Cobb: Court Not Misled

| 66 Comments

Last month the appeals hearing in the Cobb Country disclaimer sticker case made headlines when Judge Carnes accused the ACLU of misleading the court regarding the timing of the creationist petition submitted to the school board. The Discovery Institute’s Media Complaints Division, which is “committed” to correcting errors made by the media, jumped on the story with their article, “Did the ACLU Lie to the Federal Courts in the Cobb County Evolution Sticker Case?

Now it was immediately apparent to us and the media that Judge Carnes was confused about the facts of the case and recklessly accused the ACLU of misleading the court. I pointed this out in a series of posts:

However, Disco has yet to provide such information to their readers.

Today the Appeals court issued a clear statement on the issue:

The Court is not ruling at this time on whether any findings by the district court about the timing of the petition were clearly erroneous, which is the governing standard of review; the time and place for announcing any decisions about that will be in the opinion this Court issues. However, the Court does want to resolve at this time the question of whether Mr. Bramlett misled the Court in the brief he filed on behalf of the appellees.

Parts of the trial record concerning the petition are puzzling. The attorneys on both sides might have been more careful in their advocacy relating to this issue, which would have assisted the Court. The Court, however, does not find that counsel misled it or attempted to do so. We issue this order to remove any implication that either counsel did.

Because the oral argument remarks about this matter occurred in open court and have been discussed in the news media, the Clerks’s Office is directed to disseminate a copy of this order to the media.

I am not holding my breath waiting for the creationists to disseminate this court order.

66 Comments

Nitpick: mislead -> misled

I am shocked to see they’ve reinstated Trackbacks at Evolution News and Views and Lies. For several months they neither permitted trackbacks, nor answered my emails about why they were disabled.

I agree with Worldwide Pants’s nitpick, but note that the original fault appears not to have been Reed’s, who only follows the court’s erroneous use, which occurs at least twice.

The simple past tense of the verb “to lead” is “led,” and this remains true when the words are used in combination with “mis.”

I think the source of this ever-more-common error has something to do with the other meaning of “lead” (the noun meaning a heavy metal), which is indeed pronounced with the short “e” sound. Thus, most people appear to know, on some level, that the past tense should have the short “e” (red-led-wed-fed) sound, but they then erroneously assume it is OK to achieve this sound via the “lead” spelling, which does indeed have that sound, but only when used in its alternate, metallic meaning (and in such formations as the past tense of “read,” “dead,” “head,” etc.).

Just another English trap for the unwary.

Nah, the court didn’t make the mistake. (Those where typos in my transcription of the scan.) Someone at NCSE (or their source) made the mistake when they named the copy of the order that I got.

My willingness to assume that the court was at fault was, of course, based on the one judge’s deep obtuseness during oral argument. I also assumed, since that jurist was the source of the misimpression, that his office was probably also behind this new order. In its own way, this was a reversal of the more common (and often erroneous) assumption that someone who can’t spell, also can’t think. Here, I was willing to assume that a judge who can’t think, also couldn’t spell.

So much for assumptions…anyway, somebody at the court deserves some credit for starting to dig out from under this screw-up. I have to wonder if the piercing clarity of the Dover ruling may not have begun to penetrate the fog in Georgia.

I don’t know if anybody at the court diserves any credit for correcting the record. The lawyers for both sides had to submitt letters in respose to the accusations. These letters are what are responsible for the Court recognizing its error at this time.

Well, courts are prodded by many external factors, for better or worse. It’ll be interesting to see what the eventual opinion has to say, and what the influence of Dover turns out to be.

Well, courts are prodded by many external factors, for better or worse. It’ll be interesting to see what the eventual opinion has to say, and what the influence of Dover turns out to be.

The Cobb court cannot help but notice that the Dover decision cites the _Selman_ decision no less than a dozen times . …

Those where typos in my transcription of the scan.

They where indeed.

Note to self: avoid typing on little sleep.

Motives, motives, motives. There is all this emphasis on motives. Now the courts not only have to worry about the motives of the public officials who decided to add the stickers, but also have to worry about the motives of members of the public who encouraged or supported the decision to add the stickers. This issue of motives has led to arbitrary and uneven enforcement of the Constitution’s establishment clause.

The issue of motives in these establishment clause cases should be eliminated.

Some California employers who contested unemployment benefit claims argued that employees gave pretexts for quitting a job – e.g., the relocation of a job beyond commuting distance – rather than the real reasons which would have made them ineligible for benefits. So the state unemployment office came up with the following rule regarding the unemployment benefit eligibility of workers who quit their jobs: these workers are eligible if they quit the job under circumstances where someone who is truly desirous of keeping the job would quit, e.g., relocation of the job.

So I propose the following judicial standard regarding the motives of public officials and others in establishment clause cases: the motives are presumed to be secular if it is conceivable than an atheist would have taken the same action in the same circumstances.

Is this the first time you’ve referred to the Discovery Institute as “Disco”? I like it; I think “the Disco Institute” is a much better name for them. It fits their level of seriousness.

Because I enjoy feeding the trolls, and of course, watching split open like a snake trying to scarf down an alligator…

Larry Fafarman Wrote:

Motives, motives, motives. There is all this emphasis on motives. Now the courts not only have to worry about the motives of the public officials who decided to add the stickers, but also have to worry about the motives of members of the public who encouraged or supported the decision to add the stickers. This issue of motives has led to arbitrary and uneven enforcement of the Constitution’s establishment clause.

The issue of motives in these establishment clause cases should be eliminated.

Some California employers who contested unemployment benefit claims argued that employees gave pretexts for quitting a job — e.g., the relocation of a job beyond commuting distance — rather than the real reasons which would have made them ineligible for benefits. So the state unemployment office came up with the following rule regarding the unemployment benefit eligibility of workers who quit their jobs: these workers are eligible if they quit the job under circumstances where someone who is truly desirous of keeping the job would quit, e.g., relocation of the job.

So I propose the following judicial standard regarding the motives of public officials and others in establishment clause cases: the motives are presumed to be secular if it is conceivable than an atheist would have taken the same action in the same circumstances.

So, basically, Larry, you would have us ignore the idea of motive when it comes to interpreting the law? Why is that? Is it because the motive for doing something determines whether that particular act is actually illegal or not?

Let’s take a looksee at a different example:

If I shoot and kill someone’s dog, I’ve committed at least one crime - animal cruelty.

However, if I shoot and kill someone’s dog because the dog was mauling a 2 year old, all I’ve done is save someone’s kid, and it’s the owner of the dog who may have actually committed a crime.

Why is that? Did I do something differently? No - I still shot the dog. Are the results any diffrent? Well, gee, no, the dog’s still dead. So what’s different. Oh, that would be motive - my REASON for shooting the dog. In one case, I’m doing it to save a child. in the other, I’m just being a malicious jerk.

So, by all means, Larry, let’s ignore motive. I’m sure there are many criminals currently in the state and federal prison system that would agree with your point, although perhaps not for the reasons you intend.

I’m beginning to understand why Dr. Lenny starts all his posts with (shrug).

Motives, motives, motives. There is all this emphasis on motives.

Well, yes. That’s a rather basic part of the law. Method, Opportunity and Motive.

But a legal exert such as yourself should know all about that.

Hey Larry, Bill Dembski himself is waiting to hear from YOU, yes YOU! His intelligent design creationism blog is back in business and he could use some super bright folks such as yourself to help carry the message.

Check it out - www.uncommondescent.com

Pretty cool name, huh? uncommon descent it’s a play on Darwin’s common descent? How clever is THAT? That Dembski is a credit to the creationist cause!

Anyhow, go hook up with him. Here on PT you’re just another trolling, whining, cry baby IDiot, but over there you’ll be a rocket scientist and a legal expert. How cool is that?

Comment #67870 posted by Greg H on January 5, 2006 09:41 AM So, basically, Larry, you would have us ignore the idea of motive when it comes to interpreting the law? Why is that? Is it because the motive for doing something determines whether that particular act is actually illegal or not?

The consideration of motive or intent is appropriate in cases like murder cases and employment-discrimination cases because these cases are decided on an individual basis. But these establishment clause cases are often not decided on an individual basis – another court may take this Dover decision and apply it directly to another school board that is not motivated by religion.

Also, murder cases and employment-discrimination cases usually involve the motives of one or just a few individuals. In contrast, establishment clause cases may involve the motives of many public officials and even the motives of members of the public (as in the Cobb County textbook sticker case, where the motives of those who petitioned the school board became an issue).

Also, I think that the apparent purpose (i.e., whether something appears to promote religion, without regard to intent) is more important than the intended purpose (whether something was intended to promote religion).

So when you compare establishment clause cases with other kinds of cases, you are comparing apples and oranges.

I couldn’t care less what “Larry” “thinks,” but, just for laughs–

Can anyone give an example of a state curriculum authority or of an individual school district, anywhere in the country, known to be considering the inclusion of ID psuedoscience in the biology curriculum or otherwise planning to water down evolution instruction, where one or more of the board or authority members have not already clearly and publicly announced their religious motivations, or the religious nature of the constituent pressure being brought to bear?

I didn’t think so…

Why do the “Larry”s of the world think that is? C’mon, show us, ya big stand-up maroon.

LaLaLarry Wrote:

The issue of motives in these establishment clause cases should be eliminated.

Well, since the establishment clause is all about motive and intent I guess you’d better start getting to work on a constitutional amendment to remove it …

Good luck with that. At least it would give you something to do rather than spend your life trolling here.

Larry,

You simply cannot disassociate the practice of interpreting the law (any law) with considering the motives of the people accused of violating it. As several people have pointed out, it is permissiable to teach classes about religion, as long as you aren’t promoting any individual religious viewpoint. Comparative religion classes come to mind, where the students study many different religious viewpoints in a compare and contrast sort of environment. So if the purpose, the motive if you will, of the people wanting the course taught is to educate folks about religion in general, that’s perfectly acceptable and wouldn’t violate the establishment clause, as long as the course was offered as a religion class, not a course on science. Nothing dishonest has been done, and the course is clearly about the study of religion, rather than the establishment of a religion.

If however, the people pushing the class are doing so for unethical reasons, with the intent of indoctrinating, rather than educating, or attempting to promote one specific religious viewpoint, such as Christian special creation, over another (what about the old world on the back of a turtle theory?), and/or attempting to teach this viewpoint outside of its specific scholarly arena, such as in a science class as opposed to a religion class, then yes, you’ve stepped in Establishment doo doo. Go wipe your shoes.

You can’t seperate the motives from the infraction. It doesn’t matter what the infraction is - the law isn’t (and shouldn’t be) a hard line between black and white. A consideration of why is just as important as a consideration of what.

If I write a book on Christianity with the purpose of teaching Christianity in a religion class, my motive is clear. I intend to teach religion.

If I write a book on a Christian based theory with the purpose of masquerading it as science, my motive is also clear, and no less germaine when the Establishment Clause pulls up in the Maxi-bus and knocks the crap out of me.

No apples or oranges about it.

“Very clever young man, but it’s turtles all the way down!”

Posted by jim on January 5, 2006 01:02 PM (e) (s)

“Very clever young man, but it’s turtles all the way down!”

Hehe, good one.

I may be going out on a limb here, as I am not intimately familiar with the details of the Cobb County case. But here’s something for our friend Larry:

OK, let’s not consider “motives”, let’s consider the “purpose” of the evolution disclaimer stickers.

There is no “controversy” about evolution among professional biologists, just as there is no controversy about gravity among physicists. Evolution is “just a theory” in the same way that Newtonian Mechanics or Relativity is “just a theory”.

So, Larry, why was evolution singled out for the disclaimer treatment? Why don’t we insist on stickers in Physcis textbooks claiming that Gravity or Maxwell’s Equations are “just theories”? Or in Chemistry textbooks that Quantum Mechanics is “just a theory”? What’s the purpose of implying that an alternative theory exists when it does not?

What is the purpose of misleading or lying to kids, Larry?

Is this the first time you’ve referred to the Discovery Institute as “Disco”? I like it; I think “the Disco Institute” is a much better name for them. It fits their level of seriousness.

We’ve used it a couple of times. I first encountered it when someone who worked for the DI used it.

Creationist larry, guess what? Intelligent design creationism lost in court. Their star “scientist” was there for the defense and he ended up looking like someone who promotes cancer healing magnets.

If they ever get another court case intelligent design creationism will lose again. And again and again.

Intelligent design creationism is not science and never will be. Therefore it will never be taught in public science classrooms.

History will be very cruel to Behe and Dembski. They will be remembered as buffoons, quacks, the same ilk who bring us healing crystals. Dembski is obviously no scientist and Behe is quite simply a moron. I’m sorry to be the one to break the news to you.

Cry, whine, object, complain, cover your ears all day long but these are the facts.

Even the Dishonesty Institute is downplaying intelligent design creationism now and putting more emphasis on “teach the controversy” That plan is going to back fire as well.

Thanks to the Dover trial and the sheer dishonesty of the intelligent design creationists there, and the stupidity and ignorance of the defense experts (Dishonest Institute “fellows”) The general public is far more aware of the dishonest tactics and distortions promoted by the Dishonesty Institute.

Most everyone in American is now aware that intelligent design creationism is not science and all about promoting creationism.

So put on a black arm band, get yourself a hanky (and blow your nose) and start dealing with your grief issues. IDC is dead. It is not going to come back from the dead.

mo·tive n.

[Anglo-French motif, from Middle French motif adjective, moving, from Medieval Latin motivus, from Latin motus, past participle of movēre to move] Something (as a need or desire) that causes a person to act - In criminal law, motive is distinguished from intent or mens rea. Although motive is not an element of a crime, evidence regarding motives can be introduced to help establish intent. In contract law, motive is usually distinguished from cause or consideration.

Going back to the original topic, this is a major embarassment for the Court, isn’t it. The Judges here seem in effect to be punting, after having wasted a whole hearing grilling one of the lawyers on a detail that turned out to be due to the Court’s own misreading and/or poor fact-finding.

They are blaming it on the counsels for not being clear enough “in their advocacy”, but that’s just unconvincing. The facts were ascertained during trial, the first ruling clearly stated them, and then one or more of the appeal Judges decided on their own that the ruling had gotten them completely wrong, and publicly blamed the plaintiffs’ legal team for it, without bothering to do minimal research on the subject (like going back to look at the records), or at least asking both parties for clarifications before putting up the show.

Of course the Judges hold all the cards here, but this non-apology doesn’t really cut it, IMO. The appeal hearing was side-tracked on an irrelevancy, the plaintiffs’ lawyer was publicly attacked and flustered, and the Court (or members of it) gave out an obvious impression of bias. In fact, from what I read the media were unanimous in saying after the hearing that the original Selman ruling was likely toast, and Creationists went into various degrees of ecstatic paroxysm. I don’t know if a new hearing can be called at this point, or the Judges can recuse themselves, but either one or both would seem to be advisable. Even if Selman is reaffirmed, the defendants will likely blame it on the Court’s embarassment. The process seems to have been tainted.

Mr Christopher Wrote:

Pretty cool name, huh? uncommon descent it’s a play on Darwin’s common descent? How clever is THAT?

Why, it’s clever beyond measure!

indeed, I think Larry might enjoy the resurrected version of uncommon descent even more than ARN.

I hereby change my recommendations in light of the resurrection of UD, under the well qualified and appropriate leadership of Dave Scott, no less, to recommending Larry to go to UD instead of ARN.

you really do belong there, Larry. they can’t afford free beer, but they have plenty of worthless free opinions you would indentify with.

maybe that’s better than beer?

According to this article in the Atlanta paper, it sounds like the missing petitions are still a potential problem for the appeals court and the only thing that has been clarified is that the appeals court has accepted the good guy’s explanation that he wasn’t trying to confuse anybody. On the other hand, the school board lawyer seems to be sewing confusion by denying that the evidence under question ever existed, even though a third party (a newspaper reporter) saw it with his own dang eyes.

Is it possible that the school board will argue that the trial judge rendered his decision in part on evidence (the missing petitions that speak to motive) that was never entered into the trial record? Does this mean the trial court decision will be overturned on a technicality?

Evolution case turns to petitions: School board’s attorney doubts documents exist

By BILL RANKIN The Atlanta Journal-Constitution Published on: 01/05/06

Were they a fact or just a theory?

Supporters of evolution instruction — and a federal judge — say petitions signed by about 2,300 people played an important role in the Cobb County school board’s decision to affix now-famous disclaimer stickers inside science texts. But Wednesday the school board’s attorney questioned whether the petitions even existed.

According to testimony in a federal court case and a news report at the time, the petitions, circulated by a parent who opposed evolution instruction, were presented to the school board in March 2002 shortly before it approved the stickers. U.S. District Court Judge Clarence Cooper made note of the petitions when he ruled last year that the stickers unconstitutionally endorsed religion.

But just as they were with Cooper, the petitions have become a key issue in the appeals court in Atlanta, which is now considering whether to let Cooper’s ruling stand or overturn it.

During oral arguments last month at the 11th U.S. Circuit Court of Appeals, one of the three judges hearing the case, Ed Carnes, expressed concern that Cooper “got the facts wrong” about the petitions. Carnes took the unusual step of pulling one of the lawyers in the case back to the podium before the packed courtroom and demanded to know whether the attorney had misled the court about the petitions.

On Wednesday, the 11th Circuit cleared up that matter. In a four-page order, the court found that no lawyers arguing the case from either side had misled the 11th Circuit or attempted to do so. “We issue this order to remove any implication that either counsel did,” the court said.

But the order added that “parts of the trial record in the case concerning the petition are puzzling,” only adding further intrigue to the mystery of the missing petitions.

In a Dec. 22 letter to the 11th Circuit, the lawyer representing the pro-evolution forces, Jeffrey Bramlett of Atlanta, conceded that the March 2002 petitions were never made part of the record during the November 2004 trial presided over by Cooper. But Bramlett said “ample evidence” shows the petitions were collected and delivered.

Two people — then-Cobb school Superintendent Joseph Redden and Marjorie Rogers, the avowed six-day creationist who ran the petition drive — have testified the board was given the petitions in March 2002 before it adopted the evolution disclaimers, Bramlett told the court.

In a six-page letter, Bramlett apologized for a “mis-citation” in his legal brief that compounded confusion among the court’s judges about the petitions. He also acknowledged that the only petitions entered into evidence in the case were submitted to the school board on Sept. 26, 2002 — six months after the board adopted the stickers, which called evolution “a theory, not a fact.”

Within hours after Bramlett filed his response, the 11th Circuit faxed an order, marked “Urgent-Time Sensitive,” to Linwood Gunn, the Cobb school board’s attorney.

The court asked Gunn to address the “factual matters asserted in Mr. Bramlett’s letter” and address “any evidence regarding the timing of any petitions that may have been filed with the school board.”

In his response, filed Tuesday, Gunn repeated his assertion that the trial record does not include a 2,300-signature petition submitted by Rogers, which was referred to in Cooper’s ruling. In fact, Gunn told the court, “I have never seen such a document.”

When asked in a telephone interview Wednesday if he thought the March 2002 petitions ever existed, Gunn said, “I have my doubts.”

But on March 28, 2002, the day the school board adopted the stickers, Rogers told the board she had collected signatures from 2,300 people who were dissatisfied with science texts that espoused “Darwinism unchallenged,” The Atlanta Journal-Constitution reported the following day.

A few days later, a Journal-Constitution reporter examined the petitions at the Cobb school system offices and took notes on names and phone numbers of some of the people who had signed.

On Wednesday, Gunn said Cobb school board spokesman Jay Dillon does not believe that ever happened.

In an article published April 14, 2002, the Journal-Constitution again reported that the school board had agreed to insert the stickers inside science texts in response to pressure from several dozen parents who criticized the teaching of evolution. The article said the parents had presented petitions with 2,000 names of county residents who demanded accuracy in textbooks. The Cobb school board did not challenge the existence of the petitions at that time.

Bramlett said Wednesday he believes the petitions were given to the board in March 2002 and thinks the record supports Cooper’s finding that it occurred.

“The trial court heard the testimony,” Bramlett said of Cooper. “The trial court was there. That’s the reason in our legal system that the trial judge’s fact finding is entitled to deference by the appellate courts.”

Motives, motives, motives. There is all this emphasis on motives.

(sigh) When Larry gets around to actually reading the Cobb decision, he will learn that the judge did NOT rule based on the board’s “motives” — indeed he specifically and plainyl said that the policy PASSED the “purpose” prong of the Lemon test.

It fell flat on the second prong, though.

But I forget — Larry doesn’t actually read any of the things he presumes to expound upon.

Greg, I found this page as an introduction. Hope it is of some help.

http://www.cod.edu/people/faculty/f[…]r/Symbio.htm

Has anyone else noticed that once Larry’s arguments start falling apart, like in this thread where he ends up backpedaling from “areas evolution cannot account for” (emphasis mine) to “potential areas of criticism of evolution” he always turns to something like “I think that this stuff is too far off-topic to discuss here”?

Larry is just mentally disturbed, EOS.

If you enjoy arguing with the mentally ill, enjoy.

I personally think the best course is simply to get him to either seek treatment, or else go somewhere where he fits in, like Uncommon Descent.

listen to that little voice in your head, larry. Run to Uncommon Descent.

the lunatics are already running the assylum there. you’ll be happy.

Comment #68356 posted by Sir_Toejam on January 6, 2006 02:25 PM

show some self restraint, and when you think you NEED to post, try curbing that need just once or twice, would ya please?

What is your problem? Is someone hassling you ?

Most of my posts here are replies to critical responses to my posts, or to specific questions that others ask me. So you think that I should just not respond?

In actuality, I have shown restraint. I avoid initiating off-topic discussions myself, and I resist efforts by others to start off-topic discussions.

What about the morons – including you – who often make no positive contribution to the discussion but just clutter up this website with ad hominem attacks? Often I get five ad hominem attacks for every response that addresses the issues.

not one person here, in the week or so you have been posting, has EVER agreed with the gist of ANYTHING you have ever posted.

Speak for yourself. My posts are among the best researched on this website. I often provide a lot of references to back up what I say. I often spend a lot of time finding this reference material. For example, it took me a long time to back up my claim that the Dover opinion was illegal and unethical in using a privileged attorney-client message against the defendants, but I did it. If people here thought that my posts were not persuasive, they would not bother to send so many responses (including ad hominem attacks – a truly bad post speaks for itself and does not need any response at all).

At least slow down a little, eh?

Why should I slow down when my critics won’t slow down?

I have an idea. If you don’t like my posts, you don’t have to read them. Is that fair enough?

Posted by Larry Fafarman on January 6, 2006 03:57 PM (e) (s)

… In actuality, I have shown restraint. I avoid initiating off-topic discussions myself, and I resist efforts by others to start off-topic discussions.

What about the morons — including you — who often make no positive contribution to the discussion but just clutter up this website with ad hominem attacks? Often I get five ad hominem attacks for every response that addresses the issues.

… Speak for yourself. My posts are among the best researched on this website. I often provide a lot of references to back up what I say. I often spend a lot of time finding this reference material. For example, it took me a long time to back up my claim that the Dover opinion was illegal and unethical in using a privileged attorney-client message against the defendants, but I did it. If people here thought that my posts were not persuasive, they would not bother to send so many responses (including ad hominem attacks — a truly bad post speaks for itself and does not need any response at all)…

Are you being serious? Larry if you are just lampooning it really is about time to come clean.

I am closing this thread for going off topic. Continue it in After the Bar Closes.

About this Entry

This page contains a single entry by Reed A. Cartwright published on January 4, 2006 4:22 PM.

It’s (Really, Really) Over in Dover was the previous entry in this blog.

Pay No Attention to The Establishment Behind The Curtain! is the next entry in this blog.

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