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Kitzmiller v. Dover Area School District

Trial transcript: Day 21 (November 4), PM Session, Part 1


THE COURT: All right. Consistent with what we discussed immediately prior to lunch, is your pleasure, gentlemen, to take the exhibits first? Can we do that?

MR. MUISE: Yes, Your Honor. We've reached, I believe, an agreement on how we're going to handle the demonstrative exhibits for the experts. And for the defendants, the exhibits for Dr. Behe and the exhibits for Dr. Minnich, we provided them. They'll be in a binder for the Court.

Dr. Behe's exhibits will be marked as Defendants' Exhibit 300, all the demonstratives. And then the ones that we've agreed to that will come in substantively we've marked as subparts with an L, 300-L, so forth. And we'll be providing copies of those binders to the Court before the close of business.

THE COURT: All right.

MR. MUISE: And then Dr. Minnich's exhibits are Defendants' Exhibits 301 with the subparts L through the completion. The subparts are the ones that come in substantively. I believe the plaintiffs have a similar formulation for their demonstratives for their experts.

MR. WALCZAK: Yes, Your Honor, and that's agreeable to the plaintiffs. We have used a slightly different marking system, but we have binders of the entire Padian and Miller slide shows, and those will all come in for demonstrative purposes.

The ones that we are moving in substantively are marked on a separate sheet of paper that we will put at the start of the exhibit binder. We also are moving in substantively about a dozen slides from the Barbara Forrest presentation. And those are graphs, those are not representations of any of the articles or cases.

THE COURT: So at this point do I understand that I don't have to rule on any of the demonstratives?

MR. MUISE: That's correct, Your Honor. There are none that there's any objection. We've reached agreement on all of them. All the exhibits -- all the demonstratives come in for demonstrative purposes, and the ones that are separately marked as subparts will come in substantively, move for admission of those exhibits.

THE COURT: All right.

MR. MUISE: And those are all separately marked. We have a different marking system, but it's fairly consistent.

THE COURT: So for the record, we'll just indicate that pursuant to both of the proffers then, we'll admit them for the purposes as designated by counsel. Is that sufficient?

MR. MUISE: That's sufficient, Your Honor.

THE COURT: All right. Then that covers the demonstratives. Now, let's -- do you want to say something, Mr. Walczak?

MR. WALCZAK: If we're moving to the newspaper articles, before we do, we just have a couple of exhibits that do not appear to have been admitted.

THE COURT: All right. Let's take those up. And we'll give the defense the same courtesy if we missed any specific exhibits, non-demonstrative.

MR. WALCZAK: Plaintiffs' Exhibit 124 A and B, it's not clear that both of those -- it's not clear to us if both of those are in. That's the administrator's biology statement that was read in January, January 18th of 2005.

THE COURT: What do you have, Liz?

COURTROOM DEPUTY: I just have they're admitted, not specifically A and B, so that's fine.

MR. WALCZAK: I think the difference is that

A has handwriting on it. So, for instance, where it said Mr. Riedel, it has Mr. Baksa written over that.

THE COURT: So is there a 124 and a 124 A and B?

MR. WALCZAK: No, there's 124 A and there's 124B.

THE COURT: And, Liz, you just have a listing for 124 generally?


THE COURT: Any objection to 124 A and B from the defense?

MR. GILLEN: I can't see any basis for an objection to that.

THE COURT: All right. Well, then we'll admit 124 A and B clarified by Mr. Walczak.

MR. WALCZAK: Plaintiffs' Exhibit 670 is the Aryani declaration that came in attendant to the chart for the letters and the op-eds.

THE COURT: Any objection to that?

MR. GILLEN: No, Your Honor, I have no objection to the affidavit used to establish authenticity, but our standard objection to admissibility.

MR. WALCZAK: Plaintiffs --

THE COURT: Well, now, wait. Hold it. Are you moving to admit it?

MR. WALCZAK: We are moving to admit it for the limited purpose of authentication.

THE COURT: And I think it should be admitted for that purpose only. That's really what the basis of your objection is, isn't it? You don't want it admitted for any purpose other than authenticity?

MR. GILLEN: Correct.

THE COURT: All right. Well, then we'll admit it for that purpose.

MR. WALCZAK: Plaintiffs' Exhibit 681 is a letter from Casey Brown to Michael Baksa dated September 22nd, 2004. I have a copy.

THE COURT: My recollection is that she testified to it and she authenticated it during her testimony.

MR. GILLEN: Yes. I have no objection, Your Honor.

THE COURT: Well, then that's admitted. That would be 681.

MR. WALCZAK: And then we have a copy of Plaintiffs' Exhibit 688, which is the Carol Casey Brown resignation speech.

THE COURT: Any objection?

MR. GILLEN: It's hearsay. As I recall, she --

THE COURT: I think she read it into the record.

MR. GILLEN: She did.

THE COURT: I'll admit it under those circumstances. You may have a technical objection, I understand, Mr. Gillen, but it's in.

MR. GILLEN: That's fine.

THE COURT: It's really cumulative, but we'll put it in.

MR. WALCZAK: Your Honor, then we have Plaintiffs' Exhibits 671, 672, 674, 675. Those are the letters to the editor and the editorials.

THE COURT: All right. We're going to wait on those.

MR. WALCZAK: That's all we have.

THE COURT: Now, on the defense side, do you need to pick up any exhibits that we missed? Go ahead.

MR. MUISE: My understanding, Your Honor, is we are going to leave the record open so we can, perhaps, clean up some things next week.


MR. MUISE: And that would probably be a more appropriate time.

THE COURT: We'll note that. And what I would ask that you do in that vein so that we don't lose track of this is, if you determine -- and this goes for both parties or all parties -- if you determine that there's an exhibit that we missed, consult with the opposing party. And if you reach an agreement as to that exhibit, simply notify my chambers by letter, and we'll admit that after the fact.

If, in fact, there is a dispute as to a particular exhibit, obviously notify us of that fact and we'll set up a conference call on the record so that you can argue that particular exhibit at that time. And wait until the process is finished so that we don't have successive small telephone arguments. We can pick it up in one wrap-around argument if that's necessary. All right?

Now, moving to the articles. Now, the news articles, let's -- I'm going to ask for somebody to prompt me, and probably best the plaintiffs, someone on the plaintiffs' side. Would you give me the exhibit numbers of the newspaper articles? This is not -- I am not referring to the editorials, and I'm not referring to the letters to the editor. These are the news articles themselves.

MR. WALCZAK: Your Honor, just to complicate things a little bit more --

THE COURT: Good, great.

MR. WALCZAK: Some of the newspaper articles were actually referred to in separate exhibits. So many of the plaintiffs referred to the Internet printout copies of the exhibits. Steve Stough was the one who actually went through every single one of the articles. And then when the reporters testified, most of the articles they were referring to were the printouts. So I have the corresponding numbers for each of those articles, if that's useful.

THE COURT: So you're saying that they duplicate?

MR. WALCZAK: They duplicate, but the format is -- they appear to be different, and when the witnesses are referring to them, they may be referring to one or the other.

THE COURT: Is that distinction important if the extraneous material, which I don't care about anyway -- and I recall the format. Some of them were pulled down off the Internet, some of them were photocopies of the actual articles as they appeared in newsprint. Can we take, so that we don't jumble up the record, a single copy of each article with whatever the exhibit number is, or do you not have that?

MR. WALCZAK: I'd be concerned, Your Honor, without looking at the articles, that if there is some reference in the testimony to look at the third paragraph of the second column, it may not be the same.

THE COURT: I understand. Okay. On that basis, that certainly makes sense. All right. I see your point.

Let me tell you what I have. Liz just handed it up. Maybe this will help. We have then, with that potential duplication, as to -- and we'll take them in order of testimony. As to Ms. Bernhard-Bubb, we have P804, 805, 806, 807, 808, 809, 810, and 813.

Now, as to Maldonado, we have 790, 791, 792, 793, 794, 795, 797, and 798. Now, that would probably indicate that there are others that you may have. I'm not sure. Or does that pick it all up?

MR. WALCZAK: That's the universe of the articles testifying about -- or testified to by the reporters. I also have, if Your Honor would like, the corresponding numbers to the same articles testified to by the plaintiffs. Is that useful?

THE COURT: Say it again.

MR. WALCZAK: We were just talking about the plaintiffs referred to a different version. So, for instance, 804 is also Plaintiffs' 44.

THE COURT: Well, because your concern is that they may have, if I understand it, referred to parts of those duplicates formated in a different way, why don't you recite those numbers now so we have them. Because your purpose then, based on what you said, is to move for the admission of all of them. Is that correct?

MR. WALCZAK: Yes, Your Honor.

THE COURT: All right. Then name the additional numbers that I didn't name.

MR. WALCZAK: Under Ms. Bubb, 804 corresponds to Plaintiffs' Exhibit 44. 805 corresponds to Plaintiffs' 45. 806 corresponds to Plaintiffs' 54. 807 corresponds to Plaintiffs' 683. There is no corresponding for 808. 809 corresponds to 684. Plaintiffs' 687 corresponds to 810. And there is no corresponding exhibit for 813.

On Mr. Maldonado's articles, Plaintiffs' 46 corresponds to 790. Plaintiffs' 47 corresponds to 791. Plaintiffs' 51 corresponds to 792. Plaintiffs' 53 corresponds to 793. There is no corresponding for 794. 795 corresponds to 682. 797 corresponds to 678. And there is no corresponding on 798.

THE COURT: All right.

MR. WALCZAK: And we would move the admission of all of those articles, both for the fact that this is what was printed and also under the Rule 607 residual hearsay exception.


MR. WALCZAK: I'm sorry, 807.

THE COURT: All right. Well, it goes to both. You said for the fact of what was printed and also under 807, but I think it's not distinct, is it? You want them in for the fact of what's in the articles?

MR. WALCZAK: We do, Your Honor.

THE COURT: Which would be permitted under 807. You couch it "or," but it's really not, is it?

MR. WALCZAK: I'm sorry?

THE COURT: If you let them in under 807 under the residual hearsay exception, then it can go to the truth, can it not?

MR. WALCZAK: That's right. We want them in for both. These particular articles, we want them in --

THE COURT: Both what, though? The truth and what else?

MR. WALCZAK: And the fact that this is what was printed, sort of the verbal act of these articles having been printed and distributed.

THE COURT: To the effect prong?

MR. WALCZAK: I mean, that's a question that I understood we were leaving for another day.

THE COURT: Well, that's what I thought, and I just want to make sure that I'm clear. And what I want to elicit -- and you've argued considerably. I'll add some additional argument as needed, and I think I understand expressly what the plaintiffs' position is with respect to the admissibility of the articles on the -- and we're talking about, here, the somewhat narrow or at least narrower grounds of the statements that are in dispute by the various board members and others as referenced in the articles.

And I want you, on the defendants' side, I think -- Mr. White, I'm not sure if you're going to argue this -- but argue only as to the admissibility of the articles for the -- as they relate to the disputed statements as recited within the articles, in other words, the statements that were denied by the various speakers but are set forth in the articles. And we'll take up the other purposes, as I said -- and I'm going to speak to this after we're finished with that -- by a separate mechanism.

So whoever is going to argue on the defense, I'll hear you on what I assume is your objection to the admissibility of the articles for that narrower purpose.

MR. WHITE: Our objection to the articles being admitted through the residual hearsay exception is that these articles are hearsay. There has to be a showing that there's trustworthiness, which has not been done.

THE COURT: Why hasn't it been done?

MR. WHITE: Because the reporters testified that these were conversations -- a lot of them were summarized statements that they put down there. It goes through a filtering process through their perception or their perspective.

So these are all slanted, as would naturally be done, statements that are then written, gone through an editorial process, unlike a situation where you have live testimony coming from people who were there and were testifying to it.

But the key hurdle would be with regard to these articles are not more probative than any other evidence that could have been reasonably procured. You could have had live testimony brought in here by people who were actually there who could testify, who would then be subject to thorough cross-examination, not the limited nature --

THE COURT: Didn't we have some of that?

MR. WHITE: You did. That's one reason why you don't even need these articles, since you've already had testimony coming in. And in that regard, these articles, even if they were relevant, would just be cumulative under 403.

THE COURT: Aren't the articles somewhat cumulative to the testimony of the reporters?

MR. WHITE: They would be cumulative to the testimony of the reporters, but the reporters weren't brought in here to be fact witnesses regarding what was going on at these meetings, it was only the --

THE COURT: They weren't?

MR. WHITE: No. My understanding from your orders is that they were limited here just to testify as through their affidavit to the authenticity --

THE COURT: Well, what's the effect of their testimony? They were at the meetings. They have testified. What do you suggest that the Court does with their testimony? How do I take that testimony? They were at the meetings, and they testified expressly as to what they saw. Now, what do I consider that testimony for?

MR. WHITE: The testimony was for the purposes of whether the articles come within the residual hearsay exception. That's why we were limited to how we could cross-examine them about their bias, et cetera, unlike other people who were actually --

THE COURT: Well, that's not the only reason, Mr. White, that you were limited in your examination. But if, in fact, their testimony proves that the articles are accurate and if the Court so finds, doesn't it deflect back and, in effect, make the reporters' testimony relevant for a factual determination as to who said what? Could I not consider it for that basis?

MR. WHITE: Well, under the case law, exactly, the fact that the reporters can come in and testify shows that you don't need the articles. Our point as far as the testimony of the reporters should not be admitted for any fact reason just because they were brought in to authenticate and to testify to their articles, and that was the scope of your orders.

THE COURT: Understand. All right. I understand your point.

MR. WHITE: But beyond that, I mean, none of these articles should be brought in, I mean, as we've briefed before and as we can brief out further for you, Your Honor.

THE COURT: All right. Under the circumstances, making specific reference then to Rule 807 and finding as we do in this particular case that the articles meet the tests of the residual hearsay exception in Rule 807, including that the evidence has been offered, that is, the articles, of a material fact, they are probative for a point which is offered, more probative than other evidence which the proponent could procure through reasonable efforts, we will specifically find that the interest of justice and the general purposes of the rules of evidence are served by admitting the articles.

We'll find, certainly, that in this case the parties seeking to admit the articles, the plaintiffs, have notified the defendants of their intention to offer the evidence sufficiently in advance of trial in order to provide the defendants with the opportunity to prepare to meet it.

Having heard the testimony of the reporters, Mr. Maldonado and Ms. Bernhard-Bubb, and understanding the broad provisions as contained in Rule 807 of the Federal Rules of Evidence, we will admit the articles. However, we do so at this time for the limited purpose of those disputed statements as have come up during the course of this trial and in order to aid the Court in making and resolving factual determinations as to those statements.

Now, having so ruled, that leaves us with the use of the articles for other purposes, presumably on the effect prong under the Lemon test, and the use of the -- and, in fact, the admissibility of any editorials and letters. And as I previewed before lunch, I think it is most appropriate for counsel to address that.

I do have a submission from the plaintiffs, although the plaintiffs can feel free to amend that within your submission or submissions after trial. But specifically, I would ask that the defendants speak to that issue. I think they're intertwined, and I think I would like to get more argument on that point. Yes, Mr. Walczak.

MR. WALCZAK: Your Honor, before we leave the news articles, I believe that under Rule 807, the Court needs to make a specific finding that no other hearsay exception is available under either Rule 803 or 804.

THE COURT: And that's so found, that's so found. And I appreciate that. But there is no other exception that would apply to admit the articles under the circumstances, which is why we deflect to Rule 807.

MR. GILLEN: And we will address your concerns, Your Honor, in connection with the proposed findings of fact and conclusions of law. Is that what you envision?

THE COURT: I think that's best, and I will tell you why. It's because you're going to argue, both sides, on the applicability of the -- not the applicability so much, but as to how to apply the effect prong. And intertwined with that, necessarily, would be how we use these exhibits. And if we choose to take a certain course, we may not need these exhibits. So there's no reason, in my mind, not to give you the opportunity to have a combined argument which goes to both the admissibility and obviously the use. Yes, sir.

MR. WALCZAK: So there still is a question, Your Honor, about admissibility, leaving aside the relevance prong, about the letters and the articles. Because we would be moving them not for the truth of the matter asserted --

THE COURT: I understand that.

MR. WALCZAK: So under 801, it's not hearsay.

THE COURT: No, I understand that. And that's the argument that you've made via the submission, and I've had an opportunity to just really glance at your submission. And in fairness to the defendants, I think they should be able to meet that. But because we could argue extensively about this and, frankly, because I need more time to look at it. I think it's an important question. I recognize that it doesn't go to the truth.

And then that brings up -- well, before I get to the next area, does that cover all of the exhibits we have, other than those that you may, as Mr. Muise notes, that you may want to supplement after you peruse the record and see if we've dropped any?

MR. WALCZAK: The only other point is the designations, and I think by agreement of counsel we've agreed to a process whereby we will identify them in the next week or two.

THE COURT: And consistent with what we discussed before lunch then, I would say, you know, anywhere within the 21-day window, you can get that to me, and there will be some key that I can follow on the submissions. All right?

MR. GILLEN: Yes, Your Honor.

THE COURT: Now, I want you to pay attention in your submissions, in addition to the myriad of other things that you've got to deal with and I recognize -- and I'm not attempting to narrow your focus, I'm just telling you what's on my mind as we get into this.

First of all, we appear to agree, based on the submissions that I have thus far, that the entanglement prong of Lemon is not applicable. Do we agree on that?

MR. ROTHSCHILD: Yes, Your Honor.

THE COURT: All right. I just want to clarify that. There has been an argument interposed at various times by the plaintiffs that we should apply the endorsement test, if I understand it.

MR. ROTHSCHILD: Yes, we are reserving that position, Your Honor.

THE COURT: Well, I want you to flesh that out in your submission, and certainly the defendants will have the same opportunity. Are you suggesting that I perform an analysis in the alternative?

MR. ROTHSCHILD: I think, Your Honor, that -- and we will brief this more, but because the Third Circuit has employed the endorsement test -- and I realize, given that we've now had more recent Supreme Court jurisprudence, the reliability of that test might be in question, but that's certainly part of what the Third Circuit has applied.

You know, I know there are arguments about whether it only applies to certain kinds of establishment law cases rather than others, but, you know, based on our reading so far, I think there is -- that is something we would want to consider presenting.

THE COURT: Well, I think you should pay some attention to that and give that some thought. And I say that to all parties because, to me, it's less than clear.

As you know, the endorsement test combines certain aspects of the Lemon test, and I know that certain courts have performed an analysis in the alternative. You know that. I think that's a tortuous way to proceed, but it's the way that we'll proceed if we must, and we can take a look at that.

Now, I know preliminarily, at least from the defendants' submissions, that you believe the endorsement test doesn't apply under any circumstances. Is that correct?

MR. GILLEN: Correct, Your Honor.

THE COURT: And certainly you can elaborate on that in your submissions, as well. And that will pick up any new jurisprudence, as Mr. Rothschild has referred to, so that we can take a look at that. But it is something that I'm a little bit puzzling over, and I wanted to make you aware of that.

And I think both sides -- well, I understand the defense position is that the endorsement test doesn't apply at all, but from the plaintiffs' standpoint, if you're going to argue the endorsement test, tell me how you want me to do it next to the Lemon test.

I may not do it that way, obviously, but I'm interested in your view of what the best way is to proceed, and then that will give defendants fair notice so they can argue particularly on that point.

You understand the time constraints for the submissions, 14 days, and then seven days to respond to the -- to the counter-submission? So we should have everything in 21 days. Is that correct? Mr. Gillen has a rather pained look on his face when I say that.

MR. GILLEN: Truly I do, Judge. This has been a pleasant prospect, but still, as we draw it closed, would you -- and I don't want to ask for an extension unless we need it, but looking at the size of the record we've generated over these 21 trial days --

THE COURT: I can't believe you'd say that.

MR. GILLEN: -- would you be at least open to the possibility of perhaps adding a week?

THE COURT: I'd like you to use your best efforts, and I'll tell you why, because as I intended to say but I'll say now, it is my strong desire to try to get this case decided this year. And the later you push the submissions, the harder it is for me to do that.

MR. GILLEN: You can be assured, Judge.

THE COURT: And so give it a try, and we'll take it up later. I don't want to anticipate an extension that you may not need. And these things, having practiced law myself and knowing how this is, these don't get better with age. They're best tackled at the front end rather than the back end. So do your level best, and we'll take up the issue of an extension if necessary later on.

But, you know, 21 days, quite obviously, takes us right to Thanksgiving or so, and I can't do much until I get your submissions, it would appear to me. And that doesn't leave me a lot of time if I'm going to try to work -- and I'm not going to try to set a time frame that's hard and fast because as I get into it, I may need a little bit more time. But I think in the interest of justice and because this is important to everyone, I'm going to make every effort to try to get it in, at the latest I would say by early January, but hopefully, very much I hope, by the end of the year. We're going to do our level best.

MR. GILLEN: We will too, Your Honor.

THE COURT: All right. Anything else? Liz is giving me a note, and that says -- one other area in your briefs and prompted by Adele. Under the effects prong, or the effect prong, I want you to pay some special attention, too -- and this is the plaintiffs' burden, obviously -- on the audience issue.

I know you will, but I note that anyway, because as you well know, you could construe the case law as limiting it to the intended audience that would be within the class or the much broader audience, and I'd like if you'd pay some attention to that. That's probably a superfluous reference because you're going to do it anyway, but I would mention that as it relates to the effect prong, as well. Anything further before we hear closings?

MR. WALCZAK: Your Honor, just one minor point. On the additional exhibits and the deposition designations, could we ask that the Court impose a deadline of 14 days from now so that we have a closed record, and then when we're doing the replies, you know, we're not going to be surprised with new evidence after the fact?

THE COURT: I did mention that I thought that was a good idea, but I didn't make that hard and fast. Can you live with that, 14 days? I think that makes sense.

MR. GILLEN: I think we should be able to clean everything up in that time.

THE COURT: And I think it makes sense only because then you've got -- for both sides you have the additional seven days if something comes up during that 14-day period. You don't want to extend it out 21 days and then have an issue that you need to extend the response time to. So let's say that we'll get all of those ancillary matters, identify any exhibits that got dropped for any reason within the 14-day period. So the record --

MR. GILLEN: Thank you, Your Honor.

THE COURT: Mr. White, do you have a point?

MR. GILLEN: The additional newspaper points will be briefed in connection with the findings of fact and conclusions of law?

THE COURT: Exactly. That's understood. To clarify, Mr. White, that's something that I'll rule on concurrently with my opinion when it's handed down. What I'm interested in for these purposes are those things that you think you can agree on or, as I said, exhibits that you dropped and you're going to get it in.

So we're going to close the record, let's say, in 14 days from today's date. That's game, set, match, we're done, everything should be in by that point, and so we'll close the record at that time. Anything further? Mr. Rothschild.

MR. ROTHSCHILD: Thank you, Your Honor.


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