The DI propaganda machine continues to slime U.S. District Court Judge Jones.

The Discovery Institute claimed that the judge essentially plagiarized the winning side’s Proposed Findings of Fact.  As I previously pointed out, a trial judge’s acceptance of the winning side’s proposed findings is so common as to be unremarkable.  There is a reason why the winning side “won” after all.  No need to re-invent wheels.  After the DI realized what they said, they have backpedaled from the plagiarism claim as even lawyers sympathetic to their cause are telling them they will lose credibility.  As I noted, the losing side’s lawyers haven’t commented on this at all.  As practicing attorneys, they recognize the power of the court’s ruling.

The DI now claims that the judge adopted the winning side’s proposed findings to such an extent that he also included their mistakes.

By now, we know there’s a catch.  It’s in the DI’s misrepresentation of “mistake.”  To discuss this I need to explain some civics. I’ll do that by offering an example.  At a non-jury trial, the judge acts as the fact finder.  He hears conflicting evidence, such as “the light was red” and “no it wasn’t, it was green.”  The judge then decides whether the light was “red” or “green.”  Each side proposed findings of fact.  One side proposes:  “The light was red.”  The other proposes “the light was green.”  The judge makes a decision.  There is a winner and a loser.  If the judge adopts the proposed finding that the “light was red” there will be a winner and loser.   The loser may disagree with teh judge, but that’s our legal system.  The loser can choose to appeal or move on with his life.

What the loser cannot say is that the judge made a mistake in accepting that the light was red.  In fact, the judge’s decision is not a “mistake” he is specifically choosing one side’s version of facts over the other side’s version.  That’s not a mistake, it’s exactly what we pay judges to do. 

The Discovery Institute’s list of “mistakes”  is merely a list of instances where the judge rejected the defendant’s position and accepted the plaintiff’s position.  That’s not a mistake.

The DI further compounds its error by demonstrating the “mistake” based on testimony of its own witnesses.  This is a ludicrous proposition.   

Let’s examine how that works in a hypothetical bank robbery trial.

The evidence consists of (1) videotape showing the defendant in the bank, (2) the defendant’s fingerprints lifted from the bank teller’s countertop, (3) bank money found in the defendant’s possession, and (4) the defendant’s testimony that he did not rob the bank.  The court, on this evidence convicts the defendant.  Can we reasonably say that the court made a mistake because its finding contradicts the direct testimony of a witness?  Of course not—the court simply didn’t believe the defendant.

That is the weakness in the Discovery Institute’s claim that the judge made such mistakes as finding that there was no peer reviewed literature or that Intelligent Design is based on the requirement for a supernatural intervention in the course of natural events.  Did the ID witnesses claim there was peer reviewed literature?  Yes.  Did they also admit there was none?  Yes, they did.  Did they deny the need for a supernatural interference?  Yes.  Did they concede that Pandas called for supernatural interferences?  Yes they did.

Based on their inconsistent testimony the judge did not believe the testimony of the ID proponents.  A judge’s determination that a witness is not believable is not a “mistake.”  It’s what all judges do.

Now, it’s possible that the DI wouldn’t know this.  I doubt that because the DI has far more lawyers on its staff than biologists.  That fact alone says volumes.  The spin continues. 

Talk Origins has a detailed discussion regarding the so-called “mistakes” here.

What the Discovery Institute fails to understand is that in every case there is a winner and a loser.   The Discovery Institute was the loser at Dover.  The judge did his job.   Move on to the next case.

Comments

[Larry Fafarman]

I am much more disturbed by Judge Jones' one-sidedness than by his extensive copying. Almost all of his ID-as-science opinion came from just the plaintiffs’ opening post-trial brief, so little or nothing came from the other post-trial briefs: the defendants’ opening post-trial brief and the answering post-trial briefs from both the plaintiffs and the defendants. An opening brief is obviously going to be very one-sided. If the defendants’ arguments were really lousy, then Jones had all the more reason to put them in the opinion in order to attack them. A side-by-side comparison of the texts of the Dover opinion and the ACLU's opening post-trial brief is here. A list of the Dover post-trial documents is here.

--"the losing side’s lawyers haven’t commented on this at all"--

The probable reason why we have not heard from the losing side's lawyers, from the Thomas More Law Center, is that the TMLC lost interest in the case when it was not appealed. The TMLC website has not commented about the case since December 21, 2005, one day after the decision was released.

--"Move on to the next case."--

Tell that to the opponents of Roe v. Wade.

[Joe McFaul]

You really have a porblem undertsningthe concept of "losing" in court. The parties have already explored options to settle cases before trial.

In a case where there is an unqualified winner and unqualified loser, and no room to "split a baby," the court rejects one side's factual and legal arguments. The complete and total rejection of one side's arguments is not a mark of "unfairness" or a failure to hear that side out. It is simply a compelte loss for that side.

A judge has no obligaiton to address and dismiss frivolous or patently incorrect arguments. Time is short. The pages of the legal reporter's books are limited. Lawyers reading the cases in the future are time conscious. A legal opinion is not the place for a conciliatory pat on the back to the loser.

Advice to ID supporters from the Clue Box:

Perjury is bad. Don't lie in court. If you do, you'll get slammed in the judge's opinion.

The ID supporters have told so many lies for so long they don't recognize when it's lying anymore. The discourse in weblogs and in the Op-Ed pages is treated as the norm. In court, that same speech is properly recognized as "lying." It really really pissed off the judge

[Larry Fafarman]

--"You really have a porblem undertsningthe concept of "losing" in court."--

I am really getting fed up with this you-don't-understand-this and you-don't-understand-that nonsense. As a pro se litigant, I have experience in litigating several actions, including several appeals to federal appeals courts and two appeals to the US Supreme Court, and I have spent many hours doing research in a law library, so I am hardly unfamiliar with law and the courts.

--"A judge has no obligaiton to address and dismiss frivolous or patently incorrect arguments."--

The Supreme Court often does. Is Judge Jones better than the Supreme Court?

All Jones had to do was just copy some of the rebuttals in the plaintiffs' post-trial answering brief. The ID-as-science section is considered to be the most important part of the opinion.

What Jones did is inexcusable.

[Joe McFaul]

"The Supreme Court often does. Is Judge Jones better than the Supreme Court?"

No, fool, they are different courts. The Supreme Court hears "close cases" that have already passed appellate review. They do not decide facts, and will hear cases in situations where the law is very close.

The District Courts are trial courts and do summarily dismiss parties' legal and factual arguments--and sometimes their whole case. I'm sure as a pro se litigant, you've had personal experience with that action.

[Larry Fafarman]

--"The Supreme Court often does. Is Judge Jones better than the Supreme Court?

No, fool, they are different courts. The Supreme Court hears "close cases" that have already passed appellate review."--

I have seen Supreme Court opinions make very disparaging remarks about litigants' arguments -- and sometimes disparaging remarks about the opinions of other justices.

You are the fool. A judge's opinion is supposed to help develop the legal analysis of a case. When a judge only regurgitates one side's arguments without even considering the other side's arguments at all, then higher courts essentially must deal with the case de novo -- i.e., as a brand-new case.

Here is what the 3rd Circuit said in Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004) --

"Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case."(emphasis added)

Here is what Judge James Skelly Wright said ( as quoted in a footnote in United States v. El Paso Natural Gas Company, 376 U.S. 65, 657, fn4 (1964) (internal citations and quotations omitted) ) --

"I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case."

--"The District Courts are trial courts and do summarily dismiss parties' legal and factual arguments--and sometimes their whole case. I'm sure as a pro se litigant, you've had personal experience with that action."--

What basis do you have for such an assumption?

The way you talk, I can't believe that you are an attorney. On second thought, considering the bad reputation of the legal profession, I can believe that you are an attorney.

[Fastlane]

"The Supreme Court often does. Is Judge Jones better than the Supreme Court?"

Often means not always? In this case, the judge decided nothing in the defendant's documents was worth noting or copying.

Can't say I blame him, I read most of the briefs....