Kitzmiller v. Dover Area School District

(Whereupon, the following discussion was held in chambers:)

THE COURT: All right. What are -- we have an issue?

MR. SCHMIDT: Your Honor, we wanted to alert the Court before we used it in cross examination of a document that we plan to use that Your Honor may regard as covered by the confidentiality order having to do with the draft of the successor to Pandas. It's a page out of that draft.

It's the page that's analogous to the old page 25 that dealt with sudden -- intelligent design as it holds the various forms of life began with distinctive features already intact.

THE COURT: Is this the latest version --

MR. SCHMIDT: This is the --

THE COURT: As yet unpublished --

MR. SCHMIDT: Correct.

THE COURT: -- of Pandas. And you'll have to refresh my recollection. I didn't have a chance, after Liz alerted me, to look in the file, but did we have a confidentiality order in the midst of determining FTE's motion. Is that what it was for? You'll have to help me out, because I don't recall.

MR. SCHMIDT: It originally came up because we subpoenaed it from William Dembski --

THE COURT: I recall that.

MR. SCHMIDT: -- who was the author. And FTE participated in that.

THE COURT: I recall that it was subpoenaed. I recall that FTE moved to block --

MR. SCHMIDT: For a protective order.

THE COURT: -- the subpoena. And, of course, I know that, we all know that Mr. Dembski is not testifying, and we all know that FTE was not permitted to intervene. What I don't remember is sequentially when the protective order came to being in exactly -- I understand why it came into play, but apparently it was not self-extinguishing as it related to the litigation. Is that a fair statement?

MR. SCHMIDT: Yes. In fact, it had a provision in it that said it would continue past the trial even until publication of the text.

THE COURT: So why do you think you're entitled to open it up?

MR. SCHMIDT: Because nothing in the protective order says that we couldn't use it. It said, if we did use it, it would be under seal, preserving the confidentiality of it.

So if there is reference to this, as there will be, I wanted the Court to know that we intended to do that, so that the courtroom could be cleared, and so that this part of the record could be under seal to the extent that it's quoting from it.

MR. ROTHSCHILD: Your Honor, I would just add that, I would actually interpret the protective order a little more liberally. It certainly doesn't allow us to publish this widely, and it required any filings with briefs to be under seal, and any depositions that they used it as an exhibit to be under seal.

I think this is why we're alerting to you, that it does not necessarily mean that once we're in public trial, that it would preclude its use in public, but we're also amenable to it being done with a closed courtroom, if that's --

THE COURT: Well, do we have -- was a protective order entered -- and again, you'll have to refresh my recollection -- pursuant to a stipulation?

MR. SCHMIDT: Yes, it was.

THE COURT: And the stipulation, who were the parties to the stipulation? Was FTE a party?

MR. SCHMIDT: The Plaintiffs and FTE.

MR. GILLEN: Well, actually, weren't we, Chuck, as well?

MR. SCHMIDT: You were as well.

MR. GILLEN: Yeah, we were as well.

MR. WALCZAK: Your Honor, I think Eric's interpretation that this may not apply if it's being used in open court was largely validated when we had that hearing on FTE's intervention motion.

THE COURT: Does somebody have the stipulation?

LAW CLERK: I can get it.

THE COURT: Why don't you pull it off.

MR. WALCZAK: And while I don't believe we used design of life there, the other documents had been produced under seal including, I believe, and Chuck will correct me if I'm wrong, the FTE, some of the FTE statements and writings that they had. And some of those were introduced in court, put into the record.

FTE was there, and they had no objection, and did not seem to differ from our understanding of the protective order as not extending to things that happened in open court.

THE COURT: Are you seeking to actually admit a document in -- you're shaking your head no. You're going to simply question from the text of the manuscript?

MR. SCHMIDT: And read it to them, yes.

THE COURT: What's your position?

MR. GILLEN: A couple things. Actually, I'm grateful to you guys for bringing it to my attention. My recollection is that, it did cover litigation, that there was some discussion of that. I think what they're suggesting though, a short passage, so it can be kept confidential, does what I thought you had in mind, Judge, which is to protect their property interests. And I can see that being a way to get rid of the problems, so to speak.

THE COURT: Well, my recollection is that, FTE's concern was that they obviously had an intellectual property interest, and they were concerned that a wholesale release of the manuscript would subject it to pre-publication criticism, if I recall, that Mr. Buell was particularly, and justifiably, I thought, alarmed about.

I really wonder, under the circumstances, if it's a short passage, how much that's going to interfere with the intellectual property rights. I suppose you could argue that, that would allow focus and criticism of that particular passage, but I'm not so sure that that's really what his concern was. I thought his concern was a wholesale release of the entire manuscript, which is really what was threatened when Mr. Dembski testified.

MR. GILLEN: And, Judge, I don't represent FTE.

THE COURT: I understand that.

MR. GILLEN: So I can't speak.

THE COURT: But as a signatory to the stipulation, I suppose you have Atillaed the hunt.

MR. GILLEN: We had an expert at that time who asked me to move to protect the intellectual property right because of his fiduciary duty. I made that motion, and I want -- I do want to preserve what I can by way of protection of their work product rights.

MR. SCHMIDT: As the draftsman of the stipulation, I must say that I had in mind the far broader text. The concern that was expressed was that this would give the NCSE's people, Scott and others, an opportunity to poison the well before publication.

THE COURT: Let me see the passages.

MR. SCHMIDT: It's the second paragraph.

MR. ROTHSCHILD: We would probably use one other page to just correlate some other charts.

MR. SCHMIDT: In my own mind, I see this as kind of analogous to the fair use exception and copyright law. You can take a snippet and use it without harming the copyright interests.

MR. ROTHSCHILD: I do think there's one other consideration, Judge, for your --

THE COURT: Go ahead.

MR. ROTHSCHILD: That it may -- the FTE has counsel in this area, and it may make sense, before using it, to alert them. I mean, we do intend to use it today for purposes of impeachment with Professor Behe.

THE COURT: That's exactly what I was going to suggest. Who's counsel?

MR. ROTHSCHILD: Leonard Brown, that group.

THE COURT: Yeah. Why don't you do this. Why don't you take time now to, before we get started, you know, we've been moving at a pretty good pace, and we haven't had these things happen, and they do happen in trials. So why don't you take some time and contact FTE's counsel. I think you want to do it for your own protection.

Obviously, once I rule, I suppose that you're protected, but you entered into a stipulation, and I would have some concern --

MR. ROTHSCHILD: I think it's just fair.

THE COURT: -- about that, and I think you want to at least give them notice. If we have to reconvene and get them on at least a conference call and let them be heard, and that might be better than having you, you know --

MR. GILLEN: Me speak for them.

THE COURT: Sure. That puts you in a difficult position. You're signatory as parties, but you really don't want to put yourself in the position to speaking for FTE. And then we can hear out FTE. I'm not sure, you know, given this brief passage, that it violates the sense of the stipulation to allow questioning, even in open court.

I'm somewhat reluctant to clear the courtroom for these brief passages because, again, I'll read the stipulation and the order because they're not -- I don't recall them instantly. But I thought the thrust, and you seem to agree with this, is that the manuscript, as a whole, would be protected. And I understand. I think we all understood the purpose for that at the time.

MR. ROTHSCHILD: Your Honor, should we suggest a time -- I mean, do you want to do that at a lunch break or find out --

THE COURT: How much more cross do you have?

MR. ROTHSCHILD: It will be inversely proportional to mentions of the Big Bang, I think.

THE COURT: So you're going to go all day.

MR. ROTHSCHILD: It could be quite a while.

THE COURT: All right. Well, why don't you get started. Take some time now. Why don't you contact them. Why don't you see what their availability is. I mean, I recognize we're catching them flatfooted. See if they've got somebody that they can get on the phone, you know, as soon as possible. I just as soon get started.

If you give me a time later this morning, we'll just recess. If they say, you know, we're available at 11, or whatever the case may be, then we can at least get started; 10:30, 11. I'm not suggesting a time. Just find a time or we can do it as we break for lunch, if that is more convenient for them. Hard to believe they wouldn't have somebody that they could get at some point involved in a phone conversation.

Then you can reserve your cross on this issue until we hear them out at that point. Now if they tell you they don't care, which I'd be surprised, but if they tell you that, then we'll take that up at that time. I suppose they're going to have to likely contact FTE and find out what.

MR. GILLEN: That's what I can foresee. By the time they get in touch with FTE which, I think, is in Texas. You guys know better than I do.

THE COURT: And there's a time delay.

MR. SCHMIDT: One hour.

MR. GILLEN: It's just one hour, but Mr. Buell is rather difficult to reach.

MR. SCHMIDT: When he chooses.

THE COURT: Well, you know, if they can't reach him, I'll rule, if I have to, in the absence of that. But I think at least fair notice to their counsel, if they can connect with the mothership, and we'll take it up at that time.

(Whereupon, the discussion held in chambers concluded at 9:05 a.m. and proceedings reconvened in open court at 9:18 a.m.)

THE COURT: All right. Good morning to all. I apologize for the somewhat late start. We had a slight issue that we had to handle in chambers with counsel. And that rapidly resolved, so that we can commence this morning's session. We will do so. We will continue cross examination of the witness by Mr. Rothschild.

(Whereupon, MICHAEL BEHE, Ph.D., resumed the stand, and testimony continued.)

CROSS EXAMINATION ( CONTINUED)

BY MR. ROTHSCHILD:

Q. Good morning, Professor Behe.

A. Good morning, Mr. Rothschild.

Q. How are you?

A. Fine, thanks.

Q. After the Court adjourned yesterday, did you talk to anybody about your testimony?

A. I did not.

Q. I'm going to see if we can reach an agreement on something here. You agree that this is a case about biology curriculum?

A. Yes, I do.

Q. Not about physics, a physics curriculum?

A. It's not about a physics curriculum, but from my understanding, many issues that are being discussed here are particularly relevant to other issues that have come up in other disciplines of science.

Q. This is a case about what's being taught in biology class not physics class?

A. As I said, I agree that it is, but one more time, I think many things in the history of science are relevant to this, and they've happened in other disciplines as well.

Q. You've already testified you're not an expert in physics or astrophysics?

A. That's correct.

Q. And you might not know this about me, but I'm not either.

A. I'm surprised.

Q. So I'm going to propose an agreement. I won't ask you any questions about the Big Bang, and you won't answer any questions about the Big Bang. Can we agree to that, Professor Behe?

MR. MUISE: Objection, Your Honor. He's trying to limit the testimony of the witness by some sort of agreement. He's obviously testified and explained why the relationship of the Big Bang is so important. He just answered his questions to try to proffer some prior agreement to the witness that he can't reference factors of prior testimony in cross examination. That just seems inappropriate, Your Honor.

THE COURT: What's your answer?

THE WITNESS: No. , I think references to the Big Bang are extremely appropriate to making clear why I think these -- making clear my views on these issues.

BY MR. ROTHSCHILD:

Q. Fair to say, Professor --

THE COURT: There you go, Mr. Muise.

BY MR. ROTHSCHILD:

Q. Fair to say, Professor Behe, that over the last two days of testimony, you've told us everything you know about the Big Bang that's relevant to the issue of intelligent design and biology?

A. Well, I'm not sure. I would have to reserve judgment.

Q. You might have some more?

A. Perhaps.

Q. Let the record state, I tried.

MR. ROTHSCHILD: May I approach the witness, Your Honor?

THE COURT: You may.

BY MR. ROTHSCHILD:

Q. Professor Behe, I've showed you what we marked as Plaintiffs' Exhibit 726, and that's an article that was published in Christianity Today?

A. That is correct, yes.

Q. It's titled Tulips and Dandelions?

A. Yes.

Q. And it actually indicates that there was a debate, and there's actually a back and forth between you and another writer named Rebecca, I'm sure I'll butcher this, but Flietstra?

A. Flietstra. She's a professor of biology (inaudible) College in California, yes, that's correct.

Q. This is an article you wrote on or about September or October 1998?

A. Yes, that's correct.

Q. And if you could turn to the second -- this is an argument that discusses intelligent design?

A. I think it does, but to be perfectly honest, I have not read this article since it was published seven years ago. So I am not entirely clear exactly what I said in here. But it certainly is likely to do so.

Q. Do you need to review it for a moment to confirm that?

A. That would be great. Thank you.

THE COURT: Take all the time you need to read it.

THE WITNESS: Thank you. Yes, thank you. Yes, that's correct.

BY MR. ROTHSCHILD:

Q. Matt, could you turn to the second page of this document? And Professor Behe, if you would flip to that page as well. It will be on your screen as well. And, Matt, if you could highlight the question on the bottom left-hand column, the last paragraph beginning with the word, what. And you asked the question in this article, what does this all mean for a Christian, correct?

A. Yes.

Q. And you said, On the one hand, not much, right?

A. That's correct.

Q. And, Matt, if you could go to the second column, and the second full paragraph, second full paragraph -- next paragraph. Thank you. Actually highlight those two. You say, On the other hand, scientific evidence of design means a lot for Christians for a couple of reasons. Correct? That's what you wrote?

A. That's correct, yes.

Q. Going down to the next paragraph, one of the reasons you give is, Christians live in the world with non-Christians. We want to share the Good News with those who have not yet grasped it and to defend the faith against attacks.

Materialism is both a weapon that many antagonists use against Christianity and a stumbling block to some who would otherwise enter the church. To the extent that the credibility of materialism is blunted, the task of showing the reasonableness of the faith is made easier, although Christianity can live with a world where physical evidence of God's action is hard to discern, materialism has a tough time with a universe that reeks of design. That's what you wrote, correct?

A. Yes, that's exactly what I wrote.

Q. And that concept of materialism, that's actually also mentioned in the section on the Wedge strategy that we looked at yesterday, correct?

A. I think so, yes.

Q. And when you refer to the Good News there, that was not just the Yankees winning the world series around this time, correct?

A. That's correct. No, that is intended to mean the Christian gospel. So here, I was explaining, and I was speaking as a Christian in a magazine that is a Christian publication. And assuming the assumptions that Christians have from non-scientific -- from non-scientific areas, that is historical, theological, and philosophical principles, why I think, how I think this impacts Christian concerns.

And I emphasize that first paragraph that you read from, What does all this mean for a Christian? On the one hand, not much. The faith of Christians rests on the historical reality of events recorded in the gospels rather than on the next theory coming out of the laboratory.

By definition, Christians already believe in design because they believe in a designer. So by that -- I'm sorry. But just let me make one more point. So by that paragraph, I was trying to say that, in fact, design, apparent design in the world is not necessary for Christian belief.

Q. On one hand, it's not -- it doesn't mean a lot. On the other hand, it means quite a bit?

A. On the one hand, it's not necessary. But on the other hand, it can offer support to a Christian world view. And if I might refer back to the Big Bang, the Big Bang was taken by a number of people as evidence for a theological world view, and Christians have used that to argue for the plausibility of Christian views.

Nonetheless, simply because the Big Bang is compatible with Christianity, and because it makes some theistic views seem more plausible, that does not mean that the Big Bang itself is not a scientific theory.

And in the same sense, just because intelligent design is compatible with Christian views, or because it makes such views or other theistic views seem more plausible does not mean that intelligent design itself is not a scientific theory.

Q. I'd like to return to Darwin's Black Box. And that is where you're making your scientific argument, correct, Professor Behe?

A. That's correct.

Q. If you could turn to page 185 of that book. I'd actually like you to read -- we'll take turns here -- from the last paragraph on 185 beginning, molecular evolution, and go to the end of the chapter, which is one more paragraph.

A. Molecular evolution is not based on scientific authority. There is no publication in the scientific literature, in prestigious journals, specialty journals, or books that describes how molecular evolution of any real, complex, biochemical system either did occur or even might have occurred.

There are assertions that such evolution occurred, but absolutely none are supported by pertinent experiments or calculations. Since no one knows molecular evolution by direct experience, and since there is no authority on which to base claims of knowledge, it can truly be said that, like the contention that the Eagles will win the Super Bowl this year, the assertion of Darwinian molecular evolution is merely bluster.

Publish or perish is a proverb that academicians take seriously. If you do not publish your work for the rest of the community to evaluate, then you have no business in academia. And if you don't already have tenure, you will be banished.

But the saying can be applied to theories as well. If a theory claims to be able to explain some phenomenon, but does not generate even an attempt at an explanation, then it should be banished. Despite comparing sequences and mathematical modeling, molecular evolution has never addressed the question of how complex structures came to be.

In effect, the theory of Darwinian molecular evolution, has not published, and so it should perish.

Q. That was your view in 1996?

A. Yes, that's correct.

Q. That is still your view today?

A. Yes, it is. And if I may elaborate on that?

Q. Professor Behe, the answer was yes?

A. Well, I want to tell you what my view was.

Q. Professor Behe, you understand that your counsel will have an opportunity to ask follow-up questions after I'm done with my cross examination?

A. Is that correct?

Q. That is. Unless the judge rules otherwise, he will have that chance, so the answer to my question is yes? That's still your view today?

MR. MUISE: Dr. Behe is trying to completely answer his question. And counsel is attempting to prevent him from doing so.

THE COURT: Well, he's asking him a yes/no question.

MR. MUISE: I don't think it's a question that can be answered yes no. He has built in assertions that can't just be answered yes or no.

THE COURT: If he says he can't answer it yes or no, then Mr. Rothschild is stuck with that answer. So you can answer the question as you see fit.

THE WITNESS: No, that's not a completely accurate view.

BY MR. ROTHSCHILD:

Q. What's changed, Professor Behe?

A. That does not go into sufficient detail to describe my view.

Q. I hesitate to ask whether this will involve the Big Bang, but give us a little more detail.

A. The detail is actually simply this, that by these publications, I mean detailed rigorous accounts for complex molecular machines, not just either hypothetical accounts or sequence comparisons or such things.

Q. And so with that qualification, that is your view?

A. Yes.

Q. Now you have never argued for intelligent design in a peer reviewed scientific journal, correct?

A. No, I argued for it in my book.

Q. Not in a peer reviewed scientific journal?

A. That's correct.

Q. And, in fact, there are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred, is that correct?

A. That is correct, yes.

Q. And it is, in fact, the case that in Darwin's Black Box, you didn't report any new data or original research?

A. I did not do so, but I did generate an attempt at an explanation.

Q. Now you have written for peer reviewed scientific journals on subjects other than intelligent design, correct?

A. Yes.

Q. And in those articles, you did report original research and data, at least in many of them, correct?

A. Yes.

Q. You would agree that there are some journals that are more difficult than others to get one's research published in?

A. Yes, that's correct.

Q. Proceedings of the National Academy of Science?

A. Yes.

Q. Nature?

A. That's correct.

Q. Science?

A. Yes.

Q. Journal of Molecular Biology?

A. That's easier than the other ones, but, yes.

Q. Still pretty good?

A. Yeah. I would take it, sure.

Q. In fact, you have taken that for some of these publications in your non-intelligent design work?

A. That's correct.

Q. And you've also served as a peer reviewer, correct?

A. Yes.

Q. And when you do that, you get a submission from a scientist, correct? You receive the submission from the editor?

A. From the editor, yes.

Q. And you review those submissions carefully?

A. Yes, I do.

Q. There are some sort of professional expectations about how peer reviewers do their task?

A. Yes, you're supposed to read the manuscripts carefully and see if you can make suggestions and criticisms.

Q. You look at the experimental results?

A. Sure.

Q. You look -- you try to make a determination whether the techniques were proper?

A. That's correct.

Q. Try to make an assessment about whether conclusions follow from the data?

A. That's correct.

Q. You analyze whether there are gaps and problems in the experiment?

A. Yes, that's right.

Q. And on occasions, you've communicated false in articles that you were peer reviewing, correct?

A. That's correct.

Q. That's happened to you as well?

A. Sure.

Q. All part of the scientific process, right?

A. Yes, that's correct.

Q. Okay. Now you stated on Monday that Darwin's Black Box was also peer reviewed, right?

A. That's correct.

Q. You would agree that peer review for a book published in the Trade Press is not as rigorous as the peer review process for the leading scientific journals, would you?

A. No, I would not agree with that. The review process that the book went through is analogous to peer review in the literature, because the manuscript was sent out to scientists for their careful reading.

Furthermore, the book was sent out to more scientists than typically review a manuscript. In the typical case, a manuscript that's going to -- that is submitted for a publication in a scientific journal is reviewed just by two reviewers. My book was sent out to five reviewers.

Furthermore, they read it more carefully than most scientists read typical manuscripts that they get to review because they realized that this was a controversial topic. So I think, in fact, my book received much more scrutiny and much more review before publication than the great majority of scientific journal articles.

Q. Now you selected some of your peer reviewers?

A. No, I did not. I gave my editor at the Free Press suggested names, and he contacted them. Some of them agreed to review. Some did not.

Q. And one of the peer reviewers you mentioned yesterday was a gentleman named Michael Atchison?

A. Yes, I think that's correct.

Q. I think you described him as a biochemist at the Veterinary School at the University of Pennsylvania?

A. I believe so, yes.

Q. He was not one of the names you suggested, correct?

A. That is correct.

Q. In fact, he was selected because he was an instructor of your editor's wife?

A. That's correct. My editor knew one biochemistry professor, so he asked, through his wife, and so he asked him to take a look at it as well.

Q. And you found out his name later, correct?

A. That's right, yes.

Q. From your editor?

A. No. I think actually Professor Atchison himself contacted me later after the book came out.

MR. ROTHSCHILD: May I approach the witness?

THE COURT: You may.

BY MR. ROTHSCHILD:

Q. Professor Behe, I've shown you an exhibit marked P-754, and that's an article titled -- or a writing titled Mustard Seeds by Dr. Michael Atchison?

A. Yes.

Q. That is a picture of him, correct?

A. I think so. I haven't seen him in a few years.

Q. It certainly identifies him as the head of biochemistry in the department of animal biology at the University of Pennsylvania?

A. Yes, he's the department chair in the vet school.

Q. Professor Behe, I'd like you to look at the first -- I'm sorry, the last paragraph on the first page, and I'm going to read this for the record. This is what Professor Atchison wrote. While I was identifying myself as a Christian --

MR. MUISE: Objection, Your Honor. This is hearsay, and there's been no foundation he even knows this thing exists. He's reading into the record a document that he apparently got from somewhere that we don't have any foundation for. What he's reading into the record is absolutely hearsay.

MR. ROTHSCHILD: I'm not proposing to introduce this into evidence at this point, although I'll reserve that right. But this is for purposes of impeachment. I think it's highly relevant.

MR. MUISE: He hasn't even shown Dr. Behe even knows anything about this article or where it's from or any basis for it.

MR. ROTHSCHILD: I'm going to ask him about the facts that are stated in this article.

THE COURT: Why isn't it fair for impeachment purposes?

MR. MUISE: It's -- again, Your Honor, I guess you have to see how this is going to go. I was objecting because he's going to read into the record a portion of this document that he hasn't even established that Dr. Behe has any knowledge about.

THE COURT: Well, it's not a transcript.

MR. MUISE: That's true. It's a document that was produced out of court.

THE COURT: I understand. But to read it into the record, as you might not with a transcript, that's not reason alone to not permit it in the proceedings. I think, given the witness's answer, it's fair impeachment. Now --

MR. MUISE: I mean, impeachment in what regard? That he doesn't know this guy? He does know this guy? This guy is a biochemist. What's the impeachment? My looking at this, it appears that he's just try to make an attack against Professor Atchison because he apparently has some religious views, which apparently is a theme throughout this case.

MR. ROTHSCHILD: That is absolutely not the case, Your Honor. And I think that will become clear as we go through the document.

THE COURT: All right. Inasmuch as this is a bench trial, I'm going to give Mr. Rothschild some latitude. I'll overrule the objection.

BY MR. ROTHSCHILD:

Q. While I was identifying myself as a Christian in Philadelphia, a biochemist named Michael Behe at Lehigh University was writing a book on evolution. As a biochemist, Behe found the evidence far Darwinian evolution to be very thin.

In fact, when he looked at the cell from a biochemical perspective, he believed there was evidence of intelligent design. Behe sent his completed manuscript to the Free Press publishers for consideration. That is your publisher of Darwin's Black Box, correct?

A. That's right.

Q. The editor was not certain that this manuscript was a good risk for publication. There were clearly theological issues at hand, and he was under the impression that these issues would be poorly received by the scientific community.

If the tenets of Darwinian evolution were completely accepted by science, who would be interested in buying the book? The next paragraph says, The editor shared his concerns with his wife. His wife was a student in my class. Again, this is consistent with your understanding of Mr. Atchison's -- Dr. Atchison's involvement?

A. Yes. As I said, I think the editor, his wife was in vet school and knew that she was taking biochemistry and so asked the professor in that class.

Q. She advised her husband to give me a call. So unaware of all this, I received a phone call from the publisher in New York. We spent approximately ten minutes on the phone. After hearing a description of the work, I suggested that the editor should seriously consider publishing the manuscript.

I told him that the origin of life issue was still up in the air. It sounded like this Behe fellow might have some good ideas, although I could not be certain since I had never seen the manuscript. We hung up, and I never thought about it again, at least until two years later.

And then in the next session titled A Blessing Years Later, Dr. Atchison writes, After some time, Behe's book, Darwin's Black Box, the Free Press, 1996, was published. It became an instant best seller and was widely acclaimed in the news media.

It is currently in its 15th printing and over 40,000 copies have been sold. I heard about it, but could not remember if this was the same book that I received the call about from the publisher. Could it be?

In November 1998, I finally met Michael Behe when he visited Penn for a faculty outreach talk. He told me that, yes, indeed, it was his book that the publisher called me about. In fact, he said my comments were the deciding factor in convincing the publisher to go ahead with the book. Interesting, I thought.

You did meet Dr. Atchison, correct?

A. Yes, later, I did, yes.

Q. And is this your understanding of the kind of peer review Dr. Atchison did of your book?

A. No, it wasn't. I thought he had received a copy of the manuscript and went through it. So -- but -- so, yes, I was under a different impression.

Q. So he didn't review your manuscript carefully, he didn't review it at all, correct, Dr. Behe?

MR. MUISE: Objection, Your Honor. He has no personal knowledge. Again, he's using this document to assert the truth of the document, and Dr. Behe can only testify as to what his knowledge is.

THE COURT: I think that's a fair objection. You'll have to rephrase. The objection is sustained.

BY MR. ROTHSCHILD:

Q. You have no basis by which to dispute this account in this document, correct, Professor Behe?

A. My understanding is different from what is given in this account.

Q. And you did see some comments from some of your other reviewers, is that right?

A. That's correct.

Q. And they confirmed that you hadn't made any errors in the biochemistry, correct?

A. Yes.

Q. You were describing the bacterial flagellum correctly, its function, its appearance?

A. Yes.

Q. But they were reluctant or disagreed about intelligent design, correct?

A. Several were, yes, uh-huh.

Q. You also explained that, why you don't expect intelligent design at scientific conferences, correct?

A. Yes, that's because I consider it to be a poor forum for communicating such ideas.

Q. That's because typically you would present in the sort of poster sessions?

A. That's correct, yes.

Q. That doesn't really provide the opportunity to discuss it in detail to the audience?

A. That's correct, yes.

Q. It's difficult to impart understanding to your fellow scientists in that abbreviated form?

A. Yes. And not many come by. A few people wander by, yes.

Q. It's not really an amenable way to present it?

A. That's right. It's usually brief conversations.

Q. You need to really present it in more detail for scientists to understand it?

A. That's why I discuss it in seminars and so on before scientific audiences, yes.

Q. Fair to say that, that rule probably makes even more sense with high school students, Professor Behe?

A. I'm sorry, what rule is that?

Q. The rule that you can't just present intelligent design in an abbreviated fashion?

A. Well, you certainly will not get a full understanding of intelligent design in a brief session. However, I think, if we're talking about high school students, such as you mentioned, it certainly might be a good thing to mention topics to them that they might consider pursuing in-depth outside the classroom.

Q. But an abbreviated statement is not going to give them a good understanding anymore than it would your fellow scientists, is that right?

A. A brief statement of any complex subject certainly will not give a person a complete understanding of it.

Q. Speaking of the students, you went through a number of statements regarding evolution that you described as philosophical and religious, correct?

A. You mean, during my testimony yesterday?

Q. I think it was Monday, or maybe it was yesterday. It's hard to keep track. But some statements by Professor Miller, by Dr. Dawkins, by Peter Singer?

A. Yes, I did.

Q. And you would characterize those as non-scientific statements, rather philosophical or religious or political statements?

A. That's correct.

Q. Should they be taught to students in a high school biology class?

A. Well, that's an interesting idea. Since a high school biology class, in my opinion, is not, should not simply be focused on producing scientists for the next generation, since most students won't go on to become scientists, but rather it's for their liberal education, understanding science, and also understanding science's role in the world, I think, in fact, it might be appropriate not to teach this in a sense of saying, here are things that are true, but to discuss the comments that have been made about scientific theories that they are learning in their class to show the students that science is not something that is confined to the library, but the ideas generated by science have far reaching ramifications in the opinion of many learned people, and that, here are some of them. And I think that's actually an excellent idea for a science classroom.

Q. In biology class?

A. In biology class, in physics class, and other science classes as well.

Q. And you definitely agree that students should be taught that some biochemical systems are intelligently designed, correct?

A. I'm sorry. Could you restate --

Q. Your testimony over the last two days stands for the proposition that students should be told that biological life has been intelligently designed?

A. I'm afraid I don't think I said that. And if I did, I'm not quite -- well, I'm not sure that I said that. I didn't say, students should be told that some biochemical systems are intelligently designed. If I said that -- it's a good idea to give students a couple different frameworks where some data has been interpreted, so that they can see the difference between fact and theory, fact and interpretation, and so on.

I think intelligent design is, in fact, a good way to do that, yes.

Q. Fair to say that, what you're saying is that, one valid scientific interpretation that should be taught to students, along with other theories, is that some aspects of biological life were intelligently designed?

A. I'm saying that, in their discussion of these issues, students can be told that some scientists have proposed this idea, and here are the reasons that they propose. Here are the data that they point to. Here is what other scientists have proposed.

They have proposed a different theory. Here is the data that they point to. Here are the explanations they give. Here are the responses that they gave to that first group. Here are the responses that the first group gave back. The point -- I'm sorry. The point is to -- is not to instruct students that this view is correct, as we've heard many times here.

We know that theories can be wrong, that no theory is guaranteed to be true. So the point is to get them to discuss data from different points of view.

Q. So students should be told that one scientific theory is that some aspects of biological life were intelligently designed?

A. I think it would be good pedagogy to discuss the fact that some scientists do think that some aspects of life were intelligently designed, yes.

Q. By an intelligent designer?

A. Well, intelligently designed, yes, it implies a designer, yes.

Q. So students should be told that there is a scientific theory or that scientists contend that some aspects of biological life were intelligently designed by an intelligent designer, good pedagogy?

A. Again, I think you have to look at the context. There is a tendency for people to think that when you say, you're going to teach something in the classroom, that means you're going to present it to students and tell them that is true.

Q. I'm not suggesting that, Professor Behe. My question was, you think it's good pedagogy --

MR. MUISE: Objection, Your Honor. He's attempting to answer the question.

MR. ROTHSCHILD: He's attempting to evade the question, Your Honor. I'm being very clear. He helped me correct it, and I corrected it.

THE COURT: Let's let him finish the answer. Finish the answer.

THE WITNESS: It's just that -- I'm just saying that students should be presented different views for discussion, not in the sense of saying, this is either valid or not valid, this is true or not true, but just to give different points of view.

BY MR. ROTHSCHILD:

Q. I understand that. So what you're saying is, it's good pedagogy to tell students that one scientific theory about biological life is that some aspects of biological life were designed by an intelligent designer?

A. I would phrase it differently. I would say, it's good pedagogy to tell some students that some people think that this is the case.

Q. Fair enough. Is it also good pedagogy to tell students in biology class, some scientists argue that there is no intelligent designer?

A. I think it would be good pedagogy to point out that, in fact, the majority view of science is that random mutation and natural selection without any apparent design is responsible for what we find in biology.

Q. And included in that statement, it would be good pedagogy to tell students, those scientists contend there is no intelligent designer? Is that good pedagogy, to tell students that scientists think there is no intelligent designer?

A. No, it would not be good pedagogy, because there are many different ideas tangled together in your statement. Many scientists who think that, for example, Darwinian processes are correct, nonetheless do think that there is a designer in a different sense.

One is using the word designer here in several different senses; designer of laws of nature versus designer of specific aspects of nature, and so on. So I think your question is a bit ambiguous.

Q. Fair to say that my statement, that telling students there is no intelligent designer, has religious and philosophical baggage as well as scientific?

A. I'm sorry. Would you say that again?

Q. Fair to say that the statement I propose, telling students there is no intelligent designer in science class, has religious and philosophical aspects?

A. Yes. Like many theories, it does.

Q. Are there gaps and problems with the theory of intelligent design?

A. Yes.

Q. Should students, high stool students being made aware of intelligent design be made aware that there are gaps and problems in the theory of intelligent design?

A. Absolutely.

Q. If they are being made aware of intelligent design, but are not being told there are gaps and problems in intelligent design, are they being misled, Professor Behe?

A. Well, again, they're not receiving full instruction then in intelligent design. And so you could, if you had more time, you could certainly go into those, and I would certainly recommend that you do so.

MR. ROTHSCHILD: May I approach the witness?

THE COURT: You may.

BY MR. ROTHSCHILD:

Q. Professor Behe, what I've showed you is Plaintiffs' Exhibit 721. Do you recognize that as the article you wrote with David Snoke entitled Simulating Evolution by Gene Duplication of Protein Feature that Requires Multiple Amino Acid Residues?

A. Yes.

Q. And you discussed that over the last couple days?

A. Yes.

Q. Now in this, you described this as a theoretical paper?

A. Yes.

Q. You didn't culture organisms?

A. No.

Q. Or isolate proteins?

A. No, this was a computer study.

Q. Okay. Like what you criticized Dr. Pennock for doing?

A. I didn't criticize him for doing computer studies. I criticized his particular model because I thought it was not -- it had dissimilarities or it had assumptions built into it that I thought were inappropriate.

Q. It didn't represent what actually happens in biological life, that's your --

A. That's correct, yes.

Q. It didn't represent what is actually understood to happen in the theory of evolution?

A. Well, some aspects of it were sort of like what has happened in evolution, but it was -- it went a little bit too far afield, in my opinion, for it to be a useful model.

Q. And this study, this computer simulation was based on gene sequences that were published by other laboratories or other researchers?

A. No, not really, no. It was a -- based essentially on simply what we know about protein structure, was not a sequence study.

Q. When you say, what we know about protein, that was based on the work of other researchers?

A. Yes, uh-huh.

Q. And you studied a particular type of mutation, a point mutation?

A. That's correct.

Q. And let me just ask you a few questions, and you tell me if I'm fairly summarizing the results of your computer simulation. What you're asking is, how long will it take to get -- and please follow with me, I'm trying to do this slowly and methodically -- two or more specific mutations, in specific locations, in a specific gene, in a specific population, if the function is not able to be acted on by natural selection until all the mutations are in place, if the only form of mutation is point mutation, and the population of organisms is asexual?

A. I would have to look at that statement closely because there are so many different aspects to it that I don't trust myself to sit here and listen to you say that and form a correct judgment.

Q. Anything I said about that sound incorrect?

A. If you repeat it again, I'll try.

Q. I'd be happy to. Two or more specific mutations?

A. Actually, this dealt with one or more.

Q. One or more mutations?

A. Yes. If you notice, in figure -- if you notice in figure 3, you look at the x axis, you notice that there are data points there that start at one. So we considered models where there were one, two, and more mutations.

Q. Fair enough. In specific locations?

A. No, that's not correct. We assumed that there were several locations in the gene that could undergo these selectable mutations, but we did not designate where they were.

Q. In the specific gene?

A. We were considering one gene, yes.

Q. In a specific population?

A. Yes.

Q. Okay. If the function is not able to be acted on by natural selection until all mutations are in place?

A. Yes, that's what's meant by multiple amino acid residue, multi-residue feature, yes.

Q. If the only form of mutation is point mutation?

A. Yes, that's a very common type of mutation, which is probably half or more of the mutations that occur in an organism.

Q. And if the population of organisms is asexual?

A. Yes, we did not -- actually, we did not confine it just to asexuals, but we did not consider recombination.

Q. Are prokaryotes an example of the kind of organism that you were studying there?

A. Again, we weren't studying organisms, but, yeah, they're a good example of what such a model has in mind.

Q. And to say this very colloquially, you conclude that it will take a large population a long time to evolve a particular function at disulfide bond, right?

A. A multi-residue feature. That's correct, that's correct.

Q. And specifically --

A. I'm sorry.

Q. Go ahead.

A. Let me just finish. Depending on -- as we emphasize in the paper, it depends on the population size. And, of course, prokaryotes can oftentimes grow to very large population sizes.

Q. And here the conclusion, the calculations you concluded was that, if you had a population of 10 to the 9th power, that's a population of 1 billion?

A. That's correct.

Q. To produce a novel protein feature through the kind of multiple point mutations you're talking about, it would take 10 to the 8th generations, that's what it says in the abstract, correct?

A. If, in fact, it was -- if, in fact, the intermediate states were not selectable.

Q. Okay.

A. And if this is by gene duplication as well.

Q. Okay. So 10 to the 8th generation, that's 100 million generations?

A. That's correct.

Q. And yesterday, you explained about bacteria, that 10,000 generations would take about two years in the laboratory, correct?

A. Yes.

Q. So 100 million generations, that would take about 20,000 years?

A. I'm sorry?

Q. 100 million generations, which is what you calculated here, that would take about 20,000 years?

A. Okay, yes.

Q. And those are numbers based on your probability calculations in this model, correct?

A. Yes.

Q. Now it would be true that, if you waited a little longer, say, instead of 10 to 9th generations, 10 to the 10th generations, then it would mean that you wouldn't need as big a population to get the function that you are studying?

A. That's right. The more chances you have, the more likely you are to develop a feature. And the chances are affected by the number of organisms. So if you have a smaller population time, and more generations, that could be essentially equal to a larger population size and fewer generations.

Q. So, as you said, so if we get more time, we need less population to get to the same point, and if we had more population, less time?

A. That's correct, yes.

Q. Now would you agree that this model has some limitations?

A. Sure.

Q. And you, in fact, were quite candid in indicating that in the paper?

A. That's correct.

Q. And if we could turn to, what I believe is, page 8 of the document. And if you look in the paragraph that's actually continued from the previous page that says, we strongly emphasize. And if you could --

A. I'm sorry. What page number is that?

Q. It's page 8 in the document. And it's up on the screen as well.

A. Yes, okay. I've got it.

Q. Could you read into the record the text to the end of the paragraph beginning with, we strongly emphasize?

A. We strongly emphasize that results bearing on the efficiency of this one pathway as a conduit for Darwinian evolution say little or nothing about the efficiency of other possible pathways. Thus, for example, the present study that examines the evolution of MR protein features by point mutation in duplicate genes does not indicate whether evolution of such features by other processes, such as recombination or insertion/deletion mutations, would be more or less efficient.

Q. So it doesn't include recombination, it doesn't include insertion/deletion of the mutations?

A. That's correct.

Q. And those are understood as pathways for Darwinian evolution?

A. They are potential pathways, yes.

Q. This study didn't involve transposition?

A. No, this focuses on a single gene.

Q. And transpositions are, they are a kind of mutation, is that right?

A. Yes. They can be, yes.

Q. And so that means, this simulation didn't examine a number of the mechanisms by which evolution actually operates?

A. That is correct, yes.

Q. And this paper, let's be clear here, doesn't say anything about intelligent design?

A. Yes, that's correct. It does imply irreducible complexity but not intelligent design.

Q. But it doesn't say it?

A. That's correct.

Q. And one last other question on your paper. You concluded, it would take a population size of 10 to the 9th, I think we said that was a billion, 10 to the 8th generations to evolve this new disulfide bond, that was your conclusion?

A. That was the calculation based on the assumptions in the paper, yes.

MR. ROTHSCHILD: May I approach the witness, Your Honor?

THE COURT: You may.

BY MR. ROTHSCHILD:

Q. What I've marked as Exhibit P-756 is an article in the journal Science called Exploring Micro--

A. Microbial.

Q. Thank you -- Diversity, A Vast Below by T.P. Curtis and W.T. Sloan?

A. Yes, that seems to be it.

Q. In that first paragraph, he says, There are more than 10 to the 16 prokaryotes in a ton of soil. Is that correct, in that first paragraph?

A. Yes, that's right.

Q. In one ton of soil?

A. That's correct.

Q. And we have a lot more than one ton of soil on Earth, correct?

A. Yes, we do.

Q. And have for some time, correct?

A. That's correct, yes.

Q. And, in fact, he gives us a good way of comparing it. It says, as compared to a mere 10 to the 11th stars in our galaxy?

A. Yes, that's what he writes, uh-huh.

Q. And 10 to the 16th prokaryotes is 7 orders of magnitude higher than the population you included in your calculations, correct?

A. No. We considered a wide range of populations, and we considered a wide range of number of substitutions that would be -- or point mutations that would be necessary. You're focusing on two, but perhaps I can direct your attention again to that figure from the paper -- excuse me. Let me find it.

The best place I think to look is figure 6, which is on page 10 of the document. Up in the upper right-hand corner, that figure there.

Q. Sure.

A. If you look on the bottom, the x axis there, the bottom of the figure that's labeled lambda, it has the numbers 2, 4, 6, 8, 10, and so on, those are the number of point mutations that we consider perhaps some multi-residue feature might entail. As we said in the paper, forming a new disulfide bond might require as few as two point mutations.

But forming other multi-residue features such as protein, protein binding sites might require more. And so the number on the X axis lambda 2, 4, 6, 8, those are the number of point mutations that we entertained or we calculated numbers for to see how long such things would be expected to take under our model.

And if you look up at the top axis, the top x axis labeled N, at the top of the figure. N stands for population size. Okay. So if you look at the figures there on the left, it's slanted, and it's not enlarged yet, so it's hard to see. It says, 10 to the 6th. That's a million. And then skip a line. These are in every 10 to the 3rd increments of population size. That would be 10 to the 9th.

The next label is 10 to the 12th, which is a trillion. The next label is 10 to the 18th, which is much more. The next label is 10 to the 24th, which is much, much, much more. The next label, 10 to the 30th, which, again, is very much more.

So, in fact, we considered population sizes from 1000 all the way up to 10 to the 30th, and multi-residue features from 2, which might involve disulfide bonds, up to many more, which might be involved in protein, protein binding sites.

Q. 10 to the 30th, that is quite a lot, right?

A. Yes. That's roughly what is calculated to be the bacterial population of the Earth in any one year. And so over the course of the billion year, 4 billion year history of the Earth, there would probably be a total of roughly 10 to the 40th.

Q. And so in the case of prokaryotes, which you said was a good example of what you were studying, 10 to the 16th in one ton of soil?

A. Yes.

Q. So a few tons of soil, and we've gone past that 10 to the 30th?

A. Well, no. In the 10 to the 14th tons of soil. 10 to the 30th is the number that's in the entire world, according to the best estimates, including the ocean as well as soil. So -- but I agree with your point, that there's a lot of bacteria around and certainly more than 10 to the 9th.

Q. So just with the prokaryotes, 10 to the 16th, 7 orders of magnitude higher than what you were calculating here?

A. That's certainly true, but in our paper, we had our eye not only on prokaryotes, but also on eukaryotes as well, which, if you leave out recombination, one can -- they certainly undergo point mutations. They certainly have genes and so on. So much of this is also applicable to eukaryotes.

And the populations of eukaryotes and certainly larger plants and animals are much, much smaller than populations of bacteria. So we view our results not just as supplying that, but to giving us some feel for what can happen in more complex organisms as well.

Q. Well, you're not talking about more complex organisms here, are you?

A. I think we do. I think at the end, if I'm not mistaken, if I remember correctly -- okay, yes. On page 11, the second full paragraph, on page 11. It begins on the right-hand column, the second full paragraph. It says, The lack of recombination in our model means it is most directly applicable to haploid, asexual organisms. Nonetheless, the results also impinge on the evolution of diploid sexual organisms.

The fact that very large population sizes, 10 to 9th or greater, are required to build even a minimal MR feature requiring two nucleotide alterations within 10 to the 8th generations by the processes described in our model, and that enormous population sizes are required for more complex features or shorter times, seems to indicate that the mechanism of gene duplication and point mutation alone would be ineffective, at least for multicellular diploid species, because few multicellular species reach the required population sizes.

Thus, mechanisms in addition to gene duplication and point mutation may be necessary to explain the development of MR features in multicellular organisms.

So here we were trying to point out that, because of the results of the calculation, it seems that, when we're trying to explain MR features in multicelled organisms, then we're going to have to look to other processes for that.

Q. Okay. So if we exclude some of the processes by which we understand evolution to occur, it's hard to get there for multicellular organisms?

A. I'm sorry.

Q. If we exclude some of the mechanisms by which we understand evolution to occur, like recombination, it's hard to get there?

A. Yes.

Q. And bringing it back to the prokaryotes. We're in agreement here, the number of prokaryotes in 1 ton of soil are 7 orders of magnitude higher than the population, you said it would take 10 to the 8th generations to produce the disulfide bond?

A. Yeah, certainly. Yeah, the bacteria are -- can grow to very large population sizes.

Q. So the time would be?

A. Much shorter.

Q. Much shorter?

A. Absolutely.

MR. ROTHSCHILD: Your Honor, this would be a good time to take a break.

THE COURT: All right. Why don't we take our morning recess now, and we will return in about 20 minutes. Thank you.

(Whereupon, a recess was taken at 10:16 a.m. and proceedings reconvened at 10:40 a.m.)