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Judge Jones Exposes Sorry State of Legal Practice

Every American should be troubled by this statement by a federal judge:

I think that some of the cross-examination was absolutely fabulous,” said Jones. “It will endure, and I think it will be excerpted for advocacy classes. … I would say, in particular, Eric Rothschild’s cross-examination of Professor [Michael] Behe — the intelligent design proponent — that might be as good a cross-examination of an expert witness as I have ever seen. It was textbook. (quoted in Pennsylvania Lawyer, July/August, 2006)

This statement was made, of course, by Judge John Jones who presided over Dover v. Kitzmiller. And if Rothschild’s cross-examination was indeed “textbook,” then legal textbooks must be as filled with moral error as most high school biology textbooks are with errors of fact.

I was there. The cross examination was pure sophistry. Rothschild did nothing more than twist Behe’s words. He then proceeded to do a theatrical literature dump on Behe–piling up the papers and books before the professor–and act as though because many scientific papers had the words “evolution” and “immune system” in the title then evolution by natural selection must have built the immune system. This was not an argument refuting Behe’s work. This was a stunt. As one thoughtful ENV reader noted, this stunt reminds him of the scene in Miracle on 34th Street where the judge rules that Kris Kringle really is Santa Claus after piles and piles of letters are brought into the courtroom. After all, the letters addressed to Santa were delivered to Kris. So even the federal government (USPS) accepts that Kris is Santa!
To this stunt Behe responded appropriately:

Eric Rothschild, a lawyer for eight families suing to have intelligent design removed from the Dover Area School District’s biology curriculum, presented Behe with a stack of more than a half-dozen books written about the evolution of the immune system.

“A lot of writing, huh?” Rothschild said.

But Behe was unmoved, noting that “evolution” has multiple meanings.

“I am quite skeptical that they present detailed, rigorous models of the evolution of the immune system through random mutation and natural selection,” he said.

Every discerning person in attendance that day was surely asking himself, “If one of these papers or books has a piece of overwhelming evidence that the immune system was built by random mutation and natural selection, then why doesn’t Rothschild just open one of them and point to such a passage?” The fact that the plaintiff’s lawyers, who had months to prepare and had the advice of the NCSE and probably other Darwinist organizations as well, failed to point out any detailed, testable models for the evolution of the immune system through random mutation and natural selection speaks volumes. Such detailed accounts of Darwinian evolution do not exist, and I was more convinced of it than ever after watching this stunt.

But the worst part of the cross-examination was that Rothschild was absolutely snide, talking down to a kind man smarter than himself. It was embarrassing to watch. Let’s not forget that Dr. Behe is a tenured biochemistry professor at a prestegious university with many peer-reviewed publications. Whole books have been written by prominent scientists trying to refute his breakthrough scientific work. Think for a minute about his chief interlocutors. Here is just one example of Behe’s give-and-take with scientists from Brown University, the National Academy of Sciences, and Harvard University.

The fact that Judge Jones singled these actions out for praise is incredible. The complete disregard for truth was and still is breathtaking. Americans who care about the search for truth–wherever they come down on the issue of evolution–should be embarrassed. Somewhere Plato is gently shaking his head, lips pursed, beard waving side-to-side.

Logan Paul Gage

Logan Paul Gage is Assistant Professor of Philosophy at Franciscan University of Steubenville. Dr. Gage received his B.A. in history, philosophy, and American studies from Whitworth College (2004) and his M.A. (2011) and Ph.D. (2014) in philosophy from Baylor University. His dissertation, written under the supervision of Trent Dougherty, was a defense of the phenomenal conception of evidence and conservative principles in epistemology.



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