Is John West Dishonest or Just Ignorant?

Posted 13 December 2006 by Timothy Sandefur

Over at DI's blog, John West---who, as I noted before, isn't a lawyer---is still trying to pretend that defenders of evolution are taking his criticisms hard. Apparently we're "in a tizzy" over the DI's complaint that Judge Jones followed the standard procedure of adopting in large part the proposed findings of fact prepared by the side that wins the case. As we've noted, this is exactly what proposed findings of fact are for, and West's claim that Jones did something improper in following a common procedure---a procedure blessed by the Supreme Court, by circuit courts, and so forth---is either profoundly ignorant or even more profoundly dishonest. Rather than respond to these points, or to me, or to Ed Brayton, or to any of the others who have written about this subject, West cites a commenter to The Thumb---not a blogger at The Thumb, but a commenter---who makes the (correct) argument that the reason courts ask parties to write proposed findings of fact is because this procedure is more likely to avoid mistakes in the details. West responds sarcastically: "That's right, it's not the judge's job to write his or her own opinion, or to do his or her own analysis. It's better to have the experts do it. Why not just dispense with the job of judge altogether?" Excuse me, Dr. West, but Judge Jones did write his own opinion. Even your own "study" does not substantiate a claim that the Judge did not write the opinion or do his own analysis: it only makes the (irrelevant) claim that Jones adopted large portions of the factual portion of the opinion---a portion of about 4,000 words out of an opinion about 30,000 words long---from the plaintiffs' proposed findings of fact. Judge Jones wrote every single word of the opinion, relying heavily on the proposed findings prepared by the side that he found most convincing---which is the standard procedure in courts of law. West even goes so far as to say that Jones made no "attribution" in the opinion (although, of course, West isn't calling Jones a plagiarist, you know....) But Jones attributed every word of it. The opinion begins,

This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law which are based upon the Court's review of the evidence presented at trial, the testimony of the witnesses at trial, the parties' proposed findings of fact and conclusions of law with supporting briefs, other documents and evidence in the record, and applicable law.

In addition, every factual claim in the opinion is supported by a citation to the record. If West were a lawyer, we could be certain that he would know better---and his conduct would be unprofessional. (It would, in my opinion, violate Rule 8.2(a) of the A.B.A. Model Rules of Professional Conduct.) As Joe McFaul has pointed out, we haven't heard the actual lawyers in the Kizmiller case echoing the DI's shameful publicity stunt. I think we all know why. Since he's not, we might have given him the benefit of the doubt that he simply doesn't know how trial courts work. But with the rules and the cases presented to him on The Thumb, he is clearly willful in his ignorance.

24 Comments

Doc Bill · 13 December 2006

I guess Casey Luskin, the lawyer at the DI, is on vacation. Otherwise West would have consulted with him.

Don't you think?

Timothy Sandefur · 13 December 2006

Oh, I'll get to Luskin. Just give me time.

Joe McFaul · 13 December 2006

As a matter of fact, Rule 8.2 (and its California counterpart) has been open on my desk waiting for Casey Luskin to join in. I agree with Tim that West's argument, if made by an attorney, could constitute conduct subject to discpline. So far, the DI seems to have kicked it from Casey Luskin to West and Crowther. They may be idiots but they aren't stupid.

Timothy Sandefur · 13 December 2006

That's cause you da man, McFaul.

RBH · 13 December 2006

Not coincidentally (I was just looking up a PT reference for an Infidels post) I just ran into this quotation from a comment on that post. It's from Franklin's On Bullshit, and it's completely applicable to West:

...bullshitters seek to convey a certain impression of themselves without being concerned about whether anything at all is true. They quietly change the rules governing their end of the conversation so that claims about truth and falsity are irrelevant. Frankfurt concludes that although bullshit can take many innocent forms, excessive indulgence in it can eventually undermine the practitioner's capacity to tell the truth in a way that lying does not. Liars at least acknowledge that it matters what is true. By virtue of this, Frankfurt writes, bullshit is a greater enemy of the truth than lies are.

West is a bullshitter, pure and simple. He has no principles and no intellectual honesty. RBH

Kevin W. Parker · 13 December 2006

As a matter of fact, Rule 8.2 (and its California counterpart) has been open on my desk waiting for Casey Luskin to join in. I agree with Tim that West's argument, if made by an attorney, could constitute conduct subject to discpline. So far, the DI seems to have kicked it from Casey Luskin to West and Crowther. They may be idiots but they aren't stupid.
— Joe McFaul

So now that Casey has chimed in, what are you going to do?

Coin · 14 December 2006

Is it okay if I just laugh hysterically now?

It's really interesting how far the DI has fallen over the last year. Since the early days they've gone from responding to scientists, to responding to news articles about science, to responding to bloggers about science, to engaging in fisticuffs with random faceless internet trolls. And they're not even very good at the fisticuffs with internet trolls. Faced with the not very difficult task of responding to an out-of-context quote from a comment left on some guy's blog, the best they can manage in response boils down to "neener neener". After all of this, I really expect that if it weren't that the Discovery Institute is still paying to have their blog posts published on the PR newswires, they'd be somewhere around scordova on the media importance index.

Anyway, though I'm sure most people noticed this themselves, of course most people would consider it preferable for judges to come up with their own "opinions" and "analysis". But what we're talking about here isn't opinions or analysis, since the DI narrowly excluded the parts of the decision containing those things from their "90%" "study". All the "study" covers is one small section of findings of facts. And as it happens, no, we don't want the judges coming up with their own facts, I don't think. I think we want them to use the facts that exist in the real world.

Joe McFaul · 14 December 2006

Nope, "da Man honors" goes to he of the Supreme Court briefs.

http://article.nationalreview.com/?q=NWFmZTVmZWIwODJmYjcwY2Y1YzkzYmY3YjE4YTEyNTg=

congrats.

Luskin didn't chime in, he packpedalled:

"Are you accusing Judge Jones of plagiarism or any other violation of judicial ethics?

No. As the report reads, "Proposed 'findings of fact' are prepared to assist judges in writing their opinions, and judges are certainly allowed to draw on them. Indeed, judges routinely invite lawyers to propose findings of fact in order to verify what the lawyers believe to be the key factual issues in the case. Thus, in legal circles Judge Jones' use of the ACLU's proposed 'Findings of Fact and Conclusions of Law' would not be considered 'plagiarism' nor a violation of judicial ethics."

The rest is weasel words, or poor legal analysis. Lawyers are always entitled to complain about the legal analysis in a judge's decision. They are not allowed to impugn the integrity of a judge.

One difficulty is that Judge Jones cannot comment on this broughaha, even if he was inclined to. The insinuation will go uncontested unless attorneys who know the truth object. In this case, I belive that attorneys have an ethical obligation to amke it clear that Judge Jones acted entirely properly and there is no basis for a plagiarism charge.

The Discovery Institute's statement that they are not accusing the judge of plagiarism reminds me of the man who had accused his enemny of "not having the morals of a barnyard animal."

When thheatened with a defamation lawsuit, he said: "I retract my earlier accusation. You do, too, have the morals of a barnyard animal."

A number of websites e.g. Evengelical Outpost: http://www.evangelicaloutpost.com/archives/003332.html have taken up the DI's call and accused the judge of plagiarism. If I were the DI, I'd get on my horse and request "clarifications."

Parse · 14 December 2006

It doesn't matter that they've since retracted it - what matters is that it was said and that people heard it. It's somewhat akin to asking a jury to disregard a specific statement; it won't be referenced to specifically, but it may still stick in their minds and have some degree of influence.

For those of us who aren't quite as legally aware, what is Rule 8.2?

Laser · 14 December 2006

This is their MO. The IDers who aren't scientists pretend to be experts in science. The IDers who aren't lawyers pretend to be experts in the law.

Joe Carter · 14 December 2006

Judge Jones followed the standard procedure of adopting in large part the proposed findings of fact prepared by the side that wins the case. As we've noted, this is exactly what proposed findings of fact are for,...

If judges are just going to cut-and-paste from these findings of fact, why don't they just cite where they got them from? Why not just say, "According the ACLU's findings..." and then paste in the text?

By the way, setting aside this particular case, doesn't it seem odd that so many people are defending a practice that would be considered plagiarism if it were done by a historian, a student, or even a blogger? Why exactly does the legal profession get an exemption from standard ethical norms?

GuyeFaux · 14 December 2006

This has been addressed:

...Why not just say, "According the ACLU's findings..." and then paste in the text?

Because that would make the ruling subjective, which is kind of the opposite of what judges do. He's not trying to summarize a he-said she-said situation, he's ruling that what she-said is true.

By the way, setting aside this particular case, doesn't it seem odd that so many people are defending a practice that would be considered plagiarism if it were done by a historian, a student, or even a blogger? Why exactly does the legal profession get an exemption from standard ethical norms?

Because judges are not in the profession of representing multiple, conflicting points of view. They are in the business of choosing one view which best conforms to the law.

dhogaza · 14 December 2006

By the way, setting aside this particular case, doesn't it seem odd that so many people are defending a practice that would be considered plagiarism if it were done by a historian, a student, or even a blogger? Why exactly does the legal profession get an exemption from standard ethical norms?

Plagiarism is the uncredited use of another's words, put forward as one's own. Hopefully this is enough for you to understand why the use of the findings of fact is not plagiarism?

L. Breckinridge · 14 December 2006

Timothy Sandefur said in the opening post,

West even goes so far as to say that Jones made no "attribution" in the opinion (although, of course, West isn't calling Jones a plagiarist, you know....) But Jones attributed every word of it.

What West obviously meant was that there were no attributions for the individual quotations or ideas.

If West were a lawyer, we could be certain that he would know better---and his conduct would be unprofessional. (It would, in my opinion, violate Rule 8.2(a) of the A.B.A. Model Rules of Professional Conduct.)

That`s ridiculous -- West did not say anything that is not true. DI`s statements are thoroughly documented -- DI`s study even shows side-by-side comparisons of many statements in the opinion and in the plaintiffs` final briefs.

As Joe McFaul has pointed out, we haven't heard the actual lawyers in the Kizmiller case echoing the DI's shameful publicity stunt.

I think that one of the reasons for that is that the Thomas More Law Center lost interest in the case when it was not appealed. Also, the TMLC might be feeling a little embarrassed because it agreed to submission of these final ``proposed findings of fact and conclusions of law`` briefs -- the local court rules require these briefs before the trial but not after. ================================= People have argued that Jones` ``plagiarism`` of findings of scientific facts should be excused because he is not a scientist. However, the conclusion section has an important ``conclusions of law`` statement that was plagiarized from the plaintiffs. Here is what the opinion said:

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, Â§ 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. (emphasis added) -from http://www.talkorigins.org/faqs/dover/kitzmiller_v_dover_decision3.html

For comparison, here is what an ACLU brief said:

351. In order to preserve the separation of church and state mandated by the Establishment Clause, and Art. I, Sec. 3 of the Pennsylvania Constitution, it is necessary and appropriate to enter an order enjoining defendants from implementing their biology curriculum change, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to an alternative theory known as "intelligent design." (emphasis added) --- from http://www.talkorigins.org/faqs/dover/pf2.html#p497

I am particularly concerned about the following prohibition: ``we will enter an order permanently enjoining Defendants . . . . from requiring teachers to denigrate or disparage the scientific theory of evolution . . . .`` . Jones did not even bother to include this prohibition in the opinion`s final order, showing that he just mindlessly copied this prohibition from the plaintiffs` final briefs. If there is anyplace where Jones should have showed some independence of thought, it is here. I have been in endless arguments about (1) the interpretation of the words ``denigrate`` and ``disparage`` in this prohibition, (2) whether this prohibition applies to criticisms of evolution that were not reviewed by Jones ( he reviewed only ID and irreducible complexity ), (3) whether this prohibition is contrary to the Supreme Court`s statement in Edwards v. Aguillard, "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught" and (4) whether this prohibition statement is enforceable, since it appears only in the opinion`s conclusion section and not in the opinion`s final order.

L. Breckinridge · 14 December 2006

Comment #150349 posted by GuyeFaux said,

This has been addressed:
...Why not just say, "According the ACLU's findings..." and then paste in the text?
Because that would make the ruling subjective, which is kind of the opposite of what judges do. He's not trying to summarize a he-said she-said situation, he's ruling that what she-said is true.

That is not true. Supreme Court opinions, for example, are often written in a he-said she-said manner -- often the losing arguments are presented and the opinion says ``we are not persuaded`` and then the opinion goes on to say why. With 90 percent of the Dover opinion`s ID-as-science section copied from the ACLU, there is not much room left over for presenting and refuting the defendants` arguments. That 90 percent figure alone shows that Jones gave the defendants` arguments short shrift -- or no shrift at all. Comment #150350 posted by dhogaza said --

Plagiarism is the uncredited use of another's words, put forward as one's own.

And Judge Jones did a lot of that -- that is what the DI is charging.

Raging Bee · 14 December 2006

The examples you cite have nothing to do with public trials in official courts of law. Documents filed or brought into evidence, or otherwise used in a public trial, are the property of the court, to be used according to the court's mandate, and to become part of the public record, accessible to the public. If you submit a document to a court, it's because the court was entitled to it, and you don't get to dictate to others who gets to see it.

Sir_Toejam · 14 December 2006

Based on his prose, which was always very "unique", "L. Breckinridge" is really Larry Farfarman (farfromsane).

keep that in mind when replying to him.

Raging Bee · 14 December 2006

STJ: He's certainly never DENIED being Larry, which pretty much gives it away. If someone seriously mistook ME for someone else, I'd be quick to set the record straight.

MarkP · 14 December 2006

I certainly skip past L. Breckinridge's posts as fast as I skip past Fafarman's, so I got that going for me, which is nice.

GuyeFaux · 14 December 2006

I certainly skip past L. Breckinridge's posts as fast as I skip past Fafarman's, so I got that going for me, which is nice.

Unfortunately I started reading the Thumb well after Larry was given the time of day. So I couldn't recognize the style. I should have know better, though, than to respond to somebody who needed an explanation as to why the losing opinion did not make it into the court's opinion, and why historians, students, and bloggers are different than trial judges.

Coin · 14 December 2006

why historians, students, and bloggers are different than trial judges.

It's kinda funny how effortlessly the IDers slip back and forth between attacking "Judge Jones" and attacking just "Judges" in general. I almost suspect some of them haven't even noticed they're doing it.

Sir_Toejam · 14 December 2006

I think the only reason Larry has been able to post (since he was officially banned several months ago), is that the IP filters have probably been laxed to increase performance on the server.

Ron Tolle · 14 December 2006

Perhaps Dr. West could show us just exactly where in the plaintiffs' proposed findings of fact the ACLU wrote the phrase "breathtaking inanity"?

Stuart Weinstein · 15 December 2006

"For those of us who aren't quite as legally aware, what is Rule 8.2?"

Don't forget Rule 8.1