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.