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Kitzmiller v. Dover Area School District

Trial transcript: Day 9 (October 14), PM Session, Part 2


THE COURT: Be seated, please. All right, Mr. Muise, we continue with cross examination.

MR. MUISE: Thank you, Your Honor.

THE COURT: Mr. Millen has returned.

MR. GILLEN: My pleasure, Your Honor. There's just not enough of me to go around.

THE COURT: Don't lie to me, Mr. Gillen.

(Laughter in courtroom.)


Q. Dr. Padian, you testified on direct about the Cambrian explosion, correct?

A. Yes.

Q. I want to ask you if you think this is an accurate statement. "It is this relatively abrupt appearance of living phyla that has been dubbed the Cambrian explosion."

A. Yes.

Q. Do you know where that statement is from?

A. No. It's a reasonable one.

Q. I can represent to you, and you can check as well, it's from the article that you cited on your direct testimony by Mr. James Valentine.

A. Valentine.

Q. Entitled Fossils, Molecules, and Embryos: New Perspectives on the Cambrian Explosion.

A. Okay.

Q. So other scientists use the term "abrupt appearance" in different context, correct?

A. Other scientists use the term "abrupt appearance" in different context?

Q. Well, there's been a lot of testimony so far, and you as well, referring to the use of the term "abrupt appearance" in Pandas, and I'm just -- I mean, you acknowledge that abrupt appearance appears if the literature in other contexts?

A. Oh, may I say it means two different things?

Q. I believe you just said it.

A. That abrupt appearance means two different things? Yes. One thing to scientists and another thing to intelligent design proponents.

Q. Let me ask you this. This was I'll represent to you a statement by Stephen Gould found in Natural History. It says, "The fossil record, with its abrupt transitions, offers no support for gradual change. All paleontologists know that the fossil record contains precious little in the way of intermediate forms. Transitions between major groups are characteristically abrupt." Do you believe that, do you agree with that statement?

A. I think that Steve is talking about two different things. So I would say I would agree with his overall statement in context with that article, which I think it comes from a 1980 paper? Am I right about that?

Q. 1986, correct?

A. 86, okay, yes.

Q. I'm sorry. June/July 1977?

A. 77, okay. This is in Paloeobiology?

Q. Natural History?

A. Natural History. Okay, I'm getting close. I'll keep at it. Yeah, Steve was talking about two levels of understanding. One is the transition we talked about before from one species to the next which is abrupt in the shift of morphology in a lineage, and another which he says there is that in that sometimes we have transitions in the fossil record that are abrupt, and there are abrupt changes for some lineages. That is an abrupt appearance in the sense of it appears to be abrupt as opposed to abrupt appearance with no possibility of an intermediate. So we would certainly agree that we haven't worked out transitional stages for all organisms. That's absolutely true.

Q. Let me ask you about this statement, "paleontologists have long..." -- strike that. "Paleontologists had long been aware of a seeming contradiction between Darwin's postulate of gradualism and the factual findings of paleontology. Following phyletic lines through time seemed to reveal only minimal gradual changes, but no clear evidence for any change of a species into a different genus or for the gradual origin of an evolutionary novelty. Anything truly novel always seemed to appear quite abruptly in the fossil record," and I'll represent to you that's from Mayr in his one long argument Charles Darwin and the Genesis of Modern Evolutionary Thought.

A. Yes, Ernst Mayr there is paraphrasing Steve Gould's findings and he's talking about species levels. In other words, the level at which punctuated equilibrium applies to single lineages of one species moving to the next as we talked about before. I think he's not actually talking about the origin of things like I showed in the slides here.

Q. So he's not talking about the origin of a news fossil type?

A. He's not talking about things like the origins of birds and feathers and whales and getting land creatures out of that. Or I should say I can't, because I don't know all the rest of the context in question, but Ernst Mayr was not a paleontologist and did not familiarize himself with the date of the fossil record, and he was not familiar with most of the evidence I talked about today.

Q. And so it's the abrupt appearance of what that they're referring to?

A. In the case of what Gould is talking about with punctuated equilibrium, he's really talking about just new morphological changes that bring us new kinds of species, individual species from a lineage that was already present to a lineage that then appears in the fossil record, and he's talking about that change being relatively rapid, which Mayr would have had no problem with because we know that rapid change can happen in evolution. That's not a problem. The whole question was the lack of gradual change in the slow and steady sense.

Q. And one more statement, and again I want to see if you agree with this. "The Cambrian explosion refers to the seemingly abrupt appearance of diverse metazoan groups representing a number of extent phyla as well as some problematic clades during the Cambrian period."

A. That's sounds like a fair description.

Q. And this is from an article I believe entitled Lower Cambrian Vertebrates from South China.

A. Okay.

Q. Author E.G. -- or excuse me, Shu, S-H-U?

A. Okay.

Q. Are you familiar with that author?

A. No.

Q. But that's an accurate statement?

A. It's made sense to me.

Q. Now, is it the case -- let me back up. Do you see the Cambrian explosion as mainly a problem of fossil preservation?

A. I see it largely as a problem of fossil preservation, although the people that work on the problem more closely than I do and I accept what their findings are about it certainly say that there's a lot of evolution going on in the period of millions to tens of millions of years.

Q. Are with regard to the fossil preservation, the problem is that obviously you have to read the life of the past from the preserved rocks, correct?

A. Yes.

Q. And obviously longer the locks lay around, the less chance you have of finding what you're looking for in those rocks?

A. That's exactly right.

Q. And so there are increasingly more gaps in the fossil record the further back we go?

A. As a general matter of course that's true, because the rocks on the crust of the earth are continually eroded as you pointed out, and also subducted by geological processes, destroyed inside the earth.

Q. Is it the case that fossil evidence suggests that many of the animal phyla which first appeared without, that first appear without evident precursors during the five to ten million areas in the Cambrian rocks?

A. I think it depends on what you mean by evident precursors. You're correct that at that great distance in time it's harder and harder for us to find rocks of exactly the right age for every integral that we would love to have, but the fact is as I showed that in pre-Cambrian rocks there are already complex metazoan animals going back in some cases to as many as ninety million years before the Cambrian explosion was over. So metazoans in a sense are there. We would call them precursors.

Q. So it's your understanding that there are multicellular precursors to the Cambrian fauna which are the metazoans?

A. In the pre-Cambrian, yes.

Q. Are there scientists who felt that these are ancestral to the pre-Cambrian fauna?

A. What do you mean by the word "ancestral".

Q. That they are precursors to the fauna that found in the Cambrian period.

A. Well, if somebody says that they are not directly ancestral or we can't establish that they are directly ancestral but might be collateral ancestors, I think most paleontologists would be fine with that statement. The reason being that many of these animals the preservation is not great, they don't give us a lot of characteristics to work with, all those shared features that I talked about as being the scientific basis on which we read classifications.

So we might see a little curly thing in the fossil record with maybe some shell associated with it, but is that really a snail when it's like a millimeter long and, you know, typical snails, you know, are bigger. I mean, are we going to call that a snail or are we going to say well, maybe that's just like some little wormy guy that lived in a tube. So we don't know all the timing, without enough characteristics we're going to look for really derived, you know, unusual characters of snails before we start hanging the label snail or direct snail ancestor on a little piece of Cambrian or pre-Cambrian shell.

Q. Is that the, I don't know if I'm saying it right, the Idiacrin fauna?

A. Idiacrin fauna is the soft body at the time, I'm sorry, and it's a tough thing, and these are, Idiacrin is normally a fauna of the remains of soft bodied organisms, many of which don't look at all like creatures we find much later in the record.

Q. Are they considered by some scientists as ancestors to the Cambrian fauna?

A. Most of the critters we fined in the Idiacrin fauna are just weird. They seem to represent early metazoan, like the word experiments is often trotted out, but it's a misleading thing, but they are animals that diverged and had a nice run, and they basically, you know, played out their string and they didn't leave many descendant for very long and finally there's nobody left, but the question of whether they contained the ancestors of the Cambrian fauna is often difficult to say. Again without proper characters we don't really know, and we can't for the ancestors of a particular group to be found. Could I give you a different example that might clarify?

Q. Well, we're talking about pre-Cambrian and Cambrian fauna and the relationship, I'm trying to establish, because my understanding is that some of the work by Stephen J. Gould and Simon Conway Morris called into doubt whether or not these multicellular precursors of the metazoans were actually ancestral to the Cambrian fauna. Is that, are you familiar with that?

A. To the specific animals within the Cambrian fauna, I believe they had a disagreement about parts of that. Part of what they're talking about is when you find these really weird Cambrian, pre-Cambrian forms, can you shoe horn them into existing groups or relatives of existing groups, or were they simply early lineages that simply resembled them in some respects but then became extinct, and that's again a case by case assessment by people, and the only way to find out is roll up your sleeves and go look for these characters who shared derived features by which you can establish relationships.

It's really difficult to tell. For example, in the famous Burgess shale of the Cambrian, as Steve Gould has pointed out once, you know, we have a little animal there that looks like it's an ancestral chordate, and chordates are animals that include vertebrates, and if that little animal, pychea, he said if that animal had been snuffed without any relatives to continue on, whether or not it's the direct ancestor or just a close personal friend of the animal that eventually became chordates, the whole tape would have ended right there for us, but do we know about these critters? Well, you know, we just happened to find that one and that one happened to survive. So we can't always choose what we're going to find in the records when we write about the vagaries of preservation.

Q. I believe you called a Cladogram?

A. Cladogram, yes, sir.

Q. Would it be possible to construct one of those with the metazoans to the Cambrian fauna?

A. Yes.

Q. But there would be a lot of questions in-between to make that connection, is that accurate?

A. Well, there would be questions as to the relationship of many of the specific animals found in the pre-Cambrian, that's exactly right.

Q. What would allow you then to make that connection between the pre-Cambrian fauna and the Cambrian with all of these questions?

A. Because in the Cambrian fauna, in addition to animals that we're not sure what they are or who they're related to, we do have animals that we know at least are metazoans, and some of the animals that I talked about included the trace fossils, which means the kind of tracks that animals make when they wiggle along or burrow or walk. These traces well before the Cambrian show us that these animals are proceeding in this specific front to back direction, forward progression, and that therefore that their sides are symmetrical.

So they're what call bilateral, they're bilaterians, and bilaterians are a subgroup of metazoans. So because we have bilaterian traces in the pre-Cambrian we can understand that metazoans were present. In the same with the embryos that I described from way, tens of millions of years before the Cambrian boundary, have the characteristics of metazoan embryos. That tells us that metazoans are present, but maybe not specifically brachiopods or clams or snails, but that some kind of metazoan is there. And unfortunately we're all sorry about it, we don't have better records of these.

Q. Getting back to the writings by Gould and Morris, do they question that connection between the metazoans and the Cambrian fauna?

A. That there are metazoans in the pre-Cambrian.

Q. That they're ancestral. I know you used that term --

A. Oh, that these specific animals that are found in the pre-Cambrian fauna are directly ancestral to the metazoans of the Cambrian?

Q. Yes.

A. I think we all question that, yes. I don't remember their particular words, but many of them are clearly not directly ancestral.

Q. Is that based on fossil evidence and/or the molecular systematics? Is there a molecular systematics claim to that at all?

A. The molecular evidence can't tell you a lot about things. The molecular evidence is mostly used to tell you about what the approximate divergence times is of living groups of organisms and their ancestors. The fossils are pretty much what we depend on for those things you mentioned.

Q. So would it be accurate to say that molecular systematics can say anything nothing about the relationships or roles of fossil organisms to each other or to living lineages?

A. If you can't get molecules out of a fossil you can't assess its relationships to other fossils or to living organisms. So for example ichthyosaur were denizens of the oceans during the age of dinosaurs. They're not related closely to any known animals, but no one has gotten any DN A out of an ichthyosaur yet. So how an ichthyosaur is related to a plesiosaur or a dinosaur or how it's related to a turtle of today we really don't know.

Q. Poor court reporter. There's been several I guess recent molecular analyses which would agree that whales and hippos are each other's closest relatives, correct?

A. Yes. Living relatives.

Q. And from this conclusion some scientists have suggested that because both kinds of animals spend time in the water that their common ancestor would have been aquatic?

A. There were a couple of molecular biologists who suggested that hypothesis.

Q. And the fossil records show that this inference was incorrect, is that accurate?

A. The fossil record shows that that inference is apparently incorrect.

Q. According to the fossil record the first hippos were terrestrial and not amphibious, is that correct?

A. That is what we understand now, and furthermore that they evolved from a terrestrial group called anthracoceres that reach back to the Eocene when we have the whales first evolving.

Q. And the fossil record shows that whales were fully aquatic some 35 million years before the first hippos evolved?

A. That's what the fossil record tells us.

Q. And that the whales, too, evolved from animals that were entirely terrestrial?

A. As we showed.

Q. So even if the whales and hippos are each other's closest relatives among living animals, they didn't have a common ancestor that lived in the water but rather was terrestrial?

A. That is what we understand.

Q. So based on this, the fossil evidence was more important than the molecular evidence for showing the common ancestor? Is that accurate?

A. No. For showing the ecological condition of the common ancestor. The molecular evidence was wonderful because it showed us that hippos and whales share molecular characteristics that nobody else has, and on this basis scientists accepted that whales and hippos were each other's closest relatives.

Q. But the inferences that were drawn from the molecular evidence which these molecular biologists concluded that the common ancestors had been aquatic was actually shown to be not true through the fossil --

A. Yeah, they made an inference, a hypothesis, that they just hadn't looked at the fossils, and when we were able to assess the fossil evidence and to determine as a post-doctoral student and his team did in the laboratory across from mine at Berkley that hippos actually came from anthracoceres, these other terrestrial animals from earlier, about the time when the whales were first getting started, that it was really quite clear that these animals had independent origins into water, and the hippos never become fully aquatic as far as we know.

Q. And that was something that could not be determined from the molecular evidence?

A. Because the molecular evidence won't tell you about the lifestyles of the old and extinct.

Q. I believe you testified something to the effect that the fossil record provides strong support for evolution and has since the mid 1800's?

A. Yes.

Q. And again when you use the term "evolution" here, you're referring to the change over time, life has changed over time?

A. The progression of life, in that sense. And increasingly through the 1800's, the idea of common ancestry. In the middle of the 1800's it was quite possible to talk about the early records of birds and reptiles and other animals in very, very old rocks from the Mesozoic era and so forth if that's what you mean.

Q. Is it your understanding that intelligent design refutes the claim that life has changed over time?

A. I don't think intelligent design refutes anything in science that I'm aware of.

Q. Would you think ID, intelligent design, proponents don't agree with the notion that life has changed over time?

A. Oh, I think as the quotes from Pandas shows, they're typical, I think that they accept some limited change within lineages. However, the diagram that I showed that for them represents the face value interpretation of the fossil record, that diagram shows straight lines from the bottom to the top without much change if any.

Q. You testified about irreducible complexity, the concept of it, correct?

A. I did talk about that.

Q. And your characterization of irreducible complexity is that it applies beyond the molecular level of biology?

A. I testified that Mr. Behe says that they don't, but that the other IDC proponents indicate quite clearly that it does.

Q. And I believe with the slides that you showed, the term "irreducible complexity" wasn't used in any of those slides, correct?

A. Instead the term "adaptational packages" was used, which are indications that they cannot be disassembled without not working, and that is the same concept as irreducible complexity.

Q. Dr. Behe rebutted such an application in a journal article he wrote in Biology and Philosophy. Are you aware of that?

A. No.

Q. Is it your opinion that it's impossible to test the concept of irreducible complexity?

A. No, it's possible.

Q. Is it your belief that the evidence has falsified the claim of irreducible complexity?

A. If the claim of irreducible complexity is made as a blanket statement, it's not possible to falsify every instance until every instance is tested. What I showed here was many instances where the examples given in Pandas which seem to suggest that evolution of complex structures such as are claimed for irreducible complexity can be tested, they have been shown that in fact we can show transitions, and that the irreducible complexity in these features is not shown.

Q. In your report you reference to some study or evidence on the flagella as demonstrating Dr. Behe's claim of irreducible complexity was falsified.

A. As a principle. In principle that the question of whether, of how, whether the bacterial flagellum could evolve or not is a testable question.

Q. I believe from your report, this is one of the conclusions you reached, "The reasonable conclusion is that the structure we call flagella at first served the secretory purpose (and before this perhaps other purposes) and only later changed behaviorally and structurally to work in propulsion." Do you recall making that conclusion?

A. Yes.

Q. Would that conclusion be consistent with what Darwin's theory would predict?

A. I don't think Darwin's theory would predict a specific outcome in every case. My statement simply says that if you could take one function of a flagellum in a simpler form and have that flagellum acquire a second function and become more complex in the process, much like the wing of a bird became more complex as it evolved flight, then that would be a testable proposition and it would be reasonable to conclude that's one way it could happen.

Q. And is that your conclusion that that falsified based on what I just read?

A. Oh, no, I don't know whether that's the way it went or not. I say it's a reasonable way to say it.

Q. Do you know researchers who work on this flagellum have concluded that the flagellum came first and that the TTS was actually later derived from the flagellum?

A. Some researchers have concluded that, but some researchers have concluded the opposite I believe, but again it's not my field of expertise.

Q. But your reasonable conclusion, the term you use, would be the opposite of what some of researchers actually --

A. The opposite would also be a reasonable conclusion, and the question is if you test it with enough evidence maybe you'll come to a good one.

Q. Two of the main concepts that intelligent design proponents advance, one is the irreducible complexity that we talked about and the other one is specified complexity, is that correct?

A. Specified complexity, correct.

Q. That was a concept that was advanced by Dr. William Dembski?

A. Yes.

Q. Do you know Dr. Dembski?

A. Personally? I've met him.

Q. Do you know of him?

MR. ROTHSCHILD: Your Honor, I'm going to object. It's beyond the scope of the direct.

MR. MUISE: Your Honor, I'm not going to go into the details. One of the points I want to bring out, he testified that they haven't published any of their works, and I'm just going to go into some of the details of what Dr. Dembski actually published without going into the details of specified complexity.

MR. ROTHSCHILD: I would object to that characterization. I don't believe that Dr. Padian has testified he haven't published in any other works, but he published in lots of books and magazines, but he hasn't published in peer reviewed publications in his field of expertise.

THE COURT: Restate the purpose, Mr. Muise, of the line of questioning.

MR. MUISE: Your Honor, the way I understand his testimony is that they have not, they haven't published any credible materials advancing their claims in peer reviewed --


MR. MUISE: Intelligent design proponents.


MR. MUISE: In peer reviewed literature.

THE COURT: All right. I'll allow it for that limited purpose. I'll overrule the objection.


Q. Sir, do you know that Dr. William Dembski holds a Ph.D. in mathematics from the University of Chicago?

A. He does.

Q. Do you understand that his ideas were published in a book call The Design Inference?

A. I do.

Q. And that was an academic monograph which was part of a monograph series with the academic editorial board at Cambridge University?

A. I know that.

Q. And the name of the series that it was published in Cambridge Studies and Probability Induction and Decision Theory, are you aware of that?

A. Yes.

Q. Are you aware that this book was published -- strike that. Cambridge University conducts peer reviews of the books they publish, isn't that correct?

A. In some sense, yes.

Q. And his book would have been one that was peer reviewed by Cambridge University?

A. I do not know.

Q. Does intelligent design require adherence to the claim that the earth is no older than six to ten thousand years old?

A. Intelligent design as a, as sort of a dogma as it is, does it postulate a six thousand year old earth?

Q. As a theory does it require adherence to the notion that the earth is no older than six to ten thousand years old?

A. Wow. I don't know of any theory that requires adherence to a, certainly not a scientific theory, but I would agree with you that I think intelligent design is about special creation of things, not about the age of the earth.

Q. Do you think intelligence design requires adherence to the six-day creation event that's the literal interpretation of the Book of Genesis?

A. I don't believe it requires that. Individual proponents may agree with it or not.

Q. Does intelligent design require adherence to the flood geology point of view advanced by creationists?

A. I don't know if it requires that or not.

Q. It's your understanding that intelligent design requires the action of a supernatural creator?

A. I think that this is entailed because they eliminate natural forces, and if you eliminate natural forces then the supernatural is left. Now, whether they are talking always about supernatural that couldn't possibly be natural forces, that would be an item that perhaps is under disagreement by intelligent design proponents.

Q. Let me ask you it this way then. Is it your understanding that intelligent design rules out all natural explanations for design?

A. Well, as you saw from some of the statements that we quoted there from Pandas, they are removing natural cause explanations, they're taking them off the table and positing creative intelligence as explaining these things. In that sense I think I would have to agree with that statement that they really do require a supernatural intelligence doing that and the denial or removal of natural causes that can be discovered by conventional scientific means.

Q. If I understand your testimony correctly, it's your understanding that intelligent design doesn't make any positive argument for design, only a negative argument against evolution?

A. About 90 percent or more of their argument is certainly about criticism of evolutionary theory, much like creation science was. There is this bit about irreducible complexity and there is this bit about specified complexity, but there's been very little work done on it. For example, I don't know whether Mr. Behe -- sorry, Mr. Dembski has elicited a single natural example, a case where specified complexity is an explanation of a particular biological incidence in the record.

Q. You said 90 percent is negative to evolution. Is that, I'm assuming that there's at least 10 percent of the argument that demonstrates a positive argument for design?

A. Up to 19 if I were being charitable, I'm trying to, but I really don't see that there's very much here. If you look at Of Pandas and People there's very little evidence for a designer. It's all evidence against conventional biological concepts.

Q. Have you ever read Darwin's Black Box?

A. I have looked at parts of it.

Q. The parts you looked at, was Dr. Behe citing to scientific evidence?

A. For intelligent design?

Q. Correct.

A. Not that I can recall.

(Brief pause.)

Q. Now, when you referred to supernatural agency in your deposition you said it means, "Causes, mechanisms, processes, and influences that are not part of the normal behavior of the natural world as we know it. Things that suspend or override these processes or disrupt them or otherwise influences them in extraordinary ways." Do you still adhere to that definition of supernatural?

A. I believe that would have to be supernatural as opposed to natural.

Q. Would you agree that forces could exist in the natural world that we have not yet discovered, for example thermonuclear fusion, at one time we didn't know what was the force that powered the sun, but then later science discovered this force known as thermonuclear fusion?

A. Sure, and now the front page in the New York Times several years ago is an article about a fifth force in gravity which is still under discussion.

Q. So those examples might not be normal behavior of the natural world as we know it today?

A. Well, would we say that it might be according to the natural laws and processes consistent with those, or would we have to say it would be inconsistent with those?

Q. Well, I'm just asking you, that was your definition. I want to see if it fits that definition. Would those examples be considered a normal behavior of the natural world as we know it?

A. Well, those, these words you say come from my deposition, and that could be if I wanted to think about it a really sort of best crafted definition I could make that would be clear to everyone, maybe some words in that definition might be confusing or ambiguous to people, but by and large I would say that's a generally good description.

Q. Would you agree that this is a good general definition of a theory in science, " A theory is defined as a well tested explanation that unifies a broad range of observations"?

A. Yes.

Q. Would that properly define Darwin's theory of evolution?

A. Yes.

Q. You would agree that Darwin's theory continues to be tested as new evidence is discovered?

A. Yes.

Q. You would agree that Darwin's theory of evolution is not an absolute truth?

A. I don't think anything in science is an absolute truth.

Q. And that would include Darwin's theory of evolution?

A. I don't use the word truth in science.

Q. Some scientists do?

A. Yes, they do.

Q. Is it true that all -- strike that. Is it true that scientists still debate questions such as how new species arise?

A. Yes.

Q. And they still debate the question why species become extinct?

A. Yes.

Q. Would you agree that the origin of life is an unsolved scientific problem?

A. There's always more to find out, yes.

Q. Would you agree that this is an area of which there is little direct fossil evidence?

A. Yes.

Q. Would you agree that Darwin's theory of evolution continues to change as new data are gathered and new ways of thinking arise?

A. Yes.

Q. Would you agree the fossil records are incomplete?

A. Yes.

Q. Would you agree that Darwin's theory of evolution is complete?

A. By Darwin's theory do you mean what Darwin said in 1859, or do you mean the current corpus of evolutionary theory?

Q. I think some of it has been called the neo-Darwinian synthesis?

A. Oh, the neo-Darwinian synthesis. Yeah, the modern synthesis. Yes, it is incomplete, certainly.

Q. And even Darwin's theory as he postulated back in the 1800's would be incomplete as well?

A. In the sense of natural selection not being a good process to account for a lot of evolution or that there's more to natural selection or that we haven't found all the processes yet?

Q. Well, when you answered that the neo-Darwinian synthesis is incomplete, the same standard that you're applying there, would that apply to --

A. Oh, it didn't solve all the problems of course, sure.

Q. I want to see if you agree or disagree with this national science education standard, "In areas where data or understanding are incomplete, such as the details of human evolution or questions surrounding global warming, new data may well lead to changes in current ideas to resolve current conflicts."

A. That's certainly true.

Q. So you would agree that our understanding of the data are incomplete with regard to the details of human evolution?

A. They're incomplete with regard to virtually everything in evolution, as with everything else in science.

Q. That would include human evolution as those standards identify?

A. I would think so, judging by my understanding of the human fossil record, sure, we've got lots more to learn.

Q. Would you agree that the leap from non-life to life is the greatest gap in scientific hypotheses of earth's early history?

A. I'm not sure, because I'm not an expert on earth's early history before life. There may be lots of other big problems we don't know about.

Q. Do you disagree with that statement or you just don't know?

A. I don't know that I would agree with it because I'm just not that familiar with protozoic earth evolution.

Q. Now, Pandas was published in 1993 I believe, is that correct?

A. Second edition.

Q. Second edition, correct?

A. Yes, sir.

Q. And that's the one you were citing to today?

A. Yes, sir.

Q. Is it your opinion that there's been no new original thoughts by intelligent design proponents since that book was published?

A. Oh, I think there has been. Different works by intelligent design proponents have been published since 1993.

Q. Now, those -- did you call it a cladogram?

A. Cladogram.

Q. Cladogram, are those essentially a phylogenetic tree?

A. They're structurally a little bit different, but they're logical precursors, sure.

Q. And I believe you testified that they reflect a grouping based on shared characteristics?

A. Yes, sir.

Q. Would those be described also, I heard the term a tree of life, would those be considered a tree of life?

A. Insofar as they show relationships, the metaphor for this is tree of life. Sometimes it's shown by that, yes. In fact, there's a great web site --

Q. I'm sorry?

A. There's a big web site where people are trying to assemble all the biological cladograms they have, linking them all into a great tree of life.

Q. I believe you testified that no one in science thinks that a trout gave rise to a frog I think was the example you used, is that correct?

A. Correct.

Q. I believe you said that their histories are quite separate?

A. Since about the Digonian or even earlier, sure. So for 400 million years or so.

Q. Is there then just one tree of life or could there be multiple trees of life?

A. Well, if we have only one reality and if we have a history to life, then it's follows it seems to me that there would be only one tree of life, but whether we can discover it in all its ramifications is probably a never ending process.

Q. I want to see if you agree with this statement, sir. "The extreme rarity of transitional forms in the fossil record persists as the trade secret of paleontology. The evolutionary trees that adorn our textbooks have data only at the tips and nodes of their branches. The rest is inference, however reasonable, not the evidence of fossils."

A. Steve Gould said that some years ago.

Q. That's correct. Do you agree with that statement?

A. No. Steve didn't know what he was talking about. On a lot of areas of paleontology he was one of our greatest scientists and thinkers and scholars as I think any of this goes, but what he knew was not perfect. Steve studied snails, and if you asked me to try to give you a full phylogeny of snails, I ain't going to be able to do it and neither is Steve. But that doesn't mean that we can't do it for other organisms or that we don't find transitions. This was just one of the things that Steve didn't focus on very closely. He was -- his trade secret is really applying to this punctuated equilibrium level of the one species and then the next species that seems to arise or split off from it.

Q. Isn't the late Stephen Gould, wasn't he touted as one of the prominent Darwinian evolutionists?

A. Yes, he was, the whole century. Ernst Mayr was, too, but Ernst Mayr didn't know beans about fossils, and he didn't work on macroevolution. By contrast I don't work on population genetics. I'm not going to tell you about, you know, balanced and stabilizing selection of things. That's not my area, but I think that Steve would be the first to, and Ernst Mayr would certainly say that he would acknowledge what he hadn't worked on. Ernst Mayr worked on birds.

Q. Well, that quote was published in an article that was published in Natural History. Is Natural History a peer reviewed journal?

A. No. And Steve was notorious. He was a great writer, but no one could take a pen to his prose. His columns were put in there, and if you touched them he was going to have a fit. So nobody edited a word. I know this from personal experience working with Steve. He was a great man, he was a great writer, but he worked on an old typewriter, didn't do drafts, he typed it out, and that was it, and he never used a computer in his life.

Q. Let me see if you agree with this statement. "The most striking features of large scale evolution are the extremely rapid divergence of lineages in the time of the origin, followed by long periods in which basic body plans and ways of life are retained. What is missing are the many intermediate forms hypothesized by Darwin and the continual divergence of major lineages into the morpho space between distinct adaptive types," and that was written by Robert Carroll.

A. Yes. Bob wrote that in about it was `89.

Q. In an article entitled Toward the New Evolutionary Synthesis, published January of 2000?

A. Okay. Yes, I think I would disagree in detail on that. Bob in some regards is restating a principle that we have understood since, well, at least the 1940's with George Gaylord Simpson, and that is that the major groups of animals seemed to diverge first. Obviously you have to the higher levels, like phylums appearing before the classes and the orders and the individual families all appear, but these things appear and then they seem to move quickly into a variety of ecological niches. There's sort of an explosion if you will, and then it starts winnowing things out, and you get less diversity as you go on through time and less production of types. That's a pattern that's been noted for many different kinds of animals through the fossil record, and I can't tell you so much about plants.


A couple of more quotes I want to see if you agree with. "Paleobiologists flocked to these scientific visions of the world in a constant state of flux and add mixture. Instead of finding the slow, smooth, and progressive changes Lyel and Darwin had expected, they saw in the fossil records rapid bursts of change, new species simply appearing out of nowhere, and then remaining unchanged for millions of years, patterns hauntingly reminiscent of creation." And that is from Oxford zoologist Mark Pagel writing in Nature magazine.

A. Can you tell me what, from the context perhaps what years he's talking about that these scientists are experiencing this?

Q. In 1999. And as I said in 1999 writing in Nature?

A. I'm sorry, I mean of the -- when he's talking about the paleontologist, the paleontologists of which era is he talking about, do you know?

Q. I don't know. And he's referring to paleobiologists. I don't know if that's --

A. Okay. I don't know either. I mean because I think it's quite possible that in the early days of paleontology that would be probably a more acceptable pattern than it would be later on, but I don't know.

Q. And here's one in 2001 written by Ernst Mayr. "Wherever we look at the living phyata, discontinuities are overwhelmingly frequent. The discontinuities are even more striking in the fossil record. New species usually appear in the fossil suddenly, not connected with their ancestors by a series of intermediates." Do you agree with that statement?

A. Well, let's parse it, there's a long, if you unpack it just a little bit, it's a long statement, and he's talking first about, if I heard you right he was talking about the living biota and how it's disconnected by forms, we don't have all the transitional forms living today. Mayr is simply restating one of the most important basic conclusions of Darwin's Origin of Species, which is that you get a branch or a bush like that, but through time selective extinction does its work and it removes all those intermediate forms, leaving those that then create artificial gaps between species, and so this was a basic, a very, very important principle of Darwin's work. In fact, the only illustration that Darwin has of the Origin of Species is a scheme, a tree of life where he's showing exactly this principle in schematic form.

So as far as that applies to living biota, that's a perfectly ordinary statement that everybody knows is true. Where then Ernst changed his attention to the fossil record, then he's talking about the progression of intermediates from one form to another, that you have something progressing through the record and then there's not a lot of intermediate and then there's another form progressing through the record.

If I heard you right there's a perfect description of punctuated equilibrium, which actually Gould and Eldridge took pains to credit Mayr with when they first developed as sort of being incipient in his work. So I think what he's saying there is just basic understood stuff, not anything radical.

Q. In your direct testimony when you were talking about Pandas, and I believe one of the points you were talking about was the origin of feathers?

A. Yes.

Q. And the evidence that you cited was evidence that had come out subsequent to the publication of Pandas, is that correct?

A. That's correct.

Q. Now, you testified about the one minute statement that's read to the students, but I just want to explore your understanding about what may or may not actually be happening in the biology class. Is it your understanding that the theory of evolution will be taught in the ninth grade biology class at Dover pursuant to the state standards?

A. I understand it's required to be taught.

Q. Is it your understanding that the state standards that require students to learn about Darwin's theory evolution take a test which would include aspects of evolution?

A. I gather that that is the requirement or that's the expectation for students.

Q. Do you know that the book that was purchased for use in the ninth grade biology class is a 2004 version of the Miller and Levine biology book?

A. That eventually this was purchased, yes.

Q. And that the book Pandas that you've been testifying about today is going to be placed in the library?

A. Was it originally placed in the library or in the classroom?

Q. What's your understanding?

A. I'm not sure. I believe I know that, or I'm given to understand that it's now in the library.

Q. Is it your understanding that it's a required text for the class?

A. My understanding is that no, it was rejected as a required text. I believe the teachers did not want to use it.

Q. So in terms of how it's going to be applied or used in the ninth grade biology class, it's you're understanding that it's been put in the library and it's only there if students want to voluntarily go to it?

A. They are recommended to go to it to learn more about other ideas about origins.

Q. Is your understanding that whether or not the students will be tested on any of the concepts of intelligent design?

A. I'm not aware that they will be.

Q. Are you familiar with the 2004 biology book by Miller and Levine?

A. No.

Q. Do you know who Dr. Miller is?

A. Oh, yes.

Q. Do you have an understanding that the biology book covers evolution in a manner that's consistent with his status in the scientific community?

A. I trust that it is. I know that Ken has always been very strong about including evolution in his book.

Q. Would you, based on what you know about Dr. Miller and what he does with his science books, will you conclude that the treatment of the fossil record in the biology book would be one that would be consistent with what you believe the scientific evidence shows in the fossil record?

A. Not having reviewed it I wouldn't be prepared to tell you that specifically, I'm sorry.

Q. Would you have any measure of confidence based on the fact that you know Dr. Miller as the co-author?

A. I think Ken would be the first person to say he's not an expert on fossils. I hope he's getting good evidence and good reviews from other people, but I haven't seen that part of the book.

Q. Are you the president of the National Center for Science Education?

A. Yes, sir.

Q. And directors include Dr. Brian Alters, is he one of your directors?

A. Yes.

Q. And Dr. Barbara Forrest?

A. Yes.

Q. And Dr. Miller is considered one of the supporters of the National Center for Science Education?

A. I believe he's on our letterhead as a supporter, scientific supporter.

Q. Is the National Center for Science Education a political advocacy organization?

A. No, it's not.

Q. Are you familiar with the web site of the organization that you're a president of?

A. Well, I must say I don't look at it every day, and I should explain that the role of the president is not to superintend the daily activities of the staff of the center, but rather to preside over the board of directors.

Q. Do you have any familiarity with your web site?

A. I do consult it, but I don't have anything to do with its production and I haven't memorized its contents or have I say a great familiarity with what's up there at the moment.

Q. Do you know if it has a page entitled "25 Ways to Promote Science Education"?

A. I do not know that.

Q. Do you know if your web site encourages individuals when there's a controversy in the community of evolution to hold press conferences with colleagues, record public opinion announcements, send letters or editorials supporting evolution education to local newspapers, are you aware that your web site makes those representations?

A. I don't think I've read that particular page.

Q. Now, plaintiffs' experts in this case and I gather from your testimony as well have criticized intelligent design proponents for not having their ideas published in peer reviewed journals. Do you share their criticism?

A. In the appropriate fields, yes.

Q. Do you know who Dr. Richard Von Sternberg is?

A. I don't believe so.

Q. Sir, do you know if the U.S. Office of Special Counsel conducted a preliminary investigation of a complaint made by this individual that he was, that reprisals were made against him for actually publishing an intelligent design article written by Dr. Steven Meyer in the Proceedings of the Biological Society of Washington, are you aware of that controversy?

THE COURT: All right, go ahead.

MR. WALCZAK: It's way beyond the scope of direct, and the witness has testified that he didn't know who Dr. Sternberger is.

MR. MUISE: I asked him about the controversy, Your Honor, as follow-up.

THE COURT: I guess if he doesn't know him on that basis, the second question might be objectionable. He can't identify him, so how would he know?

MR. MUISE: He may be aware of the controversy surrounding an article that was not published in the Proceedings, and I see the witness is nodding his head right now. So chances are he probably does have some understanding of the controversy.

THE COURT: All right, I'm going to give you some latitude. I'll overrule the objection.

THE WITNESS: I recognized the name when you started to explain the circumstances. Sorry, I don't mean to give you a false impression.


Q. So you're familiar with the controversy surrounding the publication of this, what was purported to be an article on intelligent design written by Dr. Steven Meyer?

A. Well, I'm familiar that there is a controversy.

Q. The U.S. Office of Special Counsel conducted a preliminary investigation, and let me read you a portion of this.

THE COURT: I'm going to sustain the objection now. I don't, I think that's beyond the scope.

MR. MUISE: Your Honor, if they're going to complain that intelligent design proponents are not publishing articles, and his organization was identified in a preliminary investigation as placing undue pressure and influence on an organization because he accepted an article, an intelligent design article, that clearly goes to the bias, and you know, there's one thing for them to criticize and it's another thing for them to just take every effort, use all their political clout they can to prevent these articles from being published in peer reviewed journals.

MR. WALCZAK: I think we've got a hearsay problem here, too, Your Honor.

THE COURT: Well --

MR. WALCZAK: And it's way beyond the scope of --

THE COURT: The purpose of the question then, Mr. Muise, is to, if I understand it, and I'm not sure that I do, but help me out, you are embarking on a line of questioning that stems from a complaint that was initiated by the witnesses, by the entity, by the group that the witness is the president of.

MR. MUISE: No. The complaint was, this individual Dr. Richard von Sternberg, was an editor of a peer reviewed journal in which an intelligent design article was submitted for review. He as the editor agreed to accept it. He was then, reprisals were then taken against him for doing so to the point where he initiated a complaint to the U.S. Office of Special Counsel. The U.S. Office of Special Counsel conducted a preliminary investigation, and part of the investigation revealed that his organization, the National Center for Science Education, was involved in creating, in helping the strategy to get, for the reprisals against Mr. Von Sternberg.

THE COURT: Well, you can establish that by testimony I suppose. I think it's not an inappropriate line of questioning, but I guess the, ostensibly I guess it goes to bias on the part of this witness. I think I'd ask the question a more focused way, what does he know about that.

MR. MUISE: And I was going to read a section of the report and see --

THE COURT: And/or what did he have to do with it.

MR. MUISE: Your Honor, I think the section of the report I was going to read was going to provide the foundation for those, or the basis for those follow-up questions, whether he knows this is true, whether he had any part in that.

THE COURT: Well, you've read that. I mean, by the dialogue we've just had you've gotten that in. I think it's clear now the area that you seek to get into. So I think you can hone your questions based on the dialogue that we just had, because it really goes to what he knows and what if anything he did. Isn't that what you're trying to get?

MR. MUISE: Correct, Your Honor, but the dialogue we had was between the court and myself. Not between the --

THE COURT: We didn't put the cone of silence over him while we had the dialogue. I assume he heard it. So why don't you narrow your questions as according to that. I mean, everybody understands now what we're talking about. Ask him what he knows about that, and if anything what he, what part he had in it or what he did. Mr. Walczak, what do you want to say?

MR. WALCZAK: If we might see what the document is that Mr. Muise allegedly is pointing to, we have no idea whether he's accurately characterizing the situation or not here.

THE COURT: Well, I don't think you have to yet. I'm going to let Mr. Muise proceed. That may be necessary and maybe he's going to do that, but go ahead and see --

MR. MUISE: Your Honor, I was going to say if he doesn't believe I have a good faith basis for my question on cross examination, I have a copy of the letter from the U.S. Office of Special Counsel, I'll be happy to show opposing counsel --

THE COURT: Do you want to see that now?

MR. WALCZAK: I'm not imputing that he's got a good faith basis. I do not know as I sit here whether his characterization of what that document says is fair and accurate.

THE COURT: Well, that may or may not be an issue depending on the answers we get. So go ahead and --

MR. MUISE: That's party the reason why I was going to read that one paragraph, Your Honor, so there wasn't any misrepresentation about what the basis of the question was.

THE COURT: What do you say about that?

MR. WALCZAK: It appears to be a multipage document. Reading one paragraph out of there again I don't know whether that's taken out of context or --

THE COURT: Well, you'll have him on redirect. So why don't you share, do you have a copy, Mr. Muise? Mr. Gillen looks like he's looking for a copy.

MR. GILLEN: I believe that we do, Your Honor. It's Defendant's Exhibit 282.

THE COURT: All right. Then Mr. Muise, your point is well taken. Why don't you go ahead and read that at this point and I'll give you some latitude, and then proceed with your questions on that point, and at the same time plaintiffs' counsel is then alerted to the exhibit number and they can check it. Go ahead.


Q. And just so the record is clear the acronyms that will be used, when I use the acronym SI I'm referring to the Smithsonian Institution, and the acronym NMNH is referring to the National Museum of Natural History, and I just want to read you a portion from this preliminary investigation, sir. "Of great import is the fact that these same SI and NMNH employees immediately aligned themselves with the National Center for Science Education, NCSE. Our investigation shows that NCSE is a political advocate organization dedicated to defeating any introduction of ID," meaning intelligent design, "creationism, or religion into the American education system.

"In fact, members of NCSE worked closely with SI and NMNH members in outlining a strategy to have you investigated and discredited within the SI. Members of NCSC furthermore e-mailed detailed statements of repudiation of the Meyer article to high level NMNH officials. In turn, they sent them to the society. There are e-mails that are several pages in length that map out their strategy.

"NCSE recommendations were circulated within the SI and eventually became part of the official public response of the SI to the Meyer articles. OSC, Office for Special Counsel, is not making a statement on whether the SI or NMNH was wrong or right in aligning with the NCSE, although OCS questions the use of appropriated funds to work with on outside advocacy group for this purpose.

"This is only discussed to show that the actions taken on the part of SI employees clearly had a political and religious component. Therefore, it may lend credence to your allegations that your religion and political affiliations were investigated and made a part of the actions taken against you," and the you referring to is the Dr. Richard Von Sternberg whom this was directed to. Sir, are you aware as the president of the NCSE whether or not the NCSE had taken any of the actions that were identified that I just read to you in this preliminary investigation?

A. I was not personally involved in any of those actions.

Q. Do you have any knowledge of any of those actions actually taking place?

A. Well, I am not sure that -- let me put it this way. I expect that there may have been communication. I was not copied on any of the communication between NCSE and anyone in the Smithsonian, but it's common for agencies as well as individuals to consult NCSE, which by the way is a tax exempt organization, not a political advocacy group as the paragraph states, when there is a question about the propriety of introduction of creationist material into for example scientific curricula or such ideas. My understanding is that Mr. Von Sternberg, is his name von Sternberg or Sternberg?

Q. It's Von Sternberg. People refer to him as Mr. Sternberg as well.

A. Mr. Sternberg, okay. That he was an editor for the Proceedings of the Biological Society of Washington, is that an organ of the Smithsonian Institution or the National Museum of Natural History?

Q. You don't know or are you --

A. I don't know. I'm asking.

Q. Well, it doesn't work that I answer questions. If you don't know, that's fine.

A. Then I probably can't help you any farther, I'm sorry. That's all I know about NCSE's part in it.

Q. Do you know if anyone within NCSE sent e-mails to any of members of the SI?

A. I don't have any personal knowledge of specific e-mails.

Q. Is Genie Scott, is she a member of the NCSE?

A. She is our executive director.

Q. Do you know if she just happened to be out giving a lecture on October 12th at the University of Idaho arguing against the teaching of intelligent design?

A. I don't know where she was on that date, sorry.

Q. Do you know Dr. Scott Mennick?

A. Personally no.

Q. Do you know who he is?

A. I think he's going to be deposed in this case, and I think he has submitted an expert report.

Q. Do you know he's a professor at the University of Idaho?

A. I believe I'm aware of that. Is it Idaho or Idaho State? Idaho, okay.

MR. MUISE: No further questions, Your Honor.

THE COURT: Mr. Walczak, redirect?


Q. National Center for Science Education, NCSE, is a nonprofit group?

A. It's a nonprofit tax exempt group.

Q. And what is the mission of the NCSE?

A. The mission of NCSE is to clarify science for the public. Normally major people we clarify it would be government officials, including education officials and school boards, parents, PTA's, members of the press, and individually concerned parents and community members.

Q. Is it a secret that NCSE has taken a position that creationism is not science?

A. Oh, that's no secret at all.

Q. Is it a secret that NCSE has taken a position that intelligent design is not science?

A. No, in that sense NCSE has aligned itself with the major scientific societies.

Q. And is it a secret that the National Academy of Science has taken a position that intelligent design is not science?

A. They certainly have done.

Q. Mr. Muise asked you about abrupt appearance, and he read a number of quotes from individuals. I believe they talked about, I don't remember the exact language, about relatively abrupt appearance in the Cambrian ear, and at one point you said the use of that abrupt appearance in scientific terms is different than the use abrupt appearance in intelligent design terms. Could you explain that, please?

A. Oh, yes, of course. When we say, if a scientist were to say that a form would evolve abruptly or appear abruptly, I mean it has the appearance, that is it seems as far as our record goes to happen very quickly. But abrupt appearance in going back to creation science parlance means something quite different. Wendell Bird for example, who is a lawyer and a conservative Christian anti-evolutionist attorney, wrote a book a couple of decades ago about abrupt appearance theory.

And so for him I mean it's a code word in the old style creation science, antecedent in many ways to the phraseology and the language that's often used in intelligent design that abrupt appearance means that you get these very complex groups, very distinct appearing at once, with no possibility of intermediates, certainly no evidence of intermediates in the fossil record, so that there's an implication there that there aren't ancestors and they aren't going to be found as opposed to a scientist who simply is making a statement about these things appear to come in just now as opposed to later or how rapidly.

Q. The Cambrian era lasted how long?

A. Oh, a few tens of millions of years.

Q. So when you see a bar on a chart and it starts in the Cambrian era, does that mean it was formed abruptly on a certain minute or day?

A. It means it's the first place where we find it. I should emphasize that the first appearance, the earliest appearance in the fossil record is for us a minimum early appearance because we may always be missing earlier ones, just like the last one is not necessarily the last critter to choke.

Q. But you're talking about many millions of years. So you're not talk about instantaneous appearance. You're talking about in a relatively short period of time which in geological terms is in millions of years?

A. If we look at the appearance in the fossil record of the major groups of marine animals, that appears over a sequence of millions of years.

Q. And in geologic terms that's abrupt?

A. It's really relatively fast. To give you an idea, the asteroid that hit the earth at the end of the Cretaceous period when the last dinosaurs that weren't birds and many other things died out is dated at something like 66.5 million years, plus or minus 40,000 years. That means that at a distance of 65 million years the best we can go is like 40,000 years either way for a determination. Now, 40,000 years is enough the take four ice ages, you know, from now back to the extinction of all the big Pleistocene mastodons and mammoths and Irish elks and things, do it four times and put it either way and collapse it into an instant, and we can't tell. That gives you an idea of somehow what the resolution of dating can often be.

Q. Mr. Muise, asked you about William Dembski.

A. Yes.

Q. And he asked you about a book that Mr. Dembski published or contributed to.

A. Yes.

Q. What book was that?

A. Is it called the Design of Life? I don't remember the --

Q. And that was published by an academic press?

A. Cambridge.

Q. Cambridge Academic Press?

A. The Design Inference. Thank you.

Q. Is that the same thing as the peer reviewed publications you were discussing this morning?

A. Book publishers, even book publishers of scholarly presses publish a variety of different kinds of books. Some of them are very scholarly, some of them are not so. I happen to be on the board of editors of the University of California Press and I know sometimes they publish biographies or reminiscences or cookbooks or things like that, as well as scholarly books in semiotics and sociology and molecular biology or whatever they happen to do.

So just because it's published by a scholarly press doesn't necessarily tell you what the peer review is. Also, you don't know in a specific instance what kind of understanding authors and editors have about who or how something would be reviewed. If someone who is publishing a book in a scholarly press based on my experience with UC Press and many other presses I have worked with is any indication, and an editor at the book company, the press itself, is an acquisitions editor someone who would like to do business with the press.

And so the first concern is to public books that will be read, that will be good for the press to public, because they'll be discussed, one way or another drum up interest in the press, sell other books by the press. They certainly want to get scholarly works in there and they want to get things as right as they can, but you know, you're serving several masters, whereas in a scholarly journal an editor has a lot of submissions coming in, and he doesn't have to worry about selling journals.

If he does he's probably not running a very good journal because people in his field are going to go for it. So he can hold authors to a standard that says well, look, if the reviewers say that you can do it, and he sends them to anonymous reviewers for this reason. Now, I think something should be pointed out here is maybe Mr. Dembski's book was reviewed by people who know about math and probability theory.

I don't have a dog in that fight. I don't care or know anything about that stuff, but I do know that it's not biology. It wasn't published in a biology series, it has nothing to do with evolution biology, and so when someone said this is a peer reviewed contribution that bears on evolutionary biology, we say where's the beef.

Q. So there's a couple of points there. One is that this academic press is not subject to the same peer review as for instance you described that would occur at Nature or Science?

A. Not necessarily at all, right.

Q. And we don't know what the peer review was for that if any?

A. We don't know. I don't know. I have no personal knowledge.

Q. And second, does Dr. Behe have to your knowledge any kind of degree in biology?

A. I don't know what he has in biology. In terms of evolutionary biology or paleontology I mentioned I don't know of any expertise in that regard.

Q. I'm sorry, I'm thinking about Professor Behe already. I mean --

A. Oh, Professor Dembski. No, I'm not aware that he has any credentials in any of the natural sciences. I believe that mathematics and theology maybe, or divinity.

Q. And let me ask you that same question I asked before about the Pandas authors. Have you seen Mr. Dembski at any of the conferences that you attend?

A. No.

Q. Have you ever seen any presentations by Mr. Dembski made at evolutionary biology or paleontology conferences?

A. No. I've never heard of him.

Q. Have you ever seen any publications in your field from Mr. Dembski?

A. No.

Q. Mr. Muise asked you about a number of people, and in fact read you quotes from people. He mentioned Stephen J. Gould?

A. Yes.

Q. And it seems the suggestion was that Stephen J. Gould had some problems with evolution. It seems that you knew Stephen J. Gould?

A. Yes. Well.

Q. And are you familiar with his writings?

A. Oh, yes.

Q. Was he someone who questioned evolution?

A. He certainly questioned the relative importance of various mechanisms and patterns in evolution, but not the idea that evolution had occurred or that organisms were related by common ancestry. That was a great theme of Gould's writing that he was always frustrated that anti-evolutionists were trying to make out that there was question about, among in the scientific community about whether evolution had in fact occurred, when really it was just a question of how important is punctuation versus slow and steady change and questions like that, but the overall fact and pattern of evolution was not in question.

Q. And are you aware of whether Stephen J. Gould ever testified as an expert witness in a case?

A. I believe he testified in McClean vs. Arkansas, was that right?

Q. And would that have been a trial in 1981 about scientific creationism?

A. Presided by Judge Overton I believe, yes.

Q. And was he an expert witness in that trial very much in the way you are an expert witness here today?

A. Yes, except he likes the Yankees and I like the Oakland A's.

Q. And in fact which side of the case did he testify on?

A. The Yankees. I'm sorry, he testified on the evolution side.

Q. And I believe Professor Gould was one of the proponents of punctuated equilibrium?

A. He and Niles Eldridge.

Q. I'm not going ask you to explain it. I know you've explained it to me before. I don't fully understand it, but is that an argument against evolution?

A. Not at all. It's simply an argument about what the pace of change is.

Q. And in fact scientists disagree about a whole lot of things, don't they?

A. Oh, yes.

Q. And they disagree about a lot of things within evolution?

A. Oh, yes.

Q. But that doesn't mean that they don't firmly believe in the basics of evolution?

A. Well, I wouldn't again use the word belief. I'd say that they accept it as the best explanation of things. My friends in the physical community argue about string theory. Some of them think it's good idea, some of them think it's nonsense. I have no idea what it is, but it's obviously something that keeps them going and it has ramifications for important understanding of the natural world.

Q. And Mr. Muise mentioned Ernst Mayr?

A. Yes.

Q. And are you familiar with Mr. Mayr's work?

A. Yes, I knew Ernst Mayr and his work.

Q. Is he a proponent of evolution?

A. Well, I'd say he probably is recognized as one of the foremost evolutionary biologist of the 20th century.

Q. How about Robert Carroll?

A. Bob Carroll is an old friend, he's one of the deans of vertebrate paleontology. He's up at McGill university in Toronto.

Q. And are any of those individuals proponents of intelligent design?

A. No.

MR. ROTHSCHILD: I have no further questions.

THE COURT: All right. Recross, Mr. Muise?

MR. MUISE: I have none, Your Honor.

THE COURT: All right. I thank you for your testimony, and you can have a safe trip back now with the cooperation of counsel getting your testimony in. We'll take up the exhibits in just a moment, but you may step down, sir. We thank you. All right, we have some exhibits to take both, from both of the last two witnesses, but --

MR. ROTHSCHILD: Your Honor, we have a suggestion. We have one more plaintiff who needs to testify. We expect it to be very short, and if it's agreeable we'd like to put him on.

THE COURT: That's what I was going to ask. Do we want to take another witness rather than take time today? Would this be your last witness other than, you're going to take the reporters out of turn? Do I have that right?

MR. ROTHSCHILD: And Mr. Buckingham out of turn and we have designations which I think will likely go out of turn as well.

THE COURT: So technically you're not going to rest after this next witness?

MR. WALCZAK: Correct.

THE COURT: Just to be clear, but are we going to start with the defendant's case on, by agreement of counsel on Monday?

MR. GILLEN: Yes, we'd like to get started.

MR. ROTHSCHILD: If we could put this witness on now we would have no objection --

THE COURT: Let's go ahead and we'll start, if we run a little longer we'll start with the exhibits on Monday, we'll take care of that, so we don't belabor that today. Go ahead.

MR. ROTHSCHILD: Thank you.

MR. HARVEY: Your Honor, the plaintiffs call to the stand plaintiff Joel Leib.

(Joel Leib was called to testify and was sworn by the courtroom deputy.)

COURTROOM DEPUTY: State and spell your full name.

THE WITNESS: Joel A. Leib, L-E-I-B.


Q. Where do you live Mr. Leib?

A. I live in Dover.

Q. How long have you lived in Dover?

A. I was born fifty years ago, so I've lived in and around Dover all my life.

Q. Your extended family, parents and --

A. Yes. If somebody dropped a bomb in Dover that would be the end of the line.

Q. How long has your family lived in Dover?

A. We got here before this was the United States.

Q. Do you have any children, Mr. Leib?

A. Yes, I do.

Q. How many children?

A. I personally have three.

Q. Do you have any children in the Dover High School?

A. Yes. Well, in the junior high.

Q. What's the name of that child?

A. Ian.

Q. How old is Ian?

A. Ian is 13.

Q. And what grade is he in?

A. He's in 8th grade.

Q. Is he going to attend Dover High School?

A. Yes, he is.

Q. And are you married?

A. No. I have a significant other.

Q. Tell us the name of your significant other.

A. Deb Fenimore.

Q. And is she also a plaintiff in this action?

A. Yes, she is.

Q. She is the mother of Ian, correct?

A. Correct.

Q. What do you do for a living, Mr. Leib?

A. I'm a teacher out at Bradley Academy.

Q. What do you teach?

A. What do I teach? Graphic arts, animation arts, things of that nature.

Q. Did there come a time when you learned that there was going to be a change in the Dover Area High School biology curriculum?

A. Yes.

Q. And tell us what did you learn?

A. The first time I was hit with something called intelligent design that I didn't know exactly what it was.

Q. When was this?

A. August, September somewhere around there. I don't exactly remember.

Q. Did you know that the board passed a resolution on October the 18th of 2004 changing the biology curriculum?

A. Yes.

Q. How did you learn about that?

A. Let's see, I was kind of following the newspaper articles from the first one I had read sometime in September.

MR. GILLEN: Judge, if I may just for the record, same objection we made before. Apparently the witness lacks any personal knowledge apart from what e he read in the paper, so he's not competent to testify. It's hearsay. What we're about to hear is hearsay.

THE COURT: I'll note the objection for the same reason as stated previously by the court. The objection is overruled. You may proceed.

Q. Please continue your answer, Mr. Leib.

A. Can you repeat the question for me again?

Q. Yes. You learned about the school board resolution on October 18th, correct?

A. Correct.

Q. And you learned about that from reading it in the newspaper, correct?

A. Correct.

Q. Was there any other source for you of information about the school board change to the curriculum?

A. Are you referring to my conversation with Jeff Brown?

Q. Yes.

A. Casey Brown?

MR. GILLEN: Objection, Your Honor. Hearsay.

MR. HARVEY: Not offered for the truth of the matter asserted, Your Honor.

MR. GILLEN: Then what's its purpose?

THE COURT: Well, let's go right to the bottom of it. There's no question that the curriculum was changed, was there?

MR. GILLEN: That's correct.

THE COURT: So let's not stand on ceremony.

MR. GILLEN: You know, I got to preserve the record, judge. If all he heard is what he heard from Jeff and Carol Brown, they were in court, they testified. But this is hearsay.

THE COURT: Well, it's not hearsay if it doesn't go to the truth, and the truth is not at issue here as to the change in curriculum. Now, it may be as to other things that he would testify to, but not on that point. Is it?

MR. GILLEN: No, you're right, Your Honor, that the evidence shows that the curriculum was changed.

THE COURT: So at this point I think we're not in a hearsay situation, or at least -- well, I don't want to belabor this today. It's late in the day. I'll overrule the objection.

MR. HARVEY: I'll try to make this easier, Your Honor.

THE COURT: I think likely you can avoid some of these objection. Why don't you do that, so go ahead and proceed.


Q. Sure. You know that the school biology curriculum was changed to include reference to supposed gaps in problems in Darwin's theory and other theories of evolution, including intelligent design. You knew that, didn't you?

A. Right.

Q. And you knew that it was included to, changed to include reference to a textbook by the name of Of Pandas and People, is that right?

A. That's correct.

Q. You knew that the school, the Dover area school district published a newsletter in February of 2005?

A. Correct.

Q. Did you know that?

A. Correct.

Q. May I approach, Your Honor?

THE COURT: You may.

A. Yes, that's the one.

Q. That in fact P-127, what I just handed you, that's the newsletter you received?

A. Correct.

Q. Mr. Leib, do you believe that you have been harmed by the Dover area school district board of directors' change to the biology curriculum and publication of the newsletter?

A. Yes, I do.

Q. How do you believe you've been harmed?

A. Two ways. Number one, I've got a child in the school. Intelligent design is not science. Every second that he's either in the class listening to it or out in the hallway objecting to it is a second he's not getting an education and he can't be functional in a world market. These kids need education. Let me handle the religious aspect of it.

Q. Do you believe that the Dover area school district board of directors' actions have affected you and the Dover community?

A. Well, it's driven and a wedge where there hasn't been a wedge before. People are afraid to talk to people for fear, and that's happened to me. They're afraid to talk to me because I'm on the wrong side of the fence.

MR. GILLEN: Well, that was my only objection, Your Honor. To the extent he's testifying about harm to the community, same objection as this morning. His own harm he's entitled to testify.

THE COURT: Well, I think he tied it up at the end of his answer, so I'll overrule the objection.

MR. HARVEY: I have no further questions, Your Honor.

THE COURT: Cross examine, Gillen?


Q. Good afternoon, Mr. Leib.

A. Hello.

Q. Hello. We met at your deposition. A few questions about your testimony today, the basis for you being here. I believe you testified you have a son, Ian?

A. Yes, I do.

Q. And I'm not sure, is he in biology class this year?

A. He's in science class. It's a general science at this point. Next year he will be in 9th grade, and that will be the biology I believe.

Q. Do you know whether you will tell your son Ian -- let me first, I believe that Ian is the basis of your claim in this suit, correct?

A. Yes.

Q. Do you know whether you will tell your son Ian not to attend the biology class while the statement is being read?

A. I would prefer he didn't, but I'm also looking at him as being a relatively young adult. We're going to discuss it as we have in the past. But no, I would advise him not to be part of that.

Q. Well, and that's all I'm trying to get at. You understand that he can opt out of the statement being read if wishes, correct?

A. He can opt out, but that mean for that fifteen or twenty minutes he's not getting an education. That is one of my big objections. I teach a post-secondary educational class and I'm still asking people if they can read and write. That's wrong. We need to educate these kids so they can go into the world market and they can be productive. This doesn't do it for them.

Q. So am I understanding you correctly, Mr. Leib, that you're testimony as to harm is if Ian steps out for however long it takes to read this statement, he's being deprived of an education?

A. He's being deprived of an education, yes.

Q. You have no, you're not advancing the claim based on your other children, correct?

A. No.

Q. You realize that the text, do you know that the text Of Pandas has been placed in the library at Dover Area High School?

A. Right.

Q. You have no objection to that?

A. No.

Q. I believe Ian has already been instructed in both evolution and creation at St. Rose School, correct?

A. Correct.

Q. And when you use the term creation, you mean the Biblical account of creation, is that correct?

A. Correct.

Q. You would have no objection to intelligent design being taught in a comparative religion class, correct?

A. No.

Q. Or a social studies class?

A. No.

Q. You just don't think it's science?

A. It's not science.

Q. You have no degree in science education, correct?

A. I have a degree, but not in science.

Q. Okay. You understand that evolution is a theory?

A. Yes, I do.

Q. Do you understand that it's a theory that will probably never be fully proven?

A. Yes.

Q. Do you understand there's a controversy about evolution theory?

MR. HARVEY: Objection. Beyond the scope of direct.

MR. GILLEN: Your Honor, I'm trying to get to the nature of the harm that he's positing for his son. I'm asking a few questions about evolutionary theory and I'm going to ask him if he recognizes that it's going to be taught to his son.

MR. HARVEY: Your Honor, this is far beyond anything we discussed.

THE COURT: I'll give him some latitude. I'll overrule the objection.

THE WITNESS: Can you repeat the question for me, please?

MR. GILLEN: You know what? I'm going to ask Wes. Wes, would you be so kind as to read back the question?

(The record was read by the reporter.)

THE WITNESS: I don't see it as a controversy over the theory of evolution. I have no problem with the gaps as you said before. It may never be totally, totally proven. Fossils don't exist everywhere. We haven't found all the fossils there are to find, nor have we done all the scientific research we possibly can do. So I don't see there's a controversy as far as evolution goes.


Q. Sure. The first board meeting you attended I believe was February 2005, correct?

A. Correct.

Q. Do you object to the fact that your son Ian, if he attends biology class, will be instructed in evolutionary theory?

A. Can you run that by me again? I'm sorry.

Q. I take it you have no objection to the fact that Ian will be taught evolution theory if he attends biology class at Dover Area High School.

A. No. I have no objection to that.

Q. Do you understand that the text Miller and Levine recognized by the science faculty is the text that your son will be assigned?

A. Yes.

Q. You have no objection to that text?

A. No.

Q. But it's your testimony here today that the reading of the statement is going to undermine science education for your son?

A. Yes, this does undermine scientific education.

Q. That's because you believe intelligent design is not science, correct?

A. Creationism for me and for probably everybody in this room is a very personal thing. If you teach it in a comparative religion class, you talk about all religions, not just Christianity, not just Buddhism, not just any particular religion. You look at them, you compare them, you see how they are alike and how they are different. I have no objection to that. I just am telling you it is not a science. You're comparing apples and oranges, and there's no place in one for the other. It's like teaching science from the pulpit. There's no place for science from the pulpit.

Q. I take it from your answer it's your understanding that intelligent design theory is creationism, correct?

A. Yes.

MR. GILLEN: No further questions, Your Honor.

THE COURT: Redirect?


Q. Very brief, Your Honor. You testified that your son learned creationism and evolution at St. Rose's School, correct?

A. Correct.

Q. Do you know what class your son learned creationism in?

A. Creationism was a religion class.

Q. St. Rose's School was a private religious school that your son previously attended before he attended the public schools, isn't that correct?

A. Correct.

MR. HARVEY: No further questions.


Q. Given that your son learned creationism at St. Rose's School in religion class, do you believe that he'd think intelligent design is science when he was in the classroom?

MR. HARVEY: Objection, Your Honor. He's asking about what the child thinks. No foundation, and it's hearsay.

THE COURT: You opened the door. I'm going to overrule the objection. I'll let him answer the question.

A. I'm not exactly sure. We discussed it, but he's a typical 13-year-old. If it's not video games or the latest movie, he doesn't discuss too much about things like that. However, I'm sure that as he grows older he's going to have questions about both the science and the religion of things. I plan to be there, hopefully I plan to be there to answer some of those questions. I'm a fan of The Discovery Channel and The Learning Channel and various and sundry other programs that are scientific in nature. We have a religious curriculum that we go through and he learns about both. He learns basically religion from us, our ministers, so on and so forth, and hopefully my school is teaching him more science than I know.

MR. GILLEN: No further questions, Your Honor.

THE COURT: You pay your nickel and you go for a ride. That will have to be it.

MR. GILLEN: And I can say with no intention to slight this witness that both his deposition and his testimony today has been quite a ride.

THE COURT: So it ends. Sir, we thank you for your testimony. You may step down. That will complete the testimony for today, is that a fair statement?

MR. HARVEY: Yes, Your Honor. We do have some exhibits. We can do that on Monday.

THE COURT: Well, remarkably we've ended close to 4:30. I give everybody credit for that, and I can't imagine why we would torture everyone with the laborious process of attempting to admit exhibits on 4:30 on Friday afternoon. It just doesn't seem right to me.

MR. HARVEY: I second the motion.

MR. GILLEN: But think about Monday morning, Your Honor.

THE COURT: Well, it seems so far away.

MR. GILLEN: I wish.

THE COURT: We'll then recess, we'll adjourn for the day and we'll be in recess until Monday morning and we will start with the first defense witness, a bit out of turn by cooperation with counsel. I'll trust you, if I forget I'll put the onus on plaintiffs to remind me to take the exhibits on first thing before we take that witness on Monday morning. Fair enough?

MR. HARVEY: Very good, Your Honor.

THE COURT: Anything else to good of the order before we adjourn? We'll be in recess until 9:00 Monday morning.

(Court was adjourned at 4:30 p.m.)


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