutionary theory does have gaps and problems and that it's good science education to make students aware of those gaps and problems, make them aware of the intelligent design theory.
The evidence will show that Dr. Behe takes these positions and posits his thesis of irreducible complexity pointing to design not because evolutionary theory is inconsistent with his religious beliefs. It's not. Not because he believes in creationism. He doesn't. And as he'll explain, creationism and intelligent design are two very different things. Dr. Behe takes these positions because the empirical evidence points in that direction.
You will also hear testimony from Dr. Scott Minnich. Dr. Minnich received his Ph.D. from Iowa State University in 1981. He was a post-doctoral fellow at Purdue and then Princeton. Since 1987, he has taught microbiology extensively at the undergraduate and graduate, including medical school, levels.
Dr. Minnich will testify that IDT is science, not religion. He will explain that design principle, design theory, drives his sophisticated research in the lab. He will testify that Of Pandas and People is a good text, a little dated, but one that asks critical questions about the mechanism of natural selection, which is a centerpiece of evolutionary theory, that it makes students aware of gaps and problems in the theory. Dr. Minnich will testify that this is good science education and it's good for science.
Dr. Dick Carpenter will also provide testimony. He's an assistant professor in educational leadership at the University of Colorado. He's an expert in educational policy and practice. He will testify that DASD's curriculum policy advances legitimate secular educational goals, promotes critical thinking, gives students a fuller understanding of evolutionary theory, including its strengths and weaknesses, something that's mentioned in the basal text authored by the plaintiffs' expert.
In this way, he'll show that Dover's modest curriculum change actually brings it more into line with Pennsylvania's academic standards, which require that students be able to critically assess the status of existing theories, and, insofar as it helps students grasp the controversy that can surround science, points to a goal that's included in the Santorum amendment, the No Child Left Behind Act.
Dr. Steven Fuller will also testify for the defendants. He has a master's in philosophy and history of science from Cambridge University, a Ph.D. in the philosophy of science from the University of Pittsburgh. He's the author of eleven books, over 200 articles and chapters and books that have been peer-reviewed.
He was the first post-doctoral fellow in the history of philosophy of science at the United States National Science Foundation, the first research fellow in the Public Understanding of Science at the United Kingdom's Council for Economic and Social Research. His works have been translated into 15 languages. He has been a visiting professor in the United States, Sweden, Denmark, the Netherlands, Israel, and Japan.
Dr. Fuller will testify that intelligent design is science, not religion, that the convention of methodological naturalism, which some would use to disqualify intelligent design theory from science, is by no means a necessary feature of scientific inquiry, and that scientific progress has taken place without any commitment to methodological naturalism.
He will also testify that efforts to disqualify IDT from science based upon causation or testability or other so-called demarcation criteria, including so-called methodological naturalism, are inherently flawed. Dr. Fuller will explain that intelligent design theory is not creationism. It is not inherently religious. He will also explain, for that matter, that any number of phenomena we now understand, whether it's gravity or the wave-particle duality of quantum mechanics, were once thought to be supernatural.
Finally, Dr. Warren Nord will testify for the defendants. Dr. Nord is a professor in the philosophy of education and philosophy of religion at the University of North Carolina Chapel Hill. Nord will testify that intelligent design theory is not religion. He will explain that efforts to exclude intelligent design theory from science based on so-called methodological naturalism actually result from a philosophical naturalism which is, itself, a nonscientific principle.
He will also explain that from the standpoint of the philosophy of education, liberal education, the thesis posited by intelligent design theorists gains greater strength when seen in a larger context, whether the fine-tuning of the universe which physicists looked at so statistically improbable but so necessary to support life on earth or work in the area of phenomena such as the mind.
Dr. Nord will also explain the basis for his opinion that the board's modest curriculum change is a step in the right direction for science education and consistent with national science education standards precisely because it makes students aware that there are scientific disputes over claims advanced by rival theories, something students should know in order to have a realistic sense of this critical dimension of scientific progress.
Taken together, this expert testimony will confirm the defendants' judgment by showing that intelligent design theory is not creationism. Indeed, it does not even require the action of a supernatural creator, that intelligent design is not religion or inherently religious, that intelligent design theory is science. It's a theoretical argument advanced in terms of empirical evidence, technical knowledge proper to scientific and academic specialties.
Indeed, the evidence will further show that intelligent design theory is really science in its purest form, the refusal to foreclose possible explanations based on the claims of the dominant theory or the conventions of the day, to proceed from the same sort of perspective that led Newton to explore and ultimately explicate gravity.
It shares the attitude of those who worked in the field of quantum mechanics, who posited the wave-particle duality, despite the fact that to some it smacked of the supernatural. It shares the determination of scientists who this very day will look at paranormal phenomena or phenomena that defy our current understanding such as the mind.
For just these reasons, the defendants' expert testimony will show that Dover's modest curriculum change embodies the essence of liberal education, an education that frees the mind from the confines, the constraints, the conventions of the day, and, in so doing, promotes the curiosity, the critical thinking, the quest for knowledge that has served our country so well.
In conclusion, Your Honor, I respectfully submit that the evidence will show that the primary purpose and primary effect of Dover's modest but plainly significant curriculum change is to advance the very sort of legitimate educational goal which the United States Supreme Court recognized in Edwards versus Aguillard, what the Supreme Court of the United States acknowledged, with approval, that school boards could quite properly require the teaching, never mind mention, about the theories of origin for legitimate secular educational purposes.
Your Honor, we look forward to presenting a defense in this case. Thank you.
THE COURT: All right. Thank you, Mr. Gillen. Before we get to our first witness on behalf of the plaintiffs, let me welcome our spectators to this and the parties, of course, and the media to this important case.
We're going to be in -- although this is a relatively large courtroom, we're going to be in fairly close quarters for a while. Those of you who are going to stick around will be here for the next week and for, it looks like, all of October, as well.
I have been struck in the pretrial proceedings with the sense of decorum on the part of the parties and the spectators. I believe that that will continue, so it's not necessary for me to say much besides I want you to do that and respect the witnesses on both sides as they testify and avoid any expressions that would disrupt the Court in any way. I certainly haven't seen that, and I don't expect to see that in this case.
You would do me a favor and you would do counsel a favor and the parties a favor if you would restrict your movement in and out of the courtroom during testimony to a minimum. That's not to say that you can't leave, but don't leave lightly just because you're bored and you want to go out into the hallway and then filter back in again. If you must leave, that's certainly acceptable, but we want to keep the traffic to a minimum because I think that that keeps us better focused.
We will take breaks at reasonable intervals, and I assure you we'll have lunch, as well, a lunch break, and we will take this in a way that is deliberate and yet recognizes that we're going to be here awhile and we have plenty of time to try this case.
So with that -- now, Mr. Rothschild, you're not going to move for the admission, I don't think, at this point, of any exhibits, or are you with respect to your opening? Do you want to do that?
MR. ROTHSCHILD: No, I'm not, Your Honor.
THE COURT: I assume not. With that, then we can start with your first witness.
MR. WALCZAK: Plaintiffs call Kenneth Miller.
Other Links:
Kenneth R. Miller
Personal website for this witness.
Wikipedia: Kenneth R. Miller
An internet-based encylopedia entry for Dr. Miller.
Dr. Miller's expert witness statement (PDF)
This statement was filed by Miller prior to the trial.
KENNETH R. MILLER, PH.D., called as a witness, having been duly sworn or affirmed, testified as follows:
THE CLERK: Please be seated and state your name. Please spell your name for the record.
THE WITNESS: Sure. Good morning, Your Honor.
THE COURT: Good morning.
THE WITNESS: My name is Kenneth R. Miller, K-e-n-n-e-t-h, initial is R., M-i-l-l-e-r.
THE COURT: You may proceed.
DIRECT EXAMINATION
BY MR. WALCZAK:
Q. Good morning, Dr. Miller.
A. Good morning.
Q. Where do you live?
A. I live at 142 Martin Street in Rehoboth, Massachusetts.
Q. What do you do?
A. I'm a professor of biology at Brown University.
Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 214. Do you recognize this document?
A. Yes, I do. It's the first page of my resume or, as we academic guys call it, my curriculum vitae.
Q. Is this a fair and accurate representation of your background?
A. Yes, it is. The individual document is a few months out of date, but, yes, that is.
Q. I'd like to use this to go over your background. Focusing first on your education, you graduated from Brown University in 1970?
A. That's correct.
Q. And then you got a Ph.D.?
A. At the University of Colorado in 1974.
Q. And did you do a Ph.D. dissertation?
A. Yes, I did.
Q. And what was that on?
A. The Ph.D. dissertation was on the structure and location of the coupling factor on the thylakoid membrane or, as I once explained to my mother, I'm trying to figure out and tried to figure out in the thesis how plants capture the energy of sunlight and convert it into chemical energy and food.
Q. Dr. Miller, I'm likely going to have to ask you to explain things the way you would to your mother a number of times during this testimony. Please bear with me.
A. Thank you, sir. I will keep that in mind.
Q. I'd like to focus now on your professional experience concerning your academic appointments. After you got your Ph.D., what did you do next?
A. I went to Harvard University to join the faculty as a junior faculty member, and I spent two years there in the position of lecturer in biology and then four years as assistant professor of biology.
Q. And then in 1980 you went to Brown University?
A. That's correct. I got a job offer from my undergraduate alma mater and jumped at the chance and returned to Brown in 1980. Two years later I was given tenure and promoted to associate professor, and four years after that, I was promoted to full professor, which is a rank I still hold.
Q. And you continue to teach at Brown today?
A. Yes, sir, I do.
Q. And you've been there consistently since 1980?
A. I have left town once or twice, but, yes, sir, I have been there consistently.
Q. And what do you teach at Brown?
A. I teach courses in molecular and cellular biology, and I also teach what is, in many years, the largest course that a university gives freshmen, an introductory to general biology course.
Q. Does that freshman-level course include a section on evolution?
A. Yes, it does. No course in biology would be complete without it.
Q. Dr. Miller, are you still involved in scientific research?
A. Yes, sir, I am. Not as much as I used to be, but I have a small lab and I have a couple of undergraduate students who work with me and I continue to do research.
Q. And remembering that I'm on your mother's level, could you just briefly describe the area of your scientific research?
A. Well, I continue to be interested in the structure and function of biological membranes. My main research tool is the electron microscope. And the main area in which I work right now is the process by which proteins go through, pass through biological membranes. And that's very important to cell biologists because it concerns basically how things get where they're supposed to be. Cells depend upon proteins getting to the proper destinations, and I'm trying to work on part of the mechanism of how they get there.
Q. Now, directing your attention, again, on the first page still, to professional service and associations, it appears that you are a member of a number of professional associations, for instance, the American Association for the Advancement of Science. What is that?
A. The American Association for the Advancement of Science is, I believe, the largest scientific organization in the United States. It has tens of thousands of members. It includes scientists of all disciplines. And it probably, if any single organization can fairly be said to speak for the scientific community of the United States, it is that association. It's often called simply AAAS.
Q. And I note you're also a member of the American Society for Cell Biology. What is that?
A. The American Society for Cell Biology is one of the largest organizations of experimental biologists in the United States. It has seven or 8,000 members. As many as 12,000 people attend its annual meetings. And it is one of the, as I said, major organizations promoting experimental biology in the country.
Q. Now, I note you have held a number of positions as -- for instance, the chair of the American Society for Cell Biology program committee. It looks like you've had two stints as the chair of the education committee. What do those committees do?
A. Well, the program committee is the committee that organizes the scientific program of the annual meeting with more than 3,000 contributed talks and papers. And when I chaired the program committee, I was, in effect, the director of the scientific meeting picking the major talks, the symposia, organizing the poster sessions and so forth.
The education committee is a committee that promotes and supports scientific education at all levels. Almost all of our members teach at one university level or another, whether it's at the graduate level, perhaps in medical school or undergraduate colleges, and we organize programs to help our members stay abreast of new developments in teaching technology and to promote science teaching and education.
The committee also has, as does the society, a very strong interest in promoting K through 12 science education throughout the country, and we often weigh in on important issues that we believe affect the future of science education in the country.
Q. How do you become a chair of these committees?
A. I'm often -- when one is named a chair, one receives both congratulations and condolences at the same time. I believe that I was named the chair of the program committee because the newly-elected president of the society in that year, Susan Gerbi, was a colleague of mine and she wanted to leave her imprint on the scientific meeting, and therefore she was very comfortable with me heading the program committee. You might say that I got that job through the old girl network.
The education committee, however, is a different matter. I have been interested in education for quite a long time. I spend a lot of my time and energy teaching at the university level, and I've also been involved in writing textbooks at both the college and the high school level.
My colleagues on the committee and colleagues in the society are aware of that and several elected councils of the society thought that I would be basically the best person to chair that committee.
Q. I note you're also the past editor of a number of journals, for instance, the Journal of Cell Biology, the Journal of Cell Sciences, Advances in Cell Biology. First of all, what are these publications?
A. Well, the two journals that you mentioned are two of the leading journals in the field of cell biology. And I served a term as one of a panel of editors on each of these journals, and my function in that respect was to take manuscript submissions, scientific papers that were forwarded to me by the editor-in-chief of the journal, papers that had been submitted for publication, pick out referees or reviewers, often two or three or four scientists to critique those, look for scientific flaws, decide if they should be revised and decide if they have publishable quality. They would then report back to the editor.
I would then make an initial decision, all editors do, on whether or not they were suitable for publication, whether or not they needed to be revised, whether or not they should be rejected, and forward that decision to the editor-in-chief, who would then make the final decision.
In the case of the series Advances in Cell Biology, this was a series of monographs, which are papers, review papers written by individual scientists. And in that case, my authority was somewhat greater and somewhat different in that I solicited manuscripts from various scientists who were doing cutting-edge work. I asked them to summarize their work and the work in the field, and I then bundled these 10 or 15 papers a year into this proceeding, which was designed to keep scientists abreast of cutting-edge developments in the field.
Q. I'd like to direct your attention to Page 2 of your curriculum vitae. There's a topic there, it says, Scientific Papers. There are a lot of listings on Pages 2 through 5. Do you know how many are listed there?
A. Actually, I haven't counted them. I think it's in the neighborhood of 45 to 55, somewhere in that vicinity.
Q. Now, the heading there says, Scientific Papers. Is there some particular meaning to that?
A. Yeah, most scientists would understand it right away. What this means, in more specific terms, is that these are scientific research papers that have been published in peer-reviewed scientific journals.
Q. And this concept of peer review, for us non-scientists, what does that mean?
A. Peer review is the essence of the scientific process. It means, basically, that when you've done research that you think is sufficiently important and rigorous to merit attention and publication, you send it off to a journal. The journal will then have several of your colleagues in the field, people who can be disinterested, objective, and critical evaluators, tear your paper apart, if they possibly can, try to find flaws, try to find problems with it. The editor will then mediate whether your paper is going to be rejected or perhaps revised a little bit.
But it is the essence -- peer review is the essence of the give and take that goes forward in the scientific community to try to ensure, especially in leading journals, that the papers that are published are scientifically accurate, that they meet the standards of the scientific method, and that they are relevant and interesting to other scientists working in the field.
Q. If you could turn to Page 6. I note there's a heading there that says, Secondary Textbooks and Teaching Materials. And if you could flip over to Page 7 first. At the top there it says, College Textbooks. Are you the author of some college textbooks?
A. Yes, yes, I am. Together with a colleague named Joseph Levine, I have coauthored two college textbooks in general biology that were published by the D.C. Heath Company. That company has now gone out of business, and those two textbooks which were published in 1990 and 1993 are out of print. At the peak of their usage, they were used by more than 200 colleges and universities around the country.
We are currently at work on a new college-level manuscript, and we hope to have that published in the years ahead. I notice -- I mentioned the CV was a little bit out of date -- it says, Expected publication, 2005, W. H. Freeman Company. We and our publishers, Freeman, have had a parting of the ways because we had a fundamental disagreement on what this book should be like, so we are currently considering other offers of publication. So this book will not be published this year.
Q. You mentioned that this book is not still in use at the college and university level. Why is that?
A. It's not still in use because it was last copyrighted in 1994, and by science standards, that's an ancient text. Science moves so quickly that material in a textbook that's ten years old is certainly going to be seriously out of date.
And I think that's one of the reasons why even those instructors who liked and really enjoyed working from our book would certainly not use it today, simply because there's too much science that has passed under the bridge.
Q. Now, if you would flip back to Page 6 of your curriculum vitae, I note that you have also been the author of a number of high school textbooks. When did you first start writing those textbooks?
A. To be perfectly honest, I first started writing when I was persuaded by Joseph Levine, my coauthor, that this would be a good thing to do, and we first started writing our first manuscript in 1982.
Q. And the first publication was in 1990?
A. The first publication was in 1990, so it took us eight years to go from conceiving and beginning the manuscript to our first publication.
Q. Now, I note there appear to be -- I don't know if it's a number of different editions or these are different books. Could you explain that?
A. Yeah. All of these books have been published by the Prentice Hall Company, which is now a division of Pearson Publishing. And I tried on this to list a number of different editions. The first book -- they all have catchy titles like Biology.
The first book, you'll notice, is simply called Biology, and it came out in five different editions, first through fifth. The second book is called, Biology, the Living Science. It came out in two editions. The third book, we liked that original title, I guess, and just went back to plain old Biology, but that is an entirely different book from the earlier Biology.
High school teachers, I have to say, have a way to distinguish these books. They name them by the animals on their cover. So high school teachers will know the first book is the elephant book, the second book is the lioness book, and the current book, the one near the bottom, as the dragonfly book.
So altogether, these books have -- there have been three different books, and they have appeared in the neighborhood of 11 or 12 different editions.
Q. I show you what's been marked as Plaintiffs' Exhibit 31. Is this the cover of the dragonfly book that you mentioned?
A. Yes, sir, it is.
Q. And this is the 2004 edition?
A. This, I believe, is the cover of the 2004 copyright, correct.
Q. And are you working on yet another edition of this book?
A. Yes, sir. This weekend Joe and I were working on final revisions for what will be a 2007 copyright of this book, and we are about six months away from starting on a complete rewrite of the entire textbook.
Q. Is this a textbook that's used in the Dover Area School District, to your knowledge?
A. My understanding, sir, is that it is.
Q. And is it used anywhere else besides Dover?
A. It is used in each and every one of the 50 states of the United States and several foreign countries.
Q. Do you know how many high schools use your biology book?
A. I can't give you a number in terms of the number of schools, but I have been told by my publisher that about 35 percent of the high school students in the United States use one or another of the various textbooks we've been discussing.
Q. And what topics are covered in this biology textbook?
A. Soup to nuts. We start out with the nature of science, the nature of biology. We talk about the structure of the cell, cell biology. We talk about molecular biology and genetics, ecology, evolution. We do a phylogenetic survey, which is a biologist's term for looking at all the various categories of living things, and we conclude the book by looking at the various systems of the human body.
So we try to provide in the book not a curriculum, but a resource bank from which teachers can draw as they put their curriculum together for the types of courses that students need to take in Pennsylvania and other states to meet state requirements.
Q. And as part of your process in writing and developing these books, are you familiar with, say, the competition, competing high school biology textbooks?
A. Certainly. It is a free market and a competitive market, and it always pays to keep an eye on the competition, so I keep an eye on the other books, as well. And they do the same for us, of course.
Q. And do you send your manuscripts, if that's the right term, to high school teachers for feedback about whether the subject is presented right or for any reason?
A. Yes, we do.
Q. And why do you do that?
A. We do that for a couple of reasons. Joe and I are presumed to know the scientific field, but every time we write a chapter and we edit our chapters for each other, we, first of all, send it to a scientific expert to make sure that we've got the science right. Even if it's my own field of cell biology, I'm eager to see a critical opinion from another researcher to see if I got it right.
But we also send these chapters to individual experts in secondary school education, individual high school teachers, and focus groups or panels of high school educators to critique whether or not we have explained things in a way that they think their 14- and 15-year-old students will understand, whether the text is interesting, and whether the text is going to be helpful to them in the classroom in the goal of getting students turned on to science.
Q. So do you make changes in each subsequent edition in response to the feedback you've gotten from high school teachers?
A. Yes, we do, quite a few changes.
Q. Now, isn't it unusual for a research scientist to also be a high school textbook author?
A. I suppose it is.
Q. Why do you do it?
A. Originally, when I was approached by Dr. Levine, I told him to take a hike. I said I wasn't interested in this. At the time I was a few months short of a tenure decision, and the only thing that matters at a research university is getting my scientific papers out, getting my grants funded, and getting the respect of my colleagues in the field.
But he managed to show me a few existing books that were used in high schools, and he pointed out at the time I had two young daughters and most scientists would like nothing more than to see their children go into science.
And as I leafed through the books, they were all perfectly okay, but I found two problems with them. One is they were dreadfully boring. I couldn't look at these books and imagine why anyone would want to go into science. And then the second thing is, they sort of gave the impression that everything had been discovered. And any person in experimental science knows that's just not true.
So I called Joe back, and I said, Joe, let's do this, because I'd like to write a book with you that would turn kids on to science, that would tell them about the great unexplored territory that lies out there and would tell them that the most interesting thing one can possibly do, short of a career in law, of course, is to have a career in science.
Q. Have you ever testified in court before as an expert witness?
A. No, sir, I have never testified in court as an expert witness.
Q. Have you testified in court on the subject of biology and evolution as you will be doing today?
A. Well, earlier, actually last year, I did testify in federal court as a fact witness in a trial that related to the teaching of evolution.
Q. And what was that case?
A. I believe you'll correct me if I have this slightly wrong, but the case is known as Selman versus Cobb County. And it concerned a case in which the Cobb County Board of Education had attached a warning sticker to all textbooks that contained material about evolution. And this warning sticker or this label had a three-sentence admonition to students.
A number of parents, as I understand the case, a number of parents in the district objected to this sticker being placed on textbooks. They filed a lawsuit in federal court. I was contacted by attorneys for the plaintiffs. They pointed out that my book was one of the ones that had had the sticker placed on it, and they asked me if I could come as a witness of fact to tell the Court how textbooks are put together, what the decisions were that I made into my textbook, and perhaps also to comment on whether or not I thought the sticker was an appropriate tool to advance education.
Q. And you did, in fact, testify, I believe it was in November of 2004, in the Selman case?
A. Yes, sir, that's correct, I did.
Q. I'll ask you about your experience with creationism and creationists. Have you been involved with the creationist movement?
A. I suppose you could say I have been involved with the movement, yes.
Q. And could you tell us how you got into this?
A. The very first year that I taught at Brown University, in the fall I taught part of a very large freshman-level introductory biology course. So a lot of students saw me as a new professor at Brown, and I guess they rather liked my energy, enthusiasm, and teaching style.
And in the spring, when I was not teaching, I was setting up my research laboratory, a group of students came to me and they said, we really like your lectures in Bio 11, which was the course. I said, gee, thanks a lot.
And they said, there's a fellow whom the Christian students association is bringing to campus. His name is Henry Morris. He is the founder and the president of the Institute for Creation Research in California, and he has dared any scientist on campus to debate him. You're pretty good at giving lectures, why don't you debate this guy? And at first I told the students, no, I'm not interested. And they said, why? And I said, because I'm a cell biologist, I'm not an evolutionary biologist. I want to set up my research lab, so please go away.
But they were very persistent, and they started to pester me and say, well, does that mean this guy is right? I said, no, it doesn't mean this guy is right. And they said, well, if he's not right, why don't you debate him?
So finally I agreed to go ahead and do this. I had a couple of conditions I attached to doing that. I'm glad I did. One of those conditions was that the students would get me audiotapes, books, and pamphlets of the so-called creationism or creation science movement so that I could see what the arguments were that I was likely to face.
And my recollection is I spent almost four solid weeks listening to the arguments presented, looking up the arguments, because many of them were in geology and physics and astronomy and way outside of my scientific field, making sure that I understood them and preparing for that debate.
And we finally debated in April of 1981. We had the debate, as it turns out, at the largest building on our campus, which is the hockey rink, and it drew nearly 3,000 people. It was very interesting. And I believe, on the basis of reports of a wager made by the science writer and the religion writer for the Providence Journal, I believe that I prevailed in the debate, though one can never say for sure. And over the next several years, I engaged, I think, in three more debates with scientific creationists.
Q. And have you also written articles critiquing creationism? And I guess I would direct your attention to Page 5 of your curriculum vitae, and there's a section, Articles in Defense of Scientific Integrity.
A. Yes, I have. And this section lists three of them. And these date from the period when I was debating scientific creationists in the early 1980s. I wrote an article for teachers in the American Biology Teacher. I took some of the arguments I had faced in the debate and I put answers out in a small journal called Creation/Evolution so that other people who might engage in debate could have the benefit of my research and experience on this.
And I also wrote an article for -- an edited volume edited by the very distinguished anthropologist, Ashley Montagu, on scientific creationism in 1984. So, yes, I have written on the subject.
Q. I'm going to ask you about your experience now with intelligent design. Have you been involved in debates, public debates, over the notion of intelligent design?
A. Yes, sir, I have.
Q. And when was the first one?
A. Well, the first one I didn't actually know was going to be about intelligent design. I was approached by an organization of -- I believe of largely Evangelical Christians known as the American Scientific Affiliation, and they asked me if I would come to their summer meeting, I think it was in Asheville, North Carolina, it was in North Carolina, and debate a biochemist from Lehigh University on the subject of a textbook for public schools called Of Pandas and People.
And I had never heard of the book at the time. They mailed me a copy. I read through the book. And I was unfamiliar with the person who opposed me in debate at that time, but his name was Michael Behe, and as I mentioned, he's a biochemistry professor from Lehigh University. And that was the first place where I heard the term "intelligent design" used in place of the more familiar creation science, which I had debated with various people in the early 1980s.
Q. Was this the only debate you had on intelligent design?
A. No, sir, it isn't. And I'm sorry that I cannot give you an exact number, but if you count point counterpoint debates in print, radio debates, and debates in person, I would expect that probably I have debated on the issue of intelligent design 12 or 13 times, quite a few more times than I debated scientific creationism.
Q. And you have also written articles about intelligent design. I direct your attention to Page 6 under Essays and Reviews. Now, are some of these articles about the concept of intelligent design?
A. Yes, sir, they are. The 1994 article called Life's Grand Design in Technology Review actually foreshadowed many of the arguments of intelligent design, so it clearly was on that issue.
And then the last three articles that are listed, the one in Natural History magazine, the one in 2003 in the volume edited by Neil Manson, and the one in 2004, which is listed there in press but now, in fact, has been published -- I said this was just a tad out of date -- all of these deal with intelligent design.
Q. I want to talk about one more listing on your curriculum vitae, and that's on Page 7 under General Audience Books. There is one book there that I think has a provocative title, Finding Darwin's God. What's that about?
A. I meant the title to be provocative. This is a general audience book or a trade book, as publishers call it. And one of the experiences that I had over the years appearing in public and talking about evolution is that many people would tell me that no matter how compelling the scientific arguments were that I made in favor of evolution, they were bothered by the fact that it was perfectly obvious that evolution was an inherently atheistic or God-denying theory.
And I'd just sort of shake my head and shrug and say, I don't think so, and point out the fact that I'm a person of faith and a regular churchgoer, and I certainly don't see any conflict. And they would ask me to explain, and I would explain. Another day I would explain, another day I would explain again. And finally I decided, you know, I should probably write a book about this because a lot of people are interested.
So I wrote a book called Finding Darwin's God, and the subtitle of that book I think is more revealing of content, and that is, A Scientist's Search for Common Ground Between God and Evolution. And what I tried to do in the book was twofold, first to explain why science, sciences and the scientific community, find evolution to be so useful, so valuable, and so compelling as a scientific explanation, and then, secondly, to explain how a person of faith -- although I'm a Roman Catholic, I tried to construe this in a vary broad way so that I would say how a person following any of the great Abrahamic religions could appreciate evolution in the context of their faith. And I hope very much I was successful in doing that.
Q. Now, that's not a scientific publication, you said that's a trade publication?
A. It certainly is not a scientific publication. Everything that a scientist writes or says is not necessarily a scientific statement or a scientific publication.
MR. WALCZAK: Your Honor, at this time we would proffer Dr. Miller as an expert in biology, evolution, instructional biology materials for high school students, creationism, and intelligent design.
THE COURT: All right. Thank you. Cross-examination?
MR. MUISE: Your Honor, pursuant to the stipulation of the parties, we would agree that the experts are qualified to testify within their area of expertise, the only exception being plaintiffs' expert Barbara Forrest, which we will then, at that time, take the opportunity to voir dire. But we don't have any objections based on that stipulation.
THE COURT: I understand. Thank you, Mr. Muise. You may proceed. And he is admitted for that purpose for the record.
MR. WALCZAK: Thank you.
THE WITNESS: Thank you, Your Honor.
BY MR. WALCZAK:
Q. Dr. Miller, I want to ask you five questions to elicit your opinions about the big issues in this case. Do you have an opinion about whether evolution is a testable theory that is accepted by the scientific community?
A. Yes, sir, I do.
Q. And what is your opinion?
A. My opinion is that evolution is an eminently testable theory and that it is broadly and generally accepted by the scientific community.
Q. Do you have an opinion about whether intelligent design is a testable theory that is accepted by the scientific community?
A. Yes, I do.
Q. And what is that opinion?
A. My opinion is that intelligent design is not a testable theory in any sense, and that as such, it is not generally accepted by the scientific community.
Q. Do you have an opinion about whether intelligent design is or even can be properly considered a scientific theory?
A. Yes, I do.
Q. And what is that opinion?
A. My opinion is that intelligent design is not science, and therefore it cannot be construed as a scientific theory in any sense whatsoever.
Q. Do you have an opinion about whether intelligent design is a particular religious view, namely a form of creationism?
A. Yes, sir, I do.
Q. And what is that opinion?
A. I believe that intelligent design is inherently religious and it is a form of creationism. It is a classic form of creationism known as special creationism.
Q. Do you have an opinion about whether the four-paragraph statement read by the Dover School District promotes students' understanding of evolution in particular and science generally?
A. Yes, I do.
Q. And what is your opinion?
A. I think the statement by the Dover Board of Education falsely undermines the scientific status of the theory of evolution, and therefore it certainly does not promote student understanding or even critical thinking, and I think it does a great disservice to science education in Dover and to the students of Dover.
Q. Let's now explore the basis for your opinions. What is science?
A. You ask a good question. It's useful, I think, to parse it to where the word comes from. The word "science" comes from the Latin word scientias, which means knowledge. And in the most general sense, the word "science" is sometimes used to just say learning systematic knowledge, for example, library science or political science.
But I think that in the context in which the word "science" is going to be used in this case, what we mean by "science" is what we would call natural science, sciences such as chemistry, physics, and astronomy. And natural sciences I think are best described as the systematic attempt to provide natural explanations for natural phenomena.
Q. Are there rules for scientific inquiry?
A. Yes, there are.
Q. And what are these rules?
A. Well, you just heard one of the rules in the definition of science, which is that science tries to provide natural explanations for natural phenomena. So one of the most basic rules of science is that we tend -- what we require, the practitioners of science seek their explanations in the world around us, in things we can test, we can observe, and we can verify.
Now, there are certain rules of procedure, as well. And among those are that scientific inquiry must be open, that it must be subject to duplication, replication, test and examination by other scientists. For example, I could never publish a result saying I had made an observation on a particular protein without also telling people what my methods were and how I made that observation. And the point is to make my work and my observation testable.
And then the final and sort of open rule basically is that science is always an activity in which everything in science is open to critical examination, replication, peer review, and discussion by other scientists.
Q. Is this just a view held by Professor Miller?
A. No, I don't think so. I think the way I have described science and the process of science would be generally held by most members in the scientific community.
Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 649. Do you recognize this publication?
A. Yes, sir, I do.
Q. I note at the bottom it says, National Academy of Sciences. Now, this is an organization that we're going to be hearing about repeatedly. What is the National Academy of Sciences?
A. Well, if my recollection serves me well, the National Academy of Sciences is an organization that was established by act of Congress, I believe when Abraham Lincoln was president, and it consists of the elite and most accomplished scientists in every scientific field.
One of the greatest honors that an American scientist or, actually, even a foreign scientist, because we have foreign associate members in our national academy, one of the greatest honors that a scientist can receive is to be tapped for membership in the National Academy of Sciences.
I believe the National Academy of Sciences is also charged with advising the president and the Congress on matters of scientific interest and importance.
Q. Are the publications of the National Academy of Sciences something that are reasonably relied on by scientists in the field?
A. Absolutely, yes.
Q. I'd like to direct your attention to Page 27 of Exhibit 649. I've asked you before to highlight a passage on this page. Is that correct, Dr. Miller?
A. Yes, you have.
Other Links:
Teaching About Evolution and the Nature of Science
Online text of a book from the National Academy of Sciences.
Evolution and the Nature of Science
Chapter 3 of this book. What Dr. Miller read into the record came from here.
Q. Could you please read for the record the highlighted passage?
A. Be glad to. This is the opening of the third section of this book, and it opens basically by defining science. And it says, and I quote, Science is a particular way of knowing about the world. In science, explanations are restricted to those that can be inferred from confirmable data, the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based on empirical evidence are not part of science.
Q. Do you agree with that statement?
A. I certainly do.
Q. How long have these rules of science been in effect?
A. I'm tempted to say forever, but I think certainly for the last 200 years of contemporary science, the notion that science -- in other words, all of the 19th Century and all of the 20th Century and now into the 21st -- the notion that science can only deal with empirical data, what we can see, what we can observe, and what we can measure, has been part of the common understanding of science in all people in all cultures.
Q. So science doesn't -- these rules don't just apply in the United States?
A. No, sir, they don't. I think science might be the closest thing we have on this planet to a universal culture, and these rules apply everywhere.
Q. Why are these rules important?
A. These rules are important because if you don't have these rules, you don't have science. The entire -- human beings are fallible, and I mentioned that science is a human activity. It's a systematic search for natural explanations for natural phenomena.
And if you invoke a non-natural cause, a spirit force or something like that in your research and I decide to test it, I have no way to test it. I can't order that from a biological supply house, I can't grow it in my laboratory. And that means that your explanations in that respect, even if they were correct, were not something I could test or replicate, and therefore they really wouldn't be part of science.
Q. So supernatural causation is not considered part of science?
A. Yeah. I hesitate to beg the patience of the Court with this, but being a Boston Red Sox fan, I can't resist it. One might say, for example, that the reason the Boston Red Sox were able to come back from three games down against the New York Yankees was because God was tired of George Steinbrenner and wanted to see the Red Sox win.
In my part of the country, you'd be surprised how many people think that's a perfectly reasonable explanation for what happened last year. And you know what, it might be true, but it certainly is not science, it's not scientific, and it's certainly not something we contest. So, yes, those rules certainly apply.
Q. Does science consider issues of meaning and purpose in the universe?
A. To be perfectly honest, no. Scientists think all the time about the meaning of their work, about the purpose of life, about the purpose of their own lives. I certainly do. But these questions, as important as they are, are not scientific questions.
If I could solve the question of the meaning of my life by doing an experiment in the laboratory, I assure you I would rush off and do it right now. But these questions simply lie outside the purview of science. It doesn't say they're not important, it doesn't say that any answer to these is necessarily wrong, but it does say that science cannot address it. It's a reflection of the limitation of science.
Q. Could you briefly tell us, how is it that scientists do their work? How is it that you approach a particular problem?
A. There are probably as many ways to approach scientific problems as there are scientists. But I think one of the key questions, one of the key aspects of this is thinking of a question. Now, that's, in many ways, the hardest thing to do. But what we try to do is to look at the natural world and try to narrow down a specific question from the point of view that we can develop a very specific testable hypothesis about that question.
And in many ways, that's the greatest art of being a scientist, because no one tells you how you come up with good questions. But a good question is one that is important, the result will be interesting to other people, other scientists, as well, it will shed light on a natural biological or physical or chemical process, and we can phrase a hypothesis about it in a way that we can actually devise a test.
And once we frame that really good hypothesis, we do an experiment, we go into the field, we look for evidence, we do measurements, we make observations, and we try to gather the data that will be sufficient to confirm or refute the hypothesis.
And if we confirm it, we don't consider it to be proven, you never prove anything in science, but we consider it to be supported, and then very often we go on and ask another tough question about the same hypothesis. If the hypothesis is refuted, we discard it, go back, think of a better idea. That's as close as I can come to a good description.
Q. So after you have the hypothesis, after you've gone and done the experimentation or observation, is there something you do with the data after that?
A. Oh, excuse me, I'm talking about the work of an individual scientist. And if you think you either have the data that refutes an important hypothesis or data that tends to support and confirm an important hypothesis, if you think this will be of interest to other people in the scientific community, you then gather up your methods, your procedures, your experimental data, might be photographs, might be diagrams, results, tables, gels that we run in the laboratory, something along those lines, and you put them into a scientific publication. You write a paper and you send that paper to a reputable, hopefully a prestigious, if you think it's important work, scientific journal, and you immediately subject it to peer review and criticism by your colleagues.
Q. Now, is this peer-review process important? Tell us a little bit of how it works.
A. It's exquisitely important. You don't have science without it. And the way in which it works is, for example, I will write up my research in the manner that I have just described and send it off, perhaps, to Nature or the Journal of Cell Biology or something along those lines.
An editor at the other end will read my work, will consult, perhaps, with other editors, try to find three or four experts in the field who are knowledgeable about the kind of work I'm doing and the questions I'm asking, send it out for review. Those people will then examine the paper. They'll look for methodological flaws. Perhaps I used the wrong reagent, perhaps I used the wrong reaction temperature. They'll look for logical flaws. Perhaps the experimental results I got don't really mean what I think they mean. And they'll also look for novelty.
And by novelty, if the work I'm doing just confirms a hypothesis that has already been abundantly confirmed, nobody really cares, and that's what I mean about novelty. They will then decide if my paper is absolutely fabulous and should go right into the journal or if it can be accepted in the journal if I make a few changes, corrections, do another experiment, or basically if I should be sent back to the drawing board saying, this is not worthy of publication in our journal.
The Journal of Cell Biology, for which I served a term as editor, had a rejection rate of about 60 percent, which meant that six papers out of ten were simply sent back saying, we're not going to publish this.
Q. So unless a theory meets these rules of science and has gone through these procedures of science, can it be accepted as a scientific theory?
A. Well, you've actually jumped from sending a scientific paper in to what constitutes a theory and how can a theory be accepted. I have never done any research so grand that I would have described in any of those papers a new theory that I have. Hypotheses, yes, but theories are a whole other level of understanding.
Theories are broad, useful, powerful generalizations that explain and unite a broad range of facts. Theories have to make testable predictions, because otherwise they're not useful as theories. If a theory is enunciated to explain a natural process, it has to make predictions that lead to testable hypotheses so that people can go into the laboratory, can make those tests, and can tend to confirm or refute the theory.
Q. But if a theory does not meet these ground rules of science, testability, observability, they are not considered scientific?
A. It's just not a scientific theory, that's correct. And my tongue-in-cheek explanation of the baseball playoffs last year falls into exactly that category. It's not a theory because it's not scientific and it's not testable.
Q. Now, this nonscientific theory, does that mean its wrong?
A. Oh, of course not. I also said, again, thinking about that silly example, a lot of people in my part of the country think that's absolutely true. Explanations that lie out of science can be true, but they're not scientific. And I think that applies to the sort of theory that you were talking about.
MR. WALCZAK: Your Honor, I know, has indicated that we'll take periodic breaks, and this is actually a good breaking point for us.
THE COURT: Yes, I think it's an opportune time for us to break. Let's break for a reasonable interval. We'll see what we'll do as far as the duration of the breaks as we go, but we'll probably take at least 20 minutes, I would say, so that people can have an ample break. We may take longer if we need to. So this will be our midmorning break, and we'll stand in recess.
(Recess taken.)


Kitzmiller v. Dover Area School District
Trial transcript: Day 1 (September 26), AM Session, Part 2

THE COURT: Mr. Walczak, you may continue.
MR. WALCZAK: Thank you, Your Honor.
BY MR. WALCZAK:
Q. Dr. Miller, I want to shift gears. We just talked about the science and the nature of science, and I want to now move to the topic of evolution. What is evolution?
A. You always ask good questions.
Q. Thank you.
A. Most biologists would describe evolution as a process of change over time that characterizes the natural history of life on this planet.
Q. And are there certain core propositions to evolutionary theory?
A. Yeah, I think there are, and I think basically there are three. And the first one is the observation that life really has changed over time, that the life of the past is different or was different from the life of the present, and that the natural history of this planet is characterized by a process of change over time.
The second thing, the second core element, I guess, is the principle of common descent, and that is the notion that living things are united by a core of common ancestry, that living things, if you trace them back far enough, show common ancestors that gave rise to the many forms of life today.
And the third core proposition and I think probably the simplest way to state it is the process that drove that change through time from common ancestors and common descent is driven by forces and principles and actions that are observable in the world today. And the key, therefore, is that we can understand how evolution works by looking at what's happening in the world around us today.
Q. And is there a name for that force that drives the change?
A. The force that drives the change, actually, there are many individual forces and processes. Many of them are united under the term of "natural selection."
Q. Now, there's a gentleman named Charles Darwin who played some role here. I was wondering, who was Charles Darwin?
A. Charles Darwin was a British naturalist who was born on February 12th, 1809. If memory serves me well, that's a better-than-average day for the history of humankind because Abraham Lincoln was born on exactly the same day.
He lived in Great Britain, he studied natural history and studied theology, became a naturalist, traveled around the world on a British ship called the Beagle, made a number of very interesting observations during that trip and came back from that trip to think, to write, critique his ideas for many years, and then wrote a series of books which are the foundation of what we consider to be modern evolutionary theory.
Q. And what was Darwin's contribution to evolution?
A. Well, one of the -- I think the most interesting and oftentimes overlooked aspects is that the first core proposition of evolution, which is that life has changed over time, was actually appreciated well before Darwin was born.
The great French naturalist Cuvier recognized that the fossils told a record of life in the past and that that record was a record of change, and that as life changed into the present, new organisms appeared and old organisms went extinct. So the process of change, what we sometimes today simply call the process of evolution, that was understood well before Darwin.
What Darwin did for the first time was to propose a plausible, workable, and ultimately testable mechanism for the processes that drove that change, and that is the mechanism of natural selection.
Q. And has evolutionary theory stood still since Darwin's time or has it evolved?
A. It has -- nothing in science stands still, and that's true of evolutionary theory, as well. Charles Darwin lived and worked and wrote at a time when, for the most part, scientists were unaware of the existence of genes, of macromolecules, certainly of DNA, and a host of other tools and techniques by which we study biology today.
And to me, as a scientist, the most remarkable thing about evolutionary theory is that as the science of biochemistry has developed, as the science of cell biology, genetics, molecular biology, and other elements of science have developed, all of these have fit beautifully into the general framework described by Darwin almost 150 years ago.
Q. So the evolutionary theory draws on many branches of science?
A. Yes, it does.
Q. How has the emergence of modern genetics and molecular biology affected scientists' views of evolution?
A. Well, genetics really is the first one and I think in some historical respects the most interesting within. Charles Darwin, towards the end of his life, was worried about something, and what he was worried about was that favorable characteristics that might appear in organisms might be blended away as they had to mate to reproduce.
So if an individual showed up with a really good characteristic that could be favored by natural selection, its offspring might only have half of that characteristic because Darwin thought that the inheritance of organisms blended in their offspring, and the next generation a quarter and the next generation an eighth, and after a while, no matter how favorable the variation was, it would be gone.
Well, the discovery of genetics, beginning with Gregor Mendel in the 1850s, suddenly answered Darwin's most profound concern because it showed that genetics, inheritance, is particulate. And what I mean by that sort of a jargon term in science is that our inheritance is controlled by individual units called genes which are passed from one generation to the next.
And that solved Darwin's problem because it showed that inheritance is not really a blending and that these favorable characteristics can actually be preserved. So modern genetics, basically, we might say, came to the rescue of a potential problem in evolutionary theory.
Things got better when molecular biology added the dimension of DNA and RNA, because for the first time we could understand how evolution could work right down to the level of the molecule. And in every respect, it provided a dramatic confirmation to that general framework.
Q. I think maybe we should take a step back and maybe I can ask you to explain the whole concept of natural selection. What are we talking about here?
A. Well, Darwin and other people were impressed at how much plant and animal breeders could influence the ultimate characteristics by selecting individuals from a breeding population, let's say of horses or rabbits that had a particular characteristic the breeder wanted and allowing them to breed. Plant breeders have done the same thing for years. This was the methodology of Luther Burbank when he developed all sorts of beneficial strains of plants.
And Darwin was enough of a naturalist to realize that the same process of selection actually happens in nature. Darwin pointed out there's a struggle for existence, whether we like to admit it or not, and not all organisms are able to pass their genes on to the next generation. Those that do the best in that struggle for existence -- and it's not just a struggle to survive, it's a struggle to find mates, to reproduce, and to raise those offspring. So in many respects things that are very cooperative are important in this struggle.
Darwin realized that those organisms that had the characteristics that suited them best in that struggle, those were the ones that were going to leave their characteristics in the next generation, and he realized that's pretty much what plant and animal breeders do, and therefore over time the average characteristics of a population could change in one direction or another and they could change quite dramatically. And that's the essential idea of natural selection.
Q. And what Darwin didn't understand was exactly how that happened because he wasn't -- he didn't have the benefit of genetics at the time?
A. The entire process depends scientifically on what that mechanism of inheritance is. Darwin didn't know it. He couldn't have known it. Nobody knew it at the time. And therefore you might say that when modern genetics came into being by the rediscovering of the work of Gregor Mendel, everything in Darwin's theory was at risk, could have been overturned if genetics turned out to contradict the essential elements of evolutionary theory, but it didn't contradict them, it confirmed them in great detail.
Q. Now, are you able to give us some examples of how modern genetics has applied to evolutionary theory?
A. Well, I can give you quite a few of examples. Would you like me to use a demonstrative that would be useful to the Court?
Q. And you have, at my request, prepared a series of slides that will help you to explain this?
A. Yes, I have, as a matter of fact. I thought that I would start illustrating this by looking at hemoglobin. Hemoglobin is the protein that makes your blood red. It's the oxygen-carrying protein found in red blood cells.
And in the upper right-hand corner of the slide, there is a molecular diagram of hemoglobin. It's made up of four parts. Those parts are called polypeptides, but we can think of them essentially as four subunits. It has two copies of a part called alpha-globulin and two copies of a part called beta-globulin.
Now, what modern molecular biology has enabled us to do is to look at exactly where the instructions are that specify these. And you'll notice that the beta-globulin -- excuse me, the alpha-globin instructions are specified on Chromosome Number 16 and the beta-globin instructions are specified on Chromosome Number 11.
And as our genome does for many genes, we have multiple copies of these, so we have backups. We've got extra copies of the alpha-globin genes and extra copies of the beta-globin genes, and they have very interesting physiological functions, these multiple copies, which are not relevant right now and therefore we won't get into.
But there's something very interesting about these, and it enables us to test evolution right down to the level of the molecule. And I want to point that out by looking at the beta-globin genes on Chromosome Number 11.
If you could advance the slide, please. I've zeroed in on the six copies of the beta-globin gene sequence. Each of these copies is a set of instructions for how you build this polypeptide. Five of them work, but one of them doesn't. It's given the Greek letters psi, beta, and then the number one. And the psi-beta-1 sequence isn't a gene. It doesn't work. It's a pseudogene, and a pseudogene is recognized as a gene because it's so similar to the other five in its DNA sequence, but it has some mistakes. It's broken, and it has a series of molecular errors that render the gene non-functional.
Now, I'd like to show you exactly what those molecular errors are in the next slide. This is a blow-up of the pseudogene. These are the portions that actually do the coding, if it was coded in red here. And you'll notice that there are six distinct mistakes in this gene.
Now, I don't know if I really want to try the patience of the Court in terms of going into the details of molecular biology, but in a very simple way, the altered initiator means that the signal that exists at the front of the gene that says "copy me" is missing. And therefore RNA preliminaries, the molecule that copies genes, can't bind, and it never gets expressed.
But even if it did get expressed, it has five other errors that would keep this, the RNA copy of this gene, from being translated. It's missing the start signal. It's got stop codons that would cause the synthetic apparatus to grind to a halt. It's just a mess.
Now, the reason that this is important in evolution is actually very simple, and that is, these errors appear in a gene, they have no functional purpose. And you might ask yourself, what would I do, what would you do if we were to find another organism that didn't just have similar genes but also had a pseudogene in the same spot and had the same set of errors?
Other Links:
Plagiarized Errors and Molecular Genetics
More information on shared errors and why they are evidence for evolution.
There's no reason why evolution would produce a duplicate set of mistakes in two copies of things. It must mean that these two organisms are descended with modification from another organism that had the same set of mistakes.
And if you go on to the next slide, what I'd like to show you are three organisms, the gorilla, the chimpanzee, and the human being that share the exact same set of molecular mistakes.
Now, why is this significant? One of the core principles of evolution is common descent. One could always argue that because the three species that I've depicted on this slide are all African species, that's where they all come from, they're all primates and they all probably started out living in similar environments, that the functional parts of this gene locus, they might work the same. But you cannot argue that the mistakes should match.
And the fact that all three of these species have matching mistakes leads us to just one conclusion, and that's the same conclusion that Charles Darwin predicted almost a century and a half ago, and that is that these three species share a common ancestor. Matching mistakes are evidence of common ancestry.
Q. And are there other animals that share the same mistakes?
A. Well, we actually don't know, because there are two great apes in which we're waiting on the genome sequence. Those are the orangutan and the Bonobo, pygmy chimpanzee. And if I had to make a friendly bet, I'd bet that they do.
But other primates and other mammals, cats, dogs, horses, they don't have these mistakes. These mistakes are unique to the lineage that shows common ancestry of us and these other organisms.
Q. Could you give us another example?
A. Sure, I'm very happy to. The next slide, this is another test of the evolutionary hypothesis of common ancestry.
We have, as I'm sure most people know, 46 chromosomes in our human cells. That means we have 23 pairs of chromosomes because you get 23 from mom and you get 23 from dad, so we've all got 46 total. We've got 23 pairs.
Other Links:
Comparison of the Human and Great Ape Chromosomes as Evidence for Common Ancestry
A detailed look at some of the evidence that Dr. Miller is discussing here.
Ken Miller's Cold (Chromosomal) Fusion
Lawyer Casey Luskin writing in a pro-Intelligent Design blog tries to refute what Dr. Miller testified about human and ape chromosomes.
Dog Bites Man
Zoology graduate student Mike Dunford shows just how ignorant and fallacious Luskin's arguments are.
Now, the curious thing about the great apes is they have more. They have, as you can see from the slide, 48 chromosomes, which means they have 24 pairs. Now, what that means, Mr. Walczak, is that you and I, in a sense, are missing a chromosome, we're missing a pair of chromosomes. And the question is, if evolution is right about this common ancestry idea, where did the chromosome go?
Now, there's no possibility that that common ancestry which would have had 48 chromosomes because the other three species have 48, there's no possibility the chromosome could have just got lost or thrown away. Chromosome has so much genetic information on it that the loss of a whole chromosome would probably be fatal. So that's not a hypothesis.
Therefore, evolution makes a testable prediction, and that is, somewhere in the human genome we've got to be able to find a human chromosome that actually shows the point at which two of these common ancestors were pasted together. We ought to be able to find a piece of Scotch tape holding together two chromosomes so that our 24 pairs -- one of them was pasted together to form just 23. And if we can't find that, then the hypothesis of common ancestry is wrong and evolution is mistaken.
Go to the next slide. Now, the prediction is even better than that. And the reason for that is chromosomes themselves have little genetic markers in their middles and on their ends. They have DNA sequences, which I've highlighted in here, called telomeres that exist on the edges of the chromosomes.
Then they have special DNA sequences at the center called centromeres, which I've highlighted in red. Centromeres are really important because that's where the chromosomes are separated when a cell divides. If you don't have a centromere, you're in really big trouble.
Now, if one of our chromosomes, as evolution predicts, really was formed by the fusion of two chromosomes, what we should find is in that human chromosome, we should find those telomere sequences which belong at the ends, but we should find them in the middle. Sort of like the seam at which you've glued two things together, it should still be there.
And we should also find that there are two centromeres, one of which has, perhaps, been inactivated in order to make it convenient to separate this when a cell divides. That's a prediction. And if we can't find it in our genome, then evolution is in trouble.
Next slide. Well, lo and behold, the answer is in Chromosome Number 2. This is a paper that -- this is a facsimile of a paper that was published in the British journal Nature in 2004. It's a multi-authored paper. The first author is Hillier, and other authors are listed as et al. And it's entitled, The Generation and Annotation of the DNA Sequences of Human Chromosomes 2 and 4.
And what this paper shows very clearly is that all of the marks of the fusion of those chromosomes predicted by common descent and evolution, all those marks are present on human Chromosome Number 2.
Would you advance the slide. And I put this up to remind the Court of what that prediction is. We should find telomeres at the fusion point of one of our chromosomes, we should have an inactivated centromere and we should have another one that still works.
And you'll note -- this is some scientific jargon from the paper, but I will read part of it. Quote, Chromosome 2 is unique to the human lineage of evolution having emerged as a result of head-to-head fusion of two acrocentric chromosomes that remain separate in other primates. The precise fusion site has been located, the reference then says exactly there, where our analysis confirmed the presence of multiple telomere, subtelomeric duplications. So those are right there.
And then, secondly, during the formation of human chromosome 2, one of the two centromeres became inactivated, and the exact point of that inactivation is pointed out, and the chromosome that is inactivated in us -- excuse me, the centromere that is inactivated in us turns out to correspond to primate Chromosome Number 13.
So the case is closed in a most beautiful way, and that is, the prediction of evolution of common ancestry is fulfilled by that led-pipe evidence that you see here in terms of tying everything together, that our chromosome formed by the fusion from our common ancestor is Chromosome Number 2. Evolution has made a testable prediction and has passed.
Q. So what you're testifying here is that modern genetics and molecular biology actually support evolutionary theory?
A. They support it in great detail. And the closer that we can get to looking at the details of the human genome, the more powerful the evidence has become.
Q. I'd like you to direct your attention to Plaintiffs' Exhibit 127. Do you recognize this document?
A. Yes, I have seen it before. I believe it's a newsletter produced by the Dover Area School District.
Q. And, Matt, if you could highlight. I've highlighted a passage from the second page of the newsletter, and I would like you to read what has been highlighted.
A. Sure. Quote, 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.
Q. Is that a true statement?
A. I think neither of those two sentences is a true statement. Would you like me to explain why?
Q. Please.
A. Okay. The first point is the purposeful arrangement of parts. Science doesn't really deal with questions of purpose, value, and meaning. So to say that science has discovered a purposeful arrangement of parts puts science on the other side of this divide of empirical knowledge where it doesn't belong, so that certainly is not true.
As I've just mentioned to you, the arrangement of chromosomes in our genome, the existence of molecular errors, actually fits evolutionary theory remarkably well, so that part of the sentence doesn't hold up, either.
And then the second sentence, to any scientist who is extremely curious, it says, The fundamental units of life processes cannot be explained by chance. I completely agree. Natural selection is not a chance process. Evolution is not just random chance. And natural selection is the most unchance-like part of evolutionary theory. So stating that you can't explain something by chance is not equivalent to saying you can't explain it by evolution.
Q. Now, is there research ongoing in this area, molecular biology and genetics?
A. Oh, absolutely. In fact, it's moving so fast that it's difficult to keep up with it.
Q. And, in fact, is there a very recent publication, peer-reviewed publication, that bears on this issue of common descent?
A. Well, the answer to that is, there's more than one. And the one that comes to my mind right away is an issue earlier this month of the scientific journal Nature, which might be the most prestigious scientific journal in the world, which focused on seven or eight papers describing the complete genome analysis of the genome of the chimpanzee.
Q. And if I could direct your attention to what's been marked as Plaintiffs' Exhibit 643, is this the cover of the publication to which you refer?

A. Yes, that is the cover of the September 1st, 2005 issue of the scientific journal Nature. And you can see that the cover story is the chimpanzee genome.
Q. Matt, if you could turn to -- I believe it's Page 69. Is this the article to which you are referring?
A. Well, it's one of about seven or eight articles on the genome and its implications to which I refer. But this is the prime article that presents the chimpanzee sequence and points out some of the highlights of the sequence. So if one article in this large journal was said to be the cover story, the key article, this is it.
Q. And why is this important?
A. It's important because it introduces an enormous data set, the chimpanzee genome, that we simply didn't have before. And the title of the article I think actually tells you what you're going to find in here.
Initial sequence, because we change these things as we get better data, initial sequence of the chimpanzee genome and in comparison with the human genome. These organisms, as the earlier demonstratives that I presented to the Court show, clearly show a common ancestry with us, but as any observation will tell you, they're not like us. So understanding how we are similar and how we are different from these organisms is a really important and exciting problem in biology.
Q. Matt, could you highlight the first sentence. This is the first sentence of the article. Could I ask you to read this, Dr. Miller?
A. Of course. And this is the introductory sentence to the article, and it reads, quote, More than a century ago Darwin and Huxley posited that humans share recent common ancestors with the African great apes. Modern molecular studies have spectacularly confirmed this prediction and have refined the relationships showing that the common chimpanzee, Pan troglodytes, and Bonobo, Pan paniscus or pygmy chimpanzee, are our closest living evolutionary relatives.
Q. It says "spectacularly confirmed." Is that something you routinely find in scientific journals?
A. I think you could read the journal Nature for several years and not see another use of the word "spectacular." It tells you that the authors of this paper are really excited about this data. And, to be perfectly honest, the entire scientific community was excited by the chance to compare this data with our own genome, and that warrants the use of the word "spectacular."
Q. Dr. Miller, isn't evolution just a theory?
A. Evolution is just a theory, in the same way that the atomic theory of matter is just a theory, the Copernican theory of the solar system is just a theory, or the germ theory of disease is just a theory. But theories, as I emphasized earlier, are not hunches, they're not unproven speculation. Theories are systems of explanations which are strongly supported by factual observations and which explain whole sets of facts and experimental results.
Q. And how do you distinguish, say, a theory from a fact?
A. A fact is a repeatable, verifiable observation or a result. So, for example, in the earlier demonstratives I showed, it is a fact that there is an altered initiator sequence on the beta-globin pseudogene. It's also a fact that there are five working copies of this gene on Chromosome Number 11. All of these are facts. We can test them, we can verify them, we can put them together.
But facts by themselves don't tell us a whole lot. A very famous biologist once said that without theories to tie them together, biology is just stamp collecting. And what they meant by that was that the production of isolated individual facts is unimportant unless you can tie all those facts together in an explanatory framework, and what a theory is is just such a mechanism.
So evolutionary theory takes the sorts of facts that I have pointed out in the last few slides that the Court has looked at and ties them into a coherent whole by common explanation, for example, by the hypothesis of common descent.
Q. So the term "theory" has a particular meaning within science distinct from everyday usage?
A. Absolutely. And when we're out on the street and we say, I have a theory on what the best way to drive to Pittsburgh is given the traffic or I have a theory on whether or not it's going to rain this afternoon, we mean, in ordinary conversation, a hunch, speculation, a guess.
When we say "theory" in science, we mean a broad, overarching, explanatory explanation that's very strongly supported by fact and by factual evidence and that ties all of this together in an explanatory framework that helps us make testable predictions and testable hypotheses. And if it doesn't do that, it's not a scientific theory.
Q. And is your understanding of theory and fact, as those terms are used in science, reflected by the scientific community?
A. Oh, I think it's fair to say that the understanding that I've expressed here in the Court today is exactly the understanding possessed by the members of the scientific community elsewhere.
Q. I'd like to direct your attention to Plaintiffs' Exhibit 649. And this is, again, the National Academy of Sciences publication?
A. Yes, sir, it is.
Q. And if you could turn to Page 5. And, Matt, if you could pull up the highlighted passage. Dr. Miller, could you read the highlighted text, please, from Page 5 of this publication?
Other Links:
Why Teach Evolution?
This is where the text Dr. Miller read into the record came from.
A. Be glad to. Quote, Ironically, facts in science often are more susceptible to change than theories, which is one reason why the word "fact" is not used very much in science, unquote.
Q. So is evolution a theory or a fact?
A. In English, we often use the word "evolution" to refer to two different things. We often use the word "evolution" to refer to the fact that life has changed over time. And in that respect, evolution is as much of a fact as anything else we know about the natural history of this planet.
However, the use of "evolution" as a theory is basically used to describe the mechanisms by which those changes took place. And in that respect, evolution is, indeed, a theory because it is a powerful, useful, and predictive explanation of a whole range of scientific facts.
Q. Is evolutionary theory, including natural selection and descent with modification from a common ancestor, generally accepted by the scientific community?
A. It is overwhelmingly accepted by the scientific community.
Q. I'd like to direct your attention, staying on the same publication from the National Academy of Sciences, if we could turn to Page 16. Now, I believe you testified earlier that the National Academy of Sciences is probably the most prestigious scientific association in the country?
A. I think it's probably the most prestigious scientific association in the world.
Q. And have they taken a position on whether evolution is accepted?
A. Yes, they have.
Q. Matt, could you please highlight. Dr. Miller, I'd like you to read the highlighted passage from Page 16, please.
Other Links:
Major Themes in Evolution
Agian, where Miller is reading from.
A. Sure. Quote, The concept of evolution through random genetic variation and natural selection makes sense of what would otherwise be a huge body of unconnected observations. It is no longer possible to sustain scientifically the view that living things we see today did not evolve from earlier forms or that the human species was not produced by the same evolutionary mechanisms that apply to the rest of the living world, unquote.
Q. I'd like to now direct your attention to Plaintiffs' Exhibit 192. Do you recognize this publication?
A. Yes, I do.
Q. And who publishes this?
A. This is a booklet that was published a few years ago by the National Academy of Sciences.
Q. And is this more recent than the other publication that we were just referring to?
A. I believe it is. I think this was published -- you'll correct me if I'm wrong -- in 1999 or in 2000.
Q. Matt, could you go to Page Roman Numeral VIII, please, and if you could highlight the text. Dr. Miller, I'd like you to read from this National Academy of Sciences publication the highlighted text, please.
Other Links:
Science and Creationism: A View from the National Academy of Sciences, Second Edition
The publication of the National Academy of Sciences detailing its position of science and creationism.
Preface
A statement by cell biologist and president of the National Academy of Sciences, Bruce Alberts. Miller read part of this into the record.
A. Sure, I'd be glad to. Quote, The concept of biological evolution is one of the most important ideas ever generated by the application of scientific methods to the natural world. The evolution of all the organisms that live on earth today from ancestors that lived in the past is at the core of genetics, biochemistry, neurobiology, physiology, ecology, and other biological disciplines. It helps to explain the emergence of new infectious diseases, the development of antibiotic resistance in bacteria, the agricultural relationships among wild and domestic plants and animals, the composition of the earth's atmosphere, the molecular machinery of the cell, the similarities between human beings and other primates, and countless other features of the biological and physical world. As the great geneticist and evolutionist Theodosius Dobzhansky wrote in 1973, quote, Nothing in biology makes sense except in light of evolution, unquote.
Q. Do you agree with that, Dr. Miller?
A. I agree with that wholeheartedly.
Q. You testified earlier that the American Association for the Advancement of Sciences is the largest association of scientists in this country. Do you know whether they have taken a position on whether evolution is accepted in science?
A. Yes, sir, they have taken a position.
Q. I'd direct your attention to Plaintiffs' Exhibit 654. Do you recognize this?
A. Yes, I do. This is an online feature published by the American Association for the Advancement of Science, and it has a series of questions and answers on evolution and intelligent design.
Q. And do you know whether the statements contained in here are supported by the leadership of the American Association for the Advancement of Science?
A. It is my understanding that they are.
Q. Matt, if you could highlight the text, please. The question that's posed is, is there evidence against contemporary evolutionary theory? And, Dr. Miller, if you could read the answer from the American Association for the Advancement of Science.
A. Sure. The answer reads, quote, No, there are still many puzzles in biology about the particular pathways of the evolutionary process and how various species are related to one another. However, these puzzles neither invalidate nor challenge Darwin's basic theory of descent with modification, nor the theory's present form that incorporates and is supported by the genetic sciences. Contemporary evolutionary theory provides the conceptual framework in which these puzzles can be addressed and points towards a way to solve them.
Q. End quote?
A. End quote. Thank you, Counsel.
Other Links:
Voices for Evolution
Statements by organizations in favor of evolution including numerous scientific organizations.
Q. Are there other associations or organizations of scientists that have taken a similar view on the acceptance of evolution?
A. Yes, there are, literally scores of them.
Q. And can you name a few?
A. I certainly can't give you an exhaustive list, but the American Institute of Biological Sciences, the American Society for Cell Biology, the American Society for Biochemistry and Molecular Biology, the Geophysical Society of the United States, and the American Society of Microbiology, just to name a few.
Q. Are you aware of any scientific societies, academies, or organizations that have taken a contrary position and said that evolutionary theory is not firmly established?
A. I have to tell you that to my knowledge, every single scientific society in the United States that has taken a position on this issue has taken a position against intelligent design and in favor of evolution.
Q. Are you aware of any controversy in the scientific community over evolution?
A. Yes, I am. There are controversies in all fields of science, and what I mean by that are points that are held in dispute. For example, the evolution of sex is an enormous and controversial issue in biology.
Q. Sex as in gender?
A. Sex as in gender, as to why, for example, everybody does it, not just talking about us primates, but also oak trees and yeast and all sorts of organisms, as to where gender comes from in terms of sexual reproduction. It's a very important issue within evolutionary theory and certainly not an issue that is solved.
There is also enormous controversy within evolutionary theory on the relative values and weights to give to forces such as natural selection, sexual selection, genetic recombination, horizontal gene transfer, and so forth.
But I think the relevant and the interesting point is that there is no controversy within science over the core propositions of evolutionary theory, there is no controversy over whether or not evolution took place, and there is no controversy with respect to the proposition that evolution provides the most useful and invaluable way in which we can extend our understanding of living organisms.
Q. Is evolution just a historical process, or is it still something that's being used today?
A. That's an interesting question, and I've often been approached by people who have told me, well, evolution is a just-so story about our past, and it has no scientific significance in the world today, it's unimportant. I can't think of any statement that I would disagree with more.
Q. Well, let me tell you that an expert for the school district in this case, Professor Scott Minnich, has said that evolution plays little, if any, role in experimental science and that it may actually impede science in the arena of drug-resistant research.
A. I believe, with all due respect, that Dr. Minnich is profoundly mistaken. And drug resistance is a very good example. All of -- any science -- I'm sorry, any physician who develops a specialty in the treatment of infectious diseases had better know about evolution.
And the reason for that is, disease therapy, whether it's antibiotic therapy or whether it's antiviral therapy of the sort, for example, that is used to extend the lives of patients with AIDS, any therapy in these infectious diseases is predicated on a profound understanding of the evolutionary processes by which the bacteria or the viruses acquire resistance to the agents that are used against them. And if one doesn't understand the evolution of resistance, one is not going to be a very effective physician.
And that's not the only area. Whole areas of drug research and development use what are known as genetic algorithms or evolutionary methods. And what these scientists often do is to set up in a test tube an evolutionary process where they allow incremental changes to be made automatically by an organism, by replicating molecule, to allow a kind of natural selection in the test tube to develop a better drug than anyone could design on their own. So by mimicking Darwinian evolution, people often in the laboratory will use that as a research tool.
It's also worth noting that an understanding of evolution is absolutely essential in other areas, as well. In agricultural, for example, the use of genetically modified crops in areas around the United States -- and much of the food that we eat depends upon genetically modified crops -- the use of the genetically modified crops becomes ineffective if the farmers employing them don't understand the evolutionary mechanisms by which insects can evolve resistance to the insect-fighting proteins which are engineered into the plants. So therefore very careful precautions have to be taken to prevent the process of evolution from taking place.
So I think evolution is at the core of discovering the biological sciences. And there's really no better example of that than that issue of Nature that we highlighted earlier and used as one of the exhibits. Virtually every paper in there uses evolution as a tool to explore what our genome does, what the ape genome does, and how the differences between them make us unique as individuals and organisms. It turns out to be a hard-working theory which is at the core of biological discovery and biological exploration.
Q. Is evolution antireligious?
A. I certainly don't think so, and I devoted a whole book to arguing why I didn't think it was.
Q. Don't some scientists invoke evolution in their arguments to say that, in fact, science and evolution is antireligious, it's anti-God?
A. Yes, they do. And I can certainly think of any number of specific examples from distinguished evolutionary biologists like Richard Dawkins or philosophers who have written about evolution like Daniel Dennett or William Paley.
But as I said earlier, it's very important to appreciate that every word that comes forth from the mouth of a scientist is not necessarily science. And every word that one says on the meaning or the importance of evolutionary theory is not necessarily scientific.
Richard Dawkins, for example, has been eloquent in saying that for him, understanding that life and the origin of species has a material cause frees him from the need to believe in a divine being.
I don't know if I've been as eloquent as Richard Dawkins, but I have worked very hard in my own way to say that for me, the notion that we are united in a great chain of being with every other living thing on this planet confirms my faith in a divine purpose and in a divine plan and means that when I go to church on Sunday, I thank the creator for this wonderful and bounteous earth and for the process of evolution that gave rise to such beauty and gave rise to such diversity that surrounds us. Those are my sentiments, in the same way that Dawkins' are his. But I'm not speaking scientifically, and I'm not speaking as a scientist, and that's, I think, the critical distinction.
Q. So you wrote a whole book exploring this intersection between science and faith?
A. That's correct.
Q. And is any of that kind of discussion found in your high school biology textbook?
A. No, of course not.
Q. Why?
A. Because it's not scientific. And I've made the point earlier that just when you say something is not scientific doesn't mean it's not important, doesn't mean it's not true, doesn't mean it doesn't concern something that you really and deeply care about. And I deeply care about my own religious beliefs and my faith, and I also deeply care about science, and I wanted to explain to a general audience how I understand the intersection of those two beliefs, not just to reconcile them, but to confirm and enhance both beliefs.
Now, I believe in that very strongly, but I certainly recognize that my views on this are not science and they are not scientific. My coauthor, Joseph Levine, who also is a religious person, I have to tell you, has different views of faith, belongs to a different faith, and follows a different religious tradition than I do.
Joe and I both have enormous respect for religion. We both believe that the evolutionary theory is fully compatible with our different religious beliefs, but we also recognize that our religious beliefs are not scientific, that they are philosophical, theological, and deeply personal, and, as such, they don't belong in a science curriculum, and they certainly don't belong in a science textbook.
Q. And they're not found in your high school science textbook?
A. Definitely not.
Q. I want to switch gears here again to the topic of intelligent design. What is intelligent design?
A. As it has been explained to me, intelligent design is the proposition that some features of living things are too complex to have been produced by the process of evolution and therefore they must be attributed to the creative work of a special intelligence or designer who creates these pathways, these genes, and these organisms and operates in ways that stand outside of nature and therefore by mechanisms which cannot be scientifically investigated.
Q. Who is the designer?
A. The advocates of intelligent design, over the last ten years, have refused to say. But I have to tell you that when I debated scientific creationists in the early 1980s, they were very fond of saying that life has a design and that design implies a designer and that designer is the creator, it is God.
Q. I'd like to direct your attention to Plaintiffs' Exhibit 124. Do you recognize this document, Dr. Miller?
A. Well, I recognize the last four paragraphs of the document. The first time I saw the rest of the document was in our pretrial discussions at the law offices yesterday. So now I recognize it. But until yesterday, I hadn't seen the whole document.
Q. And to your knowledge, what are the last four paragraphs there?
A. The last four paragraphs, which I certainly recognize, are the administrative statement which was read to students in Dover High School, I believe earlier this year, in concordance with the school board's intelligent design policy.
Q. Matt, if you could highlight the third paragraph. Could you please read the highlighted text?
A. Sure. Quote, 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, end quote.
Q. Are you familiar with this textbook, Of Pandas and People?
A. Yes, sir, I am.
Q. And, in fact, is that the book you were debating the first time you debated Michael Behe back in 1995?
A. Yes, that is the book.
Q. To your knowledge, is Pandas representative of intelligent design thinking?
A. I believe that it is. It certainly is put forward as an example of a textbook which had advanced the idea of intelligent design. I am sure that there are people within the intelligent design community who might hold slightly different positions on certain isolated issues from Pandas, but I think in general the arguments made in Pandas are representative of intelligent design.
Q. Now, one name that's going to be coming up in this trial, and, actually, the gentleman will be testifying for the school district, is Michael Behe. Are you familiar with his works?
A. Yes, sir, I am.
Q. And are his ideas consistent with what is represented in Of Pandas and People?
A. The answer to that is very much so. In fact, as I read Of Pandas and People, from our experience in the debate, which was in 1995, about a year later a book was published called Darwin's Black Box by Dr. Behe. And when I read through the pages of Darwin's Black Box, I was struck by how many of the arguments used against evolution that are found in Of Pandas and People are also used in Darwin's Black Box.
And the one that really stuck in my mind was the discussion of the blood clotting cascade in both Dr. Behe's book and in Of Pandas and People. It struck me as essentially -- the two discussions struck me as essentially identical.
Q. We're going to come back to Dr. Behe in a little while. Let's focus now on the book Of Pandas and People that's referred to in the four-paragraph statement. If we could turn to Page 150. And Pandas is Plaintiffs' Exhibit 11. And Page 150 is part of the glossary. I'd like you to read for us the highlighted language, which is the Pandas definition of intelligent design.
A. Sure. Quote, Any theory that attributes an action, function, or the structure of an object to the creative mental capacities of a personal agent, period. In biology, the theory that biological organisms owe their origin to a preexistent intelligence, unquote.
Q. Let's take those sentences one at a time. The first sentence, to your mind, does that accurately describe intelligent design as you understand it?
A. I certainly think that it does. In fact, if one does a library search on intelligent design, it will return a large number of engineering, graphic design, and other articles about the intelligent design, let's say, of the courtroom or the intelligent design of a ventilation system or the intelligent design of a microprocessor.
So it is certainly true that the term "intelligent design" can be used in the context of a human designer designing an apparatus, putting together a message, and so forth. So I think that's a perfectly accurate statement.
Q. How about the second sentence?
A. The second sentence says, In biology -- and I believe this is the context that is important in the courtroom today -- biology, intelligent design is the theory that biological origins owe their -- excuse me, biological organisms owe their origin to a preexistent intelligence.
And I think that is exactly what intelligent design means. So this is a good glossary and this is a very good definition, because it indicates that organisms originated from the creative power of a preexisting intelligence, and that's a classic doctrine which is known as "special creation."
By definition, that creative force has to have intelligence, takes intelligence to create, and that's exactly what this glossary definition says.
Q. What is the argument in Pandas to support this idea of an intelligent designer?
A. Well, I believe the argument in Pandas that supports -- that is used to support the idea of the intelligent designer takes many forums. For example, Pandas looks at the fossil record of natural history of life on this earth, and it says every time we see the sudden appearance of a new or different or novel organisms -- organism, that must be the hand of the designer. That's a classic example of special creation.
Pandas also says anytime we see a complex biochemical system made up of many different interlocking parts, that can only be explained by the actions of an intelligent designer. And Pandas also states that living systems contain complex biological information. And by analogy, since information in the real world -- excuse me, information in human society, in telephone books, in texts, perhaps in the arrangement of transistors in a microprocessor, since that kind of information requires human intelligence, then the information which is in a biological system must have had an intelligence to put it there, too.
Those are -- I'm sure there are other detailed arguments, but those are the general categories by which Pandas makes this argument.
Q. And Pandas does address issues of science, issues of biology, does it not?
A. Yes. Pandas, in every one of its six chapters, sections, excursions, deals with biological organisms, with the question of biological origins, and also with life processes. So it's a book about biology, that's correct.
Q. And in your estimation, is the treatment of science, of biology, by Pandas accurate?
A. I think the treatment of biology by Pandas is inaccurate and in many respects downright false in every section of the book.
Q. Are you able to give us some examples about some of the errors that are contained in Of Pandas and People?
A. Sure, I'd be very happy to. My understanding is that you will call some other witnesses who will testify about other errors, but I will certainly be happy to talk about a few that are in my own area of work.
Q. And at my request, have you prepared a couple of slide demonstrations to help you explain these errors in Pandas?
A. Yes, I have.
Q. If we could have molecular trees in Pandas. Could you tell us what this is, Dr. Miller?
A. Yes. What you see on the slide now is the cover of Of Pandas and People and two quotations from various parts of what is known as Section 6 of Pandas, which is the section on biochemical similarities. And with your permission, with the Court's permission, I'll read both of those.
THE COURT: You may.
THE WITNESS: The first one is a quotation from Page 36. And what it says is, quote, When the measurements of the similarities between proteins are put side by side, the pattern that emerges contradicts the expectations based on Darwinism, unquote. I should add the emphasis, the boldface on this is mine, it's not from the original.
Other Links:
Sequences and Common Descent
A good explanation of what is wrong with cytochrome c argument used by Pandas which was first popularized by Michael Denton.
That point of contradicting what it calls Darwinism or Darwinian expectations is made on the next page, Page 37. Quote, Notice that the cytochrome c of this insect, the silkworm moth, exhibits the same degree of difference from organisms as diverse as humans, penguin, snapping turtle, tuna, and lamprey. The reason this finding is so surprising is that it contradicts the Darwinism expectation. And, once again, the emphasis is mine.
So Pandas, on these two pages, says that when you look at the biochemical similarities between organisms, it tells students those similarities contradict the expectations of evolution. In other words, evolution is wrong.
Can we look at the next slide, please? What you see in this diagram is a table, a data table of biochemical similarities from Pandas, and I'm flipping through my own copy so I get the proper reference here. The table appears on Page 37, and I have placed a quotation from Page 37 on the slide.
And referring to this table of differences between 17 organisms, Pandas tells students, quote, Darwinism would predict a greater molecular distance from the insect to the amphibian than to the living fish, yet greater still to the reptile and greater still than that to the mammal, yet this pattern is not found, unquote. And, again, the emphasis is mine.
So what it tells students is, look at the data. That data contradicts the Darwinism expectation. So the message is not subtle, it's very clear, Darwinism is wrong, what it refers to as Darwinism is wrong, and this table tells you something else. That's the message from Pandas, and that's what they tell students.
May we look at the next slide, please? The next slide shows a diagram, and I apologize to the Court for not having this on the slide itself, but the diagram that you see here is from Page 38 of Pandas, and the quotation that I'm using which refers to this phenomena is actually from Pages 139 to 140. And it refers to the same phenomena.
Now, what the diagram shows is the cytochrome c, which is a protein found in all living organisms, essentially -- it's a very important protein -- it compares the sequence of cytochrome c of the carp, of a fish, and it says that the carp cytochrome c differs from that of the bullfrog by 13 percent, by that of the snapping turtle also by 13 percent, carp to the chicken 14 percent, carp to the rabbit 13 percent, carp to the horse 13 percent.
In other words, it tells students there's the exact same difference between cytochrome c in a fish and an amphibian, a reptile, a bird, and two representative mammals. In other words, they're all the same distance apart.
Now, why is that a problem for evolution, according to Pandas? The quotation explains that. It tells students to use the classic Darwinian scenario, amphibians are intermediate between fish and other land-dwelling vertebrates, therefore analysis of their amino acid should place amphibians in an intermediate position, but it does not.
In other words, that fish should be closer to the amphibian than it is to the turtle, much closer than to the chicken, and much closer still than that to the horses. That's what Pandas tells students. Yet the fact that they're all the same distance apart means that the Darwinian, the evolutionary expectation, is contradicted by the data. And that is the message that Pandas tells students, any student who might use it.
Go to the next slide, please. This is not an isolated quotation. This is the entire theme of this particular section, which is one-sixth of the book, which is that evolution has it wrong on molecular similarities.
Here I've gone to Page 139, which is in the excursion or the more detailed section of the book. I've reproduced a facsimile of the page. This time it compares the dogfish shark and its cytochrome c to six different organisms. And basically this chart says they're all about the same distance from the shark. And then it says, instead of a progression of increasing divergence, each vertebrate sequence is equally isolated from the cytochrome sequence for the dogfish, unquote, from Page 139.
As a result of all this data, what Pandas then tells students -- and this is a textbook intended to be used in classes -- quote, In this and countless other comparisons, it has proved impossible to arrange protein sequences in a macroevolutionary series corresponding to the expected transitions from fish to amphibian to reptile to mammal, unquote. So, in other words, all these data contradict the prediction of evolution. That is the message of Pandas on page after page and diagram after diagram.
Now, the question that I think anybody using this book might want to consider is, is that true? Is that what the data actually show? Can I have the next slide, please?
Remember the central claim, and this slide reproduces the diagram I have already shown from Page 37 on Pandas. And Pandas claims that finding the same molecular distance between a fish and these organisms contradicts evolution. The reality of the situation is that it does nothing of the sort. Standard evolutionary relationships, which have been known for decades, between these organisms, a mammal, a bird, a reptile, an amphibian, and a fish, actually show that all of these organisms share a common ancestor at an equal molecular distance.
And what that means is, the frog should be just as far removed from that common ancestor as the horse should be. So therefore, when we compare a fish today, the distance from fish to mammal should be the same as the distance from fish to amphibian.
BY MR. WALCZAK:
Q. I'm sorry, Dr. Miller, could you explain how, on the diagram on the lower right, how do you measure that? How does a biologist or a scientist read that?
A. Fair enough. What this diagram is intended to show is molecular distances between these organisms, in other words, how much their cytochrome c's differ in terms of times since a common ancestor. So in the chart the organisms that are pretty close together are the chicken and the turtle, and they share a recent common ancestor. So we shouldn't be surprised.
Q. I'm sorry, is the common ancestor where you have the Y?
A. Thank you very much for asking that. The common ancestor is at the intersection point right there, which I am now attempting to wave the pointer around. It is at the Y where these two diagrams join. So the relevant comparison here is that all five of these organisms should be, in molecular terms -- all four of these should be equally distant from the fish since the distance all the way down to the common ancestor of all vertebrates predicted by common descent is exactly the same.
And, incredibly, that is what the data actually show, which is an equal distance from the fish for all the other vertebrates, and that actually doesn't contradict evolution, it provides strong support for it. But students using Pandas would misunderstand this point completely.
May I have the next slide? Now, one might ask whether or not, since Pandas is -- I think is -- your opposing counsel might have mentioned in the opening statement -- a little out of date, whether or not Pandas can be forgiven this mistake, because, after all, it was published in 1993, and, as I emphasized, a lot has happened since then.
What I have placed on the left-hand side of the slide is my rendering of the proper relationships between these organisms supported by data, and on the right-hand slide I have placed a figure from a paper published by Fitch and Margoliash in 1967, 38 years ago, showing molecular similarities based on cytochrome c.
Now, the Fitch and Margoliash picture, as you can see, is much more detailed than the simple one that I included because it includes more organisms. But you'll also note that the molecular tree formulation of diagram -- of the diagram shows exactly what I have been pointing out, which is that one does not expect a progression from one organism to another, as Pandas tells students, but one expects a deepening molecular tree so that the relationship of a fish to the other organisms, which are highlighted here in little red boxes, should be the same for every one of these organisms to the fish.
Q. And since 1967, has science contradicted that?
A. Science not only has not contradicted it, but it has confirmed this pattern in one protein and one gene after another. Now, it's worth noting that one of the things that scientists have noticed is that the rate of evolution seems to differ in one gene from another. So sometimes the pace of change is quicker, sometimes the pace of change is slower. But the ultimate pattern of change, with very, very few exceptions, supports the pattern that you see here.
And there's a final point that is worth making. And that is, one might ask, even though this paper appeared 38 years ago and clearly the authors of Pandas should have known about this, is this recent, is this formulation of evolutionary descent, is this something just in the molecular age, that it's brand-new, or is this the core understanding of evolution since the first time the idea was formulated? And the last slide that I have in this series will make that point. This is my formulation of the tree of --
Q. I'm sorry, that's in the upper left-hand corner?
A. Thank you very much. The upper left-hand corner of the slide is my formulation, a very simple diagram of the proper relationships between these species. The right-hand side of the slide shows the molecular tree sketched out from Fitch and Margoliash, the paper published in 1967. And, again, the question I pose before the Court is, is this a new idea of relationships just in the molecular age?
I have here a diagram, it's the only figure from the Origin of Species published by Charles Darwin in 1859, and it shows an almost exact match of the tree concept. So any person writing or pretending to teach students about evolution should be aware of the fact that evolution, since its very formulation by Charles Darwin, has held to the idea of the tree as the ancestorial model.
And if you could advance the animation in this slide, whereas what Pandas has done is to argue that a straight line progression like that is actually what is expected. That is a -- either a misunderstanding or a deliberate misinforming of students about the nature of evolutionary theory. And what I wrote on this slide is, Pandas misleads students as to the actual predictions of evolutionary theory by pretending that evolution predicts a linear sequence like that. And as I've shown the Court, going back to Charles Darwin, that isn't what it predicts.
Q. Do you have another example of what we might call an error or a misrepresentation of evolutionary theory that is contained in Pandas?
A. I can certainly point to quite a few. I believe that's the last demonstrative that I have prepared from Pandas. Is that correct, sir?
Q. Yes. If we could have the blood clotting test.
A. Okay. Sorry. I had forgotten that I had prepared these demonstratives. Pandas also, in their discussion of molecular similarities, talks about what is known as the blood clotting cascade. And in this particular case, all of us -- hopefully all of us in the courtroom have blood that clots properly. And what that means, of course, when we cut ourselves, we don't just bleed and bleed and bleed and bleed, but that cut eventually seals with a blood clot.
That's, in many respects, even more important inside our body, because when we get a bruise, that actually is a result of broken blood vessels, and if that didn't close with a clot, we'd be in serious trouble.
Now, blood clotting is, biochemically, an enormously complicated process. And I have placed a diagram of some of the elements of the clotting pathway on the upper left-hand corner of the slide. It's a diagram that I drew from the Internet. It's not from any exhibits in the court here. It's not from Pandas.
It's the sort of slide -- if people in the court are awed by the complexity of this slide, I would assure you that this is a subject that is used to torture biochemistry students at the undergraduate and graduate level. Everyone agrees that this is complicated.
In the lower right-hand corner, there is a scanned electron micrograph of a red blood cell caught in a clot. And the action of this pathway produces a crosslink protein known as fibrin, which produces a meshwork which actually stabilizes the clot and helps blood to stop flowing.
Now, I'm going to have to stand up so I can see the slide properly. Is that all right, Your Honor? I'll just talk loud enough so hopefully it will be picked up. Pandas describes this system, and on Page 141, and I quote, it tells students, As we shall see, such interactive systems as illustrated here by the mechanism for a blood clotting are very strong arguments for intelligent design and are virtually impossible to explain in terms of Darwinian evolution, unquote. Now, it's interesting to look into Pandas and say, why is it that this is an argument for design and impossible to explain by evolution?
If you could go to the next slide, please, I'd appreciate it. Here is a page from Pandas describing the blood clotting cascade and a diagram of the cascade and two quotations from Pages 145 and 146. Here is the essence of the argument that students are given in Pandas. From Page 145, quote, Only when all the components of the system are present and in good working order does the system function properly, unquote.
Later in the page and going onto Page 146, it talks about the various proteins in the clotting pathway, and it says, quote, Some of them -- these are the clotting proteins -- share discrete regions of their sequences with some others. Does that mean that they derive from one another? It may. But consider that even if this were the case, all of the proteins had to be present simultaneously for the blood clotting system to function, unquote. And the emphasis here is mine.
So the argument made by Pandas is that the reason this is an example of design is because it's a multi-part system, and all of the parts have to be put together, presumably by a creator/designer before the system will work.
Can I have the next slide, please? Well, that's a scientific statement in the sense that it's a claim that all the parts have to be present for the system to work. And because that is a scientific claim, we can investigate it scientifically and see if it is valid.
What I have placed on this slide is my own representation of the blood clotting cascade, which I blew up a little bit to try to make it large enough for the Court to see and to try to emphasize the points that I need to point out to the Court at this point.
A standard and simple and straightforward scientific test of the claim that all parts must be present for this to work is simple. Eliminate one of the parts, see if the blood will clot. If it won't clot anymore, the claim might be right. If it will clot, the claim could be wrong.
Well, fortunately nature has actually done that experiment for us. And if you could advance the slide, I'm going to show right now, essentially here's the pathway, and I'm going to propose an experiment which is that we eliminate one of the important factors known as factor 12. That's right here. So there's my experiment. You can do this very easily on PowerPoint, much easier than you can do in the laboratory.
We have just eliminated factor 12, and the question now before the Court is, will blood clot or will it not? Advance the slide, please. It turns out that whales and dolphins have done this experiment for us already. Whales and dolphins, in 1969, well before Pandas was published, were shown to lack factor 12. And the slide contains a reference to an article by Robins, Kasting, and Aggeler from Science Magazine, Volume 166, Page 1420, 1969. And you will note a quotation from the abstract of this article saying, The dolphin intrinsic cascade lacks factor 12, unquote.
Now, this is from ancient history, as far as we molecular biologists might be concerned today, because 1969 is pre-molecular. So one might wonder, has that result held up?
Also in the lower left-hand corner of the slide I have pointed out that a paper published in 1998 by Semba, et al., confirms using genome analysis, that whale Hageman factor 12 basically is now a pseudogene in the whale genome. That's why it is not produced. It is, indeed, missing from the clotting cascade.
Whales face many problems on this planet. They're overhunted, they're overfished, but they don't have any problems with their blood clotting. So blood clots just fine, despite missing the factor. So the scientific prediction from Pandas turns out to be wrong.
Q. And the prediction was -- this was known in 1969 is what you're saying?
A. Absolutely, that's correct. So certainly the people writing it should have known. But interestingly, in recent years, you might say the situation has gotten worse.
Q. I'm sorry, worse in what sense?
A. Worse in the sense that the case that Pandas is trying to make has become even farther removed from scientific reality.
Can I show the next slide, please? Here again is my representation of the various components of the blood clotting cascade. And this time I'd like to propose that we take away not one part, but three. If you'd advance the slide, please. The proposal is that we take away the three parts which are known as the contact phase system. Now, that includes factor 12, which we talked about a second ago, but also factor 11 and also the factor that catalyzes the conversion of 12 to the active form.
Advance the slide, please. Those are the three parts that I propose eliminating. And advance it one more time, please. There they go. They're gone. It turns out these three parts are missing in a vertebrate known as the puffer fish.
And I have placed in the left-hand part of the slide a reference to a paper Jiang and Doolittle, 2003. The title of the paper is, The Evolution of Vertebrate Blood Coagulation as Viewed from a Comparison of Puffer Fish and Sea Squirt Genomes. It appeared in the Proceedings of the National Academy of Sciences, a very eminent scientific journal, Volume 100, Page 7527. And the relevant point here is that they are missing three parts of the system and their blood clots perfectly well. Should we -- Go ahead, a question?
Q. So the prediction in Pandas and what Pandas teaches students has, in fact, been invalidated, refuted by the scientific evidence?
A. It was refuted by the scientific evidence in 1969 that was confirmed by genome studies of the whale, and it has been further refuted by Jiang and Doolittle's study of the contact phase system.
Q. I'd like to go to the third example of what we might consider significant errors or representations contained in Pandas, and that is the concept of new biological information. I was wondering if you could explain what Pandas says about this and then talk a little bit about the science.
A. May I ask the counselor if we have demonstratives on this?
THE COURT: You may, certainly.
THE WITNESS: Do we have a demonstrative on this one?
BY MR. WALCZAK:
Q. We have a copy of Page 7 from Pandas.
A. Okay. That would be just fine. Page 7 from the book Of Pandas and People makes the point that biological information and living things contain abundant amounts of information. There certainly is no argument there. The biological information must come from a designer.
And the way in which Pandas makes this argument is by using an example of information from the nonbiological world. So it tells students, if we walk along the beach and we see something written here that says, John loves Mary, that's an example of information from which we immediately infer the existence of an intelligent designer, a designer who thought of the message, coded it in the sand, and used symbols, symbolic language, in order to get that information across.
What Pandas then says is that biological information meets the same standard. And do we have -- have we highlighted part of the text on this page? Okay.
The patterns in biological information are described in this passage from Page 7 in Pandas. And the passage which I will read begins with the following: Quote, Are natural causes capable of producing these kinds of patterns? To say that DNA and protein arose by natural causes, as chemical evolution does, is to say that complex coded messages arose by natural causes. It is akin to saying John loves Mary, the message written on the beach, arose from the action of the waves or from the interaction of the grains of sand.
And I'd like to skip to the highlighted portion at the bottom of this and say -- and read to the Court that Pandas tells us, quote, If science is based on experience, then science tells us the message encoded in DNA must have originated from an intelligent cause, unquote.
So Pandas basically tells students all information must come from an intelligent cause, there's information in DNA, and therefore it's just like John loves Mary written on the beach, there must have been somebody there to write it.
Q. And is that correct?
A. No, sir, I don't think it's correct at all. I think there are logical problems with the analogy, and as an experimental scientist, there is strong scientific evidence that this is simply not the case with respect to biological information.
Q. Let's start with the analogy that they make. What's wrong with this analogy to John loves Mary must have been designed by some intelligent designer?
A. Well, I can think of a lot of things that are wrong with it. The first thing is that the message John loves Mary, which is sitting here in the beach, doesn't have the capacity to replicate as DNA does. It is never passed along in the process of reproduction as DNA is. It can never undergo genetic recombination as DNA can. It can never be subject to natural selection as the organisms and their characteristics coded for by DNA can. In short, that message is not part of a living organism, and the fact that messages in DNA are part of a living organism makes them entirely different.
The second point, however, that the analogy fails is something that any philosopher, any logician would spot in a second. When we look at the John loves Mary sentence, we know, for example, what the -- we know who made that message, and what I mean by that is, we know that a human being made that message because it is the kind of message that human beings make. We also know how that designer, the human being, made that message, probably by scratching a stick or other object into the sand to move the sand apart and create the message. And, finally, from our own ordinary experience, we've seen it happen. So we know the designer, we know the mechanism, and we have observed it happen in our own empirical experience.
In the case of inferring a designer for DNA, curiously, the advocates of intelligent design don't meet those standards. They say, we can't tell who the designer is, we cannot know the mechanism, and we also do not know how the designer operated and we've never observed it. Therefore, the comparison between that kind of message and the kind of message in DNA fails even the most basic test of logic.
Q. Now, has there been scientific research done on this proposition of whether or not there are natural explanations for new biological information?
A. Yes, there has, in fact, a great deal.
Q. And could I direct your attention to Plaintiffs' Exhibit 245. Do you recognize this exhibit?
A. Yes, I do. This is a review article that was written in a very prestigious journal, Nature Reviews Genetics, and it's written by Manyuan Long and several other people. And the title of the article is, The Origin of New Genes, Glimpses From the Young and the Old. It's an article that I read immediately, as many scientists did when it came out, because it describes a number of mechanisms by which new genetic information is developed by the processes of evolution.
Q. When did this article come out?
A. I believe this was published in the year 2003.
Q. And how does this contradict what Pandas tells students?
A. Well, it contradicts what Pandas tells students in a number of ways. First of all, you remember that Pandas said that all biological information, by analogy to John loves Mary written on the beach, had to be directly encoded by a designer. And what this paper summarizes, because it's a review paper, is it summarizes dozens of research projects in laboratories around the world on different mechanisms by which new biological information arises through the process of evolution by natural selection.
And if we could advance the slide, please, I prepared a slide showing a table from the second page of this article. And thank you very much for zooming in on the table. And what you see on this table are a series of mechanisms by which new genetic information can arise. You'll notice the top one, the area up here talks about exon shuffling. The next one, gene duplication, then retroposition, mobile genetic elements, lateral gene transfer, gene fusion and fish, and, finally, de novo gene origination. Every one of these is a distinctly different molecular mechanism that results in the generation of new genetic information. None of them requires a designer, curiously.
Now, the other thing that I find, I think, worthy of the Court's attention is that none of these are hypothetical mechanisms. In every case, the specific genes that have been formed by these mechanisms are listed in the third column of the table. And in the fifth column of the table, there are a series of scientific references documenting the studies that have shown how these genes originated by evolutionary processes.
Q. So this is one article, but, in fact, it talks about many other articles that have done the research to support this proposition?
A. That is correct. This references more than three dozen scientific studies showing the origin of new genetic information by these evolutionary processes.
Q. Let me ask you, because I'm not a scientist, so I'm going to ask you to pretend that I'm your mother here. This notion of creating new biological information through natural pathways, I mean, is that a big deal that Pandas gets this wrong?
A. I think it is a very big deal that Pandas gets this wrong, because you have to remember that the core argument of Of Pandas and People is that there is abundant evidence in biological systems not only that evolution is wrong, but also that there is a creator/designer who encoded all of this information into biological systems.
Pandas at one point makes a statement that this information was written by the designer into the various types of organisms at the beginning, which is clearly the description of a creative act. And the only way that it can make that statement is by arguing that information cannot arise by natural mechanisms of the sort described abundantly in this review and summary paper.
Q. So Pandas is just dead wrong on this point?
A. Pandas is wrong on this point, but I think it's more important to point out that Pandas is wrong in a most particular way. Anybody can write a book about science and make a few mistakes, and Lord knows I have made my share of mistakes in trying to summarize science. But the error in Pandas in this respect is systematic, and that is, the errors are all intended to point students towards the acts of special creation by the unnamed designer that are designed to encode the information into systems.
So by arguing that studies like this don't exist, that mechanisms like this don't work, Pandas makes the case for the existence of the supernatural special designer or creator.
Q. Now, you've discussed with us three errors in Pandas which come within your field of molecular biology. Are there other what you would consider significant errors or distortions of the science in Pandas?
A. Yes, sir, there are.
Q. And we will have another expert, Professor Padian, who will come in and talk about some of these in more detail, but just briefly, if you could just identify what some of those other errors are.
A. Well, I think the principal one that I would identify for the Court is that Pandas completely misstates the character of the fossil record and the nature of natural history. And one element of that -- I know you will have a paleontologist coming in later to go over that in detail for the Court, but one element of that that I find particularly significant is in Pandas' nearly complete omission of any discussion of what causes extinction.
Pandas mentions the fact that -- well, actually, Pandas mentions extinction in a few places. Any paleontologist will tell you that more than 99.9 percent of all organisms that have ever existed on this planet have gone extinct. So just about every organism that has ever appeared is now extinct.
Now, evolution, of course, has no problem explaining this because the competition between organisms and continuing genetic change is one of the engines that drives extinction. This is extremely well understood.
But if one proposes to students the existence of an intelligent designer who used his skill and craft and cunning to encode this information and to produce perfectly-designed organisms, the fact that most of them go extinct is an embarrassment. And, in fact, you know, an intelligent designer who designed things, 99.9 percent of which didn't last, certainly wouldn't be very intelligent.
And one of the questions that I think any reasonably inquisitive student will have when they open this book is, if an intelligent designer made all these things, why have they all become extinct if he's so intelligent? And Pandas simply does not address the issue, even though it clearly is going to raise it in the mind of any student who uses this book.
THE COURT: Mr. Walczak, I'll tell you that anytime between now and 12:30 that you want to wrap up a line of questioning, you can do so. But I don't want to stop you here if you're in the middle of something.
MR. WALCZAK: Your Honor, I think about five more minutes would be --
THE COURT: That's fine. Let's wrap it up by 12:30, at least.
BY MR. WALCZAK:
Q. Dr. Miller, you talked earlier about the core of propositions of evolution. Does Pandas reject those core propositions or argue that, in fact, they are scientifically incorrect?
A. Yes, sir, it does. It rejects all of them. In my opinion, it dances around the proposition that life has changed over time. It sort of -- it maintains what you might call a reserved indifference to that proposition. It certainly rejects common descent, and it profoundly rejects the third proposition, which is that the process of change can be understood by things that we observe happening in the world around us today.
Q. Let me direct your attention to Page 65 of Pandas. Matt, if you could highlight it. Could you read this highlighted passage from Page 65 on Pandas?
A. Of course. Page 65, quote, Adherents of intelligent design assume that in the beginning all basic types of organisms were given a set of genetic instructions that harbored variation but were resilient and stable, unquote.
Q. That's a rejection of natural selection and common descent?
A. It is a profound rejection of this, because basically what it describes is the special creation of all organisms, because it says basic types of organisms, which in earlier parlance might have been referred to as created kinds, were given a set of instructions. In other words, the genetic information was written into them. They couldn't change, they were resilient and stable.
So the picture that any reasonably intelligent student is going to get out of this is that intelligent design means that the designer/creator inserted these instructions into living organisms and they have remained essentially unchanged since that time.
Q. Let me direct your attention now to Pages 99 and 100 of Pandas. I'd ask you to read the highlighted passage.
A. 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.
Q. Is that science?
A. No, not at all. And, in fact, anyone would recognize that in a flash as a form of special creation, because what we have here is intelligent design means the various forms began abruptly, and I might add separately, which is what the previous quote implied, and everything was intact. In other words, organisms were created by an intelligent force instantaneously with all of their features present.
Now, I don't know if we have a demonstrative to this, but on Page 99 there is also a graphic that drives home this point in case the verbal -- in case the words are too subtle. Do we have that as a demonstrative?
Q. Could you pull up Page 99?
A. I think, actually, that's fine without further enlargement. And what you see now is Page 99, Of Pandas and People, and you can see that what is presented here is Pandas -- or the view of the fossil record and natural history that Pandas wishes to show to students, and that is that every single organism began its existence on earth as a result of a creative process with the information inserted into it, as it says, by an intelligent agent. It lasts for a certain time on earth, and then it vanishes due to extinction.
So what we have basically is a series of separate creative events required to bring each individual type of organism into existence. If one wished to understand whether or not Pandas is consistent with the idea of common descent, one look at this graphic tells you huh-uh, because what Pandas clearly shows in this graphic is separate descent of every single basic type of organism.
Q. And is that similar to creation science as it was practiced in the 1980s?
A. It is -- the notion of separate descent is identical to creation science, and the only difference that I can see is that in Pandas the creative events are presumed to be spaced out over time, whereas in creation science, those creative events were presumed to have occurred at the same time or the same six-day period. Other than that, I don't see much to differ them.
MR. WALCZAK: I think, Your Honor, now would be a good time for me.
THE COURT: All right. We'll take a lunch break now. I might be inclined to say class dismissed for the morning. We'll return at 1: you be in your seats promptly at that time so that we can start our afternoon session then. I thank you. We'll stand in recess until 1:45.
(A luncheon recess was taken.)

 

Kitzmiller v. Dover Area School District
Trial transcript: Day 1 (September 26), PM Session, Part 1

THE COURT: All right. We welcome you all back from our lunch break. We're two or three minutes later than we wanted to be, but you'll excuse that, I hope, and we'll proceed. Mr. Walczak, back to you.
MR. WALCZAK: Thank you, Your Honor.
DIRECT EXAMINATION (continued)
BY MR. WALCZAK:
Q. Dr. Miller, I want to now switch gears from the discussion of the textbook Of Pandas and People to Professor Behe. Who is Michael Behe?
A. Michael Behe, I believe, is a professor of biochemistry at Lehigh University.
Q. And has he done research on intelligent design?
A. Well, to be perfectly honest, I'm not sure that he's done research on intelligent design. I'm aware of some of his published peer reviewed literature and can say that it concerns a wide variety of topics. I believe nucleotide and nucleic acid biogenesis, and most recently, a study on random replacement of neucleoties in genes; in other words, sort of a moving around of the genetic code and see happens to a gene.
Q. So Dr. Behe has published some peer reviewed articles, but these are not on intelligent design?
A. To my reading, none of them actually are on intelligent design. He's published a fair number, good number of peer reviewed articles in leading peer reviewed scientific journals, no question.
Q. What is it that Professor Behe brings to the concept of intelligent design? Does he bring some idea to the table here?
A. Yes, I think he does. And the idea that he brings to the table, as you put it, is that the classic argument from design, which has been around for hundreds, thousands of years, that biological systems are complex and suggest the existence of a designer can also be phrased in terms of biochemistry.
So I believe Dr. Behe's book, Darwin's Black Box, was subtitled the Biochemical Challenge to Evolution, so what he brings to the discussion basically is the old argument from design written up in the new language of biochemistry.
Q. Let's take that in a couple of steps. First of all, you mentioned Darwin's Black Box. And I direct your attention to Plaintiff's Exhibit 434. Is this the book to which you refer?
A. Yes, sir, it is.
Q. And is this the book that Professor Behe wrote which explains his idea of irreducible complexity?
A. Yes, sir, it is.
Q. Now let me ask you. Is this a peer-reviewed publication?
A. To my understanding, no. Books like this are subject of what you might call a kind of peer review, which is a discussion between you and the editor and perhaps the copy editor, in the same way that my own box, Finding Darwin's God, was subject to those discussions. But by the standards of science, neither my book nor Dr. Behe's book counts as a peer-review publication.
Q. Now you said a moment ago that Dr. Behe's idea isn't actually new. What do you mean by that?
A. Well, the essential argument that some features of living things are too complex to have been generated in any other way other than by attribution to a designer is an idea that, to my poor understanding of ancient philosophy goes back to the Greeks. And in western culture, very often one would go back to a book called Natural Theology that was written by the Reverend William Paley and published, I believe, in 1802.
And Paley's book had what's probably the best pre-Charles Darwin classical formulation of the idea of intelligent design. Paley was quite a naturalist. And he really understood the complexities of living systems, of living organs. He understood how they work with each other, how delicate the interplay is. And he said that this very complexity argued for the presence and the existence of an intelligent designer who drafted all these organisms and created each of them individually.
Q. And did Reverend Paley use certain examples that we might be familiar with?
A. Yes, he did. Paley used a whole variety of examples. And I believe some of them included the nervous system, the muscular system, the digestive system. And he used them in a variety of different types of organisms. So it was a very interesting book to read, and still is a very interesting book to read. The example of Paley's that I think is remembered the best is the example of the eye.
And he pointed out that the eyes that we humans have -- because among the animal kingdom, we have very good eyes. Very few animals that can surpass the human eye. Our eye is a complex multi-part system. And I can't name all the parts not being an anatomist. But we have the cornea, we have the lens, we have the iris, we have the aqueous humor, the vitreous humor. We have the retina in the back of the eye. And for proper vision, all of these parts have to work together as a coordinated whole. And that was part of Paley's example.
Paley said, for example, what good would a lens be without a retina? And what good would a retina be without a lens? And, therefore, all the parts would have to be assembled together. And, therefore, only a designer could do that.
Q. So his conclusion was that, there could not be a natural explanation for this complex system, the eye, therefore, there was a designer?
A. That is correct.
Q. And did Paley identify the designer?
A. To Reverend William Paley, there was absolutely no doubt as to who the designer was. He said it was God.
Q. And so how does Dr. Behe's argument differ from Reverend Paley's?
A. Well, as far as I can tell, it differs in two essential respects. The first respect is that, Dr. Behe, although he praises the arguments of William Paley in several areas of his book, argues that the argument from design, as Paley's argument is known, is made most effectively at the level of the cell, at the level of the molecule.
So he basically has attempted to update Paley's argument, not by looking at large organ systems, but by looking at biochemical machines that exist inside individual living cells. And the second way in which his argument differs from Paley is that, Dr. Behe, after coming to the same conclusion, that there had to be an independent designer, a creative force that created these machines, these pathways, and put them into being, Dr. Behe is unwillingly to name the identity of that designer.
And I believe he suggests that the designer, of course, could be a divine force, but it could be super intelligent space aliens from Mars or perhaps time traveling cell biologists going into the past from the future and causing the structures to be put together.
Q. And have you actually heard Dr. Behe use these examples?
A. Yes, sir, I have. Dr. Behe and I have discussed and debated this issue a number of times, and these are examples that he has used in those discussions.
Q. Now Dr. Behe advances an idea known as irreducible complexity. Can you explain to us what that idea consists of?
A. Sure. The idea of irreducible complexity starts with the observation that living cells contain complex biochemical systems and machines. They are composed of many parts. He then suggests that, that complexity is irreducible. What he means by irreducible complexity is, if we start to take a few parts away to see if we can make a simpler machine, we very quickly discover that we can't, that a machine stops functioning.
Now I've prepared a few demonstratives with quotes from Dr. Behe's work to sort of illustrate this point, if it's all right for the Court to show these.
THE COURT: Yes.
BY MR. WALCZAK:
Q. Could we have the bacterial flagellum power point?
A. So this is, in a way, a summary of Dr. Behe's argument. And one of the things that I think is important to make clear to the Court is that, it is absolutely true that there are many, many structures in the living cell, many biochemical pathways for which we don't have a detailed biochemical -- excuse me, a detailed evolutionary explanation. That is a point that all scientists will concede. Do Doctor --
Q. I'm sorry. Is that true just about evolutionary theory or is that true about any science?
A. That's true about anything. In cell biology, for example, I think most people and the court are aware that when a cell divides, the chromosomes that carry the genetic information of a cell are moved apart and separated into the two daughter cells. We have enormous arguments in the field of cell biology as to what the exact mechanism is by which that force is generated. We can all see it happen. Any high school student can watch the separation of chromosomes under a microscope in a high school laboratory. But we still don't know exactly what the motor or the mechanism is that moves these apart. There are many, many other unsolved problems in biology.
Q. I'm sorry. Please continue.
A. Sure. So it's important to note that Dr. Behe's argument does not say simply, well, there are complex structures within the cell for whom we do not understand the detailed evolutionary origin of, that's absolutely true. But his argument really rises to a different level. What I've shown on this slide is a diagram of the bacterial flagellum.
Now bacteria, of course, are very, very simple cells. They're found everywhere in nature. They're found, for example, in our digestive systems. They're found in the skin. They're found on the surface of the table. Some bacteria have little whip like structures called flagellum. You might almost considers them to be outboard motors. And these things whip around at very high rates of speed, and they propel the bacteria through water, or sometimes they pull the bacteria in sort of a screw like motion through the water.
So it's marvelous machines. They are acid powdered reversible rotary engines. These are marvelous little machines, and they are made of a whole series of protein parts, some of which are shown in this little diagram here. Now if we can animate this slide a little bit. Next point.
Now what I wrote here is that, Dr. Behe has made very clear in what I think is fairly called his biochemical argument from design, that that argument depends upon a much bolder claim than simply saying, scientists have not completely explained how this structure evolved. And that bolder claim is shown in the next animated section of this slide.
And that is that, the evolution of complex biochemical structures cannot even or ever be explained in principle. And, of course, what he means by that is, there is some aspect of this complexity, which means we can say not just, we haven't figured it out yet, but we will never figure it out, and that's where the evidence for design lies.
Now if I may advance to the next slide. I'll try to use Dr. Behe's words to explain why he holds this point of view. The reason that evolution cannot explain, he says, the origin of such structures is because they have a property, which he calls irreducible complexity, or they are irreducibly complex. I thought it best for the Court to read the description of irreducible complexity in Dr. Behe's own words.
So in the lower part of the the slide, I have a quotation from page 39 of his book, Darwin's Black Block. And I will read that to the Court. Quote, By irreducibly complex, I mean a single system 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.
And now, from my point of view, the key part of the argument, and I'll continue to read. An irreducibly complex system cannot be produced directly by slight, successive modifications of a pre-cursor system -- and that's how evolution would have to produce it -- because any pre-cursor to an irreducibly complex system that is missing a part is by definition non-functional.
So his argument is that, if you have a multi-part system, and all the parts are necessary to function, you can't produce that system five parts at a time, six, seven, and gradually build up the complex system, because there is no function possible until the last part is snapped into place. And that's why evolution cannot produce that system.
Now the next slide is another quote of Dr. Behe's that tries to make this point absolutely explicit as to why you need the system to be working. He points out, another quote, Darwin's Black Box, page 39, quote, Since natural selection can only choose systems that are already working -- and if you remember, his contention is, if you're missing a part, you're not 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 upon, closed quote.
And Dr. Behe rightly points out that, to imagine such complex systems arising spontaneously in one fell swoop is something that no serious biologist would argue could happen, and I will not argue either. So his point is, as long as irreducible complexity holds, then any system we can identify as irreducibly complex couldn't have been produced by evolution. It's a very, very coherent argument.
Q. Does he identify some organisms that he calls irreducibly complex?
A. Well, counselor, not so much organisms, but he certainly identifies some machines and some structures that he regards as irreducibly complex, one of which, of course, is the bacterial flagellum. And I pointed out, this slide contains a diagram of the flagellum. And to the right is actually sort of what we call a false color, but an electron micrograph showing a bacterium with several flagellum protruding from one end.
So that is one of the principal systems to which he points. Now the next slide, please. And I should also point out, to be a little more responsive than I have been to your question, that Dr. Behe also says, the blood clotting cascade that we talked about earlier as an example of an irreducibly complex system, the eukaryotic cilium, similar system to the flagellum, that's irreducibly complex, the vesicle targeting system that parcels out things in living cells, and also the immune system are all examples of irreducibly complex systems.
Now what I did in this slide was to prepare a graphic to make this point as clear as possible to those of us in court today. And that is to emphasize that complex biochemical machines composed of multiple interacting parts, if they work, they can have a function that's favored by natural selection. The essence of the biochemical argument from irreducible complexity, however, is that the individual parts of that machine have no function of their own.
And because they have no function on their own, they cannot be produced by natural selection and, therefore, the impediment, the reason you can't get to here from there, you can't go from individual parts to the machine, is because the individual parts have no functions of their own.
Now evolutionary biology has grappled with this problem before. And the next slide shows how evolutionary biologists generally explain the evolution of complex machines. And that is, they agree, yes, there are such machines. You need all these parts for a particular function. But where these machines come from is, they come from pre-existing machines which have functions of their own, and that the individual parts of these machines originate in components that have different functions.
So the way in which evolutionary biology picks up Dr. Behe's challenge is to basically say, you're wrong, that the individual parts of these machines cannot have a function that is favored by natural selection. Now that, of course, in this slide, this is not evidence, of course, in the scientific sense. This is merely an argument.
But the reason I like the way that Dr. Behe has put his argument, and I like sort of describing it this way, is because it actually is amenable to a scientific test. Something that most arguments for intelligent design are not. And the next slide.
Q. I'm sorry. This is -- is Dr. Behe's argument for irreducible complexity, is that an argument directly for design?
A. That's a good point. The answer is, no, it's not. It really is an argument that says why such systems are not produceable by evolution. So it's a negative argument against evolution. It is in itself not evidence. Even if the argument were correct, it's not evidence of a designer, it's not argument for design, it simply is an argument that the evolutionary mechanism wouldn't work in this case.
Q. So that's why this argument is testable?
A. That is correct. As I mentioned earlier, one of the problems with intelligent design is that it doesn't make any testable predictions. This actually isn't a testable prediction of design either. This is simply an argument as to why evolution wouldn't work. And that can be subjected to a test.
Q. Please continue.
A. Thank you. Next slide, please. So what I have done in this slide is to place the graphic summaries of the argument from irreducible complexity that I just made in the upper left-hand corner of the slide, and in the upper right-hand corner, I have basically put the evolutionary explanation using the same graphic convention. And the nature of the test that I or any other scientist would propose is pretty simple.
If you animate the slide, you'll see that Dr. Behe's prediction is that the parts of any irreducibly complex system should have no useful function. Therefore, we ought to be able to take the bacterial flagellum, for example, break its parts down, and discover that none of the parts are good for anything except when we're all assembled in a flagellum.
If evolutionary theory holds, however, and we can animate again, and we'll show that in the right-hand side, evolution makes an extremely straight forward prediction. And that is, when we look at these irreducibly complex structures, we ought to be able to find parts of those systems that actually do have useful functions within them.
So we can do a very straight forward either/or test to distinguish between these two alternatives. So what I'd like to show in the next slide is how such a test can be conducted. This is a -- in the upper right-hand corner of the slide is a graphic representation from a review article showing some of the proteins involved in the construction of the bacterial flagellum.
Now the individual names of the gene products need not concern us. They often begin with FL for flagellum. But as you can see, just as Dr. Behe says, this is a complex multi-part biochemical machine. Now the test that I would propose, we can animate the slide, please, to start with this flagellum. And if Dr. Behe is correct, if we take away even one part, there should be no function.
But I'm going to propose that we take away not one, not two, I'm going to propose we take away 30 parts. And what I'm going to propose to do is, take 30 of these proteins away and see what is left. And the slide that I set up is animated, and what we have done is -- actually, could you go back for the animation and then do it again?
And let's watch the Court do it, and we'll do the animation now. Thank you. And you can see the parts that I have removed are on the outside and the inside, and what are left are 10 proteins that span the inner and outer membrane. These bacteria, many of them are surrounded by two membranes.
These 10 remaining parts are shown in the next diagram, which will come up on the slide. And this is a diagram showing where these 10 parts are. They exist at the very base of the flagellum near one of the cellular membranes.
Now the prediction that is made by Dr. Behe in his book is extremely straight forward, which is, since this was an irreducibly complex machine, and we've taken away most of its parts, what's left behind should be non-functional because, you remember, he wrote, any pre-cursor to an irreducibly complex machine that is missing a part is, by definition, non-functional. This guy is missing 30 parts.
Next slide. Well, it turns out that what is actually left behind when we take those parts away is a little structure with those 10 parts, which is known to microbiologists as the type III secretory system. And I can see, Mr. Walczak, you're saying, why, of course, it's the type III secretory system.
THE COURT: That certainly was on my mind.
THE WITNESS: Exactly. Now I was expecting a question of, how do you know it's not type II or type IV? The type III secretory system is a little molecular syringe that some of the nastiest bacteria in all of nature have. Yrsinia pestis, for example, which is the organism that causes bubonic plague, is a type III secretor. And what it does is, it gets inside our body, crawls up alongside, and uses this syringe to inject poisons into a human cell.
And in the lower left-hand corner of the slide, I have some diagrams showing the operation of a type III secretory system. Now the connection between this and the flagellum is that the type III -- the 10 proteins in the type III system are almost a precise match for the corresponding 10 proteins in the base of the bacterial flagellum.
So it's very clear that a subset of those proteins has an entirely different function, a beneficial function, not for us, but for the bacterium, and a function that can and is favored by natural selection. Can I have the next slide, please? So the summary of this example is really very straight forward.
When we take this complex multi-part system, which is the bacterial flagellum, the prediction made by Dr. Behe from irreducible complexity is when we break the parts apart, we should have no useful functions. Anyone missing a part is, by definition, non-functional. We follow that up. We do break it apart. And lo and behold, we find -- actually, we find a variety of useful functions, one of which I have just pointed out, which is type III secretion.
What that means, in ordinary scientific terms is that, the argument that Dr. Behe is made is falsified, it's wrong, it's time to go back to the drawing board.
Q. And does Dr. Behe focus on just one type of cell? I'm sorry if I'm using the wrong terms here.
A. No, he doesn't. His arguments extend to a wide variety of cells and a wide variety of systems that he identifies as irreducibly complex.
Q. But the reasoning, the analysis that you just went through is -- applies in the same fashion to these other examples, is that correct?
A. Yes, it would. And if I could redirect the Court's recollection to earlier today, one of those systems was, in fact, the blood clotting cascade. And Pandas, and as it turns out, Dr. Behe's book, Darwin's Black Box, makes the same statement, which is that, all of the parts have to be together for blood to clot effectively.
The exact quotation, I think, is, if even one part is missing, the system fails and blood does not clot. And I then showed that when we look for, for example, at the genome sequence of the puffer fish, we find that three of the parts are missing and blood still clots perfectly well.
That is exactly the same kind of argument, which we just examined, and also found wanting in another of Dr. Behe's chosen examples, which is the flagellum.
Q. I asked you, in preparation, to select a third example, and that was the immune system. What is the immune system?
Other Links:
Evolving Immunity: A Response to Chapter 6 of Darwin's Black Box
A detailed look at Behe's claims that the immune system could not have evolved.
A. Well, it's a very good question, because we all depend for our very lives on a functioning immune system. It's a system of our body that is widely distributed. We have cells from our immune system sort of engaging in patrol, floating throughout the blood stream and the tissues. And it's a system that enables us to identify, defend against, and to repel foreign invaders.
When I was a little boy, for example, it was on vacation, too, which I never really liked very much, I got the chicken pox, and I was very, very sick. And it was during spring vacation, so I had the wonderful experience of being sick during vacation week. But chicken pox is a virus when invades the human body, the immune system recognizes the code proteins on the virus, makes cells that can continue to recognize it, and produces proteins called antibodies that will bind to the surface of the virus.
What that meant is, once I had gone through that miserable week with the chicken pox, I could be confident I would never get it again. I would be permanently immune to the chicken box. This is a very important realization for medicine to have because, of course, most of us in this room have received vaccinations designed to stimulate our immunity from diseases far worse than chicken pox such as, for example, polio and diptheria and whooping cough in an effort to stipulate our immune systems to make sure we never get sick from those diseases.
Q. Have you prepared a presentation on the immune system that will help you to explain this?
A. Yes, sir, I have. And if we could show the first slide, I want to start -- and, Your Honor, I may have to stand up to --
THE COURT: That's fine.
THE WITNESS: Thanks. I thought I would start by pointing out an essential protein of the immune system. You can't work without it. That essential protein is sometimes -- it is called by researchers an immunoglobulin, but it is more commonly called an antibody. These are the essential molecules of the immune system.
In the upper left-hand corner of the slide, there is a molecular diagram for what an antibody actually looks like. It basically is a little Y shaped molecule with two binding sites. And you'll notice in the slide, those binding sites are labeled foreign particle binding sites. I hope I have antibodies circulating in my bloodstream against chicken pox. So if I get chicken pox virus in my body, that foreign particle binding site on my chicken pox antibody will bind to the surface of the virus. Another one will bind to the other site.
And gradually, the virus will be cross linked into a mesh world, which my immune system recognizes, eliminates from the circulation, and destroys. And that's why, hopefully, I'm not going to get chicken pox again. Now in the lower right-hand is a more diagrammatic view of this molecule. It's made up of four parts.
These are each polypeptides, and they're diagrammed. And you'll notice that part of these -- each of the polypeptides is colored blue, and another part is colored red. The red says, variable region. Now I know some of my own vaccination history, so I've been vaccinated against polio, diptheria, measles, and a number of other diseases.
The antibodies in my body against polio differ from the antibodies I have against diptheria in the variable regions. They have a different shape because the viruses or the bacteria have different molecules on the surface.
The genius, if you will, of the immune system, is that it can produce an antibody that will attach to, stick to, identify, and destroy just about anything. So one of the most important things in our immune system is the ability, basically, to produce antibodies against any conceivable molecule that might get inside our body. Can I have the next slide?
Now about 20 years ago, a scientist working at MIT named Susumu Tonegawa -- I know I'm going to have to spell that for the court reporter -- determined exactly how antibodies had the ability to produce such diversity. And that is, it turns out to be a system in the genes of cells in the immune system known as a VDJ recombination system.
And this system is not at all unlike a dealer shuffling a deck of cards, and that at a certain point in development, parts of DNA, in a variety of genes, are literally shuffled. They're tossed from one side to another, and they are rearranged to form a final gene. Now some elements of this shuffling are random just like you hope the dealer, when you go to Las Vegas, is shuffling those card randomly so you don't know what you're going to get.
But it's in that random shuffling that our immune system develops the ability to produce an antibody to just about anything. That shuffling is at the heart of why the immune system works. If anything goes wrong with this process, the individual in which it goes wrong loses the ability to make diverse antibodies, they get very sick, and they're in big trouble when they start to see foreign organisms.
Other Links:
The Revenge of Calvin and Hobbes
A look at the evolution of the VDJ recombination system and recent developments in science refute Behe's claim that it could not have evolved.
The Evolution of Improved Fitness By Random Mutation Plus Selection
The VDJ system protects us by evolving antibody sequences.
Now the next slide. Where did this system come from? That's the question that people interested in evolution always try to answer. About 10 years ago, a number of scientists, including Nobel Prize winner David Baltimore, speculated that this process, which is called VDJ recombination, might actually have evolved from a system known as transposition, a system in which genes jump around.
What I have placed on the slide in addition to this diagram and the reference to the Baltimore group's paper in the Proceedings of the National Academy of Sciences is a quotation from this paper illustrating his hypothesis. They, and he means the gene shuffling system, could have been part of retrotransposons and had a DNA rearrangement function this their previous life. It's possible that the ancestors of these genes, they're called RAG genes, may have been horizontally transferred into a metazoan multi-cellular animal lineage at a recent point in evolution.
So he argued, he suggests there might be an evolutionary way to explain where this system came from. It's a very interesting suggestion. And as I wrote in the slide, perhaps the three part system arose from a type of mobile genetic element known as a transposon. It's a hypothesis, but the important point, and the reason it's useful is that, it is a testable hypothesis.
Can I have the next slide, please? Now Dr. Behe was aware when he wrote Darwin's Black Box of the speculations of the Baltimore lab.
BY MR. WALCZAK:
Q. I'm sorry, what year was Black Box written?
A. That was written in 1996.
Q. And the Baltimore article was?
A. 1994.
Q. So Dr. Behe addressed that. And he regarded this as mere speculation. And he also basically told researchers, don't bother. And the reason you shouldn't bother is actually given in the bottom of the slide. On page 130 of Darwin's Black Box, he wrote, and I quote, In the absence of the machine -- that's the gene shuffling machine -- the parts never get cut and joined.
In the absence of the signals for where to cut, it's like expecting the machine that's randomly cutting paper to make a paper doll. And, of course, in an absence of the message for the antibody itself, the other components would be useless, closed quote. So he basically argues, because this is a multi-part system and all parts had to be together for it to work ahead of time, you're not going make any progress.
A few pages later, he's even more explicit about that. On page 139, he wrote, quote, As scientists, we yearn to understand how this magnificent mechanism came to be, but the complexity of the system dooms all Darwinian explanations to frustration. Sisyphus himself would pity us. I hope you're up on your classical mythology.
Q. That's what Dr. Behe wrote in his book in 1996?
A. That is correct, sir. He basically told scientists, don't bother to try to investigate the evolution of this because it's irreducibly complex, it's multi-part, you cannot solve it with evolution.
Q. So what's happened since then?
A. What's happened since then is, I think, very interesting. Can I have the next slide? This is the quote from Dr. Behe. The complexity of the system dooms all Darwinian explanations to frustration. If you animate the slide, please.
In 1996, the same year that Darwin's Black Box came out, very strong biochemical similarities were found between this shuffling process, the VDJ recombination, and the way in which retroviruses shuffle their DNA, very suggestive.
Q. Now when you say, found, where was this found?
A. The -- well, the report is in the journal Science. This particular case, I believe, was found in a prokaryotic system because retroviruses can go into all sorts of systems. But the important point is, these investigators noticed there were biochemical similarities between the way the genes are shuffled in the immune system and the way that retroviruses go into other cells.
Q. This is a publication that has been peer reviewed?
A. That is correct. This is the journal Science, one of the best scientific publications in the United States. And, obviously, this was peer reviewed research.
Q. Please continue.
A. Happy to. Two years later in the journal Nature, which I have plugged repeatedly as a great publication, it turns out that the cutting and transposing enzymes that are normally used for these transposable genetic elements can be replaced by the RAG enzymes, which do the cutting and pasting in the immune system. So that's suggested a further biochemical similarity between these two systems published in 1998 in the journal Nature. Also, of course, peer reviewed. Can I have the next element, please?
In 2000, the RAG enzymes were shown to cause transposition in mammalian cells. What this meant was, not only can they shuffle the immune system pieces of DNA, they can shuffle other pieces of DNA as well. So little by little, we're beginning to understand that elements of the Baltimore hypothesis are being born out by published research in peer review journals.
Q. What is Blood? Is that also a peer reviewed publication?
A. Blood is also a peer reviewed journal. This is an original research paper subjected to the usual process of review. Can I have the next slide, please? Once again, the quote that we've been talking about, if you could advance it, in 2003, the VDJ recombinase was shown to cause transposition -- in other words, shuffle DNA around -- not just in mammalian cells, but in human cells as well.
The next animation, please, will show the transposases were discovered in nature not associated with the immune system that are a perfect mimic for the way the immune system gene shuffling machine works in human cells. And this was in the journal Nature.
And finally, the last part of this puzzle was put together in the last year, and that is the actual transposic from which these enzymes and insertion sequences evolved were identified by a paper printed in the Public Library of Science, which is a brand new, but very highly regarded peer review journal, and this is Kapitonov & Jurka in 2005.
It's worth noting how these researchers described their own work. And the next slide will show a facsimile of the paper, and also has a quotation from the abstract. Now this is absolutely filled with technically latent language, but it shows how thoroughly researchers have explored this particular -- this particular hypothesis.
And what I will do is, I will read, and I'm going to skip parts of this, but I'm going to read, starting at the quotation marks, and I will skip over some of the technical terminology. Quote, The significant similarity between the transib transpases and RAG core, the common structure of these transpases and others, as well as the similar size of these basically catalyzed by these enzymes directly support the 25-year-old hypothesis of a transposon related origin of the VDJ machinery.
And the researchers then point out, there have been other hypotheses that have been considered. Previously, the RAG transposon hypothesis was open to challenge by alternative models of convergent evolution. Because there were no known transpases similar to the gene shuffling ones, the RAG ones found, it could be argued that our gene shuffling enzymes, the RAG1 independently developed some transposon-like properties rather than deriving them from a transposable element encoded transpases. These arguments can now be put to rest.
And they're very straight forward about saying, we have solved the puzzle of where this system came from. It came from evolution. And it came from a transposable element system. Can I have the next slide, please? Okay.
So the summary of what we have just gone through, and this is a tree analysis of these transposons and humans and mammals are right down where it says, mammals, is that the summary is that between 1996 and 2005, each element of the transposon hypothesis has been confirmed and, furthermore, when the enzymes that do this gene shuffling are actually put to an analysis to see how closely related they are to see if they themselves match the evolutionary predicted tree, they match that tree perfectly. So we've got it.
Q. So what do you tell your mother about what all this means for Dr. Behe's theory?
THE COURT: Or me?
THE WITNESS: I was about to say, my mother and Your Honor, but Your Honor, not being a retired nurse like my mother, my mother is deeply interested in immunity. And I often remind her that the reason I got chicken pox in the first place is because she wanted me to have immunity to it, so she marched me down the street to play with Denny Marsh who had chicken pox at the time to make sure that I would get sick. And she forgot to realize that 10 days later, which is the incubation period, was going to be spring break for me, spring vacation for me.
Your Honor, I've never forgiven my mother for that to this day. So we'll have to take that up. So the important point basically is that, we have, in our immune system, as an essential part of our survival, the ability to shuffle genetic information so as to make it possible for our immune cells to make an antibody to just about anything.
That shuffling ability was proposed 10 years ago to have evolved from sequences known as transposable genetic elements. In 10 years of research, every step of that hypothesis has been confirmed. And we, therefore, do know, as the result of investigation using evolutionary theory, where that came from and how this gene shuffling ability arose. It also means -- could we advance to the next slide, please? Actually, I'm sorry, I forgot that. I'm finished with the slides. It also means that the prediction that Dr. Behe quite confidently made on the basis of intelligent design theory, that this system would not be amenable to Darwinian investigation, that there would be no evolutionary explanation for it, turned out to be wrong, and I am happy to say that fortunately research scientists did not listen to him.
If they had listened to him, they might not have done this research, and we might not have had this fundamental breakthrough in how the immune system works.
BY MR. WALCZAK:
Q. Did Dr. Behe, in fact, rely on this argument, that the immune system could never be explained by natural selection to argue that, in fact, there must be an intelligent designer?
A. Yes, sir, he did. And this is actually one of several arguments that he raises in Darwin's Black Box to say that, if you cannot, in principle, explain the origin of a complex system by evolutionary means, that is by invoking the negative, that is evidence for an intelligent designer. This is another essential example in his list of irreducibly complex systems.
Q. Let me direct your attention now to Plaintiff's Exhibit 665. And not to be redundant, but, in fact, is there now even more research on the immune system that has come out even this past week?
A. Well, yes, it has. And as I was getting ready to pack up and come to Harrisburg for this trial, I happened to glance over the Internet at the latest issue of the journal Nature, which has actually not yet appeared in print. I'm still waiting for my copy in the mail. But fortunately, you can on look at things on the Internet several days ahead of time.
The VDJ recombination system is not the only important part of the immune system. There is another important part known as the compliment system. And in this case, compliment does not mean, say something nice about somebody. Compliment in this case is a system that compliments or completes part of what's known as the immune response.
And it consists of a series of proteins that target and destroy. And they destroy, in a molecular sense in a most vicious way possible, foreign invaders, especially bacteria and foreign cells. One of the key elements of this is a compliment component now as C.. this article reported, and this is from Jansen et al. It's from a combined Dutch and Scandinavian group. And again, it's in the latest issue of Nature.
They, for the first time, worked out the detailed structure of compliment C.. and the structure of compliment C. Immediately told them how this compound must -- how this protein must have evolved. It was made up of a series of modular units of exactly the sort that one would expect to arise by gene duplication, and the molecule had unmistakable sites in which pieces of another gene became recombined with it to produce the complete molecule. Hence, they title this work structures of compliment component C. Provide insights into the function and evolution of immunity.
So the entire idea of evolutionary theory is providing a fruitful avenue of investigation into every aspect of the immune system, not just the gene shuffling that I've talked about, but into this other area known as compliment.
Q. So Sisyphus isn't that envious?
A. I don't think so.
Q. I'm listening to the arguments that you have described Dr. Behe is making, that these components are irreducibly complex, and that science cannot explain them. And in some cases, he's been shown wrong. But is that essentially the argument, that scientists currently can't explain some aspects of evolution?
A. In essence, that is the argument. It is what a philosopher might call the argument from ignorance, which is to say that, because we don't understand something, we assume we never will, and therefore we can invoke a cause outside of nature, a supernatural creator or supernatural designer.
Q. And is this not a completely negative argument? I mean, it sounds like this is an attack on evolution?
A. This is in every respect a completely negative argument. And 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 consider themselves to be intelligent design advocates, all that one finds is example after example, argument after argument, as to why evolution couldn't produce this, didn't make that, and doesn't provide an explanation for the following.
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. Never considers an alternative idea.
Q. Now let me just stop you. Just because science today cannot explain something, does that mean it can never be explained?
A. Of course not. And if it did, no one would do scientific research. What attracts scientists to research is the lure of the unknown. There is nothing more dreadful than to wake up one morning and think that all the fundamental problems in your field has been solved. On the day that I think all fundamental problems in cell biology have been resolved, I will retired to Sussex and keep bees, as Sherlock Holmes once said.
You want unsolved problems. You're attracted to them. I'll just give you a very simple example. Proteins are built by hooking together strings of amino acid, almost like beads on a string. The machine that does that building is called a ribosome. We have worked for years to understand the detailed molecular structure of the ribosome.
As a result of work that's been published in the last couple years, we know the internal structure of the ribosome down to the atomic level. We can now look inside it, and we can see the molecular details of how these two amino acids are brought into very close proximity.
But do you know what? There's still an unsolved problem. We still don't understand the chemistry that forges the link between those two beads on a chain. There was a very popular hypothesis that was put forward by Peter Moore at Yale University. But in the last year, a number of experimenters, including Al Dahlberg at my own university, has shown that Moore's ideas are wrong.
So what scientists everywhere realize is, there's a great prize to be won. That's very exciting. To find the mechanism by which these are joined together. What no one is doing is to say, we'll never solve it, we're going to attribute the formation of the bond between amino acids to an unseen outside force operating beyond nature and, therefore, any chemical explanation is doomed to failure.
That's something we never say in science, because if we did, it would be a research stopper. It would tell us, give up, go home, we'll never figure it out.
Q. What is Dr. Behe's argument? What evidence does Dr. Behe, and -- well, strike that. Dr. Behe's argument is consistent with the arguments made in Pandas, I believe you testified before?
A. Yes, sir, that's exactly what I testified. The term irreducible complexity, which is a feature of Dr. Behe's book, does not appear in Pandas. But the core idea behind irreducible complexity, which is in these complex systems, all parts must be assembled in order to have function, that is at the heart and soul of the arguments which are in Pandas.
Q. Now what I've heard are these negative arguments about evolution. What is the evidence in Pandas? Let's start with Pandas. What is the affirmative evidence for a designer?
A. I'm not aware that there is any affirmative evidence for a designer anywhere in that book.
Q. And what about in Dr. Behe's work?
A. As far as I can tell, there is no affirmative evidence for a designer in Dr. Behe's book either. Both books rely entirely on negative inferences by saying that, if evolution has problems, if evolution is wrong, if evolution cannot provide complete explanations, then we can go ahead and say it's a designer.
Q. So how do they make that argument? I mean, even if there's no evidence? What's the rationale? What's the reasoning for getting to that designer?
A. Well, with all due respect, I believe I've already answered that question, which is, I don't find there is any reasoning in that area at all. It's the sort of logical fallacy in which you might say, well, I have theory A, and I have theory B. And I can prove theory B by showing theory A is wrong. And in science, you say, excuse me, just a minute.
Besides theory B, there's an infinite number of other possible theories. So you don't, quote, prove one by showing that another one is wrong. If you show another one is wrong, you've shown that it's wrong. All other alternative theories are now equal contenders. So the logic of picking out intelligent design, which is inherently untestable, and saying that any evidence against evolution is evidence for intelligent design employs a logical fallacy that I think most scientists reject.
Q. So the argument is that, if science can't explain it, that default is, a designer?
A. That is the argument, as I understand it, and as it is expressed in both of these books.
Q. Has the scientific community taken a position similar to yours about intelligent design not being science?
A. Well, the scientific community, of course, is large and diverse, and I'm sure there are a few people who are enamored of intelligent design. As I mentioned earlier, the largest scientific organization in the United States, the one organization that probably can fairly be said to speak on behalf of the scientific community in this country is the American Association for the Advancement of Science, or AAAS. I know they have indeed taken a position on this issue.
Q. Could I direct your attention to exhibit -- Plaintiff's Exhibit 198? Do you recognize this?
A. Yes, sir, I do. This is a board resolution by the governing board of AAAS on intelligent design theory.
Q. If we can highlight the passages. And Dr. Miller, could you read the highlighted text?
A. I'd be glad to. Quote, Whereas ID, intelligent design, proponents claim that contemporary evolutionary theory is incapable of explaining the origin of diversity of living organisms, whereas to date, the ID movement has failed to offer credible scientific evidence to support their claim that ID undermines the current scientifically accepted theory of evolution, wheres as the ID movement has not proposed a scientific means of testing its claim, therefore, be it resolved that the lack of scientific warrant for so-called intelligent design theory makes it improper to include it as a part of science education, closed quote.
Q. That is the official position of AAAS?
A. That is correct, sir.
Q. That is the largest association of scientists in North America?
A. That is absolutely correct. And this is the organization that really speaks on behalf of the scientific community in our country.
Q. Now has the National Academy of Science taken a position on intelligent design?
A. Yes, sir, I believe it has.
Q. Could I ask you to take a look at Plaintiff's Exhibit 192? This is the publication we viewed earlier today?
A. Yes, sir, it is.
Q. Could you turn to page 25, please? And could we highlight the third paragraph on that page, please? And this is from the conclusion of this publication, Dr. Miller?
A. Yes, sir, I believe it is.
Q. Could you please read for the record the highlighted text?
A. Quote, 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. These claims subordinate observed data to statements based on the authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publications of their advocates.
These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science where any hypothesis or theory always remains subject to the possibility of rejection or modification in the light of new knowledge, close quote.
Q. Are you aware of any scientific organizations that have taken a position that intelligent design is science?
A. I am not aware of any scientific organization that has taken a position that intelligent design is science, not one.
Q. Why do you believe that intelligent design, as described in Pandas and by Professor Behe, is a form of, I think as you put, special creationism?
A. I believe that as a proper analysis for the following reason. Each of the systems described by Dr. Behe had their origination, their first appearance at some time in the natural history of this planet. Each of the organisms described in Pandas and People and said to appear suddenly, fully formed in the fossil record had their origin at a particular time in the past. To say that such organisms are designed or such pathways are designed is only to tell part of the story.
Because, for example, if the blood clotting cascade had only been designed, our blood wouldn't clot. That pathway had -- that design had to be executed. It had to be created. It had to be put into physical form. And by any definition, that is an act of creative energy and power.
What that means, for example, the bacterial flagellum perhaps originated a billion years ago. It means the first organism containing that flagellum had to be created. The blood clotting cascade came into existence, we think, about 450 million years ago. The genes, the co-factors, the pathways had to be created. Advocates of intelligent design point to the first appearance of many major animal groups in what is known as the Cambrian period of geologic history.
If one says that those organisms were designed, they also had to be created. So that the natural history of this planet, according to intelligent design advocates, is marked by instance after instance after instance of specific and special creation. Saying that something is designed, as I mentioned, is only part of the story. We won't know about the design unless somebody created it and put it into execution, and that is what makes intelligent design inherently a theory of special creation.
Q. Now does intelligent design differ from creation science or scientific creationism what you are debating in the early 1980's?
A. In the early 1980's, the scientific creationist movement proposed a number of essential tenants or doctorates. One of them was that, the earth is about 6 to 10,000 years old. Another one is that, all of the geological column of this planet was formed in a single world wide flood, so that geologists are wrong when they talk about ages in the past; in fact, everything was laid down in about 40 days and 40 nights, that humans and apes have separate ancestry, that biochemical and biological systems show evidence of design, and that the mechanism of evolution does not work.
These are all elements, as I understand them, of the creation science or the creationist or scientific creationism movement. Now the difference between this movement and intelligent design ironically is that intelligent design has withdrawn the testable scientific predictions made by scientific creationists.
The statement that the earth is only 6000 years old is a testable scientific statement. They've withdrawn that. The statement that all of the geological formations of this planet were laid down in a 40 day, 40 night flood, that's actually a testable statement. They've withdrawn from that.
The only thing that they have left is an untestable assertion, and that assertion is that the living things on this planet are too complex to have been explained by evolution and, therefore, they must be the work of a supernatural designer creator working outside of the laws of nature unidentifiable and not subject to detection, analysis, or identification.
So, as I said, ironically, intelligent design is somewhat less scientific in terms of the prediction it makes than scientific creationism, but it shares that core belief, and that is that design can be attributed to a supernatural designer or creator.
Q. I want to switch gears now and bring us back from the classroom, so to speak, to the classroom at Dover, Pennsylvania. I'd like to direct your attention to Plaintiff's Exhibit 124. Again, this is the four paragraph statement that was read to the students in January of 2005.
You indicated earlier that you did not -- you believed that this statement did not promote students' understanding of evolution in particular or science and biology generally. I'm wondering if you could comment a little bit more specifically about your views on this four paragraph statement. And perhaps we want to take it paragraph at a time?
A. Yeah, I was going to -- thank you very much. I was simply going to ask for the whole statement to be put up there. I'd be happy to discuss this statement with you in a number of ways. We could parcel it word by word and line by line, if you had the patience to do that.
But I think it's probably better to take it first a paragraph at a time and basically see what it says. Well, that first paragraph basically says, kids, we have to teach evolution whether we want to or not because the State of Pennsylvania requires us to.
The second paragraph says, oh, by the way, we don't really believe this stuff, it's a theory not a fact. There are gaps. There's no evidence. We're very skeptical of this.
The third paragraph said, by the way, there's another alternative really good idea called intelligent design, and we're going to provide you with curricular material and the book Pandas and People so you can explore it. And I say that because I note that, there's no statement in here that intelligent design is theory not a fact, that it has gaps which cannot be explained. Those are only pointed out for evolution.
The third paragraph says, basically we think this is a pretty good theory, and we're giving it our endorsement. The fourth one basically reminds students basically, go home, discuss this with your families, and reminds them again, oh, by the way, we have to test you on this stuff whether we want to or not because the State of Pennsylvania requires us to.
Now when I read this, and I try to think of how a student will react to this, what it basically tells students who have studied theory after theory and subject after subject and hypothesis after hypothesis in earth science, in physical science, in chemistry and biology, it says, oh, by the way, of all the stuff you studied, we want to warn you about just one of those things. And that one thing is evolution. We have to teach evolution whether we like it or not. We think it's pretty shaky.
There is this other theory called intelligent design which we think is on a very sound footing. Go home, talk it over with mom and dad, and, oh, yeah, remember, we have to test you on evolution.
Q. Dr. Miller, I'd like to focus your attention back onto the second paragraph. And this makes various assertions about evolution generally. And maybe we could go through that sentence by sentence.
A. Okay. I'd be glad to do that. The first sentence reads, quote, Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered, closed quote. Well, it certainly is true that the theory of evolution is a theory. That's almost redundant. That's obvious from the terminology.
It continues to be tested. All scientific theories are continued to be tested. So to pick out evolution and say, by the way, it's a theory, and we're going to keep testing it, implies to students that really this is the only theory that we have to continue to keep testing. Other theories, they're fine. They're on sound footing. But this one, we have to keep working on.
Q. I'm sorry. From your textbook, evolution is not the only theory that is presented for 9th grade biology?
A. Of course not. And we talk about cell theory and the germ theory of disease. We even talk about the pressure flow hypothesis of phloem transfer. I've never seen a statement in the textbook saying, keep your eye on that special pressure flow hypothesis in phloem transfer.
This is the only theory people seem to be concerned about. The Dover statement, first of all, basically begins in this paragraph by calling special attention to just one part of the curriculum, and that is evolution.
Now the second sentence, the theory is not a fact. As far as that reads, that's actually a true statement. No scientific theory is a fact. That's not because we're sure of facts and we're not certain about theories. It's because theory is a higher level of scientific understanding than fact. Theories explain facts.
And if this statement said, no scientific theory is a fact, but rather, theories are based on facts and supported by facts, and theories explain facts, it would be fine. But by saying, the theory is not a fact, it essentially invites students to say, you know what, other theories might be factual, this one isn't. And that implication is incorrect.
The next sentence reads, gaps in the theory exist for which there is no evidence. I continue -- I have to tell you, I have read that statement hundreds of times, and I don't understand what it means by gaps in the theory. There certainly are elements in the natural history of our planet for which evidence is missing. There are pieces of our natural history that we don't know, just like there are pieces of our political, military, and human history that we don't know.
I can only trace one part of my family back to about 1850. I don't know what happened before that. That doesn't mean I couldn't possibly be here because I don't have any ancestors before 1850. It means, I don't have the whole story. Well, that's true about evolution as well. There are parts of our recent past that are gaps, that are missing, that we don't have the story.
But to say that's a gap in the theory strikes me as very very strange. There are missing pieces of evidence but not gaps in the theory. And then the last sentence, a theory is defined as a well-tested explanation that unifies a broad range of observations. Do you know what? That's fine.
And if evolutionary theory had been introduced in this paragraph by saying, evolutionary theory is a well-tested explanation for the origin of life that unifies -- for the origin of species that unifies a broad range of observations, I'd be saying, terrific, that's a very useful thing to tell students.
Q. As an author of a textbook, biology textbook for high school students, does this promote sound science education?
A. No, I certainly don't think it does. I think it, in fact, undermines sound scientific education in a number of ways. First of all, it misleads students into the relationship between theory and fact. Secondly, it undermines the scientific status of evolution in a way that it does to no other scientific theory as if to pretend to students, we are certain of everything we're going to teach in biology this year except for evolution.
And that certainly gives students a false understanding of evolution. And I think, as an experimental cell biologist, it gives them a false certainty of the rest of science, which is equally damaging. And then finally, to say that there are gaps for which there are no evidence, once again, is targeting evolution for a very specific purpose, and that is to create doubt and confusion in the minds of students about the scientific status of evolution and evolutionary theory.
Q. I believe you were here for the opening statements this morning?
A. Yes, sir, I was.
Q. The School District argues, you know, it takes a minute to read this statement. I haven't timed it. It takes about a minute to read this statement. What's the big deal? What's the harm in reading this to Dover School District students?
A. That's a very interesting point. And if they raised the issue, what is the harm in reading it, one might well turn around and say, well then why read it in the first place, if it makes so little difference, if it is of so little consequence? Then why have you insisted on doing this and why are you in court today?
The only thing I can infer from turning that question around is that the Dover School Board must think this is enormously important to compose this, to instruct administrators to read it, to be willing to fight all the way to the court. They must think that this performs a very important function.
Now turning it around back to my side of the table, do I think this is important? You bet I think this is important for a couple of reasons. One of which, first of all, as I mentioned earlier, it falsely undermines the scientific status of evolutionary theory and gives students a false understanding of what theory actually means. Now that's damaging enough.
The second thing is, it is really the first attempt or the first movement to try to drive a wedge between students and the practice of science, because what this really tells students is, you know what, you can't trust the scientific process. You can't trust scientists. They're pushing this theory. And there are gaps in the theory. It's on shaky evidence. You really can't believe them. You should be enormously skeptical.
What that tells students basically is, science is not to be relied upon and certainly not the kind of profession that you might like to go into. And thirdly, that third paragraph that we haven't talked about very much right now points out that intelligent design, which has implicit endorsement in this statement, because we don't hear that it's just a theory, we don't hear that it's being tested, it sounds like it's a pretty good explanation. It's available. It's good stuff. And students will understand immediately, as anybody does who reads Pandas, that the argument is made on virtually every page of Pandas for the existence of a supernatural creator designer.
And by holding this up as an alternative to evolution, students will get the message in a flash. And the message is, over here, kids. You got your God consistent theory, your theistic theory, your Bible friendly theory, and over on the other side, you got your atheist theory, which is evolution. It produces a false duality. And it tells students basically, and this statement tells them, I think, quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science.
What it does is to provide religious conflict into every science classroom in Dover High School. And I think that kind of religious conflict is very dangerous. I say that as a person of faith who was blessed with two daughters, who raised both of my daughters in the church, and had they been given an education in which they were explicitly or implicitly forced to choose between God and science, I would have been furious, because I want my children to keep their religious faith.
I also want my students to love, understand, respect, and appreciate science. And I'm very proud of the fact that one of my daughters has actually gone on to become a scientist. So by promoting this, I think, this is a tremendously dangerous statement in terms of its educational effect, in terms of its religious effect, and in terms of impeding the educational process in the classrooms in Dover.
THE COURT: I was going to break about 3:00, Mr. Walczak. Is that good for you. If you want to move onto another line of questioning, this might be a good time to do it.
MR. ROTHSCHILD: I'm done, Your Honor. I would just move the exhibits into evidence.
THE COURT: Is there an objection, first of all, to any of the exhibits?
MR. MUISE: No, Your Honor.
THE COURT: We'll get those in the record when we come back from the break. I think we have a list. Why don't you compare notes with Liz and make sure that we've got a comprehensive roster of the exhibits. We'll take at least a 20 minute break or so. So my friends in the jury box who look like they could use a little caffeine, this will give you ample time to patronize the local establishments and get some caffeine and come back. That not a knock on you, Doctor.
THE WITNESS: I knew I should have shown more slides, Your Honor.
THE COURT: No, it's perfectly all right. We'll see you back here shortly. We'll be in recess.
(Whereupon, a recess was taken at 2:55 p.m. and proceedings reconvened at 3:24 p.m.)

 

Kitzmiller v. Dover Area School District
Trial transcript: Day 1 (September 26), PM Session, Part 2

THE COURT: All right. Let's -- we'll wait on the exhibits until we're finished with this witness. I don't think there's any problem in doing that. This way, we'll make sure we have an accurate tally, and in particular, if we see additional exhibits come in. With that, Mr. Muise, you're going to do the cross examination, I would assume?
MR. MUISE: Yes, Your Honor, I am. Thank you.
CROSS EXAMINATION
BY MR. MUISE:
Q. Dr. Miller, as a sympathetic Red Sox fan, I can't help but ask you whether you believe the Red Sox won the world series because of supernatural causes. And I guess that would be reversing the curse of the Bambino?
A. I think it's entirely within the realm of possibility, but as I indicated earlier, it's not a scientific hypothesis. And perhaps we'll get a chance to see this year in terms of how things turned out.
Q. You think it also could have probably had something to do with batting averages, on base percentages, pitching statistics, fielding percentage, for example?
A. And you forgot plain dumb luck. And I certainly agree with that.
Q. That would be logical to infer that they perhaps may have won based on observable empirical facts?
A. Well, they certainly did win on the basis of observed empirical facts in that, for four games in a row, they scored more runs than the York Yankees, and that's an observable empirical fact.
Q. Sir, you're a cell biologist?
A. That's correct, sir.
Q. I think you indicated you weren't an evolutionary biologist?
A. That is correct, sir, I am certainly not trained as an evolutionary biologist.
Q. Not trained as a philosopher of science?
A. That is correct.
Q. Nor trained as an expert in theology?
A. That is correct.
Q. Nor an expert in mathematics?
A. That is also correct. I've taken courses in mathematics. I use mathematics in my teaching and in my research, but I would never qualify myself as an expert in mathematics.
Q. I believe you never taught a 9th grade biology class, is that correct?
A. Actually, I have taught a few 9th grade classes, but I assume you mean serving as a regular teacher for an academic year, and, no, I have not done that.
Q. You obviously consider yourself to be a scientist?
A. Yes, sir, I do.
Q. Would you agree that any person that's trained as a scientist should have an understanding of what qualifies as a science and how the scientific method works?
A. Yes, think I would agree with that.
Q. In that respect, because you are a scientist, you believe you're qualified to give an opinion on what is and what is not science in this case?
A. I think that most members of the American scientific community would have -- would be qualified to give opinions on what is and what is not science and, therefore, I would agree with what you just said.
Q. And a biochemist is a scientist?
A. Oh, of course.
Q. I think we've already identified Dr. Behe as an professor of biochemistry at Lehigh University, is that correct?
A. I believe that's exactly how I identified him, correct.
Q. And you would consider him a scientist?
A. Of course I would.
Q. And he's a member of the scientific community?
A. Absolutely.
Q. A microbiologist is a scientist?
A. Yes, sir. Yes, sir, microbiologist is a scientist.
Q. Dr. Scott Minnich, you know him?
A. Yes, I have met Dr. Minnich.
Q. He's a professor of microbiology at Idaho University or University of Idaho -- excuse me?
A. Yes, University of Idaho, that is correct, and he is a professor of microbiology there.
Q. He's a scientist and a member of the scientific community, you acknowledge that, right?
A. Yes, sir.
Q. Sir, as an initial matter, you have no objections to the Dover Area School District putting Of Pandas and People in the school library, is that correct?
A. Well, it's an interesting question. I certainly am someone who believes that libraries should be open places, and I personally believe that the people of Dover and your elected representatives on the board of education are charged with determining what books should be in the library at Dover. So I am not about, as an individual, to make certain statements as to what books do or do not belong in that library. I think that's a decision for the people of Dover and their elected educational representatives to make.
Q. Similarly, sir, you have no objections to this book being referenced in a 9th grade biology class?
A. Well, sir, it depends upon the nature of the reference. And again, when you say, you have no objection to it, I think that this pre-supposes that I am somehow taking it upon myself to tell the educators in Dover how they should reference or how they should conduct themselves.
I certainly, for the purposes in my earlier testimony, regard this book, Of Pandas and People, to be filled with shoddy science, with misrepresentations of science, to contain serious scientific errors. And I would certainly not advise any person engaged in scientific education to use the book that was laid with errors and misrepresentations as part of their curriculum.
So my advice, if I were asked, would be not to. When you say, would I object, I don't think the decision is a -- one in which I, as a resident of Massachusetts, have any right to object, as you put it, to the decisions that are made in Dover by the elected representatives of the people of Dover. Therefore, I don't object. But if I were asked for my advice, that's what my advice would be.
Q. And you acknowledge that the board of education that makes those sorts of educational decisions for the school districts?
A. It certainly, in the state in which I live, such decisions are made by the board of education and by their professional, their selected professional agents, such as superintendent of schools and so forth, and I assume that in the State of Pennsylvania, things work pretty much the same way.
Q. Sir, the Pennsylvania State Academic Standards require students to, quote, evaluate the nature of scientific and technological knowledge, unquote. You have no objection to that standard, do you?
A. Oh, not only do I have no objection to it, I think that's a good standard. I think students should do that.
Q. Similarly, the Pennsylvania State Academic Standards require students to, quote, critically evaluate the status of existing theories, unquote. And they include in the list of examples five different theories, one of them being the theory of evolution. Do you have any --
A. Would you be kind enough to tell me what the other theories are, sir? I'm sorry to slow you down, Mr. Muise, but I always find the context of a statement is useful in helping to formulate a complete answer.
Q. Just so the record reflects, I'm reading from Defendant's Exhibit No. 233, the academic standards for science and technology and environment and ecology. It says, critically evaluate the status of existing theories (e.g. theory of disease, wave theory of light, classifications of subatomic particles, theory of evolution, epidemiology of AIDS)?
A. Thank you for reading that to me. I do appreciate it. So it does not say, as I understand your reading of it, that students shall evaluate these particular theories. It says that students shall evaluate all theories, and it lists a number of theories as examples of the theories they should critically evaluate. And in that context, I think that's a very, very good educational policy, and I would endorse it.
Q. You don't have a problem that they listed the theory of evolution amongst the list of the five that they included?
A. No, sir. And I also have no problem that they listed the wave particle duality of life. I think that's also worth critical examination.
Q. You've written several articles addressing, I guess, what's been described as the biological challenge to evolution?
A. Yes, yes.
Q. And essentially disputing the concept of irreducible complexity, as we heard earlier today, is that correct?
A. That's also correct.
Q. You wrote an article that was entitled The Flagellum Unspun?
A. Yes, I did write such an article.
Q. And that appeared on your website. You have a personal website at Brown University, is that correct?
A. That's correct. When I wrote the article, I put a preliminary draft of that article up. It's -- I think it's got a couple of typos and spelling errors. And then I sent it off for inclusion in a volume which has since been published. But that was a first draft of the article which is now in print.
Q. In that volume in which the article was published, what was it?
A. Well, I have to confess. I'm going to ask for your help here. There were two volumes which I contributed sort of essays to. One was edited by Neil Manson. Another one is edited by, I think, William Dembski and Michael Ruse. And I honestly cannot remember to which of those I sent The Flagellum Unspun. If you could refresh your memory, it would be very helpful.
Q. Do you believe it could have been from Debating Design from Darwin to DNA, edited by William Dembski?
A. I believe it could have been that one, and I'm sure you have it in front of you, so if you've got it, I certainly would agree.
Q. Now that book, Debating Design, it was edited by William Dembski and Michael Ruse, correct?
A. That's my understanding.
Q. William Dembski is a proponent or advocate of intelligent design?
A. That's also my understanding.
Q. Michael Ruse is a philosopher of science?
A. Yes, I think that's right. I think Michael is a philosophy of science at the University of South Florida, Tampa -- or Florida State. He'd be furious if I got the institution -- I'm sorry. I meant to say, yes, to your question.
Q. He's an opponent of intelligent design, is that correct?
A. Yes, sir, that is correct.
Q. You know Michael Behe also contributed an article to this particular book?
A. Yes, I believe Dr. Behe wrote an article, too.
Q. His article was addressing similar topics that you addressed, this concept of irreducible complexity?
A. Yes, it was.
Q. And Debating Design was published by Cambridge University press, is that correct?
A. I think that's right.
Q. That's an academic press?
A. Yes, it's an academic press that I believe is owned by Cambridge University in Great Britain.
Q. In that article that you wrote, Flagellum Unspun, were you, in effect, disputing Dr. Behe's claims using scientific evidence?
A. Yes, sir, I was. I examined the thesis that Dr. Behe put forward in his book, Darwin's Black Box, and I subjected that thesis to analysis by reference to other research material, results from other laboratories, and I basically showed how, in my opinion, Dr. Behe's ideas were mistaken.
Q. And Dr. Behe's article, obviously, had different conclusions than what you reached?
A. Yes, I think that's only fair to say, he reached different conclusions than I did.
Q. You also wrote an article called Answering the Biochemical Argument from Design?
A. Yes, I did.
Q. That one also appears on your personal website at Brown University?
A. Yes, sir, it does. I also, as I did with the first article you referenced, I wrote a rough draft of that article, and when I sent it to the editors of the volume, in this case I think the editor was Neil Manson, I put that rough draft up on the website so that people could see it and read it.
Q. Again, that article you relied on scientific evidence to challenge Dr. Behe's ideas?
A. Yes, sir, I did. In many cases, I relied on Dr. Behe's own examples and arguments to show why I thought these ideas were incorrect.
Q. You've authored a book entitled Finding Darwin's God, is that correct?
A. Yes, sir, that's right.
Q. You dedicated a chapter in that book, I believe it's chapter 5, God the Mechanic, to again expressing the scientific evidence, demonstrating the scientific evidence refute Dr. Behe's claims, is that right?
A. In chapter 5 of that book, which is subtitled God the Mechanic, I examined a number of arguments that are made in favor of intelligent design. Now the book, of course, was written in 1998 and 1999, so the arguments I tried to address were those that I was aware of at the time. And they included Dr. Behe's book, Darwin's Black Box.
Q. Again you relied on scientific evidence to refute these claims?
A. Yes, sir, I did.
Q. Did you know that your book, Finding Darwin's God, is in the Dover High School library?
A. I have been told that by a number of people. I've never visited Dover, so I don't have firsthand information of that, but that's what I've been led to believe.
Q. Did you know that the statement that you were looking at during your initial testimony, the one read to the students, that it was modified in June to reflect the fact that there were additional materials, different books on intelligent design included in the Dover High School library?
A. So if I understand your question, sir, you're telling me that there now is a different statement that was modified in June? I am unaware of that statement, and I haven't seen it in evidence, so, no, I don't think so.
Q. You're unaware of that, if there has been a change in the statement, is that what you're saying?
A. Well, in this proceeding, the only statement that I have seen that's composed by the Dover Board of Education is the one that was introduced into evidence this morning and I had an opportunity to comment on it. If there is another statement, I have not seen it.
Q. Now your testimony today appeared to be similar to many of the arguments that you presented in those articles that we just addressed, The Flagellum Unspun, Entering the Biochemical Argument from Design, and in your chapter 5 Finding Darwin's God. Is that a fair assessment?
A. I think it's a fair assessment to say that what I testified about today was similar to many of those things, but quite a few parts of it were really quite different. Needless to say, the article that I quoted that it appeared in, in Nature magazine four days ago certainly wasn't in any of those. Neither were the new biochemical results from Jiang and Doolittle and other researchers on the blood clotting cascade. Neither was the evidence on the evolution of VDJ recombination systems.
So I think to be perfectly honest and to be fair and reasonable about this, a great deal of what I testified about this morning was not in any of those articles or in any of my earlier writings or presentations.
Q. You debated Dr. Behe and others in various forums debating intelligent design, is that correct?
A. Yes, that is correct.
Q. You debated Dr. Behe and Dr. Minnich at Concordia College in Wisconsin in 2002, is that correct?
A. That's my recollection as well.
Q. You debated Dr. Behe and Dr. Dembski at the American Museum of Natural History in New York somewhere in 2002, 2003, is that correct?
A. Yes, but to complete the record on that point, although in Concordia, I debated Dr. Minnich and Dr. Behe at the American Museum of Natural History program you're talking about, the evolution side, if you will, was represented by myself and by Robert Pennock of Michigan State University in addition to the two gentlemen you mentioned on the intelligent design side.
Q. That was the one at the American Museum of Natural history in New York?
A. Yes, sir, that was.
Q. During these debates, you were presenting your scientific argument against intelligent design, and Dr. Behe was presenting his scientific argument in support of intelligent design?
A. Absolutely.
Q. You also debated Dr. Behe at Haverford College in 2002, is that correct?
A. To an extent, yes. I believe, and I'm sure Dr. Behe will agree with this when he takes the stand later in the trial, that was not so much a debate as a sequence of presentations. And Dr. Behe made a presentation, I think, of 20 or 25 minutes, and then I followed it with a presentation of 20 or 25 minutes of my own. We didn't have the sort of back and forth that one characterizes as a debate. But otherwise, yes, that's correct.
Q. It was a presentation something similar to what we saw today with the slides and the discussion of scientific evidence. You advancing your claim and Dr. Behe advancing his claim?
A. The presentation certainly did include slides. Being a microscopist by training, somebody who takes pictures for a living, I find myself incapable of talking without slides. So therefore, I certainly included them. And I made arguments based on the scientific method.
But once again, a great deal of what I brought to the Court's attention this morning simply did not exist back when we had this little discussion at Haverford College.
Q. You agree Dr. Behe will have probably a point by point opposition to the evidence that you presented previously and the new evidence that you presented today?
A. I actually wouldn't want to speculate on Dr. Behe's testimony.
Q. Has that been the practice of your prior debates, you put up your scientific evidence, then Dr. Behe will put up his scientific evidence, demonstrating the support for each of your claims?
A. I suppose that's a fair summary of any debate, which is that each side tries to marshal the evidence and the arguments that are in favor of their side.
Q. And Dr. Behe was relying on scientific evidence, correct?
A. Dr. Behe certainly relied on elements from the literature, from the scientific evidence. It's important to understand that scientific evidence, factual evidence, as I mentioned earlier, are isolated things. There's a fact here and a fact there. How you tie them together is really what the practice of science is all about.
In these discussions and debates, it's my recollection -- and there have been a lot of them. We've had a lot to say to each other.
Q. So you have a cottage industry going here between the experts?
A. I don't know if it is a cottage industry or not, but certainly Mike and I see each other quite a quit. I think it's fair to say that he relies on certain elements of scientific fact to marshal his arguments. And the point that I think is relevant is basically that he makes, in his books and his writings, and he makes in these debates, a large number of claims regarding irreducible complexity, regarding the biochemical argument from design that have been repeatedly falsified by experiments, by observations in nature, and that's the point that I try to make in these debates, that these claims have been examined, considered by the scientific community, and generally falsified.
Q. He disagrees with you?
A. I'm sure that he disagrees with me, but, of course, he'll get a chance to say that himself, and I wouldn't want to speculate. Perhaps he'll get up here in a couple days and say, you know, I listened to everything Dr. Miller said and, by God, he's got it exactly right.
THE COURT: We'd have a real story then, wouldn't we?
THE WITNESS: Exactly.
MR. MUISE: I doubt that will happen.
BY MR. MUISE:
Q. Do you think that will happen, Dr. Miller?
A. I'd much rather make a bet on the outcome of the world series this year than to make that kind of bet.
Q. That's probably a safer bet. And Dr. Minnich doesn't agree with your conclusions regarding the biochemical challenge to evolution, correct?
A. Well, once again, I would be inclined to let Dr. Minnich's testimony speak for itself when it comes. I've -- I believe I've only met Dr. Minnich once, and that was at the discussion at Concordia College that you mentioned, which is probably three or four years ago.
And I honestly don't know how Dr. Minnich's views on this subject have been changed by research that happens in science over the last several years. And I would look forward to hearing them if I happen to be in town or I look forward to reading them if I have access to the transcript of the trial. But again, I wouldn't speculate on what Dr. Minnich will say.
Q. Now you debated Dr. Behe and others on the Firing Line with William F. Buckley, correct?
A. That's correct.
Q. And I believe you indicated during your deposition that Mr. Buckley took the side of Dr. Behe in that debate?
A. Yes, I think I said that. This was a debate on the PBS program called Firing Line, and the title of the debate, I think, is important to understand. The title of the debate was Resolved: The evolutionist should acknowledge creation. It wasn't acknowledge design. It was acknowledge creation. So on the creation side were Dr. Behe, a writer named David Berlinski, a law professor at the University of California named Phillip Johnson, and William F. Buckley.
On the side defending evolution were myself, Eugenie Scott from the National Center for Science Education, Barry Lynn from Americans United for Separation of Church and State, and Michael Ruse, the philosopher whom you've already made reference to as the editor of one of these volumes.
Again, the subject of the debate was that evolutionists should acknowledge creation.
Q. In addition to the articles that we've mentioned previously and the public debates, you debated Dr. Behe in print in Natural History magazine, is that correct?
A. Yes, that is correct.
Q. And I believe he contributed a one page article, and then you have had an opportunity to rebut that article without him having an opportunity for a reply, correct?
A. Well, I think it would be useful to the Court to describe that issue of Natural History magazine more fully, more completely. And my understanding was that the editors of Natural History decided that there was enough interest among the readership in this idea called intelligent design that what they invited three leading proponents of intelligent design to do was to take a full page of Natural History, unedited, say anything they wanted, and they then invited three scientists to respond.
The three people they invited, I believe, were Dr. Behe, William Dembski, and Jonathan Wells. All three of these people in addition to their other positions are, I believe, senior fellows of the Discovery Institute in Seattle, Washington. They then asked three scientists to respond to each of those.
So, yes, that's right. Dr. Behe's essay was given to me, and I had a certain space to respond to it, and that's exactly what I did.
Q. These articles in this magazine are sent out for scientific review, is that correct?
A. Well, actually, Natural History is not really a scientific journal. It deals with scientific topics. And certainly the editorship is concerned with scientific issues, but the whole format and the premise of this point, counter point in Natural History was to take three people who were known as leading advocates of intelligent design, let them have their best shot, and the only editing that I'm aware of that was done was copy editing, trying to make sure it would fit in the space, not scientific review, not peer review.
And I certainly know that my response to it was handled in exactly the same way, that my copy was edited so that it would fit, and so that it was relevant in terms of rely to what Dr. Behe wrote, but my copy, and I think Dr. Behe's copy was not sent out for peer review in the ordinary sense of a scientific paper.
Q. You also wrote an article called Life's Grand Design that was published by MIT in Technology Review Magazine?
A. That is correct.
Q. And this article dealt with some of the aspects of the intelligent design argument, is that correct?
A. Yes, this article was solicited by the magazine technology review after I gave a presentation on the evolution creation controversy, I think at the AAAS, American Association for the Advancement of Science meetings in 1993.
And they asked me if I would write an article about the emerging intelligent design movement. I wrote this article called Life's Grand Design in 1994, and just to refresh your memory about the testimony this morning, 1994 was before I had met or heard of Dr. Behe, before I had seen the book Pandas and People, before Dr. Behe's book, Darwin's Black Box, was published, and before I participated in any other debates with respect to intelligent design.
Q. I believe you testified in your deposition that this magazine is one that is intended for the scientifically literate, but not necessarily considered a scientific journal, is that correct?
A. Yes, I believe that's correct. I believe, in essence, Technology Review is almost the alumni magazine of the Massachusetts Institute of Technology. It is a sent to MIT alumni, and it concerns itself with discussion of issues of science and technology that presumably are of interest to graduates of that university.
Q. Is there a hard and fast definition between what is scientific journal and what is a journalistic publication about science?
A. I think the honest answer to that question is, not a hard and fast definition. But basically, a scientific journal in the more general sense is a journal that publishes the original results of scientific investigation, experiments, materials and methods, techniques, and presents original, never-published-before scientific data.
In fact, a scientific journal of the sort that I have edited, such as the Journal of Cell Biology, actually has a rule, and that is that, you cannot send into that journal any results from any experiment that have been published anywhere else before.
So we want only original micrographs, original gels, original DNA sequences, original experimental results. Some of the other journals that have just now come up in the discussion, Natural History magazine, Technology Review. And let me pick a couple of other journals that are well-known. Scientific American, Discover magazine are journals or magazines that publish science, but they don't publish original scientific work.
They're not subject to peer review in the usual fashion. And, therefore, if one had to make a rigorous definition of whether or not those are scientific journals, the answer would be, no.
Q. Now, sir, you testified about peer review in the sense you are referring to it as a staple of science, correct?
A. Yes, I did.
Q. Is there a time when peer review became that, a staple of science?
A. Well, you know, you're asking for more in the history of science than I really find myself qualified to answer. And I'm not really a historian in the history of science. But what I can tell you is that, certainly during my entire lifetime -- I was born in 1948 -- the scientific journals that I referred to as leading scientific journals, Proceedings of the National Academy, Nature, Science, all these journals have existed.
They have all used a peer review process very similar to my description. And, therefore, the top scientific journals within my entire lifetime have all used essentially the peer review process that I described in my testimony earlier today.
Q. Well, prior to the adoption of this peer review process, you would agree that what scientists were doing was still science?
A. I think there are many ways and many forms to do science. But peer review in the formal sense of how an article gets into a journal today in many respects did not really exist; for example, in the 19th century when the institutions of science were just beginning to be developed.
But 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. That has always been part of science, certainly well into the early part of the 19th century.
Q. In terms of the modern description of this peer review, none of that standard, Darwin's Origin of Species wasn't a peer reviewed book as well?
A. Well, first of all, books are rarely peer reviewed today, yesterday, ever. For example, when I wrote Finding Darwin's God, I did what a lot of writers do, and I bet ya what Dr. Behe did when he wrote Darwin's Black Box, which is, I thought about a book I'd like to write.
I put together a proposal. I circulated a proposal to a few publishing houses hoping I could find an editor and a publisher who was interested in it. And when they were, we sat down, signed a contract. I got very excited, sat down and wrote the book. The sort of review that went into that book was interaction between me and an editor, me and a copy editor, and finally myself and a fact checker. And I bet ya the same process went into Dr. Behe's book.
That doesn't qualify as peer review any under circumstance. Now you raise the specific example of a book written by Darwin, called the Origin of Species. And I think it's important -- again I'm not a historian of science. I'm a real amateur here. My understanding of how the ideas in that book were developed was that, Charles Darwin wrote many letters, essays, and small articles which were read before the royal society in London.
The discussion and criticism of those individual letters which were read was a normal part of the scientific process in Great Britain in the 1840's and 1850's. So that most of the ideas that Darwin incorporated in the Origin of Species actually had been subjected to something that today we would recognize as peer review, which is advice, criticism, analysis, critical analysis by one's colleagues.
The publication of that book, was that a peer reviewed publication? Of course not, for the reasons I've given. Were Darwin's ideas themselves subjected to peer view? The answer is, as it existed in the 1840's and 1850's, yes.
Q. You testified you wrote a critique of Dr. Behe's book, Darwin's Black Box, is that correct?
A. Yes, after his book was published, I believe I wrote a critique of it, and then I subsequently posted that critique for public inspection on the Internet.
Q. That was a scientific critique of his book?
A. Well, it depends in what sense you mean scientific. The issue, my critique of the book was based on my understanding of the scientific literature and scientific fact, so it certainly was a scientific critique as opposed to, let's say, a grammatical critique or literary critique, neither of which I would certainly be qualified to do.
Q. And I believe Dr. Behe has responded to his critics in various articles and publications?
A. Well, my understanding is that, at the website of the Discovery Institute, there is an article that I've seen once or twice called a Response to My Critics, written by Michael Behe. If that is what you're referring to, then my answer is, yes.
Q. Is that the only publication that you're aware of where he's defended his arguments?
A. No, I don't think so. I think the Discovery Institute routinely publishes comments by their fellows on a variety of issues, and I'm sure that -- I'm not aware of all of them -- but I'm sure that Dr. Behe has a large number of articles that have been posted there on the web, and he may have published a few such responses in various magazines and popular media that I'm not aware of, and I'm sure they're out there.
Q. One of them being, for example, Debating Design, the same book that you contributed an article?
A. Well, certainly Dr. Behe had an article in Debating Design. That's a question you've already asked me, and I've already answered. I'm sure that Dr. Behe in that article addresses many of the criticisms of his ideas.
Q. Sir, I believe you indicated falsifiability is a factor you consider to determine whether something is science?
A. I think -- I believe what I said is that, in order to qualify as a scientific theory, the scientific theory must make predictions which lead to testable hypotheses.
Q. If you can falsify it, it's a scientific theory?
A. If you can falsify it, it's a scientific theory? I'll repeat what I said, because I think that was an answer to your question. That is, a scientific theory should lead to the generation of testable or falsifiable hypotheses. So if a theory does not and cannot lead to the generation of falsifiable hypotheses, it doesn't qualify as a scientific theory.
Q. Now, sir, as a cell biologist, you engage in laboratory experiments?
A. Yes, sir, I do.
Q. You don't have occasion though to apply natural selection to your experimental work, is that correct?
A. In the sort of work that I do in the laboratory, I do not directly do experiments based on natural selection. But it's also fair to say that several of my scientific papers have been undertaken precisely because I wanted to examine organisms which were related to other organisms in an evolutionary sense and, therefore, some of my work has indeed had evolutionary implications.
Q. I just want to make clear, with regard to the mechanism of natural selection, that's not something that you actually apply hands-on in any of the experiments that you do?
A. It is fair to say that I have never carried out with my own hands and in my own research area an experiment to test the mechanisms of natural selection, that is correct.
Q. Now a technique used by molecular biologists is known as the knock-out technique, correct?
A. Yes, I'm aware of a technique known as targeted gene replacement, which is popularly called the knock-out technique.
Q. One classic way to understand the importance of a particular component of a system is to take that component away and see how the system works?
A. Yes. As a matter of fact, it's a very useful technique. So if one has a gene and wants to know how important it is to function, what one can do is to engineer a targeted gene replacement, a knock-out, and then generate embryonic stem cells -- this is often done in mice -- and those embryonic stem cells are then fused into an existing embryo.
You then, hopefully, grow up a mouse in which there's a patch of cells that has the targeted replacement. You find a mouse -- sometimes it takes a while -- in which these targeted replacement cells are in the gonads, in the reproductive organs.
So hopefully, you've generated a male mouse in which you have the targeted replacement in the testes, a female mouse in which you have a targeted replacement in the ovaries. You cross them. Then you get an offspring in which both genes have been knocked out. And then you can study the effect of losing that gene.
Q. Obviously, that's a legitimate technique employed by scientists?
A. Of course, it's a legitimate technique. It's a tool and technique that's often used -- it's a technique that is tricky because completely knocking a gene out can sometimes have unexpected implications. You have to interpret it carefully. But it's used all the time in research laboratories around the world.
Q. So you would agree that the cell is a collection of protein machines?
A. Would I agree that the cell is a collection of protein machines? I would agree that the cell contains a great many protein machines. It has a collection of them. It's also a great deal more. It's also a collection of complex carbohydrates, lipids, membranes, compartments, barriers, ionic radiants. But, yes, I would agree the cell also contains a collection of protein machines.
Q. Scientists refer to individual proteins or collections of proteins as being part of the DNA replication machinery, the proteins synthesis machinery, and the ion transport machinery, is that correct?
A. It is very common in molecular and cellular biology to use the term machine as a figure of speech to reflect a shorthand to a number of proteins that act together for a particular purpose.
Q. Well, these number of proteins acting together for a particular purpose actually operate like machines that we could recognize in the human world?
A. Well, only by analogy. And what I mean by that is, let's take a machine called dynein. Dynein is often called a molecular motor. It generates force. It's a very large, very complicated protein that has basically two heads on it.
And the dynein heads will interact with other proteins. Dynein, in effect, in a molecular level looks almost like a large blob with two legs. If I can draw your attention to the front of the podium up here. Dynein will make an interaction with one compound, and then random molecular forces will wave the rest of it back and forth until it makes another connection. This will then release.
It will wave back and forth and make another connection. So, as a cartoon image, dynein almost looks like somebody walking. I'm not really aware of any machine that actually works by that particular mechanism. But we nonetheless refer to dynein as a molecular motor or molecular machine because it's a very useful figure of speech, a kind of shorthand to remind of what it does. In the case of dynein, it generates force and movement.
Q. Don't we regard the protein as a collection of interacting parts in a way that is similar to the machines that we understand the world today?
A. I'm sorry. Did you say, can we regard proteins --
Q. As a collection of interacting parts?
A. Not always. Proteins are compounds that are built out of polypeptides. And there are small and simple proteins like insulin, for example, that has only 60 or 70 amino acids, which is really -- an insulin is really not a collection of individual parts. It's one coherent part.
There are other more complex proteins. For example, the C3 component of compliment that I mentioned near the end of my testimony this morning, is a complex protein that's made up of individual segments or modules that arose by gene duplication. And in that respect, those individual segments or modules quite clearly are parts, all of which work together to make the concerted function of the machine possible. Is that a complete answer to your question, sir?
Q. I guess they use the term machines because it's a metaphor that makes it as closely replicated to what we understand as machines? Is that the utility of that metaphor?
A. Yes, I think the utility of the metaphor is that we think of the machines that we build in the human world as composed of a number of parts to achieve a particular end. In the cell, certainly. There are many assemblies of proteins and other components where the parts interact and a particular result comes out of this.
And the metaphor of the machine or the metaphor of the motor that I just mentioned or the metaphor of the pump or the metaphor of the copying machine is often used in biology just as a shorthand to help us remember what these individual components do.
Q. Bruce Alberts, he's the president of the National Academy of Scientists, is that correct?
A. No, it's not. Bruce is no longer the president of the National Academy of Sciences because his term has expired.
Q. When did his term expire?
A. A couple months ago. Dr. Alberts is the outgoing -- it's all right. Alberts is the outgoing president of the National Academy of Sciences and a very, very highly respected molecular biologist.
Q. And he wrote an article that referred to protein to molecular machines, correct?
A. He wrote an article in the journal Cell called Educating the Next Generation of Cell Biologists. And that was subtitled, The Cell is a Collection of Protein Machines. And I might add, I find that to be a useful and valuable article, and I often assign it to the upper level students in my cell biology course.
Q. In that article, he suggests that the new modern biologist ought to take courses in engineering so they can understand the intricacies of these machines that we find in the cell, correct?
A. He does indeed make that suggestion.
Q. Sir, would you agree that science involves a weighing of one explanation against another with respect to how well they fit the facts of experiments and observations?
A. I would agree that science involves the weighing of one natural explanation against another with respect to how well they fit, the results from observation and experiment.
Q. Would you agree that all science consists of looking at the evidence and then drawing inferences from it?
A. I think that part of science is looking at the evidence and drawing inferences, but I hesitate to agree completely with your question because I certainly think that drawing just any inference from data is not necessarily scientific.
Q. I believe in your deposition, one of the examples we used in defining science the way that I just asked you that question was paleontology, correct? Do you recall?
A. To be perfectly honest, I'm sure you're right. But I can't remember -- the deposition went on for nine and a half hours. And to be perfectly honest, there are parts of it I have forgotten. But I'm willing to agree that, yes, it probably did deal with that.
Q. Paleontology is a science which consists of looking at the evidence, the observable evidence, and then drawing inferences from that evidence?
A. It consists -- paleontology consists of looking at the accumulated evidence of past life and then applying the scientific method to make scientific testable inferences, if possible, about the nature of life in the past and also about the nature of biological change.
Q. I believe you testified previously that science doesn't prove things, is that correct?
A. Yes, I believe I did say something like that.
Q. Is it accurate to say that science disproves things?
A. But science does disprove things. And, in fact, an essential element of the scientific process is -- this is why the testable hypothesis is so important. A theory is not a useful theory unless we can generate it from -- generate from it testable hypotheses. And science will occasionally disprove those hypotheses.
And I mentioned earlier, I think I mentioned rather briefly, that the most popular hypothesis as to how amino acids are joined together inside the ribosome which has been that ribosomal RNA acts as a ribozyme, an acid based catalyst, to put those together. Now looks as though it's been disproved by experiments that I mentioned before that were done by Al Dahlberg at my university.
That's a classic case of a really, really useful testable scientific hypothesis whose disproof leads us, hopefully, in a more productive direction. So in a few years, we'll find out what the real chemical mechanism is of bond formation.
Q. Sir, during your direct testimony, you discussed the term evolution as having sort of different meanings or can be used in different ways, correct?
A. Yes, I did. And I believe that -- and I'm sure you'll correct me if I don't have this quite right. I believe I pointed out that the word evolution in English is often used to refer to two quite different things. Sometimes the word evolution is used to refer to what happened in the past; namely, the life of the past changed into the life of the present.
And we regard evolution simply as the record of change in natural history. I think more commonly in the context of the proceedings in this courtroom, what we mean by evolution is evolutionary theory, which are the mechanisms which actually drove that change and changed the life of the past into the life of the present.
So I certainly did point out those two quite different meanings of the word evolution.
Q. In the first meaning, is it proper to say it can be regarded as a historical fact?
A. I certainly regard the record of life in the past as historical fact. And I think the science of geology, by using the testable principles of natural science, has established that the earth is old, that the geological ages are authentic, and that the pattern of life's change that we see is a factual pattern. So I think, yes, I generally agree with your question.
Q. Evolution in the second sense is where evolution is a theory, correct?
A. That is correct. And evolution is a theory in that it unites a whole series of mechanisms in terms of an effort to try to explain the process of evolutionary change that characterizes the natural history of life on earth.
Q. And as a theory, the theory of evolution is not a fact?
A. Sir, no scientific theory is a fact. All scientific theories are based and supported by scientific fact. In that respect, evolution is not exceptional.
Q. Would you agree that Darwin's theory of evolution is not an absolute truth?
A. I certainly would for the very simple reason that no theory in science, no theory is ever regarded as absolute truth. We don't regard atomic theory as truth. We don't regard the germ theory of disease as truth. We don't regard the theory of friction as truth.
We regard all of these theories as well-supported testable explanations that provide natural explanations for natural phenomena.
Q. Included in that list would be Darwin's theory of evolution?
A. I think you've already asked that and I've already answered that. The theory of evolution is not exceptional. It is a scientific theory, like the other scientific theories I have mentioned.
Q. Darwin's theory of evolution continues to change as new data are gathered and new ways of thinking arise?
A. I would agree that all scientific theories continue to change as we advance in our understanding of science and as we accumulate scientific knowledge. And once again, the theory of evolution is not exceptional in that respect.
Q. Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered?
A. No, that's not quite right. All scientific theory is subject to testing as new evidence is discovered. So to say, because it is a theory, it continues to be tested, really misstates the scientific status of evolution. Everything in science is subject to testing. Everything is subject to revision. Everything in science is subject to critical analysis. And evolutionary theory is no different from that.
Q. What about evolution in the first sense, the historical fact? Does that continue to be tested as new evident is discovered?
A. We always in science continue to examine to see if facts are really factual. And one of the statements that I was asked to comment on this morning is that, very often facts in science change and theories don't. And that sounds paradoxical.
But what it means basically is, if we have a factual observation, for example, one of the fossils that was discovered in the Burgess Shale, which is a very famous fossil formation in British Columbia, which is part of the Cambria, one of the fossils was once regarded by Alexander Walcott, who discovered the Burgess Shale, as an entire organism. He classified it, and I believe Walcott might have even created an entire phylum, which is a major category to put this organism in.
Later on, more careful investigators, notably Simon Conway Morris, who's a British paleontologist, went back to the museums. They looked at the same fossils, the same facts, and they discovered that what Walcott thought was a whole organism was, in fact, the leg of another organism.
And, therefore, this particular fact turned out not to be correct and the fact had to be revised. All of it nonetheless still fit into the framework that the animals of the Cambrian are well represented in the Burgess Shale. They turn out to be the ancestors of the animals around today. And they represent a variety of unique biological forms.
So when you place particular emphasis on the testing of Darwin's theory of evolution, I would point out that facts in science change well, as well, and that everything we do in science is subject to revision and to change as we get better data and as we go back and we re-examine what we thought were facts in the past.
Q. So it's accurate then to say, Darwin's theory continues to be tested as new evidence is discovered?
A. Sir, it is accurate to say that all scientific theories continue to be tested as new evidence is discovered and all scientific facts are subject to examination as well.
Q. And Darwin's theory being included in that list of all scientific theories?
A. As I testified earlier, Darwin's theory is not exceptional in that regard.
Q. Sir, isn't it true that all of science is filled with gaps in a sense that scientists fill with unanswered questions using gaps as an unanswered questions as a definition of gaps?
A. If you define an unanswered question as a gap, then it certainly is true, that science itself is filled with unanswered questions. And that includes not just biology, but includes, for example, physics where there are enormously unanswered -- enormous numbers of unanswered questions about the fundamental nature of matter about the gravitational force, about the strong and weak nuclear force, and a whole variety of other issues.
So it's absolutely correct that science is filled with unanswered questions. I have to tell you, sir, that I would not refer to an unanswered question as a gap. I would not say that we have gaps in the theory of gravitation. I would say there are things about gravity we don't understand.
Q. If we understood gaps to be unanswered questions, is it accurate to say that there are gaps in Darwin's theory of evolution?
A. Once again, let me reiterate the point here. That is, that I do not agree to your substitution of the word unanswered question with the word gap. To me, it makes absolutely no sense. Would I agree that there are unanswered questions that fall within the theory of evolution? Yeah, sure, absolutely.
Q. I'll represent to you I'm reading a statement from your biology book, and I'm just going to ask you if this is true. A stew of organic molecules is a long way from a living cell and the leap from non-life to life is the greatest gap in scientific hypotheses of earth's early history. Is that your statement?
A. Sir, would it be possible for me to see the whole page and the context in which the statement is made?
Q. Sir, I'm handing you what's previously been marked as Defendant's Exhibit 214.
MR. MUISE: Your Honor, we have additional copies if you need us to hand them up at this point or --
THE COURT: Well, I have one. I don't know -- I guess I'm the most important person to have one.
MR. MUISE: That's correct.
THE COURT: We'll go from there.
THE WITNESS: I'm sure that's correct, Your Honor.
THE COURT: That remains to be seen.
BY MR. MUISE:
Q. Page 425.
A. Yes. I'm flipping to it right now, sir. Okay. And I'll -- I will explain -- I'll try to explain exactly what I would mean by that sentence. I'll read it again. A stew of organic molecules is a long way from a living cell and the leap from non-life to life is the greatest gap in scientific hypotheses of earth's early history.
I think in this particular case, the word gap is entirely appropriate because what we're looking for is missing evidence. It's entirely appropriate to refer to missing evidence as a gap. In this particular case, we understand from experiments that have been done in the laboratory how molecules can, to an extent, self-organize and even self-replicate.
But we don't really have an understanding of how such molecules could have gathered together, pulled together the other structures that they need, and to produce a living cell as we understand it today. So I think that is indeed a gap in the sense that we have missing evidence.
And I mentioned earlier that I have gaps in my understanding of my own family's ancestry in the sense that I have missing evidence. I don't know what's there. Now that's a gap in evidence. That's not a gap in a theory. And I think that's sort of the point that I had been trying to make.
Q. So there's no missing evidence in Darwin's theory of evolution?
A. Okay. Let's put it this way. There are many periods in earth's history where we don't have a complete historical record, just as there are periods in the history of the United States in which we don't have a complete historical record. If one refers to Darwin's theory of evolution by saying, do we have a complete record of biological change in the past, the answer to that is, no.
But in terms of gaps in the theory, again, I think you're jumping back and forth between the theory and the nature of the evidence. Is there indeed evidence that might support the theory of evolution that we don't have? Yes. But is there a gap in the theory itself, a gap in the framework of explanation? That's essentially what I'm saying, no. I don't buy that at all.
Q. Should we regard Darwin's theory of evolution as being tentative?
A. We should regard all scientific explanations as being tentative, and that includes the theory of evolution.
Q. Darwin's theory of evolution is incomplete and unfinished, isn't that correct?
A. All science is necessarily incomplete. On the day that physics becomes complete, for example, it will be time to close every department of physics in the United States because we'll know everything. I don't expect to see that happen.
But it is a fair statement that all science, including biology, including Darwin's work on evolution or the evolutionary theory, I should say, is necessarily incomplete.
Q. Is it true that scientists do not know enough about all structures in the cell to describe how they all work or how describe how evolution could have produced each of them by step-by-step Darwinian processes?
A. Well, you ask a very interesting question. And I, first of all, am going to enthusiastically agree with the first part, which is that scientists certainly do not understand enough about all of the structures in the living cell to understand how they work. That really is the business, my business and the business of Dr. Behe.
Because the answers to that questions are going to come out of genetics -- sorry. They're going to come out of biochemistry. They're going to come out of cell biology and maybe molecular biology and genetics as well. I'll answer the second part of your question this way.
Until we understand the first part, which is how everything works, we can't even begin to understand how things evolved. So we will have to have an absolute and complete and total understanding of how everything in the cell works before we can even begin to put together an understanding of how it evolved.
Q. So there are open questions there?
A. I certainly hope so, because if there are no open questions in my field, I've written my last grant proposal. I don't think so.
Q. Isn't it true that scientists still debate and touch questions as to how new species arise?
A. Do scientists still debate such questions such as how do species arise? The answer, sir, is, absolutely. There is general agreement within the scientific community that speciation, which is to say the origin of new species, can be explained by a variety of natural causes.
And several examples of speciation are indeed well-known and well-understood. But as to which of several mechanisms that can actually drive speciation is the predominant one or the most useful one, there is a lot of controversy within science about that, no question.
Q. Scientists still debate the question why species become extinct?
A. Scientists certainly debate that question. They don't debate the question as to -- well, sorry. Let me sort of strike that and sort of rephrase everything. Extinction, for the most part, is a historical process. It's something that, for most of us, happen in the past. We do have examples of extinction that actually happened in the present time. And sometimes we can see how that's actually happening.
But most often, extinction occurring in the past, in the fossil record, for example, is an event, meaning the disappearance of a particular species, and we don't always know whether that species starved to death, whether it was driven to extinction by a predator, whether it was terminated by disease, whether its habitat was destroyed by earthquakes or volcanic eruptions. And do scientists still debate those issues? Of course they do.
I would point out as an example, a colleague of mine named Bruce McFadden, who is an expert in the evolution of the horse, he works at the University of Florida, he's published a number of treatises trying to trace the evolution of a horse and trying to focus in on exactly what the forces were that drove most of the historical antecedents of the horse to extinction.
In some cases, he's pinned it down to diet. In some cases, he's pinned it down to habitat loss. In other cases, he's not sure. So that's a long yes to the question you asked.
Q. It's an open question?
A. There are many open questions in science. There are some examples where we know what drove an organism to extinction. I can give you an example right now. The passenger pigeon. We killed it. Human beings hunted passenger pigeons to extinction. The same thing with the dodo.
Those are not open questions. Those are closed questions. Are there examples of extinction for which we don't know the answer? The answer to that is, yes.
Q. So the origin of life is an unsolved scientific problem, is that correct?
A. I think it certainly is fair to say that the details of the origin of life are unsolved.
Q. Would it also be fair to say, it's an area where there is little direct fossil evidence?
A. Well, not entirely, because actually, there is fossil evidence when the first living cells appeared on this planet. It's about three, three and a half billion years ago. So we do know when the first simple cells appeared, and we also know when the first more complex cells, we know when they appear.
But it's also true that we don't really have biochemical fossils that could have shown the kinds of self-replicating molecules that might have preceded that first living cell.
THE COURT: Mr. Muise, I'll give you about a seven minute warning, unlike the NFL, where you get a little bit more time, and any place you want to wrap up from here on that you think is an appropriate break time, you can do it, because we'll go to that point today. But you can proceed.
MR. MUISE: Are we looking for a break for the afternoon or for the --
THE COURT: No, for the day.
MR. MUISE: For the day?
THE COURT: For the day.
MR. MUISE: I have about four or five more questions in this area. If I can try to get through them, that will be helpful.
THE COURT: Absolutely. Sure.
MR. MUISE: Thank you.
BY MR. MUISE:
Q. Dr. Miller, the origin of DNA and RNA in the evolution of cells is an unanswered scientific question, is that true?
A. Certainly. The origin of those compounds is not completely answered. But one of the things that is rather interesting, and the recent work of Stanley Miller, who's done a fair amount of origin of life research, has shown this, is that the current simulations of primitive earth atmospheres, under certain circumstances, can give rise to the nitrogenous bases which are found in RNA.
It turns out to be rather easy in the simulation experiments to produce adenine, and I believe also to produce cytosine, which are two of the bases. Now knowing that doesn't answer the complete question as to how the complete RNA or DNA molecule evolved, but it does show that some of the building parts of it can be produced spontaneously in the laboratory under conditions that simulate the primitive earth.
Q. That's related in a sense, is it not, to the fact that the origin of life is an unsolved scientific problem? Is that related to the experiments you just described?
A. Yes, sir, it is.
Q. Now there are many scientists who think that Darwin's original formulation of the mechanism of evolution was either incorrect or incomplete on the basis of much better current information on how genetics, molecular biology, and what is called adaptation actually works, is that true?
A. Sir, not only is that true, but I'm one of those scientists, and if he was around today, Charles Darwin would be one of those scientists. Darwin, of course, didn't know anything about biochemistry. He didn't know any genetics because genetics hadn't been invented.
And we now understand evolution in much greater detail than Darwin ever could have. So when you say there are many scientists who believe that Darwin's theories had to be, whatever you said, updated and so forth, the answer is, yeah, all of them do. I'm one of them. And so would Charles Darwin if he was around to see it.
Q. Sir, many scientists would opine that Darwin's ideas about evolutionary change were inadequate on the basis of current discoveries related to genetic recombination, transposable genetic elements, regulatory genes, and developmental patterns?
A. No, I wouldn't agree that. You said that many scientists would agree that Darwin's ideas about change were inadequate based on these. Now what Darwin basically said was that variation appears spontaneously in species. He didn't know where that variation came from.
And every example that you just cited is an example of where variation could come from. All of these, however, fit within the general framework of evolutionary theory. So I would rather say that Darwin's ideas were incomplete rather than inadequate. Because Darwin was, if you read the Origin of Species in detail, you'll see that Darwin is quite open about not being really sure where variation comes from or how characteristics are passed along from one generation to another.
The fact that we now know where variation comes from and we now know how information is passed along, doesn't mean his ideas were inadequate or -- it simply means that they were incomplete compared to what we understand now. They nonetheless fit within his framework.
Q. Now during the deposition you gave, Dr. Miller, where you indicated the lengthy deposition, you use the term inadequate. And let me read from page 113. And I can show it to you. Starting on line 21. Now in discussion --
A. If you would just give me a second to get to page 113.
Q. Do you have a copy of your deposition?
A. I have it right here. Very good. Thank you.
Q. Starting on line 21, if you could read from the deposition?
A. Yes. Let's see. What I said in the deposition, starting with line 12 is, quote, Now in discussion of this issue, it is possible to bring in the opinions of many scientists who say that Darwin's ideas about currently -- sorry, that Darwin's ideas about evolutionary change were inadequate on the basis of current discoveries relating to genetic recombination, transposable genetic elements, regulatory genes, and developmental patterns; therefore, Darwin's ideas need to be updated in view of current discoveries, but these scientists criticisms of evolution would in general not dispute the idea that the mechanisms of evolutionary change which fully understood at the natural level are still sufficient to bring about the change that the evolutionary process requires.
Q. So your use of the word inadequate, you're saying, in your deposition was not proper?
A. Well, I'm not saying, sir, that it wasn't proper. I'm just saying that today, upon reflection and thinking about it, I would prefer incomplete to inadequate. I read further in my deposition to make the point, which I think is the coherent point, which is to say that all of these ideas, whether Darwin's idea were incomplete, inadequate, half-baked, or however you want to describe them, can nonetheless fit within the general framework of evolutionary theory that he outlined.
That was the gist of this entire statement in my deposition and that certainly would be my testimony today.
Q. Do you agree that horizontal gene transfer makes it difficult to trace common dissent through micro organisms?
A. Oh, I certainly do.
Q. That was the studies of Carl Woese, I believe, demonstrated that?
A. Carl Woese was the first person to successfully demonstrate horizontal gene transfer, the transfer of bits and pieces of DNA from one micro organism to another. And the fact that this mechanism is widespread among bacteria and viruses means that it's very difficult to trace the pathway of common dissent. That's true. And that work started with Woese. It's been continued by many others.
Q. Would you agree that scientists disagree about the relative importance of natural selection, sexual selection, chance, species, hibernation, and other factors which all influence evolution?
A. Yes, sir, I would agree to that. Scientists certainly do disagree about those points.
Q. These different ways in which different phenomena and nature might be explained?
A. I suppose the answer to that is, yes. All of the forces that you just mentioned are patterns that relate either to natural selection or to the generation of variation within the species, which are really part of the evolutionary process.
Do all of those processes occur in nature? Yes. Are they used from time to time to explain various natural phenomena? Yes.
Q. Could they be considered alternate theories that explain evolution?
A. No, I don't think so, because I think what you've done, sir, is to cite a number of phenomena and forces. Sexual selection, for example, is not a theory. It's a process. And horizontal gene transfer, once again, is not a theory in the sense of an explanatory framework. It's a process. I think all of these are forces that can produce and rearrange genetic change within the explanatory framework of evolutionary theory.
MR. MUISE: Your Honor, I'll pick up from there tomorrow morning.
THE COURT: All right. I think we've absorbed quite a bit of information today. We'll start again with the witness tomorrow morning at 9:00 a.m. Thank you, Mr. Muise. Thank you to all counsel. Ladies and gentlemen, we'll see you tomorrow. We'll be in recess until 9:00 a.m. tomorrow morning. Thank you.
(Whereupon, the proceeding adjourned for the day at 4:30 p.m.)

 

Kitzmiller v. Dover Area School District
Trial transcript: Day 2 (September 27), AM Session, Part 1

THE COURT: Be seated, please. Good morning to all. We welcome you to Day 2, and we're going to continue with cross examination. Mr. Muise, you're prepared I assume?
MR. MUISE: Thank you, Your Honor.
THE COURT: You may proceed.
CONTINUED CROSS EXAMINATION BY MR. MUISE:
Q. Good morning, Dr. Miller.
A. Good morning, Mr. Muise.
Q. Sir, is evolution random and undirected?
A. I don't think that that is an appropriate scientific question. First of all, evolution most definitely is not random. There are elements of evolutionary change that are unpredictable, but the principal force driving evolution, which is natural selection is most definitely a non-random force, and then the second part of your question, undirected, that requires a conclusion about meaning and purpose that I think is beyond the realm of science. So my answer for different reasons to both parts of your question is no. Or excuse me, perhaps more aptly put, science cannot answer the second part of the question. I think that's a more accurate way to put it.
Q. Is a student believes that this was a scientific complaint -- let me strike that. If a student believes that this was a scientific claim, would that be a misconception?
A. If a student believed that it was a scientific claim that evolution was random and undirected, would that be a misconception? And I think my answer to that is yes, that would be a misconception of what science can state about evolution.
Q. Sir, in your 1995 edition of Biology, I believe it's the Elephant Book?
A. That's correct. It's generally known by that name.
Q. Did it not state in that book, "It is important to keep this concept in mind. Evolution is random and undirected," and the part "evolution is random and undirected" was in bold print?
A. To be perfectly honest, which of course I swore to be, I don't remember if it was in bold print or ordinary print, but I'm sure you have a copy of that book, and I'm sure that you'll show it to me and refresh my memory.
Q. You're very perceptive. May I approach the witness, Your Honor?
THE COURT: You may.
Q. I hand you what's been previously marked as Defendant's Exhibit 210.
A. And in response to your question, sir, I note under Section 30-2 on the second page of the document you gave me, the complete sentence reads, "As we do so it's important to keep this concept in mind," and it is indeed in boldface, "Evolution is random and undirected," that's correct. So yes, sir, it does say that.
Q. Now, isn't it true when you write your textbook, a boldfaced sentence is a way of telling the students that this is a key idea?
A. Yes, sir, it is.
Q. Now, you testified previously that that's not a scientific concept, correct?
A. I did indeed, sir.
Q. Why was it in your book?
A. It was in my book because as I'm sure you've also looked at, that statement was not in the first edition of the book, it was not in the second edition, it was not in the fourth edition, it was not in the fifth edition. It was not --
Q. My question is why is it in this edition?
A. I'm trying to set the context so I can give a full and complete answer to your question. So the interesting thing is that this is the only edition of any of the books that we have published, and probably eleven different editions, that contains that statement, and the reason for that quite simply is that I work with a co-author whose name is Joseph Levine, and Joe and I work together on many of the chapters in the book, but many of them we write separately and individually, and this was a statement that Joe inserted when we did a rewrite of many sections of this book for the third edition.
I have to say that I missed the statement as I was going through Joe's chapters, and I feel very badly about that. When this was first pointed out to me, the third edition of this book was in print, I immediately went to Joe, I said Joe, I think this is a bad idea, I said I think this is a non-scientific statement, I think it will mislead students. Joe agreed. We immediately took it out of the book, and that's why I emphasized that it did not appear in subsequent editions. So what you're looking at, sir, is a mistake.
Q. Isn't it true that he put that in there because he was influenced by the writings of Steven J. Gould?
A. We had a conversation about that, and among the reasons that Joe cited was that he had read one of Steve Gould's books called "Wonderful Life" in which Gould emphasized what Gould regarded as the indeterminate character of evolution, and from that I think Joe made what I still think is a misinterpretation of Gould's central idea in "Wonderful Life," which is to say the indeterminate or the unpredictable nature of evolution Joe misinterpreted to say random and undirected, and I think Joe agreed that he had made a mistake, and that's one of the reasons why we changed it in the next edition, sir.
Q. Now, I believe you testified that about 35 percent of high schools in the United States use your textbook, one variation or version or another?
A. Yes, sir, I did.
Q. Is the 1995 elephant book still being used by high schools?
A. I'm sure you can find a few, but because the average book is used by a high school in the United States for about six to seven years, I think it's fair to say that very few school districts use the third edition of this book.
Q. Do you know if Prentice Hall is still selling this version as a science textbook?
A. I wouldn't be at all -- I wouldn't know that for a fact, sir. I wouldn't be at all surprised it's on what is called the back list so that people can buy additional copies of older editions. So I wouldn't be at all surprised that they are still selling.
Q. Do you receive royalties still for the old editions?
A. Yes, sir.
Q. I believe on direct you made a reference to Richard Dawkins in a statement that he made in The Blind Watchmaker, "Darwin made it possible to become an intellectually fulfilled atheist." Are you familiar with that quote?
A. I'm certainly familiar with that quote.
Q. And who is Richard Dawkins?
A. Richard Dawkins is an evolutionary biologist and a professor at Oxford University in England.
Q. He's considered a prominent scientist?
A. Yes, sir.
Q. Is that claim that he made, the quote that I just read to you, is that a scientific claim?
A. No, sir, it's not.
Q. I understand that you were good friends with the late Steven J. Gould?
A. Yes, sir. Steve and I were personal friends. We were both, I was briefly on the faculty at Harvard and I got to know Steve there.
Q. And he was a paleontologist from Harvard?
A. Yes. Steven was actually a professor of geology, and his specialty was paleontology.
Q. Now, you have no difficulty believing that he would have made a comment such as, "Before Darwin we thought that a benevolent god had created us"?
A. You're giving me a statement and asking would I have trouble believing he said that. It would help me to know if in fact I'm being given a hypothetical quote or if this is an actual quote from an actual article or book of Dr. Gould.
Q. Well, I can represent to you it was from "Ever Since Darwin," but if you have a question you may want to refer to your deposition testimony at page 174.
A. Okay. I noticed that my answer in the deposition was pretty much identical to the answer I gave you now, which is you asked me if I was familiar with it, and I read, and I'm reading from my deposition, "Answer: No, I'm not. Do you know where that quote comes from?" And then you said, "I don't know if it was quoted out of The Blind Watchman, I may have been incorrect. Are you aware that he's made any statements similar to that?" So again I'm still asking where that quote might have come from.
Q. Okay, read the next answer.
A. Sure. "I'm perfectly willing to believe that Gould might have said that, but I don't know the context."
Q. Today are you perfectly willing to believe that Gould would have made that statement?
A. Would have and might have are actually different constructions, and what I will tell you is that I'm willing to believe that Gould might have made that statement, but I reiterate my quest to know the context for it.
Q. Is that statement a scientific statement?
A. No, I don't think so. I think it's an observation of -- it's an observation about history, and it's really a comment about society and popular imagination. It's certainly not a scientific statement.
Q. Do you know who the late George Gaylord Simpson was?
A. Yes, sir, I do.
Q. And who was he?
A. George Gaylord Simpson was a very well known paleontologist and evolutionary biologist and evolutionary theorist.
Q. Now, I'll ask you do you think this quote that I'm about to state is something that you believe G.G. Simpson would have said, "Man is the result of a purposeless and materialistic process that did not have in mind he was not planned."
A. Now, I will once again ask you for the context of that statement, and that would help me to understand if G.G. Simpson might have said that.
Q. And again I represent to you it was from a book written called "The Meaning of Evolution." Again if you have a question I refer you to your deposition transcript at page 175.
A. Okay. Thank you for telling where the quote comes from. I certainly am willing to believe the George Gaylord Simpson might have said that. You asked me would I prefer to say he certainly might have said that.
Q. Is that a scientific claim?
A. No, sir, it is not.
Q. These three scientists that I just mentioned, Richard Dawkins, Steven J. Gould, and George Gaylord Simpson, are they considered prominent scientists?
A. Two of them certainly were when they were alive, and Richard Dawkins certainly is.
Q. In your direct testimony you gave a definition of intelligent design, and I want to make sure I'm clear on what your definition is, and I don't have exact recall from your direct testimony at this point.
A. Neither do I, counselor.
Q. But I can refer you to your answer in your deposition transcript, and I want to state what that answer is here and you can compare it on page 93 if you'd like to, and I want to see if that is the working definition that you are using for the purposes of this case.
A. The page was 93?
Q. 93.
A. Okay.
Q. Here's the definition, "Intelligent design is the proposition that the basic mechanism of evolution does not work and that the complexity of life, the changes that appear in living things and natural history, and the organization of living things are all best explained by the actions of an intelligent, creative force, acting outside, and you might say above, acting outside of the natural world, and that by definition that creative force lies outside of scientific explanation."
A. I believe that you've certainly read properly from the deposition. I believe that in my direct testimony yesterday, having thought a few months more about how to summarize things briefly so as not to tax the patience of the court, I used a more succinct definition, and I think the definition I used is 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 intelligence force acting outside the laws of nature, and I would suspect, sir, that both definitions are in agreement with each other, even one is a little more verbose.
Q. Isn't it true that you believe that there's a danger with attributing natural phenomena to supernatural causes, and that danger is that science will stop seeking natural explanations?
A. I'm not sure if I would put it in exactly those terms. I do think that the proposition that every unsolved problem in the natural world should be attributed to causes and forces which layout side the purview of science, outside the natural world, into what I would call the supernatural world, is a science stopper, and what I mean by that is that once one says the only way we can explain this or that or the other is by the actions of a creator or a designer working outside of nature there's no point to do any more research on these problems, and that's why I would characterize it as a science stopper.
Q. And to make this point in your deposition you used the example of the force that powers the sun which, according to your testimony, at one time was considered a supernatural phenomena. Is that accurate?
A. It may be an accurate reflection of the deposition, which I have not reread on that point, but the way I would phrase it if you asked me a similar question today is simply to point out --
Q. Sir, I asked you a question.
A. Yes.
Q. And if you want to refer to your deposition testimony at 229, that might help you answer that question.
A. Sure, I appreciate that. Oh, well, now that I see the deposition my answer is no, I did not say that.
Q. Look at page 228 sir.
A. Uh-huh.
Q. You'll read from line 4 where it begins with "in other words"?
A. Yes.
Q. Do you see that on line 4?
A. Yes, I do.
Q. Then read until line 3 of page 229.
A. Sure. I'd be glad to. "In other words, they are advocating supernatural progressive creation as the default explanation for anything that cannot currently be explained by science, and I'll give you an example, because I think this is an important to make. If we were having a discussion in 1880 and we were talking about what is the force that powers the sun, where does sunlight, heat, warmth, and so forth from the sun come from, we can take the science at the time and we could rule out the notion that the sun was a big ball of flame made up of burning oil or burning wood or burning wax or any other known chemical reaction in 1880, and we could do that, because we could calculate the amount of energy the sun puts out, we could calculate over many years the fact that the sun's diameter, if it's decreasing it's decreasing only very slightly, and if the sun was made of any fuel that powered a known chemical reaction, it's diameter should be increasing much more quickly.
"Therefore in 1880 we could rule out the possibility," okay, I think I may have said a few things in this deposition that make no sense, "Therefore in 1880," oh, sorry, no, I didn't. "Therefore, in 1880 could we rule out the possibility that the sun's actions were due to some sort of divine intervention, the answer is absolutely no, we could not rule that out." Now, I'm sure the court reporter can correct my recollection of your question, but I think your question was did you state that in the 19th century the actions of the sun were attributed to divine intervention, and of course what I just read to you didn't say that. It said we couldn't rule out the possibility. That's not the same thing as saying they were attributed, and that's why I said no, sir, I did not say that in my deposition.
Q. Read on from page 229, from lines 4 through 16.
A. Gladly. "As you know, 25 years later there was a scientific explanation put forward for the power of the sun, and that turns out to be thermonuclear fusion, a force unsuspected by nature," and a strange way to put it. "So if at the time in 1880 science had simply thrown up its hands and said the explanation lies outside of nature, science would have stopped and we never would have done the investigatory work that was actually necessary to understand where the sun's power actually came from."
Q. Keep reading, sir.
A. Oh, sorry. "That's the danger of attributing natural phenomena to supernatural causes, or for that matter to design, which is essentially a call to say let's stop seeking natural explanations." Go on or --
Q. I believe that covers the point.
A. Okay.
Q. You make that point in your deposition that by attributing something that you might not have an explanation for at the time to a supernatural cause, then we just may throw up our hands and then science will never have an explanation for these natural phenomena, is that correct?
A. That's exactly the point that I made there, yes, sir.
Q. And you used the example of the force that powers the sun to demonstrate that if science had just thrown up their hands, then we would have never come up with this notion of thermonuclear fusion.
A. Yes, that's correct, sir.
Q. But you also said thermonuclear fusion was a force that was unsuspected at the time by nature.
A. And as I read that I also said that's a very strange way to put it. I'm sure the court will understand the deposition went on for nine and one half hours, and I may once or twice have said something that doesn't quite make sense, and what I should have said in that exact context was a force that was unsuspected in nature, not by nature.
Q. So there could be a force that was unsuspected in nature at a time, through further scientific development may actually be a natural explanation such as thermonuclear fusion?
A. That's correct.
Q. And the fact back in 1880 that we didn't know about thermonuclear fusion didn't mean that science stopped?
A. It certainly did not mean that science stopped precisely because physicists around the world sought a natural explanation for the phenomenon rather than attributing to it a force outside of nature and beyond scientific investigation.
Q. So, sir, is your testimony and your opinions regarding intelligent design, is it based on your understanding that intelligent design does require the ruling out of all natural causes for design?
A. I'm sorry, not to parse these questions, because they're very carefully worded, and so I want to think about them carefully -- I'm sorry, could you repeat the question?
Q. Is your testimony and your opinions based on your understanding of intelligent design is that intelligent design rules out all natural explanations for design?
A. The question you just asked is does intelligent design rule out all natural explanations? Well, the answer is of course not. What intelligent design presupposes, and I'll repeat the definition is that intelligent design argues that some aspects of living things are too complex to have been produced by evolution and therefore they must be the product of creative action by a designer acting outside of nature.
Q. So the design would have to be, in your understanding of intelligent design the design would have to be caused by a supernatural causation and no natural cause can be an explanation for design?
A. No, sir, I would disagree with that. You say no natural cause can be an explanation for design. I would point out that the snow flake, one of the most beautiful and intricately designed if you wish to say objects in the world, that any person who didn't know snow or understand snow would say it had a beautiful design to it, but I think any chemist, any physical chemist will tell you that the structure of a snow flake is due entirely to natural causes such as the interactions of water molecules through laws of chemistry and physics.
So I think you're lumping together certain propositions in what you're asking me to stay, and again I think I have clearly stated that my testimony is based on the definition that I understand of intelligent design as given in "Pandas and People," as explained by Dr. Behe, as explained by William Dembski, as explained by "The Discovery Institute, which is that some feature of living things are too complex to have been produced by evolution, and that means that they must have been the product of creative work by a natural, by an intelligent designer acting outside the laws of nature and beyond investigation. Snow flakes have what most of us would call a design, and they are the products of natural law.
Q. With regard to the theory of intelligent design, sir, not snow flakes, the theory of intelligent design, is it your testimony that it requires a supernatural intervention?
A. My testimony is that --
Q. Sir, I'm asking you a question.
A. And I'm trying to answer that question fully and completely, sir.
Q. It's a yes or no question. Is it your understanding of the theory of intelligent design that it requires the action of a supernatural power?
A. Okay. Again, intelligent design as I understand it presupposes that some features of living things are too complex to have been produced by evolution and therefore, and here's the answer to your question, they must be the product of an intelligent designer acting outside of nature, exercising a creative force to create the design.
Q. And in that answer then your view of intelligent design means that it requires the action of a super, it requires supernatural action?
A. Perhaps it would be useful in giving a direct answer to your question, which I'm trying very hard to do, to define what supernatural means. The word super means above. The word natural of course means natural. The actions of an intelligent designer, as they have been explained to me by the advocate of intelligent design, is the identity, the means of action, and even the time of action of that designer lies outside of scientific investigation. That means to me that it lies above, super, natural law, supernatural, and therefore that designer is supernatural in the ordinary understanding that actions that occur on nature, that occur from a force which is not natural, from a place which is outside of nature, and are not subject to investigation, must be supernatural. To help me frame my questions, because obviously you don't think I'm being entirely responsive to your questions, and I want very much to be responsive to them, perhaps you could explain to me how an intelligence designer could act undetectably, outside of nature, to create order that evolution and natural law cannot, and not be supernatural.
Q. That's your definition and your straw that you're creating on this definition. Here's my question for you with regards to what is considered supernatural. Do you know who Francis Crick is?
A. Yes, sir, I do know who Francis Crick is.
Q. And who is he?
A. Francis Crick is a British physicist and crystallographer who, together with James Watson and Rosalyn Franklin, is the co-discoverer of the double helical structure of DN A.
Q. And he received the Nobel prize?
A. Yes, I believe that he and Watson and Wilkins received the Nobel prize for biology or medicine in 1963.
Q. Now, he advanced a theory called directed panspermia, correct?
A. He wrote a book in which he suggested that the first appearance on life on earth might have been the result of the actions of beings from another planet, scattering life into our world, that's correct.
Q. And that was a hypothesis put forward by a Nobel laureate?
A. That's correct, sir.
Q. Is that a scientific claim?
A. Well, the specifics that Dr. Crick made is a scientific claim, because although it's not immediately a testable claim, it is a potentially testable claim in terms of if we are able to explore larger and larger fractions of the known universe, we may eventually find out if there is life in other places that could have been directed towards us. So it's a scientific claim in the sense that it's potentially testable.
Q. Is it a supernatural claim?
A. That's an interesting point, and in this particular case no, I would not regard that as a supernatural claim.
Q. So the fact that life forms may have come from an intelligent being from another planet to this earth as I believe you have described, directed panspermia, that is not a supernatural explanation for a natural phenomenon?
A. It certainly is a farfetched claim in that many scientists would point out that there's no evidence for it, but as Crick framed it, it certainly would be a claim as I said that is potentially testable and therefore would accord to natural law.
Q. Are you familiar with a program that NASA has for, and I believe its acronym is SETI, Search for Extra Terrestrial Intelligence?
A. I'm familiar with it only as a lay observer who reads the papers and has heard about it.
Q. From what you have heard about it, is that a scientific exploration?
A. Certainly my understanding of how the work in SETI is being conducted is that it follows the scientific methods of explanation.
Q. Are they seeking a supernatural explanation?
A. No, sir, I don't think they are. I think that SETI is seeking evidence of life on other planets, other places in the universe.
(Brief pause.)
Q. Would you agree with this proposition that because presently we may not have a plausible natural explanation is not the same thing as saying that we've ruled out all natural explanations?
A. Yes.
Q. And the example of the power, the forces that power the sun would potentially be an example that fit that claim?
A. Yes, sir, I believe it would.
Q. Sir, intelligent design doesn't require adherence to the six day creation event described in the Book of Genesis, correct?
A. I certainly think that there are formulations of intelligent design that don't require adherence to a six-day creation event described in Genesis, that is correct.
Q. Intelligent design is not sectarian?
A. Can you help me, sir, by explaining what you mean by non-sectarian?
Q. Doesn't adhere to any particular religious dogma.
A. I believe that intelligent design does adhere to one particular religious dogma, and that is that life on earth can be attributed to the outside actions a designer whose actions are outside and above nature.
Q. Well, you need not be a fundamentalist Christian to be a proponent of intelligent design, correct?
A. I certainly think that one need not adhere to a particular religious point of view, but as intelligent design has been explained to me as it's described in "Pandas and People" and in the writings of the members of The Discovery Institute whom I've read and whom I regard as authoritative spokesmen for intelligent design, the common thread of intelligent design is attribution of the complex features of living organisms to the creative force of a being acting outside of nature, and that is definitely a theistic point of view.
Q. Again, sir, my question is you need not be a fundamentalist Christian to be a proponent of intelligent design?
A. That certainly is true.
Q. Dr. Behe for example has the same religion as you, correct?
A. That's my understanding.
Q. And Dr. Behe, an intelligent design proponent, does not adhere to the literal reading of Genesis? Is that your understanding?
A. Actually I have never discussed Dr. Behe's view of Genesis with him, so I'm not sure.
Q. Dr. Behe doesn't dispute the information from geology that the earth is very old, correct?
A. If I remember what -- and if I get this slightly wrong I'm sure you'll refresh my memory, I believe that Dr. Behe wrote in "Darwin's Black Box" that he has no particular reason to quarrel with the standard geological interpretation of the earth's history. Is that a fair phrasing, sir?
Q. Well, my question is to you, sir.
A. Well, my understanding then is the indirect quotation which I believe comes from "Darwin's Black Box" that he says he has no reason to argue or to quarrel with it. Now, to my standard of endorsement that's not a ringing endorsement, and it certainly, it certainly doesn't amount to an affirmative answer to your question.
Q. Sir, young earth creationists are completely unequivocal that the earth has to be between six to ten thousand years old, correct?
A. Most of the young earth creationists I have encountered have argued that the earth is less than ten thousand years old, that's correct, sir.
Q. And that's one of tenets of young earth creationism, correct?
A. As I understand them, sir, yes, that's correct.
Q. Dr. Behe, again an intelligent design proponent, does not adhere to the flood geology point of view advanced by creationists, is that correct?
A. I'm not sure whether Dr. Behe adheres to that or not. I haven't heard him state definitively. I have only read in "Darwin's Black Box" that he has no problem with the standard geological chronology.
Q. And from that statement would you infer that he then has no problem with the flood geology, or he has a problem with the flood geology based on that statement?
A. You know, I suppose you could infer that, but you could also infer that like most biochemists he doesn't care too much about geology.
Q. So that doesn't play into his scientific theories or arguments regarding intelligent design?
A. I have not seen Dr. Behe make an argument based on the geological ages in any of his writings or books, one way or another. And therefore I do not wish to presume what his view is of the young earth chronology, and I'm sure that if you bring him to the stand he'll be able to tell you himself.
Q. In terms of the arguments he's advancing he does not refer to the geological record?
A. That is correct, he does not refer to it, and as I said perhaps that's because like most biochemists he just doesn't read geology.
Q. And so for his arguments it's not necessary that the earth be six to ten thousand years old?
A. The arguments that Dr. Behe makes based on the actions of an intelligent designer, to assemble the complex structures within a cell would be consistent with young earth creationism or with special creationism spread over the billions of years of the geological ages. It would be consistent with either one.
Q. Again, sir, my question was does he rely on the age of the earth being six to ten thousand years old to make a scientific argument?
A. No, sir, he does not rely on it, and that's why it would be consistent with either one.
Q. So it's not a necessary component of his scientific arguments?
A. That's right, and that's why it would be consistent with either one.
Q. Do you know what Barry Palovitz is?
A. Yes, I think Barry is a plant geneticist or a plant physiologist at the University of Georgia.
Q. And he wrote an article which made reference to your book "Finding Darwin's God" that we discussed during your deposition? Do you remember that?
A. I do remember he wrote a review, and I will tell you that I try not to take reviews of a book too seriously.
Q. But do you recall that in the review he claims that one of ideas that you entertained in your book "Finding Darwin's God," which is the notion that the universe may have purpose, was also an idea that was embraced by what he called neocreationism?
A. I actually don't specifically remember Dr. Palovitz's review except to note that he didn't like my book much, and I believe he may have made comments like that. So I'm perfectly willing to believe that that's exactly what he said.
Q. If your look at your deposition, sir, on page 128?
A. Got it.
Q. If you could read, if you look at line 15, and after the sentence, "He calls it a pet rock," and it begins with "saying," could you read that sentence?
A. Sure. This I believe is a quotation from the Palovitz review.
Q. No, this is your answer, sir.
A. I'm sorry, which page and which line again?
Q. Page 128, line 15, starting with the word "saying"?
A. Okay, yes. This is my answer. I'm sorry, I was on the wrong page. "Saying the two schools of thought embrace a single idea does not mean that those two schools of thought are exactly the same thing."
Q. Is that a truthful statement that you made?
A. Yes, sir, of course.
Q. Sir, now, it's fair to say that one of the central arguments of intelligent design is that the evolutionary mechanisms are not sufficient to explain the origin of complex biological structures like the flagellum?
A. That's correct, sir.
Q. Now, you have already testified that you wrote a book called "Finding Darwin's God."
A. Several times.
Q. And in that book you said, "If Darwinism cannot explain the interlocking complexity of biochemistry, then it is doomed." Do you recall making that statement?
A. I probably wrote something like that in the book, yes, sir.
Q. And you also quoted from Darwin in that book, who acknowledged, "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." Correct?
A. That is correct, although it's a partial quotation, because the next sentence is, "But I can find no such case."
Q. Correct. And he wrote, and that was from "On the Origins," correct?
A. Yes, sir, that's a quotation, I gave a more complete quotation, but that's from "The Origin of the Species."
Q. And that was written in 18 when?
A. I believe, sir, 1859.
Q. I believe you already previously testified that the claim that the bacterial flagellum is irreducibly complex is a scientific claim?
A. It is a, that is a scientific claim if irreducible complexity is precisely defined, and because Dr. Behe in "Darwin's Black Box" gave a very precise definition that made the claim of irreducible complexity a scientific claim, yes, sir.
Q. And if irreducible complexity could be demonstrated, that would present an argument against Darwin's theory of evolution, correct?
A. If irreducible complexity could be demonstrated in the exact way that Dr. Behe describes, it would present an argument, not a disproof, but an argument, because other scientists have argued that even if one finds truly irreducible complex structures, that does not rule out in principle an evolutionary pathway to them.
Q. Does it open a question?
A. Of course. It is phrased in the form of a question, and yep, it's a question.
Q. Now, we're referring to Richard Dawkins, and he made a statement, "Biology is the study of complicated things that give the appearance of having been designed for a purpose." Are you familiar with that quote?
A. Yes, I am familiar with that quote.
Q. Do you agree with it?
A. I wouldn't put it the same way that Dawkins did. I think biology is the study of a great deal more. I think Dawkins was using hyperbole, a figure of speech, exaggeration for the purpose of emphasis to make a very good point, and that is a first glance at many living organ systems, organisms, compounds, makes it look as though they have such a strong correlation of structure with function that in the human world we would say that they were designed, and that's the metaphorical point that I think Dawkins made, and I agree with that metaphorical point.
Q. And is that similar to the points which you described as a metaphor in your cross examination testimony yesterday about the cell being a collection of protein machines?
A. Yes. In that case it was a different metaphor by Dr. Bruce Albertson, and I think it's essentially the same point.
Q. Is part of the nature of the controversy that we're discussing in the course of this case is whether the design referred to by Dawkins is the apparent design that he describes or real design that intelligent design proponents advocate?
A. Well, to answer that question, sir, we're going to have to break down what we mean by the word design, and the word design is often used in biochemisty and protein structure to simply refer to in shorthand the correlation of structure and function. So for example if you remember I put a slide up on the screen yesterday showing the hemoglobin molecule, the oxygen carrying protein, the inner pocket of that hemoglobin is what physical chemists call hydrophobic, or water hating. It's kind of oily in ordinary terms.
That makes it an ideal binding site for an oxygen atom to slip in. The outside of the molecule is strongly hydrophilic. That means it's got a lot of charges on it, and if you will it makes it easy for it to dissolve in water. So a physical biochemist might look at the structure of the molecule and say let's talk about the design of the molecule, it is designed to be soluble in the solution of the blood, and it is designed to have four pockets in which you can tuck an oxygen atom to carry them to the tissue. What he really means by design is the exquisite correlation of the structure of that protein with its oxygen carrying function. So in that respect that design is similar.
Q. I'm going to give you a definition of irreducible complexity, which I believe is slightly different than the one that you used in "Darwin's Black Box" and I want to ask you if you will accept this definition, " 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."
A. I wouldn't agree with that, because that's actually not a complete definition of irreducible complexity. If I remember, the quote that I showed was pretty similar to that, except it went on basically to refine the definition, make it more precise, make it scientifically testable, and that was that one cannot produce an irreducibly complex machine by numerous successive slight modifications of a precursor system because any precursor to an irreducibly complex system that is missing a part is by definition nonfunctional, and I regard that as an essential element of the argument, of the term irreducible complexity, because without it irreducible complexity does not make a strong argument against evolution.
Q. In your explanation, or I guess reputation of the concept of irreducible complexity, is it true that you argue or you define it so that if a component were removed, the question is whether or not that component itself could still have an independent function?
A. I believe what I said was a little more complete than that, and that is rather than a component could be removed, a set of parts or components could be identified within the larger structure which had an independent function of its own, because the central argument that comes from the concept of irreducible complexity is that there are no stepping stones on the way to the evolution of a complex structure. In other words, they have to be fully assembled to have any function, and therefore if one can demonstrate that partial assemblies of the components in fact do have a selectable function, then the argument falls apart. And it does in every case that we examined, in every case we talked about yesterday I should say.
Q. So is it that a component of the part can have an independent function as opposed to the essential function, that it ceases function, the essential function of the main organism?
A. I'm going to ask you to repeat the question, because the question began "is it," and I'm not sure what "it" is.
Q. Let's break it apart then.
A. Okay.
Q. Is your argument against irreducible complexity because if you remove a component from a system, that that component or a series of components may itself have an independent function, and therefore the system itself is not irreducibly complex, is that your understanding?
A. That certainly is my understanding, and again I would try to put it more completely, and that is that once a collection of parts is claimed to be irreducibly complex, the way in which one analyzes that claim is to see if there's any subset within this larger collection of parts that could have an independent function, and once you identify that you suddenly discover that structure is no longer irreducibly complex.
Q. And that can be any of the components of the system?
A. I would certainly think so, sir. In fact, I think a direct prediction of the argument made from irreducible complexity is that no components of the system should have independent functions. So once you find one, the argument is finished.
Q. Sir, is it not a standard scientific practice for scientists, and I'll use an example of Dr. Behe, and perhaps you might fit into this example as well, to point to the scientific literature, to point to observations and experiments that have been done by other people and other laboratories, have been peer reviewed, have been published, and to cite to that evidence, cite to those data, and cite to those experiments in their arguments?
A. Of course it is.
Q. And so the question then is not whether Dr. Behe or any other scientist has done experiments in their own laboratory that have produced evidence for a particular claim. The question is whether or not the inferences that they draw in their analysis from that data are supported. Is that true?
A. Yes, sir, I certainly think that that is true, and I agree with it, and the point that I would wish to make is that in my testimony yesterday I said that as far as I knew Dr. Behe had never done any work that directly implicated intelligent design. He certainly has written a number of papers and made a number of arguments designed to support the inference of irreducible complexity.
Q. So there are natural phenomena that cannot be fully explained by materialistic observations, correct?
A. There are natural phenomena --
Q. I can give you some examples.
A. Please do. That would help a great deal.
Q. The origin of life.
A. Oh, okay. The answer to your question, sir, is no. And the reason for that is that the question was phrased is there are natural phenomena that cannot be explained, and the reason I said no to your question, I do not agree with that, is I would agree to a question that says there are natural phenomena that have not yet been explained by material or natural causes, and if you then said the origin of life is such a question which has not yet been explained, I would have said yes, sir, that is correct.
Q. I believe my question, sir, was there are natural phenomena that cannot be fully explained by materialistic observation.
A. And again I would still say no, because I hear "cannot be explained" or "cannot fully be explained" to be a claim that they will never be explained, that it's a problem that will never be solved because of some reason and principle, and all that I'm trying to do is to make sure that my answer is phrased in such a way in which it is clear that I, like most scientists, realize that science is filled with unsolved problems. The origin of life I'm quick to say is one of those problems. We do not yet have a complete natural explanation of that particular question.
Q. Sir, if you'd turn to your deposition, page 210?
A. Sure.
Q. And reading from line 7, and to complete the answer for completeness read through to line 19?
A. Sure. "Are there natural phenomena that cannot be fully explained by materialistic observations? The answer is yes. You chose the origin of life. I would choose gravity, I would choose dark matter in the universe, and I would use the way in which the vertebrate body is constructed during the development of an embryo, because all of these are questions which cannot be completely answered by science, and to paraphrase an answer I gave earlier in the day, when we have complete explanations for all natural phenomena, people like me, research scientists, will be out of business, because science will be finished. We will have explained everything."
Q. Is that a correct answer?
A. It is a correct answer, but in order to complete the record for the court, may I read from my deposition a few lines further down, just a sentence or two? It's on page 211, and I'd like to start on line 4 if I may, sir.
Q. Was that a complete answer that you gave to the question that I had asked you during the deposition?
A. Sir, I just asked you. May I complete --
Q. Was that a complete --
A. Okay, fair enough. That was the complete answer I gave then.
Q. Thank you.
A. And I note for the record that in my deposition I clarified that --
Q. Thank you, sir.
A. -- the same way I've been doing here.
THE COURT: Wait, wait. Let him finish his answer. Finish your answer.
THE WITNESS: Thank you, Your Honor.
THE COURT: But that is not necessarily a license to go further than what the question was, but if you want to finish that particular answer that you gave, you may do so.
THE WITNESS: Okay, at the bottom of page 210 I was then asked, and this is the question, "And just to clarify, there has not been, at least I'll put it in terms of your satisfaction, a successful materialistic explanation for the origin of life? Answer: I would expand on that a little bit if you'll allow me to, and the answer, I'm sorry, the answer to that is yes. I regard the origin of life, as I think most scientists do, as an unsolved biological problem.
"Now, to say that the problem is unsolved does not say it's a problem about which we know nothing. In fact, we know a great deal, and we know for example that conditions similar to those might have existed on the primitive earth to allow the formation of, the undirected formation of very, very simple building blocks of compounds such as proteins and nucleic acids." That's all I wanted to read. Thank you, Your Honor.
Q. Are those still scientific questions?
A. By "those" you mean what is the origin of life, what's the nature of gravity, how is the vertebrate body put together? Yes, sir, those are all scientific questions.
Q. Sir, critical thinking is a legitimate pedagogical goal, correct?
A. It's a legitimate and I would argue an essential pedagogical goal.
Q. And an important component of teaching science?
A. I think it's a very important component of teaching science.
Q. Do you agree that the purpose of high school science courses should not be to train scientists but to contribute to the liberal education of students?
A. I think that -- I agree with you, because I think contributing to the liberal education of students is a great way to train scientists.
Q. If a student believes that Darwin's theory of evolution was a fact, would that be a misconception?
A. It would certainly be a serious misconception as to the nature of the theory, because theories never become facts. If a student believed that atomic theory was atomic fact, that would be a misconception. Atomic theory is based on factual observations in the same way that evolutionary theory is based on factual observations.
Q. Is your answer to my question yes, sir?
A. The answer to the question is most definitely yes.
Q. If a student believed that science has answered all questions regarding evolution, would that be a misconception?
A. It would be a terrible misconception, sir.
Q. If a student believed that science has solved the origin of life question, would that be a misconception?
A. It would be a terrible misconception.
Q. You teach a biology course at Brown University, Biology 20, correct?
A. I believe I do, that's correct.
Q. And that's an introductory course?
A. Yes, sir.
Q. And I believe it's for concentrators and non-concentrators? Is that the term you use at Brown?
A. Yes, that is the term we use, and for the benefit of the court that means that students who are going to major in science, students who might be pre-med in their studies, or students who are thinking of going into some other field entirely will still take that course.
Q. Now, your description of the course, and I believe it's in the 2005 syllabus, you state, "In the same way that students of the sciences could not consider themselves fully educated without a knowledge of art, social theory, and literature, students in the humanities and social sciences should approach courses in the sciences as part of their overall educational experience." Is that an accurate statement?
A. Yes, sir, it is.
Q. And in the syllabus you also state, "The intention of this course," meaning the Biology 20 course, "is to establish links between biology and other disciplines and to briefly explore some of the ways in which science is related to popular culture." Is that true of your course?
A. Yes, sir, it is true of my course, one of my goals.
Q. Now, in your biology course you provide supplemental materials for when you give lectures on evolution, is that correct?
A. When I teach the course I provide internet links of all sorts that will help students research questions in a variety of ways.
Q. And some of those internet links are to your web site with some of those articles, "The Flagellum Unspun," the biochemical, I believe there's one about the biochemical challenge to evolution?
A. I actually don't think that I, and I'm sure you'll refresh my memory if I'm wrong, I don't think I provided a direct link to those particular essays. I did provide a direct link to a web page that I have, "On Matters Evolution," and on that page there was then links to some articles that I had written about evolution, including the two that you mentioned.
Q. And those were articles regarding intelligent design?
A. Yes, sir, I believe they are articles critical of intelligent design, that's correct.
Q. And there was also a PBS film clip called "Why is Evolution Controversial?" that you list as supplemental material?
A. Yes. That one I think I did link directly from the web page in my course.
Q. And these supplemental materials allow students to explore supplemental information related to the lecture topic?
A. That's certainly my intent.
Q. And in this case it would be the lecture topic of evolution?
A. That's right. Students of course always want to know is it going to be on the test, and supplemental materials are not on the test. They're out there in case they get interested in something.
Q. And is it true you believe that these materials promote the goal of giving students an opportunity to explore other aspects of evolution and evolutionary theory?
A. The best way to answer your question is that I started doing this simply because so many students would say, I talk about RNA, could you give us some links to some other things in case we get interested here and there, and the links I put up on evolution fall into that general category of anticipating student questions.
Q. Does it also give them a better understanding of the way in which evolution is regarded in the larger society?
A. I hope so.
Q. If you look in your deposition, page 78, please?
A. Okay.
Q. And the question I asked you beginning on line 22 was, "What goal does that promote?" And that's referring to your previous answer, "The way in which evolution is regarded in the larger society" for example was your answer, and then my question was, "What goal does that promote?" And then could you read us your answer starting at line 23 on page 78, continuing through line 7 on page 79?
A. Sure. Gladly. "I think I've already answered the question, which is to give students an opportunity to explore the implications of some of the material that we cover in lecture and, you know, the generalization that I would apply to any education is, the goal is not to define a set of material to be mastered, but to open a door. And this is one way to open the door and say if you want to walk through that door, take a look, there it is."
Q. Is that a truthful answer?
A. Oh, of course, it's a truthful answer, sir.
Q. I just want to be accurate that that web page on evolution you had at Brown University included the article "The Flagellum Unspun," correct?
A. Yes, sir, I believe it did.
Q. And the other article, I believe I misspoke, I believe the title of it is "Answering the Biochemical Argument from Design," is that correct?
A. Sounds right, yep.
Q. Now, your biology course consists of approximately 38 to 40 lectures, is that correct?
A. In some years a couple here, but that's in the neighborhood. We have a few exams as well.
Q. I believe you testified in your deposition approximately three out of those 38 to 40 lectures are specifically dedicated to evolution?
A. I think that's about right, yes. About 10 percent.
Q. I think we already established you're the co-author of "Biology" by Prentice Hall, and your co-author is Joseph Levine, is that correct?
A. That's correct, sir.
Q. And it's your understanding that the Dover Area School District selected and purchased your 2004 edition of "biology" to be used as their textbook for the ninth grade biology crass?
A. That's my understanding, too.
Q. And you consider that to be a ringing endorsement of your book I believe is the term you used in your deposition, correct?
A. Did I?
Q. If you'd like to look, page 21 and 22.
A. Sure.
Q. Line 24, starting on page --
A. Sorry, the clip is in the way. Yes, okay. I'll just rephrase it so I can explain the context to the court. "Question: I'm assuming you don't have any objections with the school board making that decision," which was to pick out book. Answer, my answer, "No, I was quite pleased. I considered it to be a ringing endorsement of our book," and I have to say that when I said that I was engaging in a bit of flip hyperbole, exaggeration for just the purpose of emphasis. I was very pleased.
Q. You think that was a good choice?
A.
A good choice by to engage in flip hyperbole or for the Dover board of education?
Q. Probably the latter.
A. Okay. Yes, I think it was a good choice. Joe and I worked very hard on this book. We think we've written the best possible book. We regard our mission as to turn students on to science, and we think our book does that and we're very happy that the Dover board selected it for the students.
Q. Does your textbook provide comprehensive coverage of the theory of evolution?
A. Yes, sir, I believe it does.
Q. And you write your textbooks to comport with the academic standards for each of the states, correct?
A. Yes, sir, we do. The textbook used in Dover is a national edition, but we routinely consult the science education standards in the various states, including Pennsylvania, to make sure they fit those standards.
Q. Is it your understanding that your biology book, the 2004 version, comports with the Pennsylvania state academic standards?
A. Yes, sir, I believe it does.
Q. In your opinion does your textbook represent science in a manner that comports with good science pedagogue?
A. Yes, sir, I believe it does.
Q. And it presents science in a way that is proper for a ninth grade biology student?
A. Yes, I think that.
Q. Now, this book, the biology book, includes a section entitled "Strengths and Weaknesses of the Evolutionary Theory," correct?
A. Yes, it does include such a section.
Q. And this section has not appeared in your prior versions of the biology book, is that correct?
A. You know, the answer to that is -- not appeared in previous version. Not exactly. It's not exactly a yes or no. That particular heading is new, but some of the statements made under it do appear in earlier printings of the book. But certainly the section exactly as it appears in 2004 I do agree did not appear in the 2003 or the 2002 copyright.
Q. Did you have prior sections that were set out strengths and weaknesses that were under the section on evolution?
A. We certainly did describe the strengths and weaknesses of evolutionary theory, but we had not placed them under a heading so they couldn't be missed.
Q. So this was the first time it was placed under that sort of a heading?
A. That is correct, sir.
Q. If you can turn to page 386 in the biology book, and that's Exhibit 214, defendant's exhibit, could you read the paragraph that begins with "like," the second full paragraph?
A. Sure, I'd be glad to. "Like any scientific theory, evolutionary theory continues to change as new data are gathered and new ways of thinking arise. As we shall see shortly, researchers still debate such important questions as precisely how new species arise and why species become extinct. There is also uncertainty about how life began."
Q. And the caption of that where that section falls is Strengths and Weaknesses of Evolutionary Theory," correct?
A. It's actually a heading, but yeah, that's correct.
Q. And that statement, that paragraph that you just read, is that an accurate statement?
A. I certainly hope so. I believed it when Joe and I wrote it.
Q. Now, that section, that heading, "Strengths and Weaknesses of Evolutionary Theory" was added to your book because of the state requirements of the state of Texas, correct?
A. Yes, sir, it was.
Q. And those standards required students to analyze and critique specific scientific theories?
A. The curriculum guidelines in the state of Texas, which are known as the TEKS, which stands for Texas Essential Knowledge and Skills, have very specific wording in fifteen or twenty different curricular areas, and when we prepared our book for the Texas adoption we thought it best to use the exact wording that was used in the Texas standard in a variety of places so it couldn't be missed that we were conforming to Texas standard, and this is one of those places, that is correct.
Q. Now, is it true when you submitted your textbook to the state of Texas it was clear that there was only one scientific theory that any member of the state board of education was interested in, and that was the theory of evolution?
A. No, sir, it was not clear. Would you like me to explain why I gave --
Q. I want you to go to your deposition, sir, page 285 and 286.
A. Okay.
Q. And if you start, the question begins on line 24 of page 285. If you could read that through your answer of page 286, line 19.
A. Sorry, you want me to start on 285?
Q. 285, line 24 is where the question begins.
A. Sure. "Question: What was the purpose for putting that in the 2004 version?" Answer --
Q. I'm sorry, let me -- I'm sorry to interrupt you, but that is that heading, that section that we were just --
A. Yes, correct.
Q. Continue with your answer, I'm sorry.
A. "The purpose for putting that in the 2004 version was the state requirements for the state of Texas specifically required students to analyze and critique the strengths of scientific theories and hypotheses. Now, that standard, which is known as TEKS 3- A in Texas, applied to scientific theories in general, but as we submitted our textbook to the state of Texas it was clear that there was only one scientific theory or hypothesis that any member of the state board of education was interested in, that was interested in seeing strengths and weaknesses for, and that one theory was the theory of evolution."
Now, the reason, sir, I said no to your question was, and I'm sure the court reporter can correct me if I got this wrong is because your question was, was that the only theory that any member of the state board was interested in, and the reason I said no is because many members of the state board were interested in many other aspect of the book. The deposition statement was it was the only theory that anyone was interested in seeing strengths and weaknesses for, and that's what I said in my deposition.
So my no answer is based on very carefully listening to your question and trying to say that no, I don't want to slur the entire board of education of the great state of Texas by saying that's the only theory they were interested in. It is true that that's the only theory that they wanted to hear strengths and weaknesses for. I hope that clarifies my answer in the court vis-a-vis the deposition.
Q. And so in that regard your deposition answer that you read is a correct answer?
A. My answer in court was correct, sir, based on your question, and my answer in the deposition was correct based on the question, which was different, that you asked me at the deposition.
Q. Sir, when you write your textbooks, and this is I guess a general post to textbook writing, is it true that when you use qualifying language such as "some biologists propose" that that is a way of conveying sort of a sense in the community that there might be a tentative nature or disagreement about the proposition?
A. I'd want to see the particular context you have in mind, but in general I think that's a fair statement.
Q. Sir, in the ordinary meaning of the word a creationist is simply any person who believes in an act of creation, correct?
A. Yes, I think I would also regard that as the ordinary meaning of the word creationist.
Q. And you believe that the universe was created by God?
A. I believe that God is the author of all things seen and unseen. So the answer to that, sir, is yes.
Q. In a sense that would make you a creationist using the definition --
A. In the, as I think you and I discussed during the deposition, in that sense any person who is a theist, any person who accepts a supreme being, is a creationist in the ordinary meaning of the word because they believe in some sort of a creation event.
Q. And that would include yourself?
A. That would certainly include me.
Q. And you believe that God coined the laws of physics and chemistry?
A. Well, I have to say that I'm not on the stand as you pointed out yourself, sir, as an expert witness in theology. I can certainly tell you what I believe. And that is as I said before, God is the author of all things seen and unseen, and that would certainly include the laws of physics and chemistry.
Q. And you believe that evolution is a way in which God can bring about His divine plan in this universe?
A. I certainly believe that evolution is a natural process that occurs in our universe, and as such it and all other natural processes fall in -- again I don't want to pretend to be a theologian, but I think it would fall under the purview of what a theologian would call divine providence.
Q. But in terms of your personal beliefs you believe that that is consistent with God's overall plan the way evolution operates?
A. I believe that God is the author of nature, and therefore I believe that things that happen in nature are consistent with God's overall plan, and evolution is a natural process.
Q. And you see evolution as being consistent with your religious beliefs?
A. Yes, sir, I do.
Q. Sir, you believe that faith and reason are compatible?
A. I believe not only that they are compatible, but they are complementary.
Q. You agree that if we apply faith and reason correctly as objective and reliable tools for the nature of the world around us, ultimately the conclusions of both should be compatible?
A. One would certainly hope is. If God exists, and both faith and reason are gifts from God, they should complement each other.
Q. You agree then that the rational world of science can be included in faith world of religion, that the two are entirely compatible?
A. Well, actually you phrased that question in sort of a contradictory way. You said, I think you said can one be included within the other, and then you said are they compatible. I'm not sure that neither faith or reason are included within each other. I do very much agree they are compatible.
Q. If you look at your deposition, page 201?
A. Yes, sir.
Q. Beginning at the end you make reference to a document written by John Paul II, and I believe that was the encyclical Fides et Ratio, "Faith and Reason?
A. Sir, this is on page 201?
Q. If you read on to page 202, beginning of page 202.
A. Okay. No wonder I couldn't find it. Yes. Oh, okay. In the deposition, I'm not sure if you want me to read it, but I can paraphrase it --
Q. I'd like you to read it --
A. Sure. I'll simply begin on page 202 if that's all right with you.
Q. Yes.
A. "Guiding the relationships between these is pretty well exemplified in that document written by John Paul II that I mentioned earlier called Fides et Ratio, which is to say that the rational world of science can be included in faith world of religion, and that the two are entirely compatible," and I have to say that I don't quite like with the way that I put it in the deposition, which is one of the reasons that I rephrased it, and, you know, in terms of including when one world is included in another it carries the implication that one is subordinate to the other, and I regard as I said in the second part of that is the two as compatible, consistent, and complementary. I don't regard one as included with the other, and therefore I don't actually quite agree with what I said in the deposition. I hope I haven't caused you any trouble.
Q. So you don't ascribe to philosophical naturalism, correct?
A. As I understand philosophical naturalism, it is a doctrine that says that the physical world is all there is, and the only way we have of learning anything about the nature of existence is the scientific way, and if that is what philosophical naturalism means, no, sir, I am not a philosophical naturalist.
Q. Now, when you read the Book of Genesis, you take that to be a spiritually correct account of the origins of our species, correct?
A. I take all of the Bible, including the Book of Job, the Book of Psalms, New Testament, and Genesis to be spiritually correct.
Q. And you find repeatedly verses that say that God commanded the waters of the earth and the soil of the earth to bring forth life, and from an evolutionary point of view you believe that's exactly what happened?
A. Well, I just don't find them. They're there. And the way in which I look at Genesis is that Genesis as I read it, and unfortunately I don't read Hebrew, my co-author does, and he's frequently discussed Genesis with me, but as I read English translations of Genesis I see a series of commands of the Creator to the earth and its waters to bring forth life and, you know, without requiring, my church certainly doesn't, without requiring Genesis to be a literal history, you know, that's pretty much what happens, which is that the earth and its waters and so forth brought forth life.
Q. And that's consistent with evolutionary theory?
A. In the broad figurative poetic sense it is consistent with natural history, which underlies evolutionary theory.
(Brief pause.)
Q. I believe you indicated in your direct testimony that you gave testimony down in Georgia in the Sellman vs. De Kalb County case?
A. Yes, sir, I did.
Q. May I approach the witness, Your Honor?
THE COURT: Yes you may.
Q. I'm handing you what's been marked as Defense Exhibit 211.
A. Thank you, sir.
Q. And you'll note from the label on the front cover it appears to be Exhibit 11 from your deposition. Do you recall seeing this in your deposition?
A. Yes, I do recall seeing it in my deposition.
Q. If you turn to page 138, please?
A. Okay.
Q. And starting at line 3 the question was asked, "When you were writing material on evolution, did you add any information on creationism? And then you answer begins at line 5. Would you please read your answer from line 5 down to line 24, please?
A. Okay. "Answer: No, we did not, and the reason that once again is that there is no scientific evidence that supports the idea of creationism. Now, it's very important to define what one means by creationism. I'm a Roman Catholic for example, so I believe the universe was created, and you could always say that means you're a creationist. But in the modern usage of that language in the United States the word creationist means something quite different, other than a person who simply believes in a supreme being and thinks that there is meaning and order and purpose to the universe.
"In the current usage in the United States creationist is taken to mean someone who thinks that the earth is six to ten thousand years old, that all living organisms were simultaneously created during a very brief period of time, perhaps six days, and that the entire geologic record is an illusion, a column of flood deposition from the single forty day flood that has been misinterpreted for 250 years by the geological sciences as a series, a system of geological ages."
Q. When you gave that answer you were testifying under oath, sir?
A. Yes, sir, I was testifying under oath.
MR. MUISE: Your Honor, this might be a good time to take a break, I don't know, if the court is inclined to do so. I'm going to be moving into some new material, so it's sort of a natural break from my perspective.
THE COURT: All right. Why don't we take our morning break at this time, and we'll as yesterday break for at least twenty minutes to give everybody an opportunity to do what they need to do. We'll return in twenty minutes. We'll be in recess.
(Recess taken at 10:16 a.m. Trial proceedings resumed at 10:47 a.m.)

 

Kitzmiller v. Dover Area School District
Trial transcript: Day 2 (September 27), AM Session, Part 2

THE COURT: Be seated, please. All right, we're back on the record, and Mr. Muise, we are continuing with cross examination.
CONTINUED CROSS EXAMINATION BY MR. MUISE:
Q. Thank you, Your Honor. Dr. Miller, the concept of complex specified information, that's a component of intelligent design theory?
A. I suppose it is. I don't normally hear it when intelligent design theory is explained. I didn't see that exact term in "Pandas and People," I may have missed it, perhaps you pointed out to me, but I do know that there is a person who is generally regarded as part of the intelligent design community named William Dembski who has written about complex specified information, and I can't think of anyone else who has written about it other than Dr. Dembski.
Q. When you testified on direct and you referred to the section on "Pandas" with the writing in the sand, John loves Mary?
A. Yes, sir, I did.
Q. Is it your understanding that that's the sort of concept that Dr. Dembski is trying to convey with the notion of complex specified information?
A. Well, you know, I'm not entirely sure, and we could always ask Dr. Dembski, but it's entirely possible that that's what he refers to.
Q. And you said this is a concept argued by Dr. William Dembski, is that correct?
A. That's my understanding.
Q. And he has a Ph.D. in mathematics?
A. That's what I've been told.
Q. And his ideas and concepts were published in a book called "The Design Inference," are you familiar with that?
A. I've heard of the book.
Q. Do you know that the book was published by Cambridge University Press?
A. I have heard that, too.
Q. Is Cambridge University Press an academic press?
A. It is a press that I understand is owned by Cambridge University in England.
Q.
A prestigious university would you agree?
A. Oh, absolutely, no question about that.
Q. I may want to forewarn the court reporter I have some phyla questions coming up here. Dr. Miller, the octopus belongs to the phylum mollusca, M-O-L-L-U-S-C-A, is that correct?
A. Yes, sir, I believe that's correct. Is this going to be a little bit of a biology quiz here, sir?
Q. I think you'll be prepared for it.
A. Okay, I'm ready to go.
Q. It's not a pop quiz, put it that way.
A. Okay.
Q. The starfish belongs to the phylum --
A. Echinodermata. I can help you with these.
Q. E-C-H-I-N-O-D-E-R-M-A-T-A?
A. Right, and that is pronounced echinodermata.
Q. And an insect belongs to the phylum anthropoda?
A. No, sir, arthropoda. That's an R.
Q. Sorry. A-R-T-H-R-O-P-O-D-A?
A. That's correct.
Q. And a fish, in the example we used a minnow, belongs to the phylum chordata?
A. Chordata, that is correct.
Q. C-H-O-R-D-A-T-A?
A. That is correct.
Q. It's true that there's no fossil evidence that show that these phyla share a common ancestor?
A. Let me think about that just for a second.
(Brief pause.)
A. Within the last year a number of small bilateran fossils have indeed been discovered in fossil formations in China, and these -- by bilateran, B-I-L-A-T-E-R-A-N, we mean an organism has an axis of symmetry that goes right down the middle just like we do, and has parts of the body on both sides, hands on both sides, these small bilateran fossils exist in a time period preceding the Cambrian, and they may well turn out to be the ancestors of several of the phyla that you mentioned, and these would include arthropoda and chordata. It's a little more difficult to see how they could be the ancestors of echinodermata, which display radial, or five-fold symmetry.
Q. If you could go to your deposition at page 267?
A. Yes, sir.
Q. In the question beginning on line 12, "Is there fossil evidence that shows that each share a common ancestor," and we're referring to those four phyla that I just asked you about, could you please read your answer?
A. Sure, I'd be glad to. The question you asked, is there a fossil evidence that shows these share a common ancestor, the answer is that, "No, we don't have evidence yet of a common ancestor for these four different," I said phylum, but it should be phyla, "we do, however, have molecular evidence from organisms living today, As I mentioned several times, that all these organisms share a common molecular tool kit which is strong evidence on a molecular evidence, and many people would argue that molecular evidence is more important than fossil evidence, that they do share a common ancestor in molecular terms."
Now, I would point out, because I'm sure you're about to ask me about the difference between my statement in the deposition, which was taken in May, and my testimony here today, which is in the month of September, and the difference is I've read the paper on these small fossils. This is a new development in science, and that's why my answer today is somewhat different.
Q. Is the point you make about many people would argue that molecular evidence is more important than fossil evidence, when you say the many people, are you referring to scientists?
A. Yes, sir, I am.
Q. Sir, you testified about the Dover statement in your direct, correct?
A. Yes, that's right. I do believe I did testify about the Dover statement.
Q. And you never spoke to a board member from Dover, is that correct?
A. Let me think hard about this.
Q. Let me rephrase the question. You never spoke to a board member about the statement?
A. I don't believe I have spoken to any members of the Dover board of education about any matter. I was just trying to make sure that was correct.
Q. And you never spoke to any administrator at the Dover area school district about the statement?
A. Sir, I believe that's correct, and I also believe that when I became aware that Dover was a community that was discussing this contentious matter of how to teach evolution --
Q. Sir, did you speak to an administrator from Dover?
A. Well, I'm trying to give you an answer. I can't give you yes or no because I did e-mail a number of people in Dover, and I suspect, these are people whose names I got off of the Dover area school district web site, and I don't want to answer yes or no because, you know, one of those people might have been like an assistant superintendent, I can't remember if it was a principal or a department chair, I did send e-mails to a couple of people.
Q. Were they --
A. Sorry, and I'm not being evasive, it's just the question is not being able to recollect who they were, but I want to make sure that the record and the court does reflect that I did indeed send a couple of e-mails to people in Dover saying I would support them, I would be happy to answer their questions about evolution, and you know, one of them might have been an administrator. So that's why I'm being a little fuzzy on this.
Q. My question was did you speak to any administrator about that statement, the Dover statement that you testified about on direct.
A. Under the qualifications that I've just given you, which is, you know, I might have sent an e-mail to somebody who happened to be an administrator, I believe the answer to that is no to the best of my recollection.
Q. Do you recall if that e-mail discussed this statement in any fashion?
A. I don't believe it did, but I can't, I don't have a copy of it and I can't be positive.
Q. If you turn to your deposition at page 321?
A. Okay.
Q. Starting with the question at line 4, can you read the question and read your answer down through line 12?
A. Well, the question is, it presupposes something before it, it says, "Whereas the theory of evolution is not a fact."
Q. Your answer?
A. No. Sorry, my answer is, "No scientific theory is a fact, and the Dover statement is very clear that it uses the theory of evolution in the second sense, because when the statement says Darwin's theory is a theory, and when you talk about Darwin's theory, you are specifically talking about the descent with modification and natural selection." I think it's very difficult to make sense of that answer without the context of the question that precedes it.
Q. Did you correctly read your answer in the deposition?
A. Yes, sir, I did.
Q. Now, in this statement it says, the Dover statement, "a theory defined as a well tested explanation that unifies a broad range of observations," do you recall this statement has that definition of theory in it?
A. Yes.
Q. And that is a correct and proper definition of theory?
A. Yes, and I believe that in my direct testimony I testified that yes, that was I thought a pretty good definition of the word theory.
Q. And it properly defined the theory of evolution?
A. It properly defines a scientific theory, and because the theory of evolution is a scientific theory, yes, it fits the theory of evolution.
Q. I just want to revisit that question from page 321. Within the context of the preceding question that was addressing the different meanings of evolution that I believe you testified to on direct and that I had asked you on cross whereas evolution can mean change over time or it can also mean evolution as a theory, the processes of how that evolution may have occurred, the first may, is more akin to a historical fact, the second sense is a theory which not a fact, is that the correct context of your answer?
A. The correct context of the area, the first part is perfectly fine, you said a theory which is not a fact, and again theories are a higher order of explanation than fact, and in that sense that was correct, right.
Q. And that's the context for the answer that you gave on page 321 of your deposition?
A. Yes, yes, that is right. The reason I wanted to point that out is because my answer begins the second sense, and of course if I just read that into the court record, one has no idea as to what is meant by the second sense without the preceding question.
Q. And that second sense is the theory sense of the meaning of evolution that we just discussed?
A. That's right, which is a coherent testable scientific explanation as to how the process of change over time has taken place.
Q. If you go to your deposition page 329?
A. Sure.
Q. Again these are more questions I've asked you about that, the Dover statement. If you look at, read the question beginning at line 15, and then your answer that follows?
A. Okay. Question, the next sentence, "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 problems with that statement? Answer: No, I think the fact that the board has provided that book, made it available to students, and that they have characterized it as a book on intelligent design, that's all a fair statement. So I think that particular statement is something that effectively communicates the reality of the situation to students, which is why we got this book, it's available for you and this book describes intelligent design."
Q. And just a correction, I believe which is "we got this book," not "which is why we got this book," correct?
A. I'm sorry. If I read it wrong I apologize. "Which is we got this book, it's available for you, and the book describes intelligent design."
Q. Is that a truthful answer?
A. Of course it's a truthful answer.
Q. Sir, would you open up your textbook, Exhibit 214?
A. Sure.
Q. Turn to page 15 for me, please. If you read the paragraph that begins with the words " A useful"?
A. Sure. " A useful theory may become the dominant view among the majority of scientists, but no theory is considered absolute truth. Scientists analyze, review, and critique the strengths and weaknesses of theories. As new evidence is uncovered a theory may be revised or replaced by a more useful explanation. Sometimes scientists resist a new way of looking at nature, but over time new evidence determines which ideas survive and which are replaced. Thus, science is characterized by both continuity and change."
Q. Is that correct with regard to all scientific theories?
A. Yes, I believe it was. This is a chapter on the nature of science, and Joe and I wanted to emphasize to the students to scientific views may change over time in light of evidence.
Q. And that includes the Darwin theory of evolution?
A. Darwin's theory is a scientific theory. All theories are characterized by continuity and change, yes.
MR. MUISE: No further questions, Your Honor.
THE COURT: Thank you, Mr. Muise. Mr. Walczak, do you have any redirect?
MR. WALCZAK: Yes, Your Honor.
(Brief pause.)
REDIRECT BY MR. WALCZAK:
Q. Good morning, Dr. Miller?
A. Good morning.
Q. I want to cover six or seven points that were raised by Mr. Muise. First of all, if we could put Exhibit 124 on the screen? Is this the four paragraph statement that I asked you to comment on in your direct exam?
A. Yes, sir, it is.
Q. And as Mr. Muise pointed out, this statement was read in January. What I'd like to do now is put up I believe it's Exhibit 131, which is a statement that was read to the students in May or June that was revised slightly. Are you able to highlight, Matt, the four paragraphs? Let me represent to you, and if I'm in error I please would invite an objection, but I believe the only paragraph that is changed in any way is the third one. If you could please read that to yourself?
(Brief pause.)
A. I have read it, thank you.
Q. Can you identify what the change would be?
A. You're not playing fair. You should have told me to pay attention to the other one and read this one, but I have to tell you I don't see the change right there, I'm sorry.
Q. Let me see if we can put both --
A. I thought Mr. Muise's phylum quiz was going to be tough.
Q. Just wait until you get my grades. So the one on top is the one from May or June.
A. Oh, okay. Now, sir, I see the difference.
Q. And so what is the difference?
A. Well, they left out an apostrophe in the possessive on Darwin's in the June one, and --
THE COURT: We've lapsed into English there.
A. Your Honor, I'm sorry. It's the teacher in me, I can't help it, and I noticed that as far as I can tell the only other thing is that is the phrase "along with other resources," I think that's correct. Am I missing anything else, Mr. Walczak?
Q. That's what I can see as well.
A. Okay. I don't see any other grammatical mistakes either.
Q. Besides "Pandas" do they mention what those specific resources are?
A. No. The only book I see mentioned in "Pandas," the only book I see mentioned is "Pandas," and other resources unnamed.
Q. Does this change in the May or June reading of the statement, does this in any way change the opinion which you gave to the court about whether the statement promotes student understanding of science and evolution? Does this change your opinion in any way?
A. No, sir, it does not. It's still very clear that in contrast to the second paragraph, which is designed to specifically undermine Darwin's theory of evolution, or the theory of evolution in general, the third paragraph has no such undermining language with respect to "Pandas and People," and that's the only book that it specifically mentions. I think the effect is pretty much the same.
Q. There's a term that has been used throughout the testimony thus far, and it is "origin of life," and is that term used in a scientific way? Is there a way that scientists use the term origin of life?
A. Yes, sir. That term is used in a scientific way.
Q. And how is that term defined?
A. Well, I think the definition is reasonably straightforward, and that is origins of life research is research on, research concerning the conditions on this planet before life first appeared about three and a half billion years ago, and it involves research designed to reveal the pre-biological chemical processes that may have given rise first to self copying or self-replicating molecules, and eventually to the first living cells.
Q. And is that how you have used the term whenever it's employed in your book?
A. I believe it is. It's not something, it's not a question I have thought about in detail, but I believe that's exactly how we used it.
Q. And when you have testified using that term, either in response to a question, that is, has been your interpretation of origins of life?
A. Yes, sir, that is absolutely correct, that origins of life refers to in every sense in which I have used it and Joe Levine has used it in our book and I think in my testimony as to the origin of the first self-replicating molecules and the first living cells on this planet.
Q. When you use origin of life, you're not talking about origin of man?
A. No, absolutely not, sir. I think I've been very careful to use origin of species in terms of referring to that, and human origins or human evolutionary descent is quite a distinct topic from origin of life.
Q. Mr. Muise asked you a fair bit about your personal religious views.
A. Yes, I think he did.
Q. And he also asked you about religious and philosophical statements made by other scientists.
A. Yes, he did, and he I think named probably three of them in particular.
Q. Professor Dawkins was one?
A. Correct.
Q. Are statements, are these scientific statements?
A. No, sir. As I believe I answered for Mr. Muise, none of those statements are scientific in any sense.
Q. And do scientists make say religious statements?
A. Of course they do.
Q. And philosophical statements?
A. Yes, sir, they do. They even make statements about baseball, as Steven J. Gould did frequently, and those are not scientific statements.
Q. Just because a scientist said something doesn't make it scientific?
A. Of course not.
Q. And are you obviously have strong religious views you published in "Finding Darwin's God? Are these views published anywhere in your biology textbook?
A. No, sir, of course not.
Q. Are they published in any of your scientific journals?
A. They are not published in any of my scientific papers.
Q. Why not?
A. Because they aren't science. It's very simple.
Q. I want to direct your attention to your testimony in the Sellman case about which Mr. Muise asked you, and I believe that's Defendant's Exhibit 211. And Mr. Muise asked you about your testimony there where you were asked about the modern usage of creationism.
A. Yes, he did.
Q. And as I recall your answer was essentially the definition of what would be called young earth creationism.
A. Yes. In fact, I don't recall Mr. Muise asking me a question. I recall him asking me to read my testimony, and he did not ask me any questions about the nature of that testimony, and he did not ask for any clarifications.
Q. It might appear that your testimony in Sellman is inconsistent with what you may have testified yesterday. Can you reconcile the testimony?
A. Yes. It's very easy to reconcile that testimony, and that is that in Sellman I should have been much more specific than I was when I said what is generally meant by creationism. And in particular the definition I give to creationism is one that in this trial in order to distinguish it from intelligent design I gave to scientific creationism or young earth creationism.
Now, my testimony in Sellman I think could probably be construed if one does not appreciate the sort of general way in which I used the word creationism as to exclude intelligent design as a creationist theory simply because it doesn't make the scientific predictions that young earth creationism does about the geological record and the age of the earth, but in the most general sense it is a form of, it is a form of special creation or special creationism. Again this term was not at issue in the trial in Atlanta, and that's one of the reasons why I did not carefully define that term as I should have in my testimony in Sellman.
Q. But, Dr. Miller, in Sellman you were in fact asked about intelligent design, were you not?
A. My recollection is that I was.
Q. I'd like you to turn to page 139.
A. This is my testimony in Sellman?
Q. Yes. This would be Defendant's Exhibit 211.
A. Sir, I'm going to need a copy of it. Mr. Muise gave me one, but then he took it back.
Q. You don't remember it, sir?
A. I've got 138 down pretty well, but 139 I'm having trouble with.
Q. May I approach the witness?
THE COURT: You may.
A. Thank you.
Q. Now, the questions Mr. Muise asked you about your answer to I believe as you put it in the modern usage of creationism was on page 138 --
A. That's correct, sir.
Q. -- of the transcript? So now on page 139 I'd like you to read for the court line 7 through 11, please, beginning with the question there.
A. Sure. Line 7 begins, "Question: When you were writing your material on evolution, did you add any information on intelligent design?" The answer is, "No, I did not, and the reason once again is because we have been unable to find scientific evidence supporting the idea of intelligent design."
Q. Now, let me ask you to turn to the next page and read from line 4 to line 14 on 141, and I'll note that the first question there is by Judge Cooper in that case.
A. Perhaps it would help if I read that part to make clear. So I'll begin on line 4 as you requested. " THE COURT: Is it religious based?"
Q. I'm sorry, excuse me. And did you know what the court was referring to when it says "it" there?
A. Oh, excuse me, let me go back to the context. The court is, the term "it" is referring to intelligent design.
Q. Thank you.
A. So with reference to the intelligent design, the transcript begins, "COURT: Is it religious based? WITNESS: The advocates, Your Honor, of intelligent design would argue very strongly that their ideas are not religious based. They would say it is a straightforward conclusion of analysis of information theory and what they regard as the deficiencies of evolutionary theory.
"But I think it's also clear that the people who embrace intelligent design in the United States argue very strongly that they have a religious, argue very strongly that if intelligent design is not included, then their own religious beliefs will suffer. So they certainly in my experience many of them have religious motivations for embracing this particular idea.
"COURT: How do you see it? WITNESS: Pardon me sir? COURT: How do you see it? WITNESS: How do I see it? I'm a -- if I had to describe myself philosophically, I'd describe myself as a pragmatist, which if it works it's good enough for me. And with respect to intelligent design, I'm still waiting, and I've been waiting for about ten years for intelligent design theory to provide a single testable scientific explanation that holds up under peer review, under scientific analysis, and it simply hasn't.
"To put that in terms that my family in southern Indiana, mostly a farming family, would understand, this dog don't hunt. And in the case of intelligent design, I think that's a very good way to describe it."
Q. Could you, I'm sorry, read on through line 14?
A. Yes, sir. "Question by Attorney Michael Minnaeli: Maybe part of what His Honor is asking you about is how you see it in terms of a religion. Intelligent design, positing a designer, a creator Answer: Well, by definition any explanation that requires a creator, an intelligent designer, is religious on its, is certainly religious on its face, and therefore the very fact that intelligent design presupposes a creator makes it so."
Q. I want to shift focus here a little bit. In the passage you just read, near the end you testified that you're still waiting for a single testable scientific explanation about intelligent design. Mr. Muise asked you a number of questions about whether irreducible complexity was scientifically testable, and I believe you testified in fact that it was, that tests have been done. Is irreducible complexity subject to scientific testing?
A. As irreducible, if irreducible complexity is carefully framed the way that Dr. Behe did in his book "Darwin's Black Box," it makes a testable prediction, and that testable prediction is that the parts, the individual components of irreducibly complex machines should have no functions on their own, and that is testable, and as I indicated in my testimony yesterday we can actually carry that test out in many of the systems that Dr. Behe cites, and in every case it fails that test.
Now, the test of irreducible complexity as a scientific statement is not a test of intelligent design, and the reason for that is irreducible complexity by itself makes no argument for design. It makes an argument against evolution. And it's that argument, the argument of evolution not working, that we can subject to a scientific test. But that's not proof of design.
That's not even an argument for design. That is simply a scientific statement made against evolution that is testable. As I indicated it fails that test, but even if it passed the test, that wouldn't be an argument for design.
Q. And when you say Dr. Behe and intelligent design have made predictions, would that be the same as hypotheses?
A. Yes. I regard certain of the statements that Dr. Behe has made as hypotheses that make testable predictions. For example, he looked at the blood clotting cascade, drew the inference that all the parts of the cascade had to be present for clotting to occur, and used that as an argument from irreducible complexity that the cascade could not have evolved. "Pandas" makes exactly the same argument, and that argument can be subjected to a test. And that is if we find organisms in nature that are missing parts of that cascade, if that prediction is right, their blood should not clot.
And I brought into court yesterday two examples, documented examples by science and peer reviewed journals that showed that that prediction was wrong. The blood of whales and dolphins clots, and the blood of the puffer fish clots, and had that prediction been right, neither organism should have been able to clot its blood.
Q. So one of the hypotheses that's been advanced to support irreducible complexity both in "Pandas" and by Dr. Behe has been refuted? Is that the appropriate scientific term?
A. I think refuted, falsified, showed to be incorrect, found out to be wrong are all appropriate scientific terms in this case.
Q. And would you say the same thing about the prediction that the bacterial flagellum is irreducibly complex?
A. Yes, sir, I would. And the reason for that once again is the prediction is that all of the parts are necessary for function. In the absence of any of the parts there is no function that can be favored by natural selection. Once we discover that ten of those parts in a different context have a selectable function, in other words they work, they do something else that's useful to the cell, the hypothesis is tested and found to be wanting. It's falsified.
Q. And the immune system was another hypotheses used by intelligent design proponents?
A. That's correct, sir.
Q. I believe you pointed to ten or eleven peer reviewed scientific papers and studies that have refuted that hypothesis?
A. In the interests in the case of the immune system Dr. Behe made a different prediction. Because the immune system has so many different parts and so many different cells and so many interacting systems that he could not point to a single biochemical cascade like the blood clotting, or a single structure like the flagellum, but instead he pointed to the complexity of the system that shuffles genetic information, makes it possible for us to make antibodies against just about any foreign invader, and he said that system, because it required multiple parts, could never be explained in evolutionary terms. I think he said something to the effect that Darwinian explanations are doomed to failure, and it turns out that ten years of research have proven that Darwinian explanations of that system have been abundantly successful. So in that case that prediction, too, has not borne out.
Q. So the hypotheses advanced by the proponents of your irreducible complexity have been invalidated?
A. They've been invalidated in every case that they've been examined.
Q. Now, but I'm trying to distinguish irreducible complexity from intelligent design.
A. Correct.
Q. Let's assume that in fact there was support for irreducible complexity. Let's say that all of the scientific studies and literature had come out differently and you had not found an evolutionary pathway. Is that support for intelligent design?
A. No, sir, it is not.
Q. Why not?
A. It's not support for intelligent design because intelligent design presupposes a mechanism that exists outside of nature, can't be tested, can't be subjected to natural examination. If irreducible complexity held up, if we couldn't find subsets that were useful, it might mean that these systems had to be assembled by a pathway that was different from the Darwinian pathway, from the evolutionary pathway, and we might then look for another pathway or other evidence in favor of that.
Intelligent design would be a possibility, but intelligent design is always a possibility for everything. It's entirely possible that this universe was intelligently designed ten seconds ago, and each of us was put here with false memories and false childhoods. That's not a testable hypothesis. Is it possible? Yeah, sure. The problem with intelligent design as a scientific explanation is that it can be used to explain in non-scientific terms literally anything, and that's why it is not science.
Q. If you could recap, what are, you talked at the very beginning of your testimony you talked about the ground rules of science, what are those ground rules?
A. Well, I have to think very hard, because if I don't replicate my testimony exactly I'm sure Mr. Muise will have something to say about it, but I think the ground rules of science in the most general sense are that science is limited to the natural world. We do science based on what we can see, what we can observe, what we can test. Experiments we can carry out, control, and watch.
We then look at the results of those experiments, we try to make inferences based on them, and we try to formulate testable hypotheses on the basis of that evidence. Then go out in the world and carry out those tests. The explanations that we put forward as testable hypothesis qualifies as science only if they are natural explanations, because if they are not natural explanations they can't be tested, and that would render them outside of science.
And then finally the other ground rules that I'm sure I mentioned in one context or another is that science and scientific methods have to be open, they have to be made freely available for the criticism of other scientists. We often call that peer review in the formal sense, and they have to be repeatable in the sense that other scientists can carry out the same experiments, the same investigations, make similar observations, and either confirm or deny the results that we have gotten.
Q. So taking those ground rules of science and applying them to the inference for design, not the irreducible complexity.
A. Yes, sir.
Q. The inference for design, does that inference lead to rules of science?
A. No, sir, not by any sense.
Q. And why not?
A. It does not meet it because the idea of design is that forces acting outside of a natural world that we cannot see, cannot replicate, cannot control, and cannot test have produced changes inside the natural world. Now, they may well have. You remember my tongue in cheek explanation of the success of the Red Sox. They may well have, but that explanation is not testable by science, and therefore it cannot qualify as part of the scientific process or as the scientific theory hypothesis or idea.
Q. Does that make it wrong?
A. No, sir, it does not make it wrong. Explanations based on the supernatural could always be corrected, but since they lie outside the mechanisms of science to investigate, they are simply not part of science.
Q. Are there any peer reviewed publications, or scientific papers as you put it, on your curriculum vitae to support this inference for design?
A. I have not found a single peer reviewed paper anywhere in the scientific literature that supports the idea of intelligent design.
Q. I want to cover one more area that Mr. Muise raised. Unanswered questions, there are unanswered questions in evolution.
A. I certainly hope so. Or evolutionary researchers are out of business as of today.
Q. You testified in fact there are unanswered questions in every scientific theory?
A. Yes, sir, there are.
Q. Do we know everything there is to know in other areas of study, let's say history?
A. Certainly not. My daughter, my younger daughter is a history teacher, majored in history, specialized in studying the American Revolution. There are unanswered questions in the history of our own republic. So the answer is yes.
Q. Do we know everything there is to know about the battle of Gettysburg?
A. Well, we know who won. At least we're pretty sure who won. And we know where it took place, we know when it took place. We know the generals on both sides. We know some of the troop deployments. But if you were for example to say let's take a particular soldier from a Rhode Island regiment who wrote home to his family on day two of the battle of Gettysburg, we might know something about that, but you know, we might not know where he was or what he was on day one or where he was or what he did on day three.
Now, I dare to say that there are thousands of examples in which we do not know exactly what happened in a particular place on that battlefield at a particular time. Another way of putting it is that there are gaps in the historical record. But those gaps, they're worth filling, they're interesting, because we'd like to know what every soldier did on both sides in this pivotal battle in American history. So those gaps are unacceptable, and historians try to fill them.
If you discovered the unknown diary of a soldier who had been at Gettysburg, that would be great stuff. Give it to a historian, they'd write papers about it, they'd thank you. But none of this changes the conclusions that we can make from the abundant historical record that already exists as to where, when, and how the battle took place, or what the ultimate outcome was. So we can make accurate and even profound historical conclusions without having a complete historical record.
Q. You're talking about history here. Does that analogy apply to science?
A. Of course it does, because natural history is part of scientific investigation. Much of geology is historical in the sense that it tries to understand the processes that made up our earth. Much of cosmology and astronomy is historical in the sense that it tries to understand what has put together our universe, our solar system, and other things out there in the universe, and a great deal of biology is historical in that paleontology and even through molecular genetics we try to reconstruct what happened in the past.
Q. And does the fact that we don't know all the details undermine the soundness of evolutionary theory?
A. No, sir, it certainly does not.
MR. WALCZAK: May I have just one moment, Your Honor?
THE COURT: You may.
MR. WALCZAK: I have no further questions.
THE COURT: We'll give Mr. Muise the last shot. Any recross?
MR. MUISE: No further questions.
THE COURT: You may step down.
MR. MUISE: I have forgot the exhibits.
THE COURT: Do you have an agreement as to the exhibits, the numbers? I can read you the roster of what I have, and you can work along with me as we do this. I have P-11, pages 7, 37, 65, 99, 100, 139, 140, 145, 146, and 150. Does that pick up everything in P-11?
MR. WALCZAK: I believe it does, Your Honor, but we would move the entire book into evidence.
THE COURT: Any objection?
MR. GILLEN: Not at all, Your Honor.
THE COURT: P-11 is admitted in its entirety. Then we have the following additional exhibits. P-31, P-124, P-127, P-192, P-198, 214, P-214 that is, and P-245. Any objection to those?
MR. GILLEN: No objections, Your Honor.
THE COURT: All right. They're admitted. P-434, I'm not sure what that is. What is 434?
MR. WALCZAK: I'm sorry, Your Honor? 434?
THE COURT: 434 I think is "Darwin's Black Box," I'm not sure.
COURTROOM DEPUTY: Yes, it is.
THE COURT: There are certain pages referred to in that, 39,130, and 139. Is your pleasure to admit the book or the pages?
MR. WALCZAK: We'd move to admit the book.
THE COURT: All right. Any objection?
MR. GILLEN: We have no objection, Your Honor.
THE COURT: All right, that's admitted in its entirety. P-643, again I'm not sure what P-643 is. That is --
COURTROOM DEPUTY: Excerpt of Nature Magazine, September of 2001.
THE COURT: That is page 69 from Nature Magazine. I'm assuming you probably want to admit the page only, but tell me if I'm incorrect.
MR. WALCZAK: We actually like to admit the article that starts on page 69.
THE COURT: Any objection?
MR. GILLEN: No objection.
THE COURT: All right. The entire article is admitted, that is P-643 in its entirely. 649 was --
COURTROOM DEPUTY: A magazine article in the National Academy of Science.
THE COURT: There were three pages referred to. 27, 5, and 16.
MR. WALCZAK: We propose to admit that entire publication.
MR. GILLEN: No objection, Your Honor.
THE COURT: All right. 649 is admitted, P-649 in its entirety. We also have P-654 and P-665. Any objection to either of those?
MR. GILLEN: No, Your Honor.
THE COURT: All right. They're admitted. Any other plaintiff's exhibits that we have missed, Mr. Walczak?
MR. WALCZAK: Some others, Your Honor.
THE COURT: Because of the abundance of exhibits, should you miss something, and this will, I'll afford the same courtesy obviously to the defense, we'll double back. We're going to do the best we can to get them in, but if you discover for example over the lunch break that we forgot something, we'll take it up. That's all I have.
MR. WALCZAK: Your Honor, 192 is the publication from the National Academy of Sciences.
THE COURT: I recited that, and that's admitted.
MR. WALCZAK: That entire exhibit?
THE COURT: Yes.
MR. WALCZAK: Your Honor, we would also offer for the aid of the court the demonstrative exhibits that Dr. Miller relied on, and it's not necessarily to come in as evidence, but as Your Honor is reviewing the transcript they might be of assistance to the court.
THE COURT: In particular?
MR. WALCZAK: There were the five demonstrative exhibits with the slides I believe that's on the chimpanzee genome, hemoglobin, the bacterial flagellum, blood clotting cascade, the immune system.
THE COURT: In what form do you want to put those into the record? Do you have them printed?
MR. WALCZAK: Yes, Your Honor, I do believe there are prints of the slides that are already in the exhibit binder.
THE COURT: I was looking at them on the screen, so I didn't look at the binders. They're shaking their heads no, there may not be. If you want to supplement the record inasmuch as they were referred to and see if we can have an agreement, that's one where I'll allow you to double back if you want to, to put them in.
MR. WALCZAK: Your Honor, Mr. Gillen and I have quickly reached agreement that we would agree to produce these slides of both of our respective demonstratives.
THE COURT: The nods of the heads would indicate a meeting of the minds. So however you get them in, and why don't you mark them appropriately and we'll get them in at that time, and that would go for any demonstrative exhibits. Now, on cross examination by Mr. Muise, I have D-233, D-214, D-210, and D-211. Mr. Muise, your pleasure on that. Do you want to wait, or do you want to move to admit them now?
MR. MUISE: We had 214, Your Honor, the biology book, would you mind if we have that admitted at this time?
THE COURT: I couldn't hear you. Say again?
MR. MUISE: The biology book, 214?
THE COURT: You want to admit that?
MR. MUISE: We want to admit that, Your Honor. Exhibit 210.
THE COURT: I have 210.
MR. MUISE: We'd also admit --
MR. WALCZAK: I'm sorry, Your Honor.
THE COURT: 210 is the article. So you want to move 214 and 210. Any objection, Mr. Walczak?
MR. WALCZAK: No, Your Honor.
THE COURT: All right. They are admitted. How about 233 and 211?
MR. MUISE: We'll move for the admission of 233, Your Honor.
THE COURT: Mr. Walczak?
MR. WALCZAK: What is that?
MR. MUISE: The Pennsylvania academic standards.
MR. WALCZAK: No objection to those.
THE COURT: 233 is admitted. And finally 211?
MR. MUISE: We're not going to move for the admission of 211, Your Honor.
THE COURT: So D-233, D-214 and D-210 are admitted. Plaintiffs will be granted leave to submit the demonstrative exhibits in some form, and you can mark those appropriately and we'll take those out of turn at that point. That would seem to cover all the exhibits for that witness. And you may call your next witness. We'll go until about 12:15 I think. So there's certainly time to start the next witness.
MR. HARVEY: Your Honor, the plaintiffs call to the stand plaintiff Tammy Kitzmiller.
(Tammy Kitzmiller was called to testify and was sworn by the courtroom deputy.)
COURTROOM DEPUTY: Please be seated and state your full name for the record.
THE WITNESS: Tammy Kitzmiller.
DIRECT EXAMINATION BY MR. HARVEY:
Q. Please restate your name.
A. Tammy Kitzmiller.
Q. You're a plaintiff in this action?
A. Yes, I am.
Q. Ms. Kitzmiller, please tell us where you live.
A. 2045 Andover Drive in Dover.
Q. And how long have you lived at that address?
A. With the exception of the time period between December 2001 and August 2003 I've lived in the Dover school district since 1993.
Q. Do you have children?
A. Yes, I do.
Q. How many children do you have?
A. I have two daughters.
Q. Please tell us their names, just their first names, and their ages.
A. Megan is 17, and Jessica is 15.
Q. Do they attend school?
A. Yes, they do.
Q. Please tell us what school they attend and the grades.
A. They're high school. Megan is a senior, and Jessica is a sophomore.
Q. So that means that Jessica is in 10th grade right now?
A. Yes.
Q. In Dover High School, correct?
A. Correct.
Q. And did Jessica take the biology class when she was in 9th grade?
A. Yes, she did.
Q. Was that in the 2004-2005 school year?
A. Correct.
Q. How long have your daughters been attending public school in Dover?
A. Since kindergarten.
Q. Please just tell us where you went to high school.
A. Bermudian Springs.
Q. Did you have any formal education past high school?
A. No.
Q. And please tell us what you do for a living?
A. I'm an officer manager for a landscape company.
Q. Ms. Kitzmiller, did there come a time when you learned that the Dover area school district board of directors was considering approval of a biology textbook?
A. Yes. That would have been the summer of 2004.
Q. Do you remember the month, what month it was?
A. I believe it was June.
Q. And can you tell us what -- first of all tell us how you learned about it.
A. Through the newspapers.
Q. Do you specifically remember which newspapers?
A. It would either have been the York Dispatch or the York Daily Record.
Q. Tell us what you learned.
A. There was a question which biology book the school would approve. I also learned that certain board members had a problem with the biology book. There were statements made that it was laced with Darwinism. They also wanted to balance the biology curriculum with creationism.
Q. And then did you subsequently learn anything more about the approval of a biology textbook?
A. Yes. From what I can recall I remember the books being approved with the exception that they also wanted a supplemental book, "Of Pandas and People," in the classroom.
MR. GILLEN: Your Honor, just for clarification, I want to make sure that we have preserved our standing objection to the hearsay in the newspaper articles. There's testimony about that based on our motions in limine.
THE COURT: We'll note the objection and the standing objection as it relates to the newspaper article. It may be in a different context with respect to this witness, so feel free if you want to restate it in a different context, but I'll certainly grant that standing objection per your motion in limine.
MR. GILLEN: Thank you, Your Honor.
BY MR. HARVEY:
Q. Ms. Kitzmiller, did there come a time when you learned that the board of directors of Dover area school district had changed the biology curriculum?
A. Yes.
Q. And when did you learn that?
A. When the resolution was passed in October of 2004.
Q. And what did you learn?
A. I learned that they would be reading a statement to the biology class.
THE COURT: Let me stop you for a second. I think we're going to have trouble hearing you, and I know that's hard, you probably haven't testified before and you don't want to talk any louder. Why don't you move the microphone just a little bit closer? I'm guessing the people can't here. Try that. You don't have to get right on top of the microphone, that should be all right. You may proceed.
MR. HARVEY: Your Honor, may I approach the witness with an exhibit?
THE COURT: You may.
BY MR. HARVEY:
Q. Matt, if you can, please, put it up on the screen. That's P-127. Ms. Kitzmiller, I've handed you what's been marked as P-127. Have you had a chance to look at it?
A. Yes. I have seen this at home.
Q. Can you tell me what it is?
A. Yes. It is a biology curriculum update which was a newsletter that was mailed to residents in the Dover district.
Q. Do you know where it was mailed from or who mailed it?
A. From the school district.
Q. And did you receive it in the mail?
A. Yes, I did.
Q. And can you tell us, your daughter was in the biology class in January of -- excuse me, 2004, when this segment on evolution was introduced, correct?
A. 2005.
Q. Thank you very much. And can you tell us your understanding of how the change to the biology curriculum was implemented in the classroom?
A. Yes. The statement that's referenced at the bottom of the curriculum update, an administrator or walked into the classroom -- well, I'm guessing that if there were students that objected or parents that opted their children out, they left the room, and then an administrator walked in and read the statement, leaving no room for questions, answers, and then they left.
Q. How do you know what happened?
A. My daughter was in the class. She opted out.
Q. And do you know why she opted out?
A. She didn't want to be singled -- well, she didn't feel she should be singled out, but she also did not feel she needed to be in the classroom if her teacher didn't have to be there.
Q. Now, I'd like to know if you can tell us whether you feel that you've been harmed by the actions of the Dover area school district board of directors.
A. Absolutely. I feel that they have brought a religious idea into the classroom, and I object to that. I do not think that this is good science. There seems to be no controversy within the scientific community, and I would think the biggest thing for me as a parent, my 14-year-old daughter had to make the choice whether to stay in the classroom and listen to the statement, be confused, not be able to ask any questions, hear any answer, or she had to be singled out, go out of the classroom and face the possible ridicule of her friends and classmates.
MR. ROTHSCHILD: We have no further questions.
THE COURT: Cross examination, Mr. Thompson?
CROSS EXAMINATION BY MR. THOMPSON:
Q. Mrs. Kitzmiller, I'm Richard Thompson. I'm representing the defendants in this case. How many school board meetings did you attend in the year 2004?
A. Off the top of my head, I attended in November and December, that probably would have been four.
Q. When is the first time you attended a school board meeting in 2004?
A. It would have been in November.
Q. In November?
A. Yes.
Q. That was after the policy itself was voted on by the school board, is that correct?
A. Correct.
Q. And so you really were not involved or did not hear of the debate that was going on in the school board on that particular policy, personally hear that debate, is that correct?
A. I had no personal knowledge, no.
Q. You had no personal knowledge of it?
A. No.
Q. Now, also most of the information that you just gave your counsel was based upon your reading of accounts in the newspapers, is that correct?
A. That's correct.
Q. And so you don't know whether those accounts were accurate or not as they reflected the debate of the school board when they were determining whether to implement the policy or not, is that correct?
A. I would have to say that's correct.
Q. Okay. Now, you were referred to a newsletter that you got in February 2005, is that correct?
A. Correct.
Q. And did you object to the parents being informed of what the school board was going to do? Not the exact substance, but being informed what the school board was going to do, were you pleased at least to be notified of what they intending to do?
A. That's a tough question. Obviously the school district has a right to release the information as to what they're going to do. The manner in which it was done I would have questions with.
Q. You mentioned about your daughter having to opt out of that particular science class when they read this one minute statement, is that correct?
A. Correct.
Q. Now, there are opportunities that the school board gives parents to have their children opt out on many different kinds of subject matter, is that correct?
A. That's correct.
Q. They have a very lenient opt out policy, is that correct?
A. I would assume, yes.
Q. Yes. Okay. Now, one of the -- or the only book that the school board mentioned by name was "Of Pandas and People," is that correct?
A. That's correct.
Q. Do you know whether your daughter has ever read any part of "Pandas and People"?
A. I have no knowledge that she has.
MR. THOMPSON: Okay. No further questions.
THE COURT: Mr. Harvey, any redirect?
MR. HARVEY: No redirect, Your Honor.
THE COURT: You may step down. Thank you. Do you want to take another witness?
MR. HARVEY: Absolutely, Your Honor. Plaintiffs call to the stand Aralene B. Callahan.
(Aralene Callahan was called to testify and was sworn by the courtroom deputy.)
COURTROOM DEPUTY: Please state and spell your full name.
THE WITNESS: My name is Aralene Joan. Callahan. My nickname is Barrie. A-R-A-L-E-N-E, C-A-L-L-A-H-A-N. Barrie is B-A-R-R-I-E.
MR. HARVEY: Your Honor, I have a notebook of exhibits, all of them that are just a complication of some of the exhibits in the binder. I'd like to give it to the witness.
THE COURT: You may, sure.
DIRECT EXAMINATION BY MR. HARVEY:
Q. Mrs. Callahan, please tell us where you live.
A. 2030 Skytop Trail. Dover, Pennsylvania 17315.
Q. How long have you lived there?
A. About thirty years.
Q. Are you married?
A. Yes.
Q. Tell us your husband's name, please.
A. Frederick Brian Callahan.
Q. Do you have children?
A. Yes.
Q. How many children do you have?
A. Three.
Q. Please tell us their names and their ages.
A. Arie is 23, Danny's almost 21, and Katie is almost 17.
Q. Do any of them attend school in the Dover area school district?
A. Yes.
Q. Which child?
A. Katie.
Q. And what school does she attend?
A. Dover area high school.
Q. What grade is she in?
A. 11th.
Q. Please tell us what high school you went to.
A. Lower Marion High School.
Q. Do you have any formal education beyond high school?
A. Yes.
Q. Please tell us what formal education you have.
A. I have a B.S. from Ursinus College.
Q. What do you have a B.S. in?
A. Psychology.
Q. And did you at any time serve on the Dover area school district board of directors?
A. Yes.
Q. Please tell us what years approximately to the best of your recollection you served on the board of directors.
A. I think it started in `93. I know it ended in 2003.
Q. Do you know what month of 2003?
A. November of 2003 would have been my last meeting.
Q. During the time that you were on the Dover area school district board of directors did the board have retreats?
A. Yes.
Q. What's the first board retreat that you can remember?
A. The first board retreat using the word retreat was in January of 2002.
Q. And can you remember specifically what happened at that retreat?
A. Specifically at that retreat I don't know.
Q. What's the next board retreat that you recall after the retreat in January of 2002?
A. That would have been March of 2003.
Q. Do you know Allen Bonsell?
A. Yes.
Q. Who is Allen Bonsell?
A. Allen Bonsell at that time was a school board member also.
Q. And did Mr. Bonsell have at that point in March of 2003, did Mr. Bonsell have any positions with respect to committees on the board?
A. He I believe the entire time that I served on the board with him he was chairman of the curriculum committee. He may have had other committee positions, but I can't recall.
Q. Now, do you remember a part of this retreat in March of 2003 where the board members went around the room and expressed issues that were of concern to them?
A. Yes.
Q. And tell us what you remember just generally about how that process worked.
A. Each board member had some time to talk about issues that were of concern to them at that time.
Q. Do you remember what Allen Bonsell identified for as issues of concern to him at that time?
A. Yes, I do. He expressed that he did not believe in evolution, and he also said that if evolution was part of a biology curriculum, creationism had to be shared 50/50.
Q. Did you take notes during that board meeting?
A. Yes.
Q. What did you write down generally during that board meeting?
A. Just different notes that people had said. I wrote down a couple of things that were concerns of mine also.
Q. When did you take these notes?
A. As I was attending the meeting.
Q. And as the people were speaking?
A. Yes.
Q. Now, I'd like you to take a look at what's been marked as P-641. It's in the notebook in front of you. Do you recognize P-641?
A. Yes.
Q. Tell us what it is.
A. It's the agenda from the board administration -- excuse me, board administrative retreat from March 26th, 2003.
Q. And do you know where this document came from?
A. It came from my home.
Q. And how was it that, tell us how it came to be in your home.
A. Well, it was in a pile of board information that I still had.
Q. And is there anything written on this document about what Allen Bonsell said at that meeting in March of 2003?
A. It has, "Allen - American history, founding fathers." Then "50/50 evolution versus creationism," and then an arrow from evolution, "Does not believe in evolution."
Q. Now, do you remember anything else that Mr. Bonsell said at that meeting?
A. No.
Q. I'd like you to look at the second page of what's been marked as P-641. Do you see that?
A. Yes.
Q. And what's that?
A. These were the school board members' issues from the previous year.
Q. And was it part of the first page of P-641?
A. It was on the back of that document.
Q. And do you know who created this?
A. I believe Dr. Nielsen created it.
Q. Do you know how he created it?
A. I believe what he did as school board members were talking about their issues, he jotted them down and then kept them and distributed them.
Q. And there's a note on there under the name Allen Bonsell?
A. Yes.
Q. Do you see that?
A. Yes.
Q. Can you please read what it says under number 1 and 2 under Allen Bonsell?
A. Creationism number 1. Number 2, prayer.
Q. And do you remember him saying that?
A. Not at that time, but I do remember him talking about creationism. I remember him talking about creationism, because that spurred me to go to the high school to go talk to administrators about it.
Q. And tell me the circumstances under which you went to the high school and talked to administrators about that.
A. It was after I heard Allen Bonsell speak about creationism I talked to Bob Hamilton, who at that time was the principal of the high school, and Larry Reading, who was the assistant principal at the high school, and I was expressing my amazement that a school board member would want creationism as part of a biology curriculum.
Q. And if you'd just please turn to the first page of 641 again, those notes that you read?
A. Yes.
Q. Whose handwriting is that?
A. That's mine. I'm not proud of that.
Q. Now, we're going to move off that exhibit for just a minute now, and I'd like to ask you about a different subject. Did the board approve funds for a biology textbook in 2003?
A. Yes.
Q. Were you on the board at the time?
A. Yes.
Q. Did this approval for funding cover any other textbooks?
A. Yes.
Q. What textbooks did it cover?
A. It covered all the textbooks that were going to be bought that were part of the science curriculum, and also family and consumer sciences.
Q. Was there any schedule for buying textbooks?
A. The now superintendent Richard Nielson, who had been when he was the assistant superintendent had established a 7-year curriculum cycle, which was very beneficial in terms of budgeting I thought.
Q. What month of 2003 was it that the funding for the science textbooks was approved?
A. June.
Q. Now, after that approval for the funding of the science textbooks did the board approve the purchase of a biology textbook?
A. No.
Q. Did you raise the issue at any time when you were on the board?
A. Yes.
Q. How did you raise it?
A. I repeatedly asked what the status was of purchasing the biology book, and not only the biology book. There were some chemistry books that hadn't been ordered, and there were also some family and consumer science books that hadn't been ordered, and I know at one point, and I believe it was August of that year, I even made this motion myself to approve those books since they had already been approved in the budget, but they died, that motion died for lack of a second.
Q. And did anybody on the board tell you why the approval of the purchase of the textbook was not passing?
A. No.
Q. Did this affect your daughter?
A. Yes.
Q. What grade was your daughter in at the point?
A. My daughter was in 9th grade September of 2003.
Q. How did this affect your daughter?
A. She didn't have a biology book to take home. There were biology books on the shelf, but they were merely used as reference. It was my understanding that they weren't matching the curriculum, and the teachers were hoping to get their new biology books that they had reviewed and had been approved in the budget.
Q. Now, your time on the board I believe you testified was over in November of 2003?
A. Yes.
Q. Did you raise the issue of the approval of a purchase of a biology textbook after your term on the board expired?
A. Yes.
Q. And how did you raise it?
A. I would approach the school board at a public session during public comments and ask the status of the biology books.
Q. How many times did you raise that concern?
A. I think altogether when I was on the board and off the board it may have been five or six times.
Q. And what happened when you raised it with the board in those cases?
A. I would pretty much get a non-answer.
Q. Did you attend a meeting of the Dover area school district board of directors on June the 7th, 2004?
A. Yes, I did.
Q. Why did you go to that meeting?
A. It was still, the major area of concern was these books hadn't been approved. I mean, my daughter had already gone through biology and didn't have a biology book. Well, the chemistry books hadn't been approved yet, and she was going to be taking chemistry. I was really going to be upset if she was going to be in a class that didn't have a chemistry book to take home.
Q. Now, I'd like you to take a look at what's been marked as P-42 in your notebook. Matt, can you please put it on the screen? Take a look at P-42 and tell us what it is.
A. This is the school board planning agenda meeting from June 7th, 2004.
Q. I'd like to focus on the language that I'm going to have highlights in bold from P-42. Do you see those words "planning meeting"?
A. Yes.
Q. What does that mean?
A. That means that it's scheduled as a planning meeting, and what the practice of the school board had been, the first meeting of the month typically was a planning session. I mean, there might be an action item, but that would be if there's for instance like an emergency appointment, typically that was the planning meeting. Then the second meeting of the month was the action meeting.
Q. I just got a glass of water and you're actually doing more talking than me. Would you like a glass of water?
A. Please. Thank you.
Q. Now, did you see this agenda at or around June 7th, 2004? We're on P-42, ma'am.
A. Yes. Just to make sure, yes.
Q. Can you tell us if this agenda shows that the board was scheduled to consider approval of any textbooks?
A. Yes.
Q. Which textbooks was it scheduled to consider approval of?
A. Chemistry, and family and consumer science.
Q. What about approval for biology? Was that --
A. No.
Q. Did you speak at that meeting?
A. Yes.
Q. Tell us what you said at that meeting.
A. As far as I can remember, when I'm looking at the agenda and I see that well, there were science books, chemistry and family and consumer sciences ready to be approved, but there was no biology books. So I felt that I just had to approach the board one more time and ask them why the biology books were not scheduled for approval.
Q. And is that what you said?
A. Yes.
Q. And do you recall what the board said back to you?
A. I do recall that Bill Buckingham said to me, "Well, the biology book is laced with Darwinism."
Q. Who is Bill Buckingham?
A. Bill Buckingham was a school board member at the time.
Q. Did he have responsibility for any particular committee on the board at that time?
A. At the time he would have been chair of the curriculum committee.
Q. What did you do after Mr. Buckingham made that comment about laced with Darwinism to you?
A. I said, "So this is about evolution."
Q. Did you say anything else?
A. No.
Q. And did he say anything else?
A. At that time I don't recall that he said anything else.
Q. Tell us what happened next.
A. I sat down, and there might have been some kind of conversation going on, because I sat down, and as I was sitting down a student who had graduated with my son was sitting at that same table, and he was alarmed by what had just happened, and he said to me, "Mrs. Callahan, would it be okay if I got up to address the school board?" And I said, "I would think so. It's still public comment and, you know, go ahead." And he did then approach the school board.
Q. And what did he say?
A. He started questioning them, he explained actually that he was a biology major at Penn State, and he started to explain to them how important evolution is to a biology curriculum. And as he was explaining things to them, several of the board members were talking back to him. So it was an exchange.
Q. What did they say back to him?
A. They said that, "Well, okay, fine, evolution, but we need to teach creationism." They were pretty much down playing evolution as something that's credible. Bill Buckingham talked about creationism. Allen Bonsell talked about creationism. And as it went back and forth, at one point I thought Max was doing a really good job. He was staying calm and he was just repeatedly trying to explain to them what the meaning of biology was, what the meaning of evolution was, and he was getting this bantering back and forth. So at one point Bill Buckingham seemed to be getting pretty frustrated, and he said, "Well, you're a perfect example of what happens to students when they go to college. They get brainwashed."
Q. Do you remember anything else that was said in that exchange between the board and this student?
A. I also remember Noah Renwick explaining what a scientific theory was, and he explained that a scientific theory becomes a theory by repetition. In other words, if you just keep repeating it and repeating it and repeating it, whatever it is, that's how science becomes a theory.
Q. I'm not sure if I asked you, can you tell us the name of this student?
A. Oh, Max Pell.
Q. When you say he was a student, he was a college student?
A. He was a college student, yes.
Q. What was his demeanor during this exchange?
A. He stayed calm. I was really impressed how he was handling himself. I mean, he was a young man and these were adults kind of theatering him. They were rude at times I thought.
Q. Now, do you recall Mr. Buckingham showing Mr. Pell a picture at any time during that exchange?
A. Yes.
Q. Tell us what you remember.
A. I remember Mr. Buckingham stood up and went over to Allen Bonsell and showed him what appeared to be a picture and whispered something, there was a little exchange between the two of them, and then sat back down and started talking about this picture to Max.
Q. And what did he say?
A. He said something to the effect of, "you Can't expect me to believe that I was ever descended from apes and monkeys."
Q. Do you recall anything else that happened at that board meeting?
A. No.
Q. Do you read a local paper?
A. Yes.
Q. Which paper?
A. We receive the York Dispatch at our home, and any time there's a Dover issue I make sure I get the Daily Record.
Q. Were you in the practice of reading the news, the local papers at that time?
A. Yes.
Q. Now, I'd like to show you what's been marked as P-44. Do you have that in front of you?
A. Yes.
Q. Can you tell us what it is?
A. It's from the York Dispatch, June 8th. It's an article.
Q. Who's the author?
A. The author is Heidi Bubb.
Q. Have you read that before now?
A. Yes.
Q. When did you read it?
A. I know I read it within the last couple of days.
Q. Did you read it at or around that time?
A. Yes.
Q. Now, I'd like you to look at that and tell us if that helps you remember anything else that happened at the meeting.
A. Well, yes. I mean, then it became apparent that they were still going to be looking at a book that teachers and board members could approve, but it gave me a sense that they were still going to continue looking for a book that had creationism in it.
Q. Does it help you remember anything else that happened at the meeting on June 7th of 2004?
A. Yes, because when Max started talking about the issue that he was concerned that religion was going to be in the biology class, Bill Buckingham made it perfectly clear that he thought the idea of separation of church and state to be mythical.
Q. Do you remember anything, does looking at this Exhibit P-44 help you remember anything else that was said at that meeting?
MR. GILLEN: Excuse me, Your Honor. Just to the extent that the witness is testifying from memory, memory is one thing, but reading from the article is another. I'd request that she not read from the article as evidence of --
THE COURT: I think the objection is well founded. What you're being asked to do is look at the article and to see whether or not it refreshes your recollection as to what happened at the meeting, and you can do that. But you shouldn't refer to the article in your answer. That's inappropriate for you to do that. So if you want to take a moment and read the article, we'll give you the opportunity to do that. Or if you want to take a moment as you get asked the question you can read the article, but you must answer from your own memory. Don't recite something that you're reading from the article.
THE WITNESS: All right.
THE COURT: It's your memory that controls. If it's refreshed it is. If it's not, fair enough.
THE WITNESS: Thank you. But I do remember when Max was showing his concern about religion as part of the biology curriculum that Bill Buckingham, you know, in an exasperated tone did say, "You know, hey, the separation of church and state is just a myth."
MR. HARVEY: Do you remember anything else about that?
MR. GILLEN: Your Honor, I don't want to belabor the process and I want to be fair to both parties, but it's not appropriate when the witness is asked whether she remembers for her to look at that, at the article first. She should first say she doesn't remember, and then if she doesn't and she wants to look, I understand.
MR. HARVEY: Your Honor, I think I've established that the witness doesn't remember anything else, and I just want her --
THE COURT: Well, I understand Mr. Gillen's objection. It's not an inappropriate objection under the circumstances. How long is the article?
THE WITNESS: I think that was it. I don't remember anything else. The last thing I remembered when I looked at the part of the separation of church and state was when Bill was so exasperated about it at that meeting.
THE COURT: Then I think the answer is no to the question, and Mr. Gillen, no harm, no foul, and we can move on.
MR. GILLEN: Fair enough.
BY MR. HARVEY:
Q. Now, I'd like you to turn to what has been marked as P-46, please, and can you tell us what is that?
A. This is a June 9th newspaper article from the York Daily Record.
Q. Who's the author?
A. Joseph Maldonado.
Q. Did you read this article at or around that time?
A. Yes.
Q. Have you reviewed it more recently?
A. Yes.
Q. And by looking at this article, does this help you remember anything else that happened at the meeting that you aren't already told us about?
(Brief pause.)
A. I don't think so, except that there was an ongoing mention of that it's really important for fairness and balance, therefore creationism needed to be taught along with evolution.
Q. Now, after that meeting, or shortly after that meeting I should say, did you have a conversation with Mr. Bacsa about looking for a textbook?
A. Yes, I did.
Q. Who is Mr. Bacsa?
A. Mr. Bacsa is the assistant superintendent of the Dover area school district.
Q. Tell us what you can recall of that conversation with him.
A. What I can recall, and I was in the administrative office area and I was saying to him, "Well, Allen Bonsell at least has finally said publicly that he's interested in creationism being part of the school district," and Mr. Bacsa said to me, "Well, I don't think you'll have to worry because they'll never find a book that includes evolution and creationism in it."
Q. Did you attend any other -- did you know that there was a school board meeting scheduled for June 14th?
A. Yes.
Q. Did you attend that meeting?
A. No.
Q. Why not?
A. Because I was out of town.
Q. Did you attend any other board meetings that summer?
A. No.
Q. Why not?
A. I was out of town.
Q. And did you follow issues relating to those biology texts?
A. Yes.
Q. How did you do that?
A. My husband would bring the newspapers to me.
Q. And did you, in September did you attend any meetings of the Dover area school district board of directors?
A. Yes.
Q. Do you remember a meeting on September the 7th of 2004?
A. Yes.
Q. And did you attend that meeting?
A. Yes.
Q. Tell us what you remember about happening at that meeting.
A. I remember approaching the school board during public comments, and I spoke briefly about the book "Of Pandas and People," because at that time I had read it and I was very concerned about the book being considered at all as a reference book, and because I was so concerned, and I guess at the time there's certain, there had been a lot of comment about the book, I was encouraging Allen Bonsell to follow past practice of the board, which is to allow public comment or to have a planning meeting the first meeting of the month and an action meeting the second meeting of the month, so whatever action the school board was planning to take on this issue there would be plenty of time for the faculty and the community and even board members to find out about as much as they could about whatever they were going to decide to do.
Q. Why did you raise that issue?
A. Why?
Q. Yes.
A. Well, because I was really concerned about this book being part of the biology curriculum.
Q. Do you remember anything else that happened at the meeting on September the 7th?
A. On September 7th? Is that what you said?
Q. Yes.
A. No, only that I basically didn't get an answer from Allen when I was trying to have him make a commitment that yes, he would strive to follow past practice.
Q. Now, I'd like to ask you to look at what's been marked as Plaintiff's Exhibit 679. Can you tell us what that is?
A. It's a news article on September 8th from the York Daily Record.
Q. And who's the author?
A. Lori Lebo.
Q. Does looking at that article help you remember anything else that happened at the board meeting on September the 7th, 2004?
(Brief pause.)
A. I mean, I remember saying that to Lori that this is just one more embarrassment for Dover, because I really was appalled by that book "Of Pandas and People."
Q. Anything else you recall from that meeting after reviewing that article?
A. No.
Q. Do you remember a meeting on September the 13th of 2004?
A. Yes.
Q. And did you speak to the board on that occasion?
A. Yes.
Q. Do you remember what you said?
A. I remember I wrote out a statement with what I wanted to say, because I really wanted to try to make an impression on the board of how inappropriate I thought the course of action they looked like they were taking was.
Q. Did you save your notes on that statement?
A. Yes.
Q. Please turn to what's been marked as P-668. I'm not going to ask you to look at all of this. It's a series of, a collection of handwritten note, and I'd just like to ask you to turn to page 1033 in that document. It's actually the last page of the document.
A. Okay. Thank you.
Q. Are you at that page?
A. I am.
Q. Can you tell us what that is?
A. These are the notes, or the written statement I brought with me to that September meeting to read to the school board.
Q. And looking at that, does that help you remember what you said to the board on September the 13th of 2004?
A. Yes.
Q. Please tell us what you said.
A. May I read it, or do you want me to --
MR. GILLEN: No, Your Honor. I mean, she may not read the statement. If she can remember, that's fine. But it is hearsay.
THE COURT: What counsel is attempting to have you do is to have you look at that to refresh your recollection as to what you said. You don't have to recite it verbatim. If it refreshes your recollection you can, with your recollection refreshed you can paraphrase or summarize if that refreshes your recollection what you said at the school board meeting. But you shouldn't read it from the note.
THE WITNESS: So do you need me to read the entire thing first and then say what I said, or may I look at it and comment --
THE COURT: You certainly may have all the time you need to take a look at it, and if it refreshes your recollection then you can answer the question as to what it is that you said. This is not a test to have you recite it verbatim. If it refreshes your recollection then you can summarize or answer the question, but Mr. Gillen's objection is that you cannot read the note into evidence. That's quite right. So if you do it for that purpose, that's appropriate.
THE WITNESS: Okay. Thank you.
THE COURT: And while she's doing that let me ask counsel, it looks like you're going to be in with this witness for a while.
MR. HARVEY: Yes, Your Honor.
THE COURT: While don't we cover this question and then we'll break for lunch, or if you have several questions in this area, why don't you finish this area as to what you said at the meeting and then --
MR. HARVEY: I was, I was just going to ask her this question, ask her to tell us what she can remember saying, and I believe, Your Honor, that that does come in as a past recollection recorded, so that she could read the statement. And if she remembers reading the statement I believe she could read it.
MR. GILLEN: Your Honor, she's testified that these are notes of the statement she was going to make. I think that by any reasonable measure that's not recollection recorded. It's something she believes that she took with her to the meeting.
THE COURT: We could debate the finer points of what is past recollection recorded and we might not resolve it, but we're going to get a summary of the statement I suspect after she reads it. So I'll choose not to do that.
MR. GILLEN: And I wouldn't deprive the witness of a recollection.
THE COURT: All right. So we won't go to the more, to the finer points of past recollection recorded. We'll use the reference.
THE WITNESS: I absolutely remember reading this statement at the school board meeting.
MR. HARVEY: And would you please read it for us? I'm sorry, Your Honor, Mr. Rothschild had spoken to me when you last spoke, and I didn't hear your last comment.
THE COURT: It's always a problem when you have co-counsel.
MR. HARVEY: I know, I know, and I'll talk to him about that over lunch, Your Honor.
THE COURT: Mr. Rothschild goes to the penalty box. You can restate the question.
BY MR. HARVEY:
Q. That document that you're looking at that has the Bates number P-01033 on the bottom, can you tell us what that is?
A. This is a document, this is a copy of the papers that I brought with me that I read at the school board meeting.
Q. And did you read that verbatim?
A. I read it verbatim.
Q. Would you please read that for us?
A. I have --
MR. GILLEN: Your Honor?
THE COURT: No, it's not, we're not going to read the statement in. So that my ruling is clear, I don't view it -- if you want to break here and we want to debate this and you want to give me some time and you want to do it that way, I don't see it as necessarily past recollection recorded for the argument that Mr. Gillen made. However, we can do this two ways.
We can break here, hold the thought, I'll come back and I'll rule, or alternatively you can have it refresh her recollection and she can having had the recollection refreshed testify as to generally what she said. In other words paraphrase or summarize what she said, your choice.
BY MR. HARVEY:
Q. I'd be happy for you to summarize what you said at that meeting based on your review of the statement now.
A. The first thing that I did say is that the book was absolutely not appropriate for 9th grade. I then said that the book claimed to refute scientific biological origins, but I thought it was absolutely religiously based. And the third thing I said was that I urged the school board to really consider this strongly and to remember the oath of offices they took that they were sworn in as school board members, because I thought that this could lead to an expensive and protracted lawsuit and it would be harmful to the students and the district.
Q. Do you remember anything else you said? And you can look at it again.
A. Oh, I remember mentioning also that this had absolutely nothing to do with balance and fairness, but that it was merely introducing religion into the biology curriculum, and to pretend otherwise was pretty preposterous.
MR. HARVEY: Thank you, Your Honor. I have no further -- I mean, I have more questions.
THE COURT: For the witness.
MR. HARVEY: But on this line of questioning I'm done, Your Honor.
THE COURT: Okay. That will mark an appropriate time to break for lunch. We will break until approximately 1:45. We'll reconvene at that time for our afternoon session. We'll continue with this witness at that time.
(End of Volume 1 at 12:23 p.m.)

 

Kitzmiller v. Dover Area School District
Trial transcript: Day 2 (September 27), PM Session, Part 1

THE COURT: All right. We'll continue then with this witness on direct.
(Whereupon, ARALENE CALLAHAN, resumed the witness stand.)
DIRECT EXAMINATION (CONTINUED)
BY MR. HARVEY:
Q. Mrs. Callahan, did you attend a meeting of the Dover Area School District Board of Directors on or about October the 4th, 2004?
A. Yes, I did.
Q. I'd like you to take a look at what has been marked as Plaintiff's Exhibit 78 in the binder before you. Have you had a chance to look at it?
A. Yes.
Q. Can you tell me what it is?
A. It's the planning meeting agenda for Monday, October 4th.
Q. And can you please tell me whether there's anything on the agenda for the meeting about a change to the biology curriculum?
A. No.
Q. Is there anything there under curriculum at all?
A. Yes, there is an FYI from Dr. Nilsen.
Q. Are you looking at page 1 of the page that has the base number 135?
A. Yes.
Q. Please tell us what it says there about, under curriculum?
A. It says, the superintendent has approved the donation of two classroom sets, 25 each, Of Pandas and People. The classroom sets will be used as references and will be made available to all students.
Q. Now I'd like to ask whether you attended the meeting of the board on October the 18th, 2004?
A. Yes.
Q. And why did you attend that meeting?
A. Because I was concerned about the curriculum change that I knew was supposed to happen on October 18th, not for anything that was on the planning meeting, but because Mike Baksa had given me a sheet of paper with potential curriculum changes on it because I was a member of the district curriculum committee. And that was a few days before the October 18th meeting.
Q. Please take a look at what's been marked and is in your notebook as Plaintiff's Exhibit 87. Do you have that in front of you?
A. Yes.
Q. What is it?
A. That's the agenda for the board meeting of October 18th, 2004.
Q. Now please tell us what's listed on that agenda under curriculum?
A. Under the heading of curriculum is the addendum.
Q. What does it say?
A. It says, to approve changes to the biology I, grade 9 planned course curriculum guide for the 2004-2005 school year. In the background information, copies of the changes have been sent to the district curriculum advisory council and the science department.
Q. Was this curriculum change on the planning meeting agenda?
A. No, and that's why it's in bold print and it's an addendum item, to indicate it was not part of the planning meeting.
Q. Was this a concern to you at the time?
A. Yes.
Q. Why?
A. Because -- I mean, I really thought it was always an important practice to have items brought up at a planning meeting so there would be enough time for the faculty and community members to respond to anything that was going to be changed. And, I mean, this was even bigger because there certainly had been a lot of attention to it.
There were a lot of people who had a tremendous amount of problems with -- well, what end up happening and what was happening in the district at the time.
Q. Now there's a reference there to the district curriculum advisory council. Do you see that?
A. Yes.
Q. And do you know what that is?
A. Yes, that's a committee that's made up of board members, administrators, faculty, and community members.
Q. And were you on that committee at that time?
A. Yes.
Q. Were you on that as a board member or as a parent?
A. As a parent.
Q. And did you receive a copy of the changes as referred to in the curriculum -- excuse me, the agenda?
A. Yes, a few days before the meeting.
Q. How did you receive that?
A. I don't remember if they were mailed to me or if Mike Baksa handed them to me at some point.
Q. Was a meeting held of that committee?
A. No.
Q. Did you respond in any way to receiving that proposed curriculum change?
A. Yes. It was verbal, but I said to Mike Baksa, I am formally making a request that this change be turned over to the district curriculum committee because it's the district curriculum committee that reviews changes in curriculum and gives it approval for those changes.
Q. Did you speak at the meeting on October 18th?
A. Yes.
Q. Can you remember what you said, and please tell us?
A. I know I spoke about urging, strongly urging the board to return this change, potential change to the district curriculum committee so it could be reviewed. And also, I thought it was important to give the public time to respond to it, like I had said before. I also -- I know I read a paragraph from the book Of Pandas and People, and I asked the board at that time if the paragraph that I read was still accurate.
And the reason I wanted to know that was because that particular paragraph that I read had been footnoted from 1977 and -- 1977 is pretty old in a science book, and I wanted to make the point that virtually all the footnotes seemed to be 20 or 30 years old. And I think anybody who's familiar with science realizes that when you publish a science book, you run the risk of the day it's out, that it's going to be outdated.
And the thought of -- I mean, that was just one example that I wanted to drive home to the school board, that you couldn't possibly consider this a valid science reference book when you had so many footnotes that were 20 and 30 years old. I then -- I had with me many comments from scientists regarding the book Of Pandas and People, and I went down and I read just a few of them.
But I did inform them there were certainly many more, and I could go on and on, that I had not found any scientist who considered this worthy of being called a scientific reference book. I might have said some other things, but I don't remember.
Q. Do you remember if you said anything about you being on the district curriculum committee?
A. Yes, because that's, you know, part of the reason that I was on the district curriculum committee, and I was urging it because I knew the practices of the district curriculum committee, and changes that happened within the district concerning curriculum went through that committee.
Q. What did you tell the board about that on October the 18th?
A. That I thought they were bypassing a step that had been past practice, and I really felt like it was starting to look like they were just railroading this through the district, and they actually didn't want any input from any scientists or science -- scientists or any of the science teachers or even any of the community members at that point.
Q. Do you remember anything else you said at that meeting?
A. No. I might have said something else. I don't remember.
Q. Do you remember what else happened at the meeting?
A. I know. Also during public comment, there were quite a number of community members who stood up and spoke. They spoke about the legal issues. They spoke about their concerns for the science behind the book Of Pandas and People and also this curriculum change. There were maybe a dozen people who spoke, all of them very, very concerned about this book being introduced and this curriculum change. And I do believe there was one person who did speak in favor of it.
Q. Do you recall any discussion among the board members about their reason for making the curriculum change?
A. No, because people did ask about that. I mean, I know there was one person -- there could have even been several people who asked about the scientific method behind intelligent design, and there was no answer to that. There were never -- most of the questions or the concerns that anybody brought up were really not responded to by the board.
Q. Do you remember board member Heather Geesey saying anything at that meeting?
A. I do remember Heather Geesey saying that they should be fired.
Q. And what was your understanding at the time of what she was talking about?
A. That she thought the teachers should be fired if they didn't follow the direction of the board.
Q. Now do you remember there was some voting at the meeting?
A. Yes.
Q. Do you remember the outcome of that?
A. That's the vote was made to make the change in the curriculum.
Q. Did you attend the meeting of, the next meeting of the board which, I believe, was on November the 1st?
A. Yes.
Q. Why did you attend that meeting?
A. In between that October 18th meeting and the November 1st meeting -- excuse me. I asked if I could listen to the tapes of the October 18th meeting. And I was told only board members were permitted to listen to those tapes.
So, again, I addressed the board in public comment saying I was concerned that I was not given the opportunity to listen to this tape. I thought that they were a public record that should be accessible to people in the public, and I believed that it was a violation of the freedom of information law.
Q. And did anyone -- you said that at the board meeting?
A. Yes.
Q. And you said that you had made a request prior to the board meeting --
A. Yes.
Q. -- to listen to the tape. Who did you make that request to?
A. I believe I talked to Karen Holtzapple.
Q. Who's Karen Karen Holtzapple?
A. She's the secretary to the business manager.
Q. What was the policy about listening to tapes when you were a member of the board?
A. I know my experience had been with the tapes that we were open about people in the public listening to those tapes. I had been with people when they had listened to the tapes. I mean, one person I remember in particular.
Q. Do you know whether the board had a policy about retaining tapes when you were a member of the board?
A. I know certainly at the beginning -- when I was first on the board, I mean the tapes were destroyed shortly after the minutes were taken. And then there was a discussion at one of the board meetings -- this was several years ago -- where board members were saying, you know, why can't we keep these tapes maybe six months to a year?
I don't remember if the board took a vote about that. But I was left with the impression that the tapes were going to be kept six months to a year. The problem before has always been that there's not a lot of space in the district office, so that space was a consideration. But I certainly walked away from that meeting thinking those tapes are going to be kept six months to a year.
Q. Do you remember at the board meeting on November the 1st whether Alan Bonsell said anything about the tapes or tape of the October 18th meeting?
A. I do remember Alan Bonsell saying something to the effect, well, of course, we would destroy the tapes. We might be involved in a legal matter.
Q. Do you remember anything else that was said on that meeting of November the 1st, 2004?
A. No.
Q. Do you remember Noel Weinrich saying anything?
A. Not that I can -- I mean, that might have been the meeting that he got really upset and left the meeting because he was -- that might have been the meeting that he got really, really angry and because apparently Bill Buckingham had said something about his patriotism and his religious faith, and it had something to do with, you know, his religion is between his God and himself.
Q. Please turn to Exhibit, Plaintiff's Exhibit 669. Do you have that in front of you?
A. I do.
Q. Have you seen it before?
A. Yes.
Q. What is it?
A. It's an article by Joseph Maldonado from the York Daily Record dated November 2nd, 2004.
Q. Did you read it on or about that time?
A. Yes.
Q. Now I'd like you to look at that and tell us whether -- read it first, please. And when you're done reading it, just put it down for a second, and then tell us if it helps you remember anything else that happened at that meeting.
A. Yes, I do remember a few more things after seeing this.
Q. Please tell us what you remember.
A. I do remember Casey Brown making the suggestion that certainly this would be appropriate in a world religion class. I don't remember exactly what she said. Or something like that. And I remember Larry Schnook asking who had donated the books. I also remembered something else that I now forgot.
Q. You can look at it again.
A. I'm sorry. Oh, Brian Rehm also asked about listening to the tapes.
Q. Now if you would please turn from that exhibit to what has been marked as Plaintiff's Exhibit 127. Do you have that in front of you?
A. Yes.
Q. What is that?
A. That's the district newsletter that was sent to the households in Dover.
Q. Did you receive a copy of that?
A. Yes.
Q. How did you receive that?
A. In the mail.
Q. Now Mrs. Callahan, I just want to ask you a couple other questions. Do you believe the actions of the Dover Area School District Board of Directors have caused you harm?
A. Yes.
Q. How?
A. I think in several ways. First was that my daughter, in 9th grade, did not have a biology textbook to take home because there were board members looking for textbooks that included Darwinism or included creationism.
Secondly, I had seen an e-mail from a professor in Texas that warned that, if Dover continued on this path of including intelligent design in their biology curriculum, he would have a hard time considering Dover students into his program, which made me think, okay, if that's in Texas, what about some of the very competitive schools in our area? What would they consider? You know, would students about to graduate have a more difficult time getting accepted in those colleges?
Another area that I think it is extremely harmful to all the students, I mean, not just my daughter, but all the students who are attending the high school. I think it's clearly an attempt to change the definition of science. One, by introducing intelligent design, saying that is a scientific theory, but also by demeaning, if you will, the theory of evolution.
When you introduce -- so there's students that will be graduating from Dover not having a clear understanding of what science really is. And then when you introduce intelligent design into the biology curriculum, it says, okay, it's so complex at this point, it's an intelligent designer.
Well, that really stops a student from thinking more about that subject. I mean, I think it's really absurd to think that a school district could hinder a student's natural curiosity into researching an area further.
And then the area also that's important is intelligent design is clearly religious. It's not my religion. I am very upset about the idea of a public school trying to influence my daughter's religious beliefs. And that probably is the most harmful.
MR. HARVEY: I have no further questions.
THE COURT: All right. Thank you, Mr. Harvey. Mr. Gillen, cross-examine.
MR. GILLEN: Thank you, Your Honor.
CROSS EXAMINATION
BY MR. GILLEN:
Q. Good afternoon, Mrs. Callahan.
A. Good afternoon.
Q. Pat Gillen. We met at your deposition.
A. Yes.
Q. I'm going to ask you a few questions today. Mrs. Callahan, you've testified that you had attended a board retreat for Dover Area School District in January of 2002, correct?
A. Yes.
Q. But you don't remember anything from that particular board retreat?
A. I can't remember anything specifically about that board retreat.
Q. You attended a board retreat in March, March 26th, 2003, correct?
A. Yes.
Q. These retreats were not deliberations made -- well, they weren't for the purpose of deliberating on district policy, is that correct?
A. That's correct.
Q. No votes were taken?
A. I'm sorry. I'm having trouble hearing you. I'm sorry.
Q. That's quite all right. No votes were taken?
A. Right.
Q. They were not official meetings of the school board?
A. No.
Q. Now you've testified that there was a portion of that board retreat on March 26th, 2003, where Richard Nilsen invited comments from the Board members?
A. Yes.
Q. And he solicited issues that might be of interest to the Board members, correct?
A. I'm sorry.
Q. He solicited input from the Board members about issues that might be of interest to them, is that correct?
A. Yes, the board members knew to bring their issues or concerns to that board retreat.
Q. And that go-around session took about two minutes, correct?
A. Possibly. I remember that the administrators were each given three minutes. They took a little longer.
Q. All right. But the go-around session from the board members was about two minutes?
A. Probably.
Q. Okay. I believe you've testified in deposition that you don't recall any comments that were made concerning the issues raised by Alan Bonsell at that March 26th, 2003, retreat?
A. No, I do remember comments Alan Bonsell made at the March 26th, 2003, meeting.
Q. Yes. Forgive me if my question was not precise. You don't remember other board members discussing the issues he raised?
A. No.
Q. I believe you've also testified that you don't remember any discussions that you had with Alan Bonsell about creationism in 2003?
A. Correct.
Q. You don't remember any mention of creationism at public meetings in 2003?
A. Correct.
Q. You don't recall Alan Bonsell doing anything to implement any desire to have creationism taught during 2003?
A. Not to my knowledge.
Q. I think you've testified that you have a Bachelor's of Science?
A. Yes.
Q. Okay. Now if I'm correct, you were not re-elected in 2003, correct?
A. Correct.
Q. Is it true that several persons who ran for office in 2003 are currently on the Board?
A. I think so.
Q. Okay. Now you've testified that the purchase of the biology textbook was not approved in 2003, correct?
A. The approval to purchase the book was not in 2003, is that what you said?
Q. Yes.
A. Yes.
Q. Okay. And you said that you made a motion for the purchase of the biology textbook?
A. All of those textbooks in August of 2003.
Q. Well said. You say that that motion died for lack of a second?
A. Yes.
Q. At the time you made that motion, Casey Brown was on the Board, correct?
A. Yes.
Q. And Jeff Brown was on the board, correct?
A. Yes.
Q. And Angie Yingling was on the Board, correct?
A. Yes.
Q. They did not second your motion?
A. No one seconded the motion that I recalled. I don't recall any vote being taken. My memory is, it just died for lack of second.
Q. That's fine. Do you recall expressions of fiscal concerns surrounding the purchase of textbooks in 2003?
A. No.
Q. Do you recall -- can you say there were none?
A. I can't say that there were none. I know that I don't recall any conversation about that because, subsequent to that time, I believe it was Dr. Nilsen, and I believe it was $50,000.00 was the amount that was allocated for the purchase of those books was set, put in a separate fund, so that if the books weren't approved in that current fiscal year, at least the money that had already been approved could be used in a subsequent year, and that might help not -- that might help the curriculum cycle from not getting really messed up.
Q. Okay. So money was put aside, escrowed, I believe is the term you used in your deposition?
A. Okay, thank you.
Q. For the purchase of biology books?
A. Yeah, and chemistry and the family consumer sciences.
Q. Do you recall a discussion that the books being used for the instruction of biology in 2003 weren't current?
A. I don't remember a discussion. I mean, I don't remember a discussion about it, no.
Q. Okay. You've testified that the books didn't match the curriculum, correct?
A. That's what was my understanding, that the books -- that there had been a curriculum change because of standards, and I think maybe what was now being taught in the middle school, it changed to the high school, that it didn't match the curriculum was my understanding as to why, at least in part, why the science department was recommending a more current science book. And it's been repeated and repeated and repeated. It's always good to have a more current science book.
Q. And the change in standards that were reference is the change in the Pennsylvania academic standards?
A. I believe so.
Q. Now you've testified that you attended the first board meeting in June of 2004, correct?
A. The June 7th meeting?
Q. Yes.
A. Yes.
Q. And at that time, you asked why the text had not been purchased?
A. Why they weren't on the agenda when the chemistry books and the family consumer science books were on the agenda to be approved at the next meeting.
Q. Okay. And I believe you testified you recall some comments by Bill Buckingham?
A. Yes.
Q. Do you recall any comments by Sheila Harkin?
A. No.
Q. Any comments by Jane Cleaver?
A. No.
Q. Any comments by Angie Yingling?
A. No.
Q. I believe you testified that you didn't attend a second board meeting in June, you were out of town?
A. Yes.
Q. And you came back in August, correct?
A. Right before school started, when that was.
Q. Okay. And by that time, the textbook had been purchased, correct?
A. Yes, it's my understanding that the textbook had been purchased at that time.
Q. Now you've testified that you informed the Dover Area School District School Board that your research had not uncovered any credible science -- scientist who were willing to vouch for intelligent design theory, is that correct?
A. Well, I didn't exactly do research, but I had not seen any credible scientists who had confirmed that Pandas and People book.
Q. Good enough. So when you made that statement to the Board, it was based on your personal reading, correct?
A. My personal reading and also information that had been sent to me. I mean, it was primarily from information that had been sent to me. I don't recall reading anything on my own about the critiques Of Pandas and People.
Q. Okay. And I think you've testified, you had the sense that the Board ignored you?
A. Excuse me?
Q. You had the sense that the Board ignored you, is that correct?
A. Yes.
Q. Did you ever ask them why they might be doing that?
A. No.
Q. Do you recall commenting that the Board had spent public money on legal fees in connection with the curriculum issue?
A. Yes, I may have mentioned that it was my understanding that they had already spent $900.00 looking into this, and because it was my thought at that time, $900.00 can be a significant amount of money when you're cuttings things from the budget.
Q. You said that you were on the district curriculum advisory committee in 2004?
A. Yes.
Q. And you received communications from Mike Baksa regarding the contemplated curriculum change?
A. Yes.
Q. Based on your personal reading, you've testified that you do not believe that intelligent design theory is a scientific theory, correct?
A. Yes.
Q. Did you ever ask other board members about whatever reading they did?
A. I know at one of the Board members -- board meetings, I did distribute at least the first part -- it was a copy of the first part of the National Geographic article that came out about a year ago, and it had the definition of theory in it. I did distribute that to all board members because I was thinking, you know, maybe the problem was that the school board members just really didn't understand the scientific definition of the word theory.
And also at one of those meetings, now that you're asking me, I'm remembering that I had a copy of an article from the -- a New York Times Sunday magazine. I think it was the Genesis Project was the name of that article. And it talked about all -- a lot of the scientific discovery behind origins of life. I mean, I can go a little bit into that, if you would like, what they were referring to. If you'd like me to, I can.
Q. No, that's all right. That's fine. I know that you did some reading and you brought some reading to the attention of the Board. That's fine. Do you object to the book of Pandas being in the library?
A. No.
Q. If I'm correct, no child of yours has actually attended a biology class at which the statement was read, is that correct?
A. That's correct.
Q. I believe you've testified that you don't recall Mr. Buckingham making any statement that this country wasn't founded on Muslim beliefs or evolution?
A. I know I don't recall him saying anything about the Muslim beliefs part.
Q. There's been at least one occasion in which you personally have called a reporter and asked for a retraction, is that correct?
A. Yes.
Q. Mrs. Callahan, it's your belief, based on what you know, that intelligent design is religion, correct?
A. Yes.
Q. Do you still have your book of exhibits in front of you?
A. The ones that --
Q. Yes.
A. Yes.
Q. Mrs. Callahan, I ask you to look at Exhibit 679, which was shown to you earlier today. Would you look that over, please? If you look at that article, Mrs. Callahan, you'll see that it attributes a statement to Bill Buckingham which says, board members are still fine tuning matters, including any potential legal issues that might arise from using Pandas in the classroom. Do you see that?
A. Yes.
Q. Have you looked at that?
A. Pardon me?
Q. Have you looked at that? Do you remember Mr. Buckingham saying that at that -- on or about September 8th, 2004?
A. I do recall him saying something about fine tuning.
Q. Do you recall him saying anything about consulting legal counsel?
A. No.
Q. But you can't say he didn't say that?
A. Oh, no, I can't say he didn't say that.
MR. GILLEN: I have no further questions, Your Honor.
THE COURT: All right. Thank you, Mr. Gillen. Mr. Harvey, any redirect?
MR. HARVEY: No redirect, Your Honor.
THE COURT: All right. Ma'am, thank you. You may step down. And let's take the exhibits that we have for this witness.
MR. HARVEY: Your Honor, P-641.
THE COURT: All right. 641 is the exhibit that had to do with the retreat information, I guess, with the inner lineations in her handwriting, is that correct?
MR. HARVEY: With the exception of the handwriting, Your Honor -- oh, yes, that's correct. Yes, we move that entire exhibit into evident.
THE COURT: Any objection?
MR. GILLEN: No objection, Your Honor.
THE COURT: All right. 641 is admitted. P-42, I have next, is the June 7th, 2004, planning meeting agenda. Are you moving for the admission of P-42?
MR. HARVEY: We are moving for the admission of that, Your Honor.
MR. GILLEN: I object, Your Honor. There are handwritten notations which have no foundation.
THE COURT: All right. Let's look at 42.
MR. HARVEY: Your Honor, we're not moving for admission on the handwritten notation, just the exhibit on --
THE COURT: Now wait.
MR. HARVEY: We're not moving for admission of the handwriting, just the exhibit itself.
THE COURT: Well, isn't the handwriting on the exhibit?
MR. HARVEY: Your Honor, it is -- the handwriting is on the exhibits. It wasn't this witness's handwriting. And so I did not authenticate it or ask her to look at it.
THE COURT: Well, that's the problem, unless you want to redact it.
MR. HARVEY: I'm perfectly willing to redact it.
MR. GILLEN: From my part, Your Honor, I believe that we have in evidence between us a clean copy of the official document, which is the planning meeting agenda for June 7th, 2004. I have no objection to admission of that document without handwritten notations.
THE COURT: All right. Well, somehow you're going to have to redact 42 so that it becomes a clean copy. We'll call it P-42. So it will come in as P-42 without the handwriting. So that's admitted. All right now. P-44, P-46, and P-679 respectively are the June 8th, June 9th, and September 8th, 2004, records -- I'm sorry, articles from the York newspapers. Now I don't know if you want to move them in.
MR. HARVEY: We do want to move them in.
THE COURT: You're doomed to fail if you do at this point.
MR. HARVEY: Actually, we don't intend to move them in for the truth of the matter asserted right now. We intend to move them in. This witness testified she read them, so we would move them in, not for the truth of the matter asserted, but we do reserve the right to move them in for that purpose later in the proceeding.
MR. GILLEN: No legitimate purpose has been given for admission of the exhibit.
THE COURT: No, I won't admit them at this point. I won't deny you the opportunity to go back and do it. I see no purpose of admitting them, particularly in a bench trial, at this point. So I will not admit those. They were properly used to refresh her recollection. Talk to co-counsel.
MR. HARVEY: I actually don't need to talk to co-counsel. We're not -- she testified that she --
THE COURT: Are you sure?
MR. HARVEY: I'm quite sure. She testified that she read these at the time. One of the issues in this case is the harm that's been sustained by these Plaintiffs. That goes to her knowledge of what happened. She read them. And it's all part of background knowledge, and that's why I say we're not offering them for the truth of the matter asserted. There's going to be other witnesses who are going to testify.
THE COURT: I understand that. But what Mr. Gillen is obviously doing is, he's protecting the record because there is an issue as to the truth of the matter asserted in the articles, and how do you unring the bell on the articles?
MR. HARVEY: Well, the Court has seen -- the finder of fact has seen the articles because we referred to them in the testimony. In other words, there's no way to unring the bell necessarily, but --
THE COURT: That's my job.
MR. HARVEY: That's your job, exactly. They're not being offered for the truth of the matter asserted.
THE COURT: You can unring this bell. I don't know how else we do it. Mr. Gillen, what did you want to say?
MR. GILLEN: The law observes a distinction between what's shown and what's admitted.
THE COURT: I have to agree with Mr. Gillen as to that. I'll revisit the articles. You know, I gave you latitude in allowing you to have her refer to them. If you have a better argument than that, I'll hear it.
MR. HARVEY: I have only one other argument, Your Honor.
THE COURT: I was going to say, if you don't want to assert it now, I'll hear it later.
MR. HARVEY: I think I'll let you know. That is that, we're offering them for the effect on the community. One of the issues in this case is endorsement of religion, and these were published to the Dover community, and there will be testimony that they were seen by others. And I think they are relevant for that purpose. Again, that's not a hearsay purpose.
THE COURT: Well, as we know, there remains an issue as to whether or not you're going to be able to have testimony by the reporters who you've called as fact witnesses. I think the testimony of those reporters could allow the articles to be admissible under the residual exception in Rule 807. We're not there yet.
So rather than chew this up at this point, that's why I say, I'm not going to admit them on the effect prong under Lemon at this point, but I'll -- we'll revisit that if and when that's what you're left with. Now you may not be left with that, depending on what you get. Based on what I'm hearing, I don't know. I want to talk to counsel at the break about that issue. But that's another issue altogether. All right.
So we'll not admit them at this time, but without prejudice to reassert that argument. I'll rely on you to to reassert the argument unless and until you have some other mechanism to get them in under 807. All right. That leaves then P-668, which is the notes and statement, which I assume you're not moving that in.
MR. HARVEY: I am not moving that into evidence.
THE COURT: All right. P-78 is the October 4, 2004, planning meeting agenda. Any objection to that?
MR. GILLEN: If you'll forgive me, Your Honor. Let me take a look at it.
THE COURT: Likewise, P-87, you can check that, is the October 18th, 2004, board meeting agenda.
MR. GILLEN: Your Honor, we have no objection to the admission of P-78.
THE COURT: How about 87 then?
MR. GILLEN: Your Honor, we have no objection to P-87.
THE COURT: All right. P-78 and P-87 are admitted. Finally, I have, subject to Mr. Harvey, if I didn't get everything, I have P-669, which is likewise the article. I would intend to rule the same way.
MR. HARVEY: Understood.
THE COURT: As to the York Daily Record, November 2, 2004, article that makes up P-669. Again, without prejudice, we'll not admit it at this time, but we'll allow counsel to argue that point later.
MR. HARVEY: Understood, Your Honor.
THE COURT: All right.
MR. HARVEY: I don't believe we addressed P-127, which I used with Ms. Kitzmiller.
THE COURT: P-127 is?
MR. HARVEY: That's a copy of a newsletter that was sent.
THE COURT: Well, actually you put it up, my recollection is.
MR. HARVEY: I'm sorry. It came in through Mr. Miller. Never mind.
THE COURT: Like wise, I don't recall you asked a question. You put it up, and I don't think you ask a question anyway. Well, it's in, I think.
COURTROOM DEPUTY: Yes.
THE COURT: All right. Anything further, Mr. Harvey?
MR. HARVEY: No, Your Honor.
THE COURT: All right.
MR. GILLEN: Your Honor, just for your information, I understand the reporters have appeared for the depositions but refused to comply.
THE COURT: Well, we'll take that up. I want to talk to you at the break at that because I want to clarify exactly what the circumstances are, unless you feel that we need to -- are they assembled and waiting for something now?
MR. GILLEN: No, Your Honor.
THE COURT: Have they adjourned?
MR. GILLEN: The deposition has been adjourned due to the witnesses' failure to comply.
THE COURT: We'll take it up at the break then. Mr. Harvey.
MR. HARVEY: The Plaintiffs call our next witness, Plaintiff Bryan Rehm.
THE COURT: All right.
Whereupon,
BRYAN REHM
having been duly sworn, testified as follows:
COURTROOM DEPUTY: Spell your name for the record.
THE WITNESS: Bryan Rehm. B-R-Y-A-N. R-E-H-M.
MR. HARVEY: Your Honor, may I approach the witness with a binder of exhibits?
THE COURT: You may.
DIRECT EXAMINATION
BY MR. HARVEY:
Q. Mr. Rehm, please tell us where you live?
A. 3690 Rock Creek Drive in Dover Township, Pennsylvania, 17315.
Q. How long have you lived in Dover?
A. I moved in, I believe it was, in August of 2001.
Q. Are you married?
A. Yes.
Q. And do you have any children?
A. Four.
Q. Please tell us the ages and names of your children?
A. Alex is 14. Paige is 8. Ian is 7. And Lucas is 15 months as of last Thursday.
Q. Are any of these children -- do any of these children attend school in the Dover Area School District?
A. Two of them are in the Dover Area School District. A third one is charged under the Dover Area School District but is handicapped and is in a special class for that.
Q. Tell us what grades they're in, please?
A. First, third, and ninth.
Q. The child that's in 9th grade is at Dover Area -- Dover High School?
A. Yes.
Q. And is that child taking biology class right now?
A. She currently has biology class, yes.
Q. Are you married?
A. Yes.
Q. What's your wife's name?
A. My wife's name is Christy.
Q. What does she do?
A. She is an English teacher.
Q. What is your job?
A. I am a physics teacher.
Q. Where do you teach physics?
A. In a school outside of York County.
Q. What's the name of it?
A. Is that necessary at this point?
Q. It's not necessary.
A. Okay.
Q. Can you please tell us your education? Where did you graduate from high school?
A. I graduated from high school in 1994 from Central Dauphin East High. It's a suburb of Harrisburg.
Q. Did you attend college?
A. Yes, I did.
Q. Where did you go to college?
A. I did my undergraduate work at Lebanon Valley College in Anville, Pennsylvania. I've taken graduate work in a number of different places, including what used to be Western Maryland College. It's now McDaniel. Penn State York and Penn State Main Campus.
Q. And were you ever a teacher at Dover High School?
A. Yes, I taught there for two school years.
Q. What two school years were though?
A. I believe it was the 2002-2003 school year and the 2003-2004 school year.
Q. And what did you teach?
A. I taught science. My main responsibility I was hired for was physics. And in addition to physics, they put a physical science court course in my schedule and a course at the time that was titled science technology in society, which is an environmental and ecology course.
Q. When you were at Dover High School, who was your supervisor?
A. My supervisor as far as department goes was Bertha Spahr. She sort of maintained the department. But I would directly be supervised by the building principal, who was Trudy Peterman at the time.
Q. I want you to think back now to the 2002-2003 school year and tell me whether you remember any conversations with Bertha Spahr about a board concern about the biology curriculum?
A. Yes, there was many occasionss on which we had such conversations. There was more than myself and Bertha Spahr present. It was common practice that we had a lunch period together, and she was my mentor, so to speak, so I would eat lunch in her room along with Rob Eshbach on most days and sometimes another teacher who has since left the district.
We'd talk about things going on in the classroom, things going on in the district, etc., and quite frequently concerns of board members and the biology curriculum would come up. In addition, Mr. Baksa would frequently stop by because he would relay the information to us.
Q. Tell us what you can recall about those -- can you recall any specific conversation?
A. As far as date and time, not exactly. The context of them, it always centered around biology. And initially, I just didn't think much about it. I was eating lunch, and I was there for guidance, if I was messing anything up. But generally, I'm trying to get done and thinking about the next class coming up.
Those things that came up were biology, biology, biology, and when pinned down for, what about biology, well, the evolution unit needs to be balanced.
Q. Did Mr. Baksa in those conversations tell you about a board concern about the biology curriculum?
A. Yes, he did.
Q. What did he say?
A. The concern was that biology, the evolution unit needed to be balanced. And at some point in time, unfortunately I can't say if it was Mr. Baksa that told me or Bertha Spahr, it was the 50/50 with creationism concern.
Q. Did they mention any particular board members having that concern?
A. At that point in time, initially I did not know who the Board member was, just that it was the school board members, and it was actually pluralized at that point in time. It did not indicate a single member but several members.
Q. Did there come a time when you were told that there was any particular board members?
A. Much later on, it came out to that. At that point in time, I was told it was Alan Bonsell.
Q. Now do you remember having a meeting with Mr. Bonsell to discuss his concerns about the biology curriculum?
A. Yes, I do.
Q. Can you tell us approximately when was that meeting?
A. It was in the morning. As far as much closer than that, I don't recall. My planning period is in the morning, and it was during my planning period. A lot of science department, with except for maybe one teacher, had common planning time together, and that's when they scheduled the meeting for. It was, I'm guessing, in the spring of '03.
Q. Okay. You say you're guessing. Do you have any reasonable approximation of when this was?
A. Unfortunately, no.
Q. This was certainly while you were a teacher at Dover Area?
A. Yes, yes, otherwise I wouldn't have been invited to the meeting. I would have had no business there.
Q. Tell us who you can recall at the meeting?
A. For certain, it was myself, obviously. Bertha Spahr was there. Jennifer Miller, Rob Linker, Robert Eshbach, Trudy Peterman, Alan Bonsell from the school board. Mike Baksa was there to introduce us. And there others, I think, were there, but I'm not certain, so I will not mention them at this time.
Q. Just to get a little clarity on time. What was your -- when did you leave your job at Dover High School?
A. I left Dover High School, I believe my resume shows official, June 21st, 2004.
Q. And we're going to take in just a couple minutes of a board meeting on June the 7th, 2004. Do you recall that board meeting?
A. Yes.
Q. Was this meeting that you're discussing now with Mr. Bonsell and the others, was this prior to June the 7th?
A. Yes, definitely.
Q. Was it months prior to that?
A. At least.
Q. How was the meeting arranged?
A. The meeting was arranged by Mr. Baksa. He had been relaying information to the science teachers, primarily Bertha Spahr's the department chair, during these lunch conversations where he'd stop in. And we repeatedly explained to him, we're not going to do this.
We're not going to balance evolution with creationism. It's an inappropriate request. It's inappropriate. There's no educational purpose for it. It's not a good decision. And we would lay out as many reasons as we could and send them back with Mr. Baksa to relay to the school board members or Alan Bonsell.
And, you know, the next day or two days later, Baksa is back in lunch again with the same questions and the same concerns. And we explained this to you already. So after numerous times, I mean weeks of this, he said, well, how about if we just get you together with him? And then somehow through Mr. Baksa and Dr. Peterman, the meeting was arranged.
Q. Who was Dr. Peterman?
A. Dr. Peterman was the high school principal. And the meeting ended up being held in her office, which was in the old principal's office before the construction project.
Q. Can you remember what Mr. Bonsell said at that meeting?
A. The general context of it started with, that he was concerned about biology because he felt that we weren't fulfilling the district's mission statement, and that the district's mission statement was along the lines of that, the parents and teachers and faculty and administration work together to nurture the kids and to whatever beneficial things for the community, and they're supposed to be working together.
And he felt that because of evolution, that we weren't doing that, that kids were going to come into the evolution lesson, and they're going to go home and sit down at the dinner table with their parents, and they're going to talk about what they learned in class that day, and the parents are going to have to tell it the kids, well, your teachers are lying to you.
And when pressed for why that was, he explained to us, well, that is because he doesn't believe in evolution, because that's against his religious views, which were consistent with what I would label young earth creationism.
Q. Did he mention anything in that conversation about the age of the earth?
A. He mentioned something that the earth is closer to 6000 years old.
Q. During that conversation, do you recall him using the word creationism?
A. I remember the term creationism and Alan Bonsell's name being stuck together. And unfortunately, I can't specifically place it at that meeting or if I heard it previously from Mike Baksa at the lunch conversations.
Q. Now what did the teachers -- do you recall what the teachers said in response to Mr. Bonsell?
A. The teachers had gone in unified because we knew that they wanted to change the biology curriculum. They had asked that the science teachers do it, to put creationism ideas into it. And we had basically reached a uniform decision that it's inappropriate and we're going to stick together.
But at the same time, we're teachers and we need to be professional and we need to be civil going into this conversation. So our objective was to gather as much data as possible, because we're science teachers and that's the way we try to do things, and see where that would lead us to. The concerns that were expressed from Alan Bonsell were dealing primarily with the ideas of macro evolution, and he expressed concerning about monkeys to man.
And once we got that and figured out what his concerns were, we took the approach of, let's educate Mr. Bonsell as to what the biology evolution unit actually covers, which we don't teach monkey to man. It's not an essential part of what we need to do to get the students ready for the state standards test.
So we took that information. We acknowledged his concern. We understood why he was concerned because nobody wants to have to go home and hear that their children are learning contradictory things. And we certainly don't want parents telling the kids the teachers are lying. That's not our job. That not our objective. And that's not our intent by any stretch of the imagination.
From there, we proceeded to explain to him how we would basically teach the general evolution unit, what's taught, what are the purposes of it, what's the content of it, explaining that we're focusing on the micro evolution processes. Yes, addressing it with natural selection. But these are the things that the kids are going to need. That's going to be covered on the test for the state exams.
That's what they're going to need if they choose to go to college and want to major in anything dealing with medicine or any of the future technology and careers that ideally we're preparing our students to be qualified for.
Q. You used two terms, macro evolution and micro evolution?
A. Uh-huh.
Q. And I don't want to get a science course, but I do want to get just your, tell us if you would, what you meant by those terms, macro evolution and micro evolution?
A. Macro evolution is generally applied where you're seeing large changes in the types of organisms. For example, in the analogy of monkey to man, or more correctly, the pre-ancestors of both monkeys and man, to those separate species would be considered macro evolution. There is very large changes in the physiology and the, possibly, the body structures, things of that nature.
Whereas micro evolution is what we typically look at as the change over time. You're looking at small changes. For example, diseases become resistant to bacteria but still being the same basic disease. The reason why we have different variations of tuberculosis and why we have different variations of the AIDS virus and those types of things.
Also dealing with pesticides and resistance to pesticides. That would be the micro evolution where you still have a grasshopper, but now because of the influence, in this case human influence with the pesticide, the pesticide will no longer kill the grasshopper. You now have to change pesticides to find another way of eradicating it.
Q. Was there any resolution from this meeting between the teachers and Mr. Bonsell?
A. As I left the meeting, I recalled no resolution. It was getting on this and taking the majority of the planning period. And the teacher's schedule, you're concerned about your planning period. It's very important to you. It's the only time you really have where you can focus on getting things done that you can't do when students are in the room; grading papers, updating grades, making phone calls to parents, things of that nature, writing your lesson plans to submit. And I don't recall any resolution whatsoever. I was in a rush to get back and get my work done.
Q. Do you recall, after this meeting with Bonsell, being asked to watch a video about evolution?
A. Yes.
Q. Who asked you to watch that video?
A. As far as I can remember, the request came through Michael Baksa stating that the school board wanted us to watch it.
Q. Did they say what the name of the video was?
A. Initially, I did not know the name of the video. I did not know the name of the video until we sat down and watched it.
Q. What was the name of the video?
A. The name of the video was Icons of Evolution.
Q. And who watched it with you?
A. The majority of the science department. Myself, Rob Eshbach, Jen Miller. I believe Bertha Spahr was there. Leslie Praul. Rob Linker. And I don't know if if anybody else was or not.
Q. Let's go back for just a second. When you had the meeting with Mr. Bonsell, did he have any position on the Board or did you have an understanding at the time that he had a position on the Board?
A. My understanding at the time was that he was part of the curriculum committee. In fact, I believe I was told he was the curriculum committee chair, which is why we were having the meeting with him dealing with curriculum issues.
Q. Now let's go to where we just were. Following this occasion on which you were asked to watch a videotape, were you asked to meet with anybody with regard to that videotape?
A. I don't understand your question.
Q. Did anyone ask you, after you watched the videotape, to have a meeting with any board member?
A. There was a request, not of me specifically, but of the science department, that we should be meeting with school board members. The video, as I recall, was watched late in the school year. And we sat down as a department and watched, and we were discussing amongst ourselves, and Mike Baksa came back in at that point in time.
He was basically, well, what did you think? Once again, well, how about if you communicate that directly to the board members? And there was some type of meeting set up.
Q. And do you know, did he say who that meeting would be with?
A. The meeting, as I understand, ended up being with Bill Buckingham, but I don't know if he said at that point in time to meet with Bill Buckingham or if he just simply said a school board member.
Q. Did you attend that meeting?
A. I could not attend that meeting.
Q. Why not?
A. My wife was pregnant at the time, and I was getting out of school as quickly as possible to get home. She was eight months pregnant or so. The baby was due the 10th of June. It ended up coming out on the 23rd. This was late in the school year, and I was more concerned about my family than I was the Icons of Evolution video.
Q. Now this occasion on which you watched the video, was this prior to the June 7th, 2004, board meeting?
A. I'm suspecting that it was. June 7th was getting very late in the school year. But I cannot place those dates specifically sequentially.
Q. Did you attend a board meeting on June the 7th of 2004?
A. Yes, I did.
Q. Did you attend any other board meetings in June of 2004?
A. I attended the second June meeting as well which, I think, was on the 14th.
Q. Why did you attend those meetings?
A. The June 7th meeting was at the urging of Dr. Peterman. Periodically, when there's something going on with the school board that the teachers would be concerned of, she'd let us know. She'd walk into the lunchroom and find us or let us know by some other means.
In this particular case, she explained to us that there is a concern over textbooks that hadn't been ordered, that should have been ordered, and it would be a good idea if the faculty showed support and solidarity and as many as possible could attend the meeting for that reason.
Q. Do you remember why you attended the June 14th meeting?
A. The June 14th meeting, I attended for probably a similar reason, but also as a follow-up to the June 7th meeting. Since there weren't all the answers given on June 7th meeting, June 14th was a follow-up meeting. It made sense to follow-up and see how it finished out.
Q. Can you separate those two meetings in your mind so that -- let me finish my question here -- so that you can remember what happened at one meeting versus happened at the other one?
A. Not very well, not without any type of refreshing.
Q. Just tell us, if you can, without respect to which meeting it was, tell us what you can remember that happened at either of those meetings?
A. I walked in. I was a little bit late to one of them. And I sat near the back. At that point in time, they ran the Board meetings. They still had the tables set up from the lunches, because they hold the Board meetings in the 5th and 6th grade elementary building. And I sat at a table. If I'm at the front of the Board room, it would be to the Board's left near the back.
I sat down with other science teachers and was sort of asking, all right, what did I miss so far? The first thing I can remember concretely where I started to pay attention to the front of the room was when Barrie Callahan was asking during public comment about the biology textbooks, why weren't they ordered, and what's going on here.
Q. Do you remember specifically what she said?
A. At this point in time, it's not coming back to me.
Q. Do you remember what was said to her in response?
A. I can't specifically say it's the 7th meeting, but when asked that question, the response from Bill Buckingham was, laced with Darwinism. In fact, actually now I can pin that down. I apologize for the sidebar here. That had to be at the June 7th meeting. Between June 7th and June 14th was graduation that year.
And the senior speech made mention of that comment, so it had already filtered down to the student population at that point in time or else it wouldn't have been there.
Q. Do you remember anything else about an exchange between Barrie Callahan and the Board?
A. At this point in time, nothing is coming to me.
Q. Do you remember a student by the name of -- a young man by the name of Max Pell?
A. Yes.
Q. Who's Max Pell?
A. Max Pell was a student I actually had the previous year in my physics class and had graduated and gone on to school. And I actually had a brief conversation with him at some point that night. How are you doing, Max? Good to see you. How's school going? Those types of things. It's always nice to see your former students.
Q. Do you remember whether that was the June 7th or 14th meeting?
A. Without a refresher, I don't recall.
Q. Do you remember what -- do you remember Max speaking to the Board?
A. Yeah. At some point, I am suspecting it was after Barrie's question about the textbooks and then the relaying statement of laced with Darwinism, he got relatively concerned and stood up, and showing Max's mannerisms and nervousness, he stood up and was questioning them about why? Why are you considering this? How can you say that?
Q. Tell us what you can remember about the exchange between Max Pell and the Board?
A. Aside from the concerns of, why are you doing this, this is inappropriate, and I think you're taking a risk here, Mr. Buckingham had responded. I couldn't say specifically what. Off the top of my head, I don't recall. But that's the first where I really saw the school board meetings sort of going downhill and degrading into not very positive discussions.
Q. Do you remember anyone saying at either meeting something about balancing evolution with creationism?
A. I remember that comment, and I can't say which meeting, but that comment had come up after the laced with Darwinism. I can also remember conversations, and I don't know once again if it was the June meetings or the next meetings in October, when Alan Bonsell was talking about, well, if you teach both sides, it doesn't matter. There's no problem. You just can't favor one.
Q. Did he say what he meant by both sides?
A. Creationism, and the only other theory was evolution.
Q. Do you remember anyone at either of these meetings saying something about 2000 years ago?
A. Bill Buckingham, and I don't remember which meeting, but, yeah, I heard it. It's one of those things that I couldn't believe. It's not something you should be saying running a public school.
Q. What did he say?
A. 2000 years ago, somebody died on a cross. Can't somebody stand up and take a stand for him? That's paraphrasing. I don't know if that's his exact words, but it's close enough, and it's what he meant.
Q. Do you remember anyone at either meeting saying something about this country being founded on Christianity?
A. I remember hearing that also from Bill Buckingham, but I couldn't tell you which meeting. And I couldn't tell you if that -- was that said in October? Aside from hearing it, I can't place it, which one. And I know that I definitely heard it from Bill Buckingham.
Q. Do you remember a woman named Charlotte Buckingham speaking at one of these meetings?
A. Yes.
Q. Tell us, what was your understanding at the time of who Charlotte Buckingham was?
A. Initially, I didn't know until she stood up. And at the board meeting, when you are going to speak in public comment, you have to state your name and where you live, much as we do at the introductory here. And that's when I heard her for the first time.
Q. Did you have an understanding who she was?
A. At that point in time, yeah, I realized she was Bill Buckingham's wife. And I'm not positive, but I think she may have even said that or there was an exchange between, you know, other board members, nice to see you, Mrs. Buckingham, and things of that nature.
Q. Do you remember what she said at that meeting?
A. She had a prepared statement. She was flipping pages. I don't know how many, but it was more than one. And it was basically how Darwinism is a problem. We need to look to the Bible. And she quoted many, many, many Old Testament scriptures about why we need to be referencing God in the classroom.
Q. Now I'd like -- do you remember anything else that was said at either of those meetings, either by board members or members of the public?
A. Bertha Spahr had stood up requesting, once again, the considerations for the textbooks. Once again, I'm having trouble if this was the June meeting or the October meeting. She stood up more than once at different meetings. I later stood up at different meetings as well. And as far as pinning down dates, unfortunately, I can't. It all sort of blends together.
Q. Do you remember speaking at either of these meetings yourself, speaking in public to the Board at either of these meetings?
A. At a meeting, yes. I've spoken at at least four meetings, and they would have started in June probably. I don't believe I waited until the October meeting to begin speaking.
Q. Do you remember what you said?
A. I was concerned about the comments, in particular dealing with laced with Darwinism and the references to needing to balance out evolution. There was a communication, as I was hearing it, from the school board that the two ideas, you know, were in conflict and you had to resolve them and that it was a scientific debate. I'm a science teacher. I've taken many courses in it. And there should be no debate as far as scientific evidence goes. Science looks at the science. Your religion is your religion. It's perfectly fine.
Q. Mr. Rehm, I just want you to tell me if you can remember what you said?
A. Those are what I was saying. Those are the ideas I was communicating to the board.
Q. Excuse me. Please go ahead.
A. Just, you know, there does not need to be a conflict and you're taking a risk by doing this.
Q. Now can you remember anything else that was said either by board members or members of the public at this meeting or anyone else at this meeting or at either of these meetings in June of 2004?
A. Off the top of my head, nothing is coming to me. Dr. Peterman stood up and spoke on behalf of the book request, I believe, as well. There was discussions of the family consumer science book. And I believe Mrs. Harkins was questioning, why are we getting this book because it's so similar to the one we already have?
And then there's the explanation, well, there's not enough of the same edition. And then there's similar discussions about chemistry books and biology books.
Q. Now I'd like you -- I'd like you to look at what has been marked as P-46.
A. Okay.
Q. Have you had a chance to look at that exhibit?
A. Yes.
Q. Tell us what it is.
A. It's a newspaper article, I believe, from the York Daily Record, dated June 9th, written by Joseph Maldonado.
Q. Have you read it before today?
A. Yes, I was shown this article a few days ago. And also, I would have read this article, but not from here, in the actual newspaper when it was originally published.
Q. Do you recall reading it at the time?
A. Yes. We were paying attention to what the school board was doing and making sure we were checking the papers every day because, unfortunately, it was turning into a zoo, and we were concerned about the reflection of that in the media.
Q. Now did you just read this just now?
A. Yes.
Q. Does it help you remember anything else that happened at the -- at either of these board meetings?
A. It gives clarity to the things I was remembering as far as positioning on the date of the 7th and the 14th. Some of the things in here that were said that I had forgotten, specific quotes. That's what I remember reading. And there was no discrepancy between what I read then and what I heard the night or two nights before.
Q. Sitting here right now, after having looked at that, can you remember anything else that was said?
A. Am I allowed to look at it again?
Q. You can look at it again?
THE COURT: Sure.
BY MR. HARVEY:
Q. You just can't read it in.
THE COURT: Yeah, just don't read or excerpt it directly. You can use it to refresh your recollection.
THE WITNESS: What I had already stated about Alan Bonsell commenting on, there's only two theories, creationism and evolution. Bill Buckingham additionally saying, dealing with the laced with Darwinism comments. We need a book that gives balance to the education. These are all the quotes I heard that night that I read the next day and had no question about, that's what was that said, that's what we heard. The brain washing comment directed at Max Pell.
BY MR. HARVEY:
Q. Tell me what you remember about the brain washing?
A. I remember hearing it.
THE COURT: Hold on, sir.
MR. GILLEN: Again, maybe I can, at the break, we can get a little more clarification. I understand if he wants to refresh his recollection, but it seems that he's adding and he's reading the quotes as if he's testifying to the truth of the quotes. That's not proper.
THE COURT: Yeah, the distinction may seem a little artificial, but what you have to do is read the article and then respond to it rather than use it as sort of a punch list as you go through. I think you've answered the question at this point. But to the extent there are other questions, when you have to refresh your recollection by looking at the article, just respond directly to him, and don't refer to what you're reading in the article, if you would.
THE WITNESS: Okay.
THE COURT: There is a reason for that.
THE WITNESS: Please fix me if I step out of line.
THE COURT: I will.
BY MR. HARVEY:
Q. Do you remember anything at that meeting being said about brain washing?
A. Yes.
Q. Tell us what you remember about that?
A. Bill Buckingham said to Max Pell, did you ever hear of brainwashing, something to that effect. When you are told something enough times, it becomes fact. And he mentioned that dealing with, it's what's not in the paper, he was talking about liberal colleges and people going to these levels of higher institution where they are being brainwashed, such as Penn State.
Q. Now I want you to think about, do you remember anyone at either of these meetings saying something about liberals in black robes?
A. Yes.
Q. Tell us what you remember?
A. Sticks in my mind, once again, that's something Bill Buckingham said, but I can't be certain. One of these meetings, I did have the pleasure of sitting in front of Alan Bonsell's father who talks during the meeting, and basically said the same thing, these liberals in black robes are taking away freedoms, and we need to stand up and take them back.
Q. Did -- do you recall anyone saying anything about the separation of church and state?
A. One of these meetings, it was mentioned once again that it was a myth, and I heard that on more than one occasion at the school board meetings.
Q. Was there any reference to tracing your roots to monkeys at either of these meetings?
A. I remember hearing it and, unfortunately, I can't tell you once again which meeting it was.
Q. Well, do you remember what you heard?
A. Yeah, you're not going to tell me that I came from apes, and if you insist on it, which side of your family came from apes?
Q. Do you remember Mr. Buckingham saying something about having talked through a think tank?
A. At one of the meetings, yes. He was questioned, well, who is this think tank, and he wouldn't give any information. And at some meeting again, once again I don't know if it was June or October, he mentioned about how the textbook that was requested by the teachers received an F from a think tank, and then would give no further information on it whatsoever.
Q. Do you remember anything else that happened at either of those meetings?
A. I don't know once again if this is June or if this is October, but it was brought up about, you're walking into dangerous ground, violation of separation of church and state, which somebody, either Alan or may have even been Noel or Bill at this point, was reminding us, well, separation of church and state is a myth, and said that even if the district was sued, he's been in contact with a group that will defend the district for free. Also, when asked, he would not say who that was.
Q. Following these June meetings, did you attend any other meetings of the board that summer?
A. I did not attend anymore meetings during the summer.
Q. Why not?
A. Had other things to do.
Q. And did you attend a board meeting on or about October the 18th of 2004?
A. Yes, I did.
Q. Why did you attend that meeting?
A. I had been talking to people in the community. Getting around to school year starting up. So that is when a lot of thing started to happen again. And I would run into some members of community when we were out eating dinner, so forth. How are things going? What's going on? How are things at the school? And I heard rumblings of, well, the school board is doing this creationism thing again, and you need to pay attention to it.
Q. Do you remember running into Mr. -- excuse me, Dr. Nilsen shortly before that meeting?
A. That's what I was getting to, yes. I believe it was a Thursday night. I'm not positive. But my daughter at Weiglestown Elementary School in the district, where they were having a book fair. And my wife and I took her and our other children to the book fair to get some books.
And the PTO that night was also sponsoring some type of parents' information thing in the gymnasium, so they had -- which is their all-purpose room, they call it -- a series of tables lining the parameter and there's different vendors there. There's the bank, the food bank, and things of this to help parents do a better job with limited resources.
And Dr. Nilsen happened to pop his head in the door when I was there. And I took the opportunity that, hey, I'm going to go over and talk to him. And I walked over to Dr. Nilsen and said, what's going on? I hear there's going to be some big thing going on at the Board meeting. He said, I don't know what you're talking about.
I said, well, it's dealing with, once again, the science curriculum. He said, oh, nothing will ever happen. There will never be a vote. You don't need to worry about it. I've been in the district long enough to know that, you don't assume things won't happen that you don't want to have happen.
Q. Who's Dr. Nilsen?
A. Dr. Nilsen is the district superintendent, Dr. Richard Nilsen.
Q. And that conversation you had with Mr. Nilsen, where was that in relation in time to the October 18th?
A. That was prior to the October 18th meeting. And his response there -- within four or five days. His response there is why I made it a point to attend the October 18th meeting.
Q. Tell us what you recall of the October 18th meeting?
A. The October 18th meeting, once again, there's a public comment period. It was getting rather heated from which I can recall. It went on very long. Public comment period lasted for a very long period of time. At this point in time, my wife had the baby, so he was about three months old, and we didn't have a baby-sitter for the baby. So the oldest child, we let watch the other two, the reasonable age ones. We took the infant with us and went to the meeting and were sitting there.
So the meeting had gone very long because of this public comment period, very heated discussions over what the proposed curriculum changes were and why it was necessary and still about textbooks and things of that nature. I remember discussions about the curriculum. There was proposals. I remember Baksa standing up and reading proposals.
I remember the comments that the teachers had helped write the proposals. I can remember heated discussion amongst the Board members about the proposals. In particular, Alan and Bill were favoring changing it to include statements of intelligent design. I believe there's even one proposal, and I don't remember if I saw this in text previously or if I saw it that night, putting creationism in it. Then the proposal just, you know, evidence against evolution -- or evidence contradicting evolution.
Noel Weinrich, who had been previously to this meeting endorsing everything that Bill was proposing, discussing the textbook, and how we had to find balance, had changed his position and thought that it was not a wise move to put intelligent design or creationism in the curriculum change, and had words from Bill Buckingham and Alan Bonsell about him reversing his position.
Q. Do you recall what was said, just generally?
A. In general, it was basically, how can you do this? How can you reverse your stance on this? This is why we're doing this. You were with this all along. I can't believe you would do this. What are you thinking? That was the general sentiment that was expressed.
Q. Did you stay for the whole board meeting?
A. We did not. My wife and I, we were both in attendance, and as I said, it went very long. They called a recess. It sticks in my mind, it was around 9, 9:30. It may have been later than that. We had run out of formula for the baby. It was way past his bedtime. And we just couldn't stay any longer, so we had to leave.
Q. During the time that you were at the board meeting, did you hear the Board members discussing the reasons why they were proposing a curriculum change?
A. Once again, I don't know if it was at that meeting or it was a previous meeting, but the only reason that was given at that point in time was, we needed balance in the curriculum between, once again, evolution and either intelligent design or creationism.
Q. Now as you left the meeting, did you speak to anyone?
A. When they call the recess and I saw it was going to take a while, I took advantage of the opportunity, because I knew I was going to leave and not get a chance to speak at the later public comment section. They had been generally having two public comment sessions, one at the very beginning and one at the very end.
And the school board, when the meeting is over, if I'm facing the school board table now, they would exit the cafeteria to the right-hand side and go down the hallway to where the North Salem faculty room happens to be, and that's typically whether they would adjourn to. And I guess that's where they have their executive sessions. I decided to follow them out into the hall. This is my chance. I'm going to get to talk to them. And I intended to. So that's had an I did.
Q. Which board members did you speak to?
A. I made a point, as I was leaving, to speak to Alan Bonsell. Sheila Harkins spoke to me. And I just lost my -- Angie Yingling was speaking to somebody else. I sort of walked alongside her to listen to the conversation and then I chimed into it.
Q. Tell us what you can remember about your conversation or your exchange of communications with Mr. Bonsell?
A. Mr. Bonsell was the last conversation I had. And I basically confronted him and said, why are you doing this? Why are you pushing this? We had that meeting, you know. We explained to you why it's inappropriate. You communicated to us that it's based upon your religious views. And that's not an issue of science. We don't address religious views in science.
Basically, he just kept saying to me, well, it's gaps and problems, gaps and problems. I said, what gaps and problems? He said, they're so big, I can drive a truck through them. And he couldn't give me any real examples of what that was.
Q. And did you also have an exchange of communications with Angie Yingling?
A. Yes. She was having a conversation, I don't recall with who. It was another female. And her conversation was, I don't understand why these people are so upset and why there's so much opposition to this curriculum change. What's it about? And I don't see how it's really religious. I said, well, excuse me, I do understand why. And let me explain it to you.
And I enlightened her to what Discovery Institute was and what intelligent design was, what it said, what the history of creation science was, and the emergence of intelligent design after creation science was struck down by the Edwards versus Aguillarad case. Upon my finishing my conversation with her, she said, oh, that is a problem.
Q. Now following that board meeting on October the 18th of 2004, did you attend the next board meeting?
A. Beginning of November, that would have been, yes.
Q. It was -- it was the November 1st meeting?
A. Probably.
THE COURT: This might be -- if you have a number of questions in this area, we could break at this point. I'm assuming you do.
MR. HARVEY: I do have a few more questions.
THE COURT: All right. What we're going to do is, counsel, take five minutes, and I'll see you in chambers on a matter that Mr. Gillen raised. We'll do that in about five minutes. This could be a somewhat extended break. We'll take at least a 20-minute break. It may ripen into 30 minutes, depending on what we do. We'll break now. Our last session will be rather an abbreviated one. We'll go to 4:30 approximately, give or take, today. I'll see you in chambers in about five minutes much. We'll be this recess.
(Whereupon, a recess was taken at 3:10 p.m. and proceedings reconvened at 3:20 p.m. in chambers.)

 

Kitzmiller v. Dover Area School District
Trial transcript: Day 2 (September 27), PM Session, Part 2

THE COURT: We're in chambers. We're on the record. And it's been indicated to me by Mr. White that the reporters, Mr. Maldonado and Mrs. Bernhard-Bubb, were called for depositions, was it yesterday or -- today -- I'm sorry -- today at 10 a.m. and 2 p.m.
Mr. White advises the Court that the reporters refused to answer any questions, and that they invoked their, what they claim is a, First Amendment reporters privilege -- do I have that correct -- not to testify. He's presented me with a transcript. I have no reason to doubt that that's what took place.
Now we have had some testimony already this afternoon and some discourse about the subject articles. The Court has allowed the articles to be referred to, to refresh recollection. However, we have not admitted them. Let me ask Plaintiffs' counsel, is it still your intention to attempt to call the reporters in your case-in-chief?
MR. ROTHSCHILD: Yes, Your Honor.
THE COURT: All right. Under the circumstances then, you clearly have a right to depose them. And my -- I don't think I have any choice at this point but to summon the reporters. I'm not going to hold them in contempt without giving them an opportunity to come in.
So my intention, subject to, and I'll hear you on this, any of you, would be to issue an order and have them appear, but if any of you think that's inappropriate under the circumstances, or you have a better idea, I'll hear you on that.
MR. WALCZAK: Your Honor, if I could add another piece to the puzzle, which is the trial testimony. We have subpoenaed the reporters for 1:00 tomorrow. I apologize for not being here earlier this afternoon for the testimony, but I was meeting with Mr. Benn. I actually attended the deposition and can confirm certainly what Mr. White says.
THE COURT: That would solve the problem of having to summon them. I would assume they would appear and then exercise the same privilege.
MR. WALCZAK: My understanding is that, they will appear, but it is unclear as to whether or not they will testify. And after speaking to Mr. White, it would be our proposal that we all meet in chambers maybe -- I'm sorry, with Mr. Benn at maybe 1:15. If we break at 12:15, and go back at 1:45, maybe meet at 1:15 to discuss where we are in terms of witnesses testimony and trial. And I guess folded into that has to be the situation with the depositions as well.
MR. WHITE: Excuse me, Your Honor. I had asked both reporters whether they were going to invoke the privilege tomorrow, and they said they wouldn't give me an answer.
THE COURT: I don't know that there's anything particularly magical about them invoking the privilege in this court. If they, for example, would appear with Mr. Benn, and Mr. Benn simply says, they're here and they're not going to testify. I'm not going to stand on ceremony. So to put them on the stand and waste everybody's time by having them invoke the privilege, I don't think that that's helpful.
Now the question I have to grapple with, and I don't know the answer to this at this point, is whether I bring them in chambers, as I think Mr. Walczak suggested, and correct me if I'm wrong, and that I cite them for contempt in chambers and we move on and I determine what sanctions, if any, I'm going to assess against them, they take their appeal, and so it is, or whether I have a dialogue with them in open court.
I will tell you that my inclination is to have a dialogue with them in open court at this point, and I don't know what I'm going to do in terms of sanctions at this point.
MR. GILLEN: If I may, Your Honor. I mean, you know our position, which is simply that, you know, we're entitled to every man's evidence. And for them to show up tomorrow and attempt to get on the stand --
THE COURT: They're not going to. I'm not going to have them testify as fact witnesses. I'll tell you that now. They will not testify as fact witnesses for the Plaintiffs unless you have the opportunity to depose them. So that is not going to happen. I'll tell you that right now.
So, you know, I don't assume that Mr. Benn is playing that game. But if he is, then that's not going to work. I don't know why he would under the circumstances. I'm assuming privilege asserted as to one is privilege asserted as to both until someone tells me differently. Maybe I'm wrong. But I can't. I won't.
Because, as I said during the last conference that we had, which was off the record, and I'll state it on the record, in order to get the residual exception under 807, I think implicitly there has to be an opportunity. And I understand that you disagree on the scope of what they would be deposed on, but at a minimum, you have to be given the opportunity, since they're called as fact witnesses, and if you are going to attempt to assert 807 to have some questioning, and you haven't had that opportunity.
So they're not going to testify unless the Defendants have had the opportunity to, the full opportunity within the limits of my orders to question them. I am confounded by this. I will tell you that, in the abstract, I understand the argument, but I think this is the wrong place to line draw by them. I think it's very in fortunate. It's going to impede this trial.
I got a reading from Mr. Benn, although it was not explicit, that if I tailor this order to certain concerns that he had, they would testify. I, in no way, understood his motion last week, which asked for alternative relief and asked for the same relief that I thought I granted in the prior order, which I have to tell you, was utterly confusing to me as it related to your subpoena. Maybe somebody can explain that, but I can't.
MR. WALCZAK: I think, after meeting with Mr. Benn for an hour, I have a slightly different understanding of what they are asking for. But I certainly don't want to represent his, Mr. Benn's, views to the Court. And I would rather him state that tomorrow.
I think that our primary concern is that we are able to get this to the Circuit and have them decide this on an expedited basis. An expedited, I would think, is a couple of weeks. Since it's a bench trial, I assume, if we get a decision in two or three weeks, and if even if the Plaintiffs are done with their case-in-chief, assuming there's no directed verdict, that we would be able to call them out of turn.
THE COURT: I understand that. And I have that same concern, too. I also have a concern, you know, for the integrity of this court and this proceeding. And I, as I said last week, I was not inclined to do business as according to what I characterized at that time is the Marcus of Queensbury [Marquess of Queensberry? - editor] rules where we have contempt by consent and life goes on.
Now I don't know what I'm going to do. But I'm, you know, deeply concerned, and not particularly happy that we have this line drawn in a place where I don't think it should be drawn. Reasonable people will differ. I'll hear Mr. Benn out, as I have to, but I don't know what else we can do. So we'll conference in chambers on at least the issue of what Mr. Benn intends to do.
We can get that on the record. I don't know what I'm going to do in terms of the dialogue with the reporters themselves. But your understanding then is that they will be available in the building? It's not necessary for me to separately order their appearance, if I understand you correctly?
MR. WALCZAK: That is my understanding, and I'd be happy to take responsibility for contacting Mr. Benn for two reasons. One, to verify that's true. And second, to confirm that we'll meet here at 1:15.
THE COURT: Well, I don't know if it will be 1:15. We'll take it as we can. Let's just say, after lunch, because, you know, if they're a little inconvenienced, they're a little inconvenienced. We all have to be here, and I'm not going to disrupt anybody's case.
It just depends on how things go. So I would be reluctant to say, 1:15 sharp, but let's just say, after lunch they should be available. I would say, any time from 1:15 on. I'll try to take it as soon as I can. Does anybody else want to weigh in on this conundrum?
MR. WALCZAK: I think it's just because we don't have enough interesting constitutional issues in this case already.
MR. ROTHSCHILD: I wasn't going to give a humorous aside. The only thing I was going to bring up, which was at issue when we were admitting exhibits into evidence, is that, obviously, the flip side of this, one side of this, and the reason we're trying to call these reporters, is to get these articles in for the truth of the matter asserted.
We still have, obviously, our flip side argument, which is that, this is what a reasonable observer would know about the controversy.
THE COURT: Well, I understand that argument, and, you know, I think we can take that up, but, you know, to chew that fat, so to speak, when we've not run through the mechanism that you're attempting, which is to have the reporters verify the article, and I understand their arguments on both sides, I would just as soon not go there.
Now one result we could get, if they take it up, is the Third Circuit could agree with Mr. Benn and they could say that there is a privilege here, and that's the argument you're left with. And you could assert that argument at that time. But I don't know why we have to do that.
MR. ROTHSCHILD: I guess the only thing I would say, I don't look at it as the argument we're left with. I think it's actually an independent evidentiary purpose. It may be the more important one actually from our perspective at this point in the case, that we get the evidence that the reasonable observer in the community would have been aware of.
THE COURT: I understand that, but I think, as a progression, if you want to abandon your attempts to bring the reporters in, and I know you don't, then we'll have to focus in on that argument. I'd just as soon not and rather allow you the opportunity to do that.
I recognize that you don't think it's a second best argument, but it's an ancillary argument, if you will. I think, let's take the first method first, so to speak, and then we'll deflect it, if we have to. You'll agree that, if the Third Circuit agrees with my assessment, which is that there is no reporters privilege, and if, in fact, they're deposed, and if, in fact, you take them, and if, in fact, I allow the articles in on that basis, three if's, but if I do, you won't have to assert that argument, the ancillary argument.
MR. WALCZAK: Although, on the other hand, I think it's not, from our perspective, it's not a question of whether the articles come