Kitzmiller v. Dover Area School District
Trial transcript: Day 17 (October 28), AM Session, Part 2
THE COURT: All right, Mr. Walczak, you may continue.
Q Mr. Maldonado, during the break we took the opportunity to put the rest of the articles in front of you that I'm going to ask you about. Do you see plaintiff s exhibit 792 in front of you there?
A Yes, I do.
Q And is this something you wrote?
A Yes, it is.
Q And the date on it is June the 14 .
Was that the date of a board meeting?
A Yes, sir.
Q And what is this article?
I'm sorry, is this a piece that you wrote to prepare people for the board meeting that evening?
A In anticipation of the meeting, yes.
Q And if you look at the first couple of paragraphs there, you say, "Nearly a week after the Dover Area School Board's controversial comments about teaching creation along with evolution in biology class, people across the county are pondering the potential benefits and repercussions."
A Yes, you did.
Q And then in the next paragraph you talk about, "William Buckingham said as part of a search for a new biology book, he and others are looking for one that offers balance between the Christian views of creation and Darwin s theory of evolution." Is that in the second paragraph there?
A Yes.
Q And then in the third and fourth paragraphs there, it appears that you repeat what you had written previously about Mr. Buckingham's comments that this country was founded on Christianity.
A That is correct.
Q So that's not something he said to you again?
A That is correct.
Q You're just going back and reminding readers of what he had said to you a couple -- I guess it was a week earlier?
A The previous Monday, yes.
Q And in the middle of that second column, there are -- there's a quote from Mr. Weinrich, says, "On Thursday school board member Noll Weinrich."
A Yes, sir.
Q And again, that's referring back to what he had told you the week before?
A That is correct.
Q So those aren't new quotes?
A That is correct.
MR. WALCZAK: Matt, if you could highlight the uses of the word creation.
Q Now, the use of the word creation or creationism is through -- used throughout your article, correct?
A Yes, it is.
Q And you even say, "Christian views of creation," you repeat Mr. Buckingham s, "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such."
Did anybody ever contact you to print a correction or retraction?
A No, sir.
Q Did Mr. Buckingham contact you?
A No, sir.
Q Mr. Weinrich?
A No.
Q Anybody in the administration?
A No, sir.
Q Are you aware of whether anybody contacted your editors or your publisher?
A To the best of my knowledge no one contacted myself or anyone at the York Daily Record.
Q Now, in the middle of that article there's a -- an inset box captioned, "If You Go." Is that something you wrote?
A I don't believe that I wrote that, no.
Q And do you know why that's there?
A I think it's just to tell people that there's a public meeting that night of the Dover Area School Board, where and when it is.
Q And it says, "The public will have a chance to speak on the issue of teaching evolution and creationism in Dover schools at the school board meeting at 7 p.m."
A That is correct.
Q If you could turn to the next article, which is plaintiff's exhibit 793. And this is titled, "Book is Focus of More Debate." Again, is this an article you wrote?
A Yes, it is.
Q And it was written on June 15 .
A This article would have been written late Monday evening, June 14 .
Q And it was published on the 15 ?
A That is correct.
Q And you attended that meeting?
A Yes, I did.
Q And what you wrote in here is accurate?
A Yes, it is.
Q Now, in the first couple of paragraphs you say that, "At Monday evening's Dover Area School Board meeting William Buckingham apologized to anyone he may have offended with the comments he made at last week's board meeting." Is that correct?
A Yes.
Q And then in the next paragraph you say, "But then the school board member reiterated one of his statements to the roughly 90 in attendance, that the separation of church and state is a myth." And then you have this quote attributed to Mr. Buckingham. Nowhere in the constitution does it call for separation of church and state, end quote.
A Yes.
Q And that's -- you heard Mr. Buckingham say those words?
A Yes.
Q Now, I just want to clarify, because my recollection is that he said words to that effect, or you reported that he said words to that effect at the June 7 meeting.
A That is correct.
Q So this is -- this is not referring back to June 7 , this is a second time that he made these comments?
A That is correct.
Q And then going down to the last two paragraphs in the first column, you write, "Buckingham said while growing up his generation prayed and read from the Bible during school. Then he said liberals, in quote, black robes, end quote, were taking away the rights of Christians." Now did you write that based on what you heard Mr. Buckingham say?
A Yes, I did.
Q And then in the next paragraph, the last one in the first column, you attribute a quote to Mr. Buckingham, 2,000 years ago someone died on a cross, he said, can't someone take a stand for him, end quote. Is that a verbatim quote of what you heard Mr. Buckingham say?
A Yes, it is.
Q Now, you said earlier that you had been covering the Dover Area School Board since late fall of 2003.
A Yes, sir.
Q Had you ever heard Mr. Buckingham say words to this effect before?
A I can only answer questions that pertain to the articles in front of me.
Q That's fine, I'll withdraw that question.
In the next column, second full paragraph, again, I believe you're attributing to Mr. Buckingham, you have a quote, I challenge you, in parenthesis, the audience, to trace your roots from the monkey you came from -- to the monkey you came from, end quote. Did I read that correctly?
A "I challenge you, the audience, to trace your roots to the monkey you came from."
Q And again, is that something you heard Mr. Buckingham say on the evening of Tuesday, June 14 ?
A Yes, sir.
Q And then further down in that column you talk about a Charlotte Buckingham.
A Yes, sir.
Q And did she get up and speak during the public comment period?
A Yes, sir.
Q And you say, "After quoting several verses from the book of Genesis in the Bible she asked, how can we allow anything else to be taught in our schools?" Is that correct?
A That is correct.
Q And do you recall how long Mrs. Buckingham spoke?
A Not exactly, no.
Q Was it more than -- I believe they allow three minutes for people to speak.
A I believe it was longer than what was typically allowed at the time, although I can't remember the exact time.
Q And then in that next paragraph you wrote, "During her time she repeated gospel verses telling people how to become born-again Christians and said evolution was in direct violation of the teachings of the Bible."
A Yes.
Q Is that based on words you heard her say?
A Yes, it is.
Q And then in the next paragraph you refer to a Reverend Warren Eshbach, retired?
A Yes, sir.
Q And do you know who he is?
A I do not know him personally, no, I only recognize him from the meetings.
Q And you write that he said, "The book of Genesis was not written as a science book but rather as a statement of faith," and then you have a quote. "It's the place of the church to teach on matters of faith, he said, not public schools." Now, is that a direct quote?
A Yes, it is.
Q So that's something you would have written -- that's something you would have written in your notes?
A Yes, it is.
Q And in the -- that next paragraph, you wrote, "He also said the creationism versus evolution issue was polarizing the community." Now, you don't have any quotes in that paragraph.
A That is correct.
Q Do you recall him using the word creationism?
A Yes, I do.
Q And how about the word polarizing?
A Yes, I do.
Q And then at the top of column three, you wrote, "During the meeting Buckingham told those in attendance that he had been asked to tone down his Christian remarks." Again, there's no quotes there, is that correct?
A That is correct.
Q Do you recall him saying "Christian remarks"?
A Yes, I do.
Q And then you have a quote attributed to him, But I must be who I am and not politically correct, end quote.
A That is correct.
Q And so that's a direct quote of what he said?
A Yes, sir.
Q If you could turn to the next article, please. Actually let me just -- a couple of last questions on plaintiff's exhibit 793.
There's been some dispute about whether Mr. Buckingham said the quote, "2,000 years ago someone died on a cross, can't someone take a stand for him."
I mean, do you have a distinct recollection of Mr. Buckingham saying those words?
MR. WHITE: Objection, asked and answered.
THE WITNESS: Yes, I do.
MR. WALCZAK: Your Honor, this has been a matter of some dispute, and I just want to make perfectly clear what this witness's recollection is.
THE COURT: I'll allow the answer. I don't think it's exactly the same question. And you did answer the question, I think, did you not?
THE WITNESS: Yes, sir.
THE COURT: All right. The answer will stand. Objection is overruled.
THE WITNESS: My recollection is he said exactly the words that are in those quotes.
Q Let's go to the next exhibit now, which is plaintiff's exhibit 794.
I'm sorry, my co-counsel whispered. And you recall him saying that at the June 14 meeting?
A It was at that meeting on Monday, June 14 .
Q Now let's try plaintiff's exhibit 794. Now, this is entitled -- I'm sorry, this is -- yeah, this is entitled, "Bio Book Might be Approved." Is this an article that you wrote?
A Yes, it was.
Q And it was published on Wednesday, July the 14 ?
A That is correct.
Q And this is about what?
A May I have a moment with the article, please?
Q Please.
A This article would have been written to report the news of the Monday, July 12 meeting.
Q And that's the meeting you attended?
A Yes.
Q And halfway down that first column you attribute some things to Assistant Superintendent Michael Baksa?
A Yes.
Q And were those things he said at that meeting?
A Because this article was published on Wednesday, I cannot say for certain whether or not I would have talked with him Monday at the meeting or as a follow up on Tuesday. I believe that because I do not say in the article that I talked to him on Tuesday, that it would have come out of that meeting.
Q You don't remember whether that was said during the meeting -- public portion of the meeting or outside the meeting?
A No, I don t.
Q You say in that paragraph that begins, "Assistant Superintendent Michael Baksa said the new edition still meets state standards and teaches evolution. There are no references to creationism, he said." Again, there's no quotes in that paragraph. Do you recall Mr. Baksa using the term creationism?
A In this particular box I do not remember if I -- if he had said that or if I had phrased the question to Mr. Baksa saying, sir, are there any references to creationism in this book.
Q But it was either Mr. Baksa using the term or you using the term creationism in your question to him?
A That is correct.
Q And then in that last paragraph, beginning at the bottom of the first column, you wrote, "He said neither creation nor intelligent design were a part of any books that were reviewed."
Again, do you recall him using the term intelligent design?
A Yes.
Q And is that the -- do you recall whether that's the first time you had heard that term used?
A I cannot remember the time that the phrase intelligent design was introduced into these meetings or conversations.
Q If you could turn to the next exhibit, which is plaintiff's exhibit 795. Do you have that?
A Yes, sir.
Q And this is titled, "Biology Book Squeaked By." Is this something that you wrote?
A I wrote the article, yes.
Q And this is about the August 2 board meeting?
A That is correct.
Q Now, about halfway down the first column -- let me backup.
You talk about, in the second paragraph, that there was a tie four-four vote for approving the new Biology textbook by Prentice Hall.
A Yes.
Q And then in that third paragraph you say, After that vote Buckingham said he would approve the book if the board would also approve a, quote, companion, end quote, book, Pandas and People, which advocates intelligent design theory. You have "companion" in quotes?
A That is correct.
Q So you distinctly -- that would have been a verbatim quote of what he said?
A Yes.
Q And "he" being Mr. Buckingham?
And then in that last paragraph beginning at the bottom of page -- of the first column, you wrote "Jeff Brown." Who is Jeff Brown?
A Jeff Brown is a former -- a former board member on the Dover Area School Board. He would have been an active member at the time of this article.
Q You said, "Jeff Brown accused the four board members voting no of blackmailing the board and holding the students hostage." Again, there's no quotes. Do you remember Jeff Brown using the term "blackmailing"?
A That is an accurate paraphrase that included the word "blackmailing," yes.
Q And then in the next two paragraph, you come back to Mr. Buckingham, and you write, "Buckingham then said if he didn't get his book, the district would not get the Biology book. Buckingham has been a staunch advocate for the teaching of creationism alongside of evolution." And then have you a quote attributed to Mr. Buckingham, and it s, quote, If we don't get our book, you don't get yours, end quote.
So, again, that's something you would have written in your notes as a direct quote from Mr. Buckingham?
A That is correct.
Q And then two paragraphs down from there, you say "Buckingham said the intelligent design book would, quote, level the playing field in reference to the state s evolution requirement." So again, is that -- "level the playing field" is something Mr. Buckingham said?
A Yes.
Q And then further down it said, "Harkins said she supported Buckingham."
A Yes.
Q So she made some indication that she supported what Mr. Buckingham was saying?
A Yes.
Q Now, near the bottom of the third column there is -- paragraph starts, "After the meeting Yingling said she couldn't say why she changed her mind." So now this is -- you're now reporting on something that happened after the meeting formally ended?
A That is correct.
Q And you're still in the meeting location?
A I am standing in front of -- if she's sitting here, I'm on the other side of the table in front of her.
Q And you wrote, But as Buckingham approached her, he said, quote, I can't believe you did that, do you know what you ve done, end quote.
So were you talking to Ms. Yingling and Mr. Buckingham came up to the two of you?
A That is correct.
Q And those are the words he said to her?
A That is correct.
Q And then you quote Ms. Yingling as replying, quote, I feel you were blackmailing them. I just want the kids to have their books, end quote. That was her reply to Mr. Buckingham?
A Yes, it was.
Q If you could turn to the next exhibit, which is plaintiff's exhibit 797. Do you have that?
A I wrote this article.
Q And this is -- this was published on October 19 ?
A Yes, sir.
Q And this is about the October 18 , Dover board meeting?
A That is correct.
Q And this is the meeting where they were discussing the curriculum change?
A That is correct.
Q Now, in the second paragraph, in the second column, you wrote, "At the end of the meeting a tearful Carol Brown read a statement before resigning from the board." And then, "She said that on more than one occasion she had been asked if she were, quote, born again, referring to the Christian term for salvation." So do you recall her using the term "born again"?
A Yes, I do.
Q And then you have a quote attributed to her, quote, No one has nor should have the right to ask that of a fellow board member, she read. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, end quote.
A That is correct.
Q Again, that's a direct quote of what Ms. Brown said at the meeting?
A Yes, it is.
Q And this was part of her resignation statement?
A Yes.
Q Now, at the top of the third column, you have Carol Brown speaking again about a law firm representing the school district if they got sued.
A Yes.
Q And then at the end of that first paragraph, at the top of the third column you wrote, "She said, if faculty asked they would be entitled to representation from the district solicitor, Stock and Leader." Are those words -- or words to that effect that Ms. Brown said?
A That is a paraphrase of words that she said.
Q And then you have a quote attributed to a Heather Geesey. Who is Heather Geesey?
A Heather Geesey is a current board member and a board member at the time of this meeting.
Q And the quote you have attributed to her is, quote, If they requested Stock and Leader, they, in paren, the faculty, close paren, should be fired. They agreed to the book and the changes in the curriculum, end quote.
Do you recall Ms. Geesey saying those words?
A Yes, I do.
Q And who is Stock and Leader?
A Stock and Leader is a law firm in York, Pennsylvania that occasionally represents the Dover Area School Board as their solicitor.
Q And then in the next paragraph you wrote, "but Miller" -- and who are you referring to there?
A I believe that would have been Jenn Miller.
Q And she's a biology teacher in the Dover School District?
A That is correct.
Q And you wrote, "But Miller and science department head Bertha Spahr said Geesey's statement wasn't true." And then you say, "Spahr said the faculty only agreed to the Pandas book as a compromise to address Buckingham's concern that students have alternate materials to study in addition to their regular text."
And those are words that Ms. Spahr said during the public meeting?
A That is correct.
Q And is that during the public comment portion of the meeting or was that in response to what Ms. Geesey had said about the teachers should be fired if they asked for representation?
A I believe she said this during the public comments portion of the meeting.
Q And then you say, "Spahr also said that not only did her department not approve the new wording, they were not invited to help write it." And then you have a quote, We didn't know you were going to do this, end quote.
So, again, that's something Ms. Spahr said at the October 18 meeting?
A That is correct.
Q All right. If you could turn to the next exhibit, plaintiff's exhibit 798. This is the last article we re going to look at. Is this something you wrote?
A Along with Lori Liebo, yes.
Q And this is a -- again, a follow-up to the October 18 meeting?
A Yes, it is.
Q I want to direct your attention to the bottom two paragraphs of the third column. And you wrote, "Both the American Civil Liberties Union and Americans United for Separation of Church and State, who say they are closely monitoring the situation in Dover, point out that if the school district were to lose a legal battle, its taxpayers could end up footing the plaintiffs costly legal bills."
And then you have a quote attributed to Bill Buckingham, quote, My response is that is what -- I'm sorry, can you read that? Do you know what's written there?
A "My response to that is what price is freedom, Buckingham said. Sometimes you have to take a" -- I cannot read the last word.
Q Could --
A I'm not -- to be honest, I'm not completely sure which portions of this article I'm responsible for, and which parts Lori Liebo -- this quote that you're reading, I'm not sure if that's something she would have included in the article or if that's something I would have talked to Mr. Buckingham about.
Q That's fine.
Did any Dover School Board member ever speak to you personally about correcting something you wrote?
A No, sir.
Q Did any board member ever complain directly to you about something you wrote about a meeting?
A Nothing specific, no.
Q So you never had an interaction with, for instance, Ms. Geesey?
A I do remember speaking with Ms. Geesey, yes, I do.
Q And did you speak with her about a complaint she had?
A It was about a different article. She was upset that the people were requesting tapes but, again, she didn t ask me for a correction.
Q And did she specify what her complaint was?
MR. BENN: Your Honor, I object. I think Mr. Maldonado has indicated that it's a different article. It's nothing he testified about this morning.
MR. WALCZAK: Your Honor, that's fine, I ll withdraw the question.
THE COURT: All right.
Q So you never got specific complaints about articles you wrote about the Dover Area School District?
A I was never asked to make a correction.
Q And are you aware of whether your editors or publishers were ever asked to make a retraction about any of the articles you wrote about the school board?
A They were not asked to make any corrections.
MR. WALCZAK: I have no further questions.
THE COURT: Thank you, Mr. Walczak.
Mr. White. We'll ask you not to tear the microphone from its moorings before you commence your cross examination.
MR. WHITE: I can break things, I just can't fix them.
THE COURT: You may proceed when ready.
MR. WHITE: Thank you.
THE COURT: You tried that again, did you?
MR. WHITE: This would be one of these things that shows up in a Bar Journal article. Yeah.
THE COURT: Either that or America's Funniest Home Videos.
MR. WHITE: I apologize.
THE COURT: Mr. Thompson, please don't let Mr. White touch anything at counsel table for the rest of the day.
MR. WHITE: Well, at least the reporters have their lead story.
THE COURT: That remains to be seen.
Q Back to being serious now.
Mr. Maldonado, your primary occupation is running the sandwich shop?
A It's pretty much a tie between my writing and running the sandwich shop.
Q And you're -- you don't have any formal journalism training though, correct?
A No, sir.
Q And freelancing, I know you love to write, but it s also a way to supplement your income, correct?
A That is correct.
Q And depending on where the article appears in the paper, determines the amount of money you're paid per article, right?
A Yes.
Q So a front page story gets you about $65?
A Six -- a story that runs right on the front page, 1A, as it's called, is $67.50.
Q And then if it runs on a cover of one of the sections, the local sections, it's about $60?
A $62.50.
Q And then just your average story is around $50, right?
A Somewhere in that ball park, yes.
Q And it's the editors who decide where in the newspaper your stories will run, correct?
A That is correct.
Q Now, although you haven't been in the courtroom previously, you ve been following this case through the newspapers?
A I had read some of it earlier as the trial got off the ground, but in the last couple weeks I ve made an effort not to follow the trial.
Q And during the break before you testified, did you speak to Heidi Bubb about her testimony?
A No, sir.
Q Did anyone speak to you about her testimony?
A No, sir.
Q And you read the editorial page of your newspaper?
A I have read the editorial pages, yes.
Q So you understand the position the newspaper takes on various subjects?
MR. BENN: Your Honor, I would put the same objection that I did with Ms. Bubb's testimony.
MR. WHITE: That was my last question.
THE COURT: I'll allow that question. I ll overrule the objection.
THE WITNESS: I understand that people take different positions on different issues in our paper.
Q So you understand the position the editorial page will take on certain issues, correct?
A Could you be more specific, sir?
Q Well, your newspaper has an editorial page, correct?
A Yes.
Q Editorial pages are generally the position of the newspaper?
THE COURT: I'm going to consider that that's a continuing objection. I'll sustain the objection. And I think he answered that question with his last answer, so let's move on.
MR. WHITE: I'll move on.
Q Now, when you attend Dover Area School Board meetings -- when I refer to a school board meeting, that s what I'm talking about, Dover School Board meetings.
A Yes.
Q You don't tape record the meetings, do you?
A No, I do not.
Q You don't videotape record them either?
A No, I do not.
Q So you just take handwritten notes?
A That is correct.
Q And you don't write down everything that was said during the meeting, do you?
A No, sir.
Q And you don't write down verbatim statements of everything that was said in the meeting either, do you?
A Not of everything, no.
Q So you sometimes have to summarize in your notes what was being said?
A I have to paraphrase to the best of my ability.
Q And paraphrasing would be just your interpretation of what someone said, correct?
A A paraphrase means that those words were said but not necessarily in the form that I placed them in the paper.
Q And do you ever have the person who you ve quoted in your notes verify the accuracy of those quotes?
A No, I do not.
Q Do you have the person who you are paraphrasing verify the accuracy of your paraphrasing of what they said?
A No, sir.
Q Do you have the person, when you do eventually write the article, do you have the person verify the accuracy of a quotation you attribute to that person in the article?
A No, sir.
Q Do you have the person verify a paraphrasing that you attribute to that person in the article?
A No, sir.
Q Do you have the person verify the context in which you ve set forth their quotation in an article you write?
A No, sir.
Q Do you have the person verify the context of the summary of the paraphrasing that you ve attributed to that person in the context of the article?
A I write the articles and send it to my editor.
Q Now, the notes -- so, in other words, the answer is no?
A No.
Q The notes that you take at these meetings, you destroy those as a matter of practice roughly 30 days or so after?
A That is correct.
Q And you don't have any notes from the 2004 school board meetings, do you?
A No, sir.
Q So the defendants, we haven't been able to look at your notes, have we?
A No.
Q Now, school board meetings for the Dover School Board, they generally last a couple of hours?
A If I had to average it out I would say anywhere from two to three hours.
Q And you sit in the front row of those meetings?
A Yes.
Q And Heidi Bubb also sits in the front row generally?
A I can't tell you where Heidi sits from meeting to meeting.
Q Do you ever compare your notes with Heidi during meetings?
A No, I do not.
Q Do you ever step out of a school board meeting to go to the bathroom, for example?
A Yes, I do.
Q When you come back in do you ask people what you missed?
A No.
Q Do you also step out of meetings to conduct interviews?
A Yes, I do.
Q So you're not always in the school board meeting?
A Sometimes if a person I need to interview is leaving before the meeting ends and I need to catch that person, yes, I will step out and do an interview.
Q So the answer to my question is yes, you're not always in the --
A I am not always in the room, that is correct.
Q And during these school board meetings there are several topics that are generally discussed?
A Yes.
Q So there's usually more than just one item on the agenda?
A Yes.
Q And during the meeting several people are speaking, for example, you'll have school board members who will talk, correct?
A Yes.
Q And then you'll have members of the public who get a chance to speak, correct?
A Yes.
Q And when these people are speaking during school board meetings, are they under oath?
A Not that I know of.
Q And sometimes you speak to people after meetings, correct?
A Yes.
Q Are those people under oath when you're speaking to them?
A Do I make them raise their hand and swear on the Bible to tell me the truth, the whole truth, and nothing but the truth? No, I don't do that, so if that is your definition of being under oath.
Q So as far as you know these people aren't under oath either in the meeting or after the meeting?
A Well, I'm certainly hoping they are telling me the truth.
Q That wasn't my question. They're not under oath, correct?
A They are not under oath, no.
Q Now, when you write these articles for the school board meetings, you're not describing everything that took place during the meeting, of course.
A No, I'm not.
Q And when you write the articles about the school board meetings, you're not including all the statements made during those meetings either, are you?
A No, I'm not.
Q And in writing these articles about the school board meetings, in particular the Dover School Board, you re not including all the topics discussed during the meeting either.
A That is correct.
Q And in writing the articles about the school board, you don't include all of the comments people are making about the various topics discussed.
A No, sir.
Q Now, your articles that you ve gone over with plaintiff's counsel today, they include statements that you attribute to school board members in particular that occurred during the meeting, correct?
A During and after the meeting, yes.
Q So after --
A Or on a phone call if --
Q Well, right now I'm just asking you about statements that occurred during the meeting.
A Okay.
Q That's correct, right?
A I'm sorry, could you repeat your question?
Q Your articles are attributing statements or summaries paraphrasing of school board members that took place during the public meeting.
A Some of the articles paraphrase or quote people after the meetings, some of them paraphrase or quote them the next day via phone calls or trips that I might have made to the district.
Q That in addition to what took place in the meeting?
A In addition to what took place at the meeting.
Q It took us a while but we finally got it.
So when you're writing these articles about the school board meetings, you're just capturing only part of what happened during the meeting, correct?
A Yes.
Q And you're the one who selects what part of the school board meeting you're going to write about in that article, correct?
A Yes.
Q And you select which quotes that you want to put into the articles about those meetings?
A Yes, I do.
Q And you're the one who decides when to paraphrase or summarize statements made by people during meetings?
A Yes, I am.
Q And that's also counting both my questions, other statements you ve heard from people after a meeting on the telephone, et cetera?
A Yes.
Q Now, when you're attributing these summaries or paraphrasing, again, that's just your interpretation of what the people were saying, correct?
A It's -- it's a summary of the words that were spoken.
Q But based on how you perceived the statements, correct?
A It is a summary of the words that were spoken.
Q Based upon your perceptions though, right?
A I will not --
MR. BENN: Your Honor, we're not dealing with perceptions. I think he's answered the question. It s based upon his understanding of what people have stated.
THE COURT: Mr. White.
MR. WHITE: As Mr. Benn just said, it's based upon your understanding of what people said, correct?
THE WITNESS: That is correct.
MR. WHITE: That is just another way of saying perception then.
THE COURT: I'm not sure that's true, and that may be inconsistent with the order. The second question is not objectionable. The first question I think was. I'll note that.
Q You sometimes, in your articles, attribute statements to people based on the questions you ve asked them, correct?
A Yes.
MR. WHITE: I apologize, Your Honor.
Q Articles you write include statements school board members that occurred after the meeting, had telephone conversations with them, things like that?
A Could you repeat that, please?
Q Some of the statements, as we talked about, are statements made to you by school board or school official members after -- after a meeting?
A Yes, sir.
Q Now, when you write your articles, you don't have the people -- and we went over this before, but just to make clear -- when you write an article you don't have the person you quoted in the article verify the accuracy of that quote, right?
A No, sir.
Q Nor do you have the person verify the accuracy of the context of the quote in your particular article?
A No, sir.
Q Nor do you have the person who you're summarizing or paraphrasing verify the accuracy of that paraphrasing, correct?
A We do not allow our subjects to editorialize our stories, no, sir.
Q I'm asking about verifying.
A No.
Q After you write your articles you submit the article to the editors of your paper.
A Yes.
Q And you just send it by e-mail to a number of editors, and whoever happens to be on the shift that day reviews and edits the article, is that right?
A That is correct.
Q And it's the editor who writes the title of the article.
A Yes.
Q And any subtitles, also is the editor who writes them?
A Yes.
Q And now, you're not aware of the amount of editing that goes into your articles, correct, as we went over during your deposition?
A When I write my articles, typically when I read them in the paper, there's not much. Typically what I write ends up in the paper?
Q My question was, but you're not aware of the amount of editing that goes into it, though?
A No, once they end up in the newsroom, no.
Q Also, and after the article is edited, you don t review it again before it's published in the paper, right?
A No.
Q If you can look at exhibit 790, please.
This exhibit is dealing with the June 7 , 2004 school board meeting, correct?
A Yes, it is.
Q And the subtitle that says, "A Board Member said a Book was Rejected Because it Didn't Offer Creationism," that was written by the editor?
A It says "A Board Member said a Book was Rejected Because it Didn't Offer Creationism," yes, that would have been written by an editor.
Q The debate that was taking place at this June 7 meeting, that was about which textbook to use in the classroom for the biology students, is that right?
A Yes.
Q And you're saying that the word creationism was mentioned by some board members, in particular, Mr. Bonsell and Mr. Buckingham?
A Once the word creationism was introduced into discussion, all of the board members would have used it, whoever spoke at that meeting.
Q Now, in your article the board members you referred to are Mr. Bonsell and Mr. Buckingham, correct?
A That is correct.
Q So you don't have any references to any other board members in your article, especially with regard to the use of the word creationism, correct?
A No, sir.
Q Now, your article here, you have some quotes that are attributed to board members, right?
A Yes.
Q So, for example, you have a quote attributed in the second column to Mr. Buckingham, correct?
A Yes.
Q And quotes then are verbatim statements of what the person said, right?
A Yes.
Q So when you have it in quotes, that means it's a word-for-word accurate statement, correct?
A Yes.
Q In this article the only time you use the word creationism, apart from the subtitle, is in circumstances where the word is not in quotations, correct? You want to look at the article?
A That is correct.
Q Now, you're saying that there were several board members who -- or I think you said all the board members were using the word creationism during this meeting, is that right?
A Whoever would have participated in this part of the discussion. Not all the board members necessarily chime in, but all of them who would have spoke on it.
Q And then there were -- were there any members of the public who spoke during this meeting?
A The only one I had in my article was Max Pell, but there may have been others.
Q Now, in your article though, nowhere is the word creationism used in a quoted statement attributed to a school board member, correct?
A That is correct.
Q And that's true even though part of the discussion at this meeting, according to you, dealt with creationism as it relates to a textbook, is that right?
A Yes.
Q Now, when you don't have statements in this particular article that are in quotes, you're saying that s a summary or a paraphrasing?
A A paraphrasing, yes.
Q If you can look to the next article, which I believe is 791, exhibit 791.
Now, I'm correct that this would be a follow-up article to the June 7, 2004 meeting?
A Yes.
Q And I believe you had earlier said that this is a -- to get a feel for the man-on-the-street type of an article?
A Yes.
Q And that man-on-the-street reaction, that's based upon the article you had written which we just discussed, exhibit 790?
A And any other knowledge they may have.
Q The people in the public who you spoke to, these are people you just randomly selected?
A That is correct.
Q And these were people in the community of Dover?
A Yes.
Q Dover has about what, 20,000 residents?
A I don't know that. I'm not a census taker.
Q But it has thousands of residents as far as you know?
A I don't know.
Q Didn't you grow up in the York area?
A Yes, but I don't count the people that live there.
Q But you cover the Dover area for the newspaper, right?
A Yes, I do.
Q But you don't have any knowledge as far as number of people who live in the area?
A No, sir.
Q Okay. So assume to say that there are more than a handful of people. All in your article there you just spoke to a couple of people to gather their reaction to your article or any other information they may have, correct?
A Well, I spoke with more than a couple. I would have been there about two hours and spoke with a lot of people.
Q So if you spoke to a lot of people then, all you mentioned in your article are a couple of the people, right?
A I only had so much space, so, yes.
Q So with that you selected, because you don't have a lot of space, which people you would quote in this article, right?
A Yes.
Q And which people whose statements you would paraphrase, is that right?
A Yes.
Q So you selected how this article would be structured, right?
A Yes.
Q Now, in this article, again, you had mentioned that at the June 7 , 2004 meeting, that in particular Mr. Buckingham and Mr. Bonsell had mentioned the words creation or creationism. And this is a follow up to that June 7 meeting, correct?
A Yes.
Q And again, with regard to those two individuals, in this follow-up piece, do you have any statements that you have quoted from them, direct quotes, where the word creationism or creation is included? I'm talking about Mr. Bonsell and Mr. Buckingham.
A I'm sorry, could you rephrase that question?
Q I'm saying with regard to Mr. Bonsell and Mr. Buckingham, in this article, exhibit 791, which is a follow up to the June 7 meeting, do you have any direct quotes that you can attribute to those two men where the word creationism or creation is stated within those quotes?
A Within this article?
Q Yes.
A I don't believe so.
Q Now, your conversation with Mr. Weinrich that is the bottom part of this article, that was a conversation that you had after the June 7 , 2004 meeting, correct?
A That is correct.
Q And was that a conversation over the phone, do you recall?
A I believe it was over the phone.
Q So that's a -- a give and take conversation you had with him, right?
A It was a conversation that I had with him.
Q On this -- on this exhibit there's a box in the middle that says, "On the web, Pennsylvania's academic standards for science and technology which allow for teaching of creationism can be found at," and then it gives a web site for the Commonwealth of Pennsylvania s, looks like, education department. Did you prepare that box?
A No.
Q That's prepared by whom?
A Whichever editor would have worked on this story.
Q When you speak to these people who -- for the man-on-the-street, how do you confirm that they're actually residents of Dover?
A I ask them.
Q You ask them. You don't check their driver s license or anything like that?
A No, I don't go that far.
Q Please look at the next exhibit, which is 792. 792 is an article that appeared June 14 , 2004 in your York Daily Record, correct?
A June 14th, 2004, yes.
Q And this is another follow-up article of the June 7 , 2004 meeting?
A That is correct.
Q And with these follow-up pieces, is it that the editors ask you to write the follow-up articles?
A I believe in this case it was, yes.
Q And again, it's the editor who writes the heading and the -- or the title and the subheading, correct?
A That is correct.
Q And does that also apply to the small box that's in the middle that says "If You Go"?
A Yes.
Q Now, you relied on your notes and memory from the June 7 , 2004 meeting in preparing this article?
A That is correct.
Q And some of the -- for example, you also did in this article another man-on-the-street interview, you interviewed a few teenagers, it looks to me, like Mike Johnson, David Storms, on column three?
A Yes.
Q And you just picked them out randomly?
A That is correct.
Q Had you spoken to other men on the street besides Mr. Storms and Mr. Johnson?
A I can't recall how many people I spoke to but, yes, I spoke to more than them.
Q But those are the ones you focussed on in your article?
A Yes.
Q And also in this article, as it relates to comments made at the June 7, 2004 school board meeting by school board members, you don't have any direct quotes from that meeting attributed to school board members where the word creationism is part of the quote.
A That is correct.
Q And that's true also even though the focus of the June 7 meeting, according to your articles, was the discussion of creationism --
A Yes.
Q -- as it relates to the textbook, right?
A Yes.
Q If you can turn back to exhibit 790, please. On the far right column, I believe that's column four, you have the quote -- direct quote you attribute to Mr. Buckingham dealing with Muslim beliefs. Again, that was after the meeting in a conversation you had with him?
A At his chair after the meeting, yes.
Q So those are responding to questions you were posing to him?
A That is correct.
Q Please go to exhibit 793.
This article was published on June 15 , 2004, so this is dealing with the meeting the day before the school board, June 14 , 2004?
A Yes.
Q And according to the subtitle, which the editor would have written, correct?
A Yes.
Q Says, "Teaching of Creationism or Evolution was the Topic Again at the Dover Area School Board Meeting."
Now, when you send in your articles, do you put a proposed title on the article?
A No.
Q So the editor is writing the title based upon what your article talks about, right?
A Yes.
Q And they're writing the title to get the attention of the reader, right?
A Yes.
Q Now, according to this article there were roughly 90 people who were in attendance. And after -- after meetings -- well, let me ask you this. The center column, it talks about Charlotte Buckingham and statements you attribute to her. She made these statements during the public comment portion of the meeting?
A Yes.
Q And this is a time when anyone from the public can get up and say anything?
A Yes.
Q And she's not a member of the school board, is she?
A No.
Q And you have a quote at the bottom of the first column from Mr. Buckingham, quote, 2,000 years ago someone died on a cross, end quote. Quote, Can't someone take a stand for him.
Now, Mr. Buckingham made the comment at the June 14 meeting?
A Yes.
Q And did he only make that comment once during the June 14 meeting?
A I can't recall. Sometimes they repeated themselves, sometimes they didn t.
Q So you don't recall whether he did or didn t?
A I don't know whether he said this once, twice, three times, I just know that he said it.
Q With this article that we're talking about, exhibit 793, and the other ones we ve talked about today so far, after you write the article you don't verify with anyone the quotes that you attribute to them, correct?
A No.
Q And you don't verify the accuracy of any statements, whether quoted or not, with the person whom you ve attributed those statements?
A No.
Q And also you don't verify the accuracy of the context of any statements with the person to whom you ve attributed those statements, correct?
A No.
Q These articles you write, this is again what you think would make the best story, correct?
A I try to pick the most newsworthy material to present to our readers.
Q Based upon your selection of the events that occurred at the meeting, correct?
A Based on the information that is presented at the meetings, I try to pick the most newsworthy items for our newspaper.
Q The next exhibit, 794. This is with regard to the July -- July 12 , 2004 meeting.
A Yes.
Q And again -- well, let me go back. Let's go back to 793, I'm sorry. 793 deals with the June 14 , 2004 meeting, okay. And according to the article, at least the title of the article, "Teaching of Creationism was Again a Topic of Discussion at the Meeting," right?
A Yes.
Q Do you have any quotes from school board members with the inclusion of the word creation or creationism in those verbatim quotes from the meeting?
A I would like a moment to read the article, please. (Pause.) No.
Q Do you have any -- in the articles -- nowhere in the article does there appear a quoted statement from a school board member where the word creationism is used in the quote, correct?
A No.
Q Nowhere in this article is there a quoted statement from a school official where the word creationism appears in a quote either, is there?
A No.
Q And this is true even though the teaching of creationism, according to this subtitle, was a topic at the school board meeting, right?
A Creationism was a topic of discussion during the school board meeting.
Q My answer -- my question though was, even though that is the topic of the meeting, in your article you don t have any direct quotes from school board members or school officials where the word creationism is part of the quote.
A There is no quote that includes the word creation, however, creationism was a part of that discussion that evening, and that would be an accurate description of what took place.
Q So at this meeting -- how long did this meeting last, do you remember?
A I don't recall.
Q You said usually it lasts a couple -- couple, three hours?
A I don't recall how long this meeting was.
Q As a general rule you said earlier that they last, you know, two or so hours, right?
A That is correct.
Q And you're taking notes throughout the entire meeting, correct?
A At most meetings, yes.
Q I'm talking, do you remember the June 14 meeting?
A Yes.
Q Okay. And you're taking notes during this time, is that correct?
A That is correct.
Q And you said you're trying to put in your notes the most newsworthy items, right?
A I ve said that repeatedly, yes.
Q And you're trying to also quote verbatimly any of the key statements made by the people who were speaking at the meeting, right?
A Yes.
Q Just like for Mr. Buckingham you have the quote, 2,000 years ago, et cetera, that's in quotes, right?
A Yes.
Q So you put that in the article because you consider that newsworthy, right?
A Yes.
Q But, again, you don't have any of those newsworthy quotes in this article dealing with a statement -- quoted statement by a school board member or official where the word creationism is part of the quote, right?
A That is correct.
Q 794, please. If you could look at that. This is again -- right, so we're talking about -- I'm having a hard time with my vision today. If -- were we going over 793 previously? Is that . . .
A We were on 793.
Q 794, please. This is the July 12 , 2004 meeting, and in this article you're talking about the term intelligent design, correct?
A Just give me a moment. Yes.
Q And so intelligent design is mentioned at the July 12 , 2004 meeting, is that right?
A Yes.
Q And that's mentioned by school board members, correct?
A Well, according to my article it says that, "There were several reasons why others were not selected, Baksa said including readability, layout, content, as it relates to the curriculum." He said -- I'm sorry.
"There were several reasons why the others were not selected, Baksa said, including readability, layout, and content as it is related to curriculum. He said neither creation nor intelligent design were a part of any books that he reviewed."
Q But at the meeting, July 12 meeting, the term intelligent design had been used, is that right?
A I believe so.
Q And also at this July 12 meeting, where they re discussing textbooks and books, you don't have any direct quotes from any school board member/official that includes the word creationism in a verbatim quote, is that right?
A That is correct.
Q Number exhibit 795, please. 795 is the -- dealing with the August 2 , 2004 meeting, correct?
A That is correct.
Q And at the -- at the 8 -- August 2 , 2004 meeting, intelligent design and Pandas and People are being discussed according to your article, correct?
A That is correct.
Q And in the first column of the article, after the quote, you have Mr. Buckingham talking about approval Of Pandas and People, which advocates, quote, intelligent design theory, end quote. So that's what Mr. Buckingham had said?
A I'm sorry, could you repeat your question?
Q Mr. Buckingham had referred to Pandas and People as an intelligent design book?
A Yes.
Q Mr. Buckingham had not referred to Pandas and People as a creationist book, correct?
A Not that I can recall, no.
Q Now, during this meeting, the school board members were debating the adoption of the textbook Biology by Prentice Hall, correct?
A Yes.
Q And that's the primary textbook for the students as far as you know from these meetings?
A Yes.
Q And again, during this meeting based on your notes in your article here, you don't have any direct quotations from people talking about creationism, correct?
A That is correct.
Q The next exhibit you were directed to earlier was exhibit 797. This is an article dealing with the October 18 , 2004 school board meeting, correct?
A Yes.
Q Now, at this school board meeting, did you attend the entire meeting?
A I don't recall.
Q You don't remember whether you were there for the entire meeting, right?
A I do not recall.
Q At the October 18 , 2004 meeting, the discussion dealt with intelligent design being placed into the biology curriculum, correct?
A Yes.
Q And creationism was not mentioned at this meeting, according to this article, right?
A Not that I can recall.
Q And this last article, exhibit 798, it was Lori Liebo, who's also on the byline, she's the one who wrote the bulk of the article.
A In reading this article I believe this is mostly her work.
Q Now, during -- during school board meetings, school board members would publicly accuse you and the media of lying in their reporting?
A They would make statements to say that the media had been inaccurate in its reporting.
Q Do you remember them making statements about the media having an agenda?
MR. BENN: Are we talking about any particular school board meeting?
MR. WHITE: Talking about during the meetings that he had attended during 2004 as related to these articles.
THE WITNESS: I cannot recall if the school board began making those comments before this final article on October 20 or not, I do not recall.
Q You do recall at the meetings criticism about the reporting, correct?
A I do not know if they took place during the timeframe of the stories that are in front of me.
Q You remember such criticism being made, correct?
A I do remember those criticisms being made, but I do not know if they took place during the timeframe of these articles.
Q And during the timeframe of these articles, board members had come up to you individually and complained about your reporting?
A They had complained about the media in general.
Q Had any of them come up to you and said to you that they wanted a correction?
A No, they did not.
Q Had any of them come up to you and said to you, you got the story wrong, Joe?
A No. Well, they were saying that we got the story wrong, but they would not mention any specifics that they wanted corrections of.
MR. WHITE: Nothing further, Your Honor.
MR. WALCZAK: I have nothing further.
THE COURT: No redirect. All right, can we excuse this witness by agreement of counsel?
MR. WHITE: That's fine by me.
THE COURT: Sir, you are free to go, that completes your testimony.
All right, let's take up some exhibits. We -- did you talk to them about Nilsen?
MR. WHITE: Your Honor, is it possible, I don t mean to stall the day, but is it possible to do this afternoon lunch because I know Mr. Gillen wanted to be here for that.
THE COURT: Well, that's fine, and -- on Dr. Nilsen's testimony?
MR. WHITE: On Nilsen's testimony and all of the exhibits.
THE COURT: All of the -- well, let's talk about how we're going to do it just as a precursor, that's fine. But on Dr. Nilsen's testimony what I had asked Liz to mention previously, and I'll just reiterate, we have quite a few exhibits relating to Dr. Nilsen.
If you would be kind enough to take some time over the lunch hour, and if you haven't done this already, and somehow highlight for me the exhibits that can be stipulated based on the master list that we have circulated. And then we can argue only about those exhibits that are controversial as they relate to Dr. Nilsen.
With respect to Mr. Buckingham's testimony, there are fewer exhibits. You might -- we do have a master list here. Have you distributed that to counsel?
THE DEPUTY CLERK: Yes.
THE COURT: You might want to do the same thing so that we can catch up with Mr. Buckingham's exhibits as well.
MR. WHITE: Does Mr. Gillen have that?
THE DEPUTY CLERK: It's on your desk there.
MR. WHITE: Thank you.
THE COURT: So I'll ask you to coalesce and see if you could work that out.
Now, I want to talk for a minute about the -- as a precursor to argument on the news articles, it appears to me, and I direct this first to the plaintiffs, it appears to me that we have newspaper articles that are being introduced or attempt to introduce newspaper articles for two purposes, mainly, one is the truth of the contents, some of the contents of the articles, in particular as that goes to certain statements that are in dispute, mainly it appears statements by Mr. Buckingham, but possibly statements by others.
The second purpose appears to be to introduce the newspaper articles under the effect prong and the Lemon test. And it was argued previously that -- and controverted by the defendants that because it -- because the articles are introduced on the effect prong, if I understood your argument, that the truth is not at issue.
Do I have that right from the plaintiffs standpoint?
MR. WALCZAK: Your Honor, yes, we believe they come in both for the truth of what's asserted in the articles, that in fact it's non-hearsay under Rule 801, but even if it was hearsay, if there's ever a situation that meets the 807 residual hearsay exception, I mean this is certainly it. I'm happy to argue that.
THE COURT: Well, I don't -- you know, I want to refrain, consistent with what I said to Mr. White and I think Mr. Gillen wants to be a party to this argument, so I'm not pressing you necessarily to argue it, I'm just trying to get squared away before we start to argue.
Where in 801 though, by the way, are you hanging your hat?
MR. WALCZAK: I am hanging my hat, so to speak, on 801(d)(1)(B), prior statement by a witness where the declarant testifies at the trial or hearing, is subject to cross examination concerning this statement, and the statement is -- and I'm going down to (B), consistent with the declarant's testimony; and it's offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
THE COURT: And you're arguing in the alternative 807, is that correct?
MR. WALCZAK: That's correct, Your Honor. But coming back to the original question, yes, I mean we are offering these 14 articles that -- I believe it's 16 articles that were testified to by Ms. Bernard-Bubb and Mr. Maldonado. We are offering those for the truth of the matter asserted. We are offering all of the articles and the letters and the editorials under the effects prong as this is kind of the historical record that's out there. And regardless of whether it's true or not, that's what was reported, that's what the public would have read. And --
THE COURT: Well, let me ask you this, can you identify in the -- now, you have articles -- those articles in particular that go to the disputed statements, you can do that?
MR. WALCZAK: I certainly can do that after lunch.
THE COURT: No, I don't mean now, but it's possible for you to do that. I'm sure that I can go over the testimony and do it as well, but I would put that burden on you because I think that we need to argue them in two classifications. And I say this to the defendants as well.
I think to the extent that there are certain articles that contain statements that are either disputed in whole or in part by defendants witnesses and in the main it appears Mr. Buckingham, but there may be others, I think we need to take those and identify those and understand what it is that we're talking about.
And then I recognize that there's an overlap, and that those same articles you might seek to introduce under the effect prong. And I'm not sure under the endorsement prong, but I frankly don't know how that would work with newspaper articles, and that's an argument we'll leave for another day. But I think we should be clear what it is that we're doing.
Are you taking the position -- are the plaintiffs taking the position that those articles that are not being introduced to controvert denials by witnesses as they relate to statements made, that the truth of those articles or other parts of the articles, the truth is not at issue in those articles? Are you saying they're not hearsay because they don't go to the truth as they relate to the effect prong?
MR. WALCZAK: Your Honor, we would argue that if -- of the 16 articles about which we heard testimony in the last day, the entire article comes in for the truth of the matter asserted. I mean this is, frankly, the best historical record that we have. It's based on notes taken contemporaneously by people who were there, who listened, who wrote it down. And they have testified that what they wrote down was truthful, it was accurate. There is a great degree of reliability here and, frankly, you know, I'm not sure why we would exclude what is clearly the best contemporaneous historical account of what happened in this situation.
So we would offer it not just to rebut the statements of the defendants, but we would offer these 16 articles in their entirety.
THE COURT: Well, I think you have to have a purpose. I think to simply introduce them into the record without a purpose, I will tell that you now, and I think you're going to have to hone that argument a little bit so to simply say they're the best historical record. Record of what? I mean we have -- we have other testimony in as to what happened at these meetings. And I want to be careful how we approach this.
I fully recognize that you re, at least in part, attempting to introduce the articles as they relate to these disputed statements. But I think we need to have something more than these are historical records of -- or the best historical records of these events. I will tell you that now, and you should think about what the balance of the contents of these articles go to other than simply that they're historical records. I'm not entirely sure about that. And I'm not entirely sure of the relevance, although I'm not forestalling an argument on that basis.
MR. WALCZAK: Just, let me just observe, Your Honor, that there are -- that the direct quotes are relatively few in these articles. If -- if you actually look at the articles, virtually every paragraph in there that doesn't have a direct quote, indicates that Mr. Buckingham said or reported. And so I don't think it s difficult to distinguish the direct quotes from the paraphrases. And there also have been disputes by the defendants and will be more disputes I'm quite sure as to what happened at these meetings, not just what was said.
THE COURT: And I -- I understand that. And so that -- that is entirely consistent with -- what you just said is entirely consistent with my -- and is in fact is in answer to my question. If you're introducing the articles for disputed facts, in order to assist the Court in resolving certain disputed facts, that's fine, but I -- and I'd have to go and review these articles one by one, but arguably there are extraneous things in those articles that would not go to disputed facts, and I -- I want to be cautious about how we approach this.
And to simply say that the articles are a historical record generally of what took place, I'm not so sure that that is a -- that that convinces me about the admissibility. I think you just need to hone that. And by saying this, I put the defendants on notice, and these are some of the areas that I think we need to touch on as we look at the -- as we look at the articles.
So we'll reserve further argument on the articles until after the lunch hour.
Now, let me ask you, what do you have in mind for testimony this afternoon? We're going to go back to defendants case and --
MR. WHITE: I believe Mr. Gillen will call Heather Geesey, that's my understanding.
THE COURT: We're going to finish -- are we finishing Mr. Baksa at some point or not today?
MR. WHITE: As I understand it, Your Honor, Mr. Gillen intends to call Heather Geesey as the next witness, and then we're going to come back with Mr. Baksa after that.
THE COURT: All right. So we'll pick up -- now, I guess we can pick up with argument after lunch. What is your pleasure? You want to -- you want to deal with this now or do you want to keep going with witnesses?
MR. ROTHSCHILD: I think, given what is left, we ought to keep pressing forward with witnesses in order to get this case completed by --
MR. THOMPSON: Your Honor, I think you ve raised some very crucial evidentiary points here. And I think a part of that will really deal with the substantive aspects of the law. We're talking about the effects prong. So I think it's a matter that we should spend some time on to give the Court our best opinion --
THE COURT: I would tend to agree with that. Why don't we do this, taking into consideration what Mr. Rothchild said and what you're saying, Mr. Thompson, I m concerned that we're going to get too far behind and have such an accumulation of exhibits that it will take us half a day to get them in.
Let me ask your indulgence, other than the articles that were rendered for Mr. Buckingham and Dr. Nilsen, which remain in dispute, obviously, that's what we just talked about, I would ask that you deal with Dr. Nilsen and Dr. -- or Dr. Nilsen and Mr. Buckingham over the lunch hour. Let s try to get that done -- those two done, because I don t think they're particularly controversial. Some may, but let's argue the non-article exhibits after lunch.
We will reserve arguments, which obviously will be a longer argument and could take quite some time on the newspaper articles based on the intellectual discussion that we ve had here and my telegraphing what my concerns are, and we'll have to do it next week. I would just as soon accept Mr. Rothchild's suggestion that we keep plowing through testimony in the available time.
MR. THOMPSON: So that I understand it correctly, Your Honor, you're holding in reserve until next week the arguments on the articles and the effect it has on the -- the effects prong aspect of it and the truth for the matter asserted in the articles?
THE COURT: Yeah, consistent with my preview, if you will, I think we can tackle that next week. I don t think there's any impediment to continuing with witnesses and handling that next week, because it does really weave into argument that I want -- I'm going to want to hear at the end of the case as we get into the effect prong, the endorsement test, and things like that. So these all combine at some point. And I don't think there's any reason to wait.
If you -- or to do it today, and we can wait. If you want to discuss among yourselves what you think an appropriate intermezzo is next week that we can have some extended argument on that, that's fine with me, I'll take it whenever you want to -- whenever you want to address it. Monday, if that works for everybody, but I understand there is issues of witness availability, and we want to keep going and keep taking testimony.
So we will do Buckingham and we will do Dr. Nilsen after lunch, non-articles only; we'll reserve the articles.
MR. THOMPSON: Thank you.
THE COURT: Do you have a question?
MR. WHITE: My only question was, Your Honor, was next week, is trial days Monday, Wednesday, Thursday, Friday?
THE COURT: That's correct.
MR. WHITE: One of those days -- because I was going back to Michigan. We'll talk about the best day.
THE COURT: Yeah, if you want -- you going to be here?
MR. WHITE: Yeah, I just have to make arrangements to come back, that's why if we had a particular day then I can make the arrangements.
THE COURT: That's what I said, if you can reach an agreement among yourselves, that's perfectly fine with me, so that you're not inconvenienced. All right?
MR. WHITE: Yes, thank you, Judge.
THE COURT: Anything else before we recess?
MR. WALCZAK: No.
THE COURT: Why don't we recess until, let's say 1:30, and we'll pick up the testimony at 1:30, I guess with Ms. Geesey this afternoon. We'll be in recess.
THE DEPUTY CLERK: All rise.
(Whereupon, a luncheon recess was taken from 12:15 p.m. to 1:39 p.m.)
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