Kitzmiller v. Dover Area School District

THE COURT: Be seated, please. All right, Mr. Walczak, you'll continue with the direct examination.

MR. WALCZAK: Your Honor, one of the things we did not do was formally move Professor Padian's as an expert, and I know that defendants have stipulated to his expertise.

THE COURT: Why don't you put the, I understand that, and I could refer back to this but it's easier for you to do it, state the exact purpose for which his testimony is being offered in the expert realm.

MR. WALCZAK: We would proffer Dr. Kevin Padian as an expert in paleontology, evolutionary biology, integrated biology, and macroevolution.

THE COURT: And then pursuant to the stipulation I assume you have no objections, Mr. Muise, is that correct?

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

THE COURT: All right. Then he's admitted obviously for that purpose nunc pro tunc. So let me ask you before you start your questioning, do you have an agreement as to how long you're going to go in order to reserve --

MR. WALCZAK: Oh, I'm guessing we have an hour to an hour and fifteen. As I told Mr. Muise, if we have to bring Professor Padian back on Monday, then it's not the end of the world and we certainly don't want to cut them short on their cross.

MR. MUISE: And I'll do my best to get it done before the end of the day.

THE COURT: All right. Well, we'll work with that, and you may proceed.

CONTINUED DIRECT BY MR. WALCZAK:

Q. When we finished we were talking about the evolution of birds, and just one last point I want to make on that before we move on to mammals. On page 99 to 100 of Pandas it makes the statement there that I think has been read previously in this trial that, "Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact," and it says, "birds with feathers, beaks, and wings, etc." Now, in fact does the fossil record show whether birds evolved with those features intact?

A. You have a thing about the birds today. Dinosaur for lunch? To answer your question, it definitely doesn't show that these features evolved all at once intact, but rather in a step-like progression of features.

Q. So did the birds at first have just feathers and then the other features evolved?

A. We saw the simplification, we saw from a very simplified picture of all the feature that evolve in birds, but they start with very simple filamentous hair-like structures that are feathers, but if I had shown all the features of birds evolving we would have seen the wishbone appear very early before birds evolved and become a very boomerang shaped structure well before birds evolved or take flight. So that evolved for completely different purposes anyway, but birds do use the wishbone today as an anchor of some of the flight muscles. That wasn't the case originally for birds. There's just lots of features like that we could go through, sure.

Q. Let's talk about mammals. One of the examples that's referenced in Pandas is the mammalian ear, inner ear. Could you talk to us about how Pandas discusses the mammalian ear and what science shows about that? And you've prepared a demonstrative for this?

A. I put a couple of slides together about the transition in the evolution of the mammal ear, which is unusual compared to all the other vertebrates. The next slide I think shows a bit about this. This is going to get a little complex anatomically, but I hope it will only hurt for a minute. The bones of the middle ear, mammals have three of them. You might have heard of them as the hammer, the anvil, and the stirrup.

The stirrup is a bone that's always in the ear, but the mammals have this anvil and hammer thing which are just outside that stirrup bone. These anvil and hammer bones actually correspond to bones that previously made up the upper and lower jaw joint in all the other animals, not just reptiles or anything like them, but everybody pretty much. So the Pandas authors claim that to make this correspondence is really stretching it, because they said there's no fossil record of this amazing process.

Consider, that to make this change one of these bones had to cross the hinge from the lower jaw into the middle ear region of the skull. Again this is from Pandas page 121. So they're saying there's no record of this process and it would be an amazing thing to have to change. The next slide shows that there are actually many sources going back several decades that differ, and there are just a few of them there.

The first one was actually an article by Romer, who was the dean of American vertebrate paleontology for half the century about a sinodaun that has an incipient mammalian jaw articulation, and I'll show you what that is in a minute. That comes from the journal Science in 1969. Here's a somewhat later paper by Edgar Allen of Madison, and now it's Chicago, on the evolution of the mammalian middle ear, and then a third one I put there is very recent piece, a little piece in Science by Thomas Marin from Germany and Gigi Lowe, who's curator at the Carnegie museum here in Pittsburgh just a few hours away, one of the great museums in the country, and they are talking about the evolution of these bones in the middle ear something that is uncontroversial as a principle in comparative anatomy of vertebrates in paleontology.

Q. Now, I note that first article I believe was from 1969.

A. Was.

Q. So this isn't a new development?

A. Oh, no. Oh, no. It's been known for decades.

Q. So what you're going to show us is something that was known 25 years before Pandas was published?

A. Yes, and they discuss it. Sure. The next slide I think gives some detail of what's going on here. Trying to make this as painless as possible, there are essentially two sets of bones that are involved in one animal or another in the hinge between the upper and the lower jaw, and outlined in different colors in the skull on top I think you can see an orange bone and maybe a purplish type bone, and in the lower jaw you can see a red one and a blue one.

Now, this is an animal that is not a mammal. It's an ancient relative of mammals, and the jaw joint in this animal is formed by two bones, that blue one marked by a "Q" in the top jaw and the red one, which is called the articulator, in the lower jaw. So the quadrate and the articular are the two bones that in all other animals except mammals make up the jaw.

The next image is of a critter called probanigmasis, which again is not a mammal. It's a little bit closer to mammals than the first guy is, and in this animal you will see that now not only do we have the articulation between the Q bone and the art bone, which is the quadrate and the articular in the upper and lower jaws, but also there is an articulation between the bone in the lower jaw marked with a "D" called the dentary and the squamosal in the skull, and this can be seen perhaps if I can rouse it, sort of in this area here where the dentary and the squamosal would meet right next to the quadrate and the articular.

So these animals actually have what we call a dual jaw joint of two pairs of bones that are actually articulating next to each other on the upper and lower sides of the skull. The next slide is of morogenucidaun, which is another animal, again slightly closer to mammals, that also shares this dual jaw joint of the two bones, and the top of the two bones with the bottom I won't bother with the details, and finally the fourth slide is of a typical garden variety, garbage pail variety possum, which has now changed this articulation so that only the dentary and the squamosal bones are connected.

The quadrate and the articular are no longer part of the jaw joint. So we have gone from a quadrate articular joint in which the dentary and squamosal don't participate to two animals, the second and third I showed, there are others like diarthrodnatus I could have shown, in which you have two pairs of bones sitting next to each other and articulating, making that jaw joint, to a situation in mammals, the possum is an example, but many, many mammals in the fossil record would do as well as all the mammals today in which just the new articulation the dentary squamosal is made.

So you might ask what happened to the quadrate and the articular bones, and the next slide shows that actually in the course of time you can see that, again just to summarize this, this transition, the next indication is of the original condition of the quadrate articular joint only to the next condition of having both the quadrate articular and the dentary squamosal joints which is present in these two animals to only the dentary squamosal joint, and this is the way that scientists understand this transition to have taken place.

The next slide gives you a sense of what this anatomy is on the inside of the ear. Now what you're looking at in the top is a depiction of the ear bones in some of early mammals. Now, if you can see where the pointer is pointing here on this upper right diagram, this long structure here with a big hole in the middle is called the stapes, and this is an ear bone that connects up to the eardrum in the inner ear, this little funny snail shaped thing, this bone, the stapes, has been in animals ever since they came out on land.

In fact, even the watery ancestors of land animals have this in one form or another. Next to this you'll see a little "Q" and a little "A" which are the quadrate and the articular. These are the two parts that usually that before just made up the jaw joint, but now they are making up part of the ear bone. They are connecting up to it. On the bottom when you look at this, here is this stirrup shaped bone here which we would call the stirrup next to a bone marked by an "I", which is the anvil, and the bone next to it marked by an "M", which is the malleus, or hammer.

So malleus and the incus, or the hammer and the anvil, are actually the quadrate and the articular that used to be in the jaw joint, and now they are hooked up to the stapes here of the ear. They always were connected to the stapes, but now they are moved so that the hammer, or the articular, is now moved into the skull rather than being part of the lower jaw.

Now, Pandas says this is a very difficult transition to make, and yet we see it embryologically and we see this in the fossil record in the transition of the jaw joints. I think the next indication on the slide will give you a picture if I may, the next I think indication is the Pandas version of this, which identifies these bones as the incus and the states. The stapes as I have already shown is the stirrup. That's always been in the ear.

I'm not really sure why they call this a relocation as the incus and the stapes when it's been there when actually what is relocated is really the articular bone which used to be in the lower jaw and now is in part of the ear. So the anatomy here is a little bit confused, and I'm sure they didn't mean to do this purposely, but again if they get this wrong, how much else is wrong that we don't know about or that is not being shown to students or has not been obviously corrected in the second edition or in any subsequent work as far as I know?

I think the next slide shows where the stapes is in both things. That's just so you can see where the stapes is the comparable structures. They may look different. One is much more stirrup shaped than the other, which is more rod shaped, but they're the same bone. They hook up to the same structures.

Q. So again here the point that Pandas makes is that there cannot be and have not been natural processes that account for this evolution?

A. And this is just an example of the kind of argumentation that's made to try to say that these transitions are difficult to make and we have no evidence for them, but as I have shown and as you have seen there has been fossil evidence going back decades that show us animals with dual pairs of bones in the jaw joints which is perfect intermediate form. It's kind of like if you had a cup in this hand and you want to transfer it to this hand, well, you could go like that, just toss it from one to the other. But if you take it in both hands and then move it this way, but for a while you've got it in both hands. That's sort of what the mammal jaw was doing.

Q. Now, you've pointed out that what you have just testified about was well known 25 years before Pandas was written. I mean, that those articles were from the late 1960's. Are you familiar with qualifications or backgrounds of the authors of Pandas?

A. I know them as the authors of Pandas. I know very little else about them from firsthand experience.

Q. So that would be Dean Kenyon, Percival Davis, Nancy Pearcey, and Charles Thaxton. Have you ever encountered them at any meetings, paleobiology, evolutionary biology, seen any peer reviewed publications? What can you tell us about these authors?

A. I can say that none of those authors or the other people I know as consulting people on their masthead, I have never seen them at scientific meetings in my fields as far as I know. I've never known them to give papers at those meetings. I've never known them to publish in the peer reviewed literature of any of the fields related to evolutionary biology or paleontology if you want to go to specifics or anything else in related fields, and I haven't seen their work cited by scientists in those fields when discussing advances in science.

Q. Let me ask you the same question about two experts who will be testifying in the coming weeks for the school district. One is Michael Behe, and the other is professor Scott Minnick. Same question, are these folks who are recognized in the field?

A. Not in any of the fields in which I'm familiar, but it would hold they, like the authors of Pandas, may be qualified in other fields, but as far as I understand their experience, accomplishments in the fields related to evolutionary biology, I know of no particular work that they have done that would provide expertise.

Q. So you haven't seen any peer reviewed publications from these individuals involving evolutionary biology or paleontology?

A. Not in those fields, no. Although I don't doubt in their own fold they might produce perfectly good work.

Q. Let's take one, just more example of the evolution of mammals, and one that Pandas identifies as not being able to evolve naturally is whales, and I'm wondering if, you've prepared a demonstrative to show us how Pandas treats the whales and then explain what science knows about the evolutionary process?

A. I would like to discuss this a bit if I may have the next set of slides. In Pandas, here on page 101 and 102 --

Q. Could you read that passage?

A. The whole passage?

Q. Yes, please.

A. "The absence of unambiguous transitional fossils is illustrated by the fossil record of whales. The earliest forms of whales occur in the rocks of the Eocene age, dated some fifty million years ago, but little is known of their possible ancestors. By and large, Darwinists believe that whales evolved from a land mammal. The problem is that there are no clear transitional fossils linking land mammals to whales. If whales did have land dwelling ancestors it's reasonable to expect to find some transitional fossils."

Q. End quote?

A. End quote.

Q. And in fact what does the science show?

A. Well, some of the disturbing things about that quote is apparently that the evolution of whales is something that Darwinists believe, and again it's sort of a faith based proposition that seems to have no real evidence. The Pandas authors then go on to say that there are no clear transitional fossils. It raises the question of what they might accept as a transitional fossil, but what I'd like to show you is what some of the evidence is accepted by fossils in ways of making these transitions of features.

Again on the screen here you saw some peer reviewed publications from Nature, Science, and the Proceedings of the National Academy of Science of the US A.

Q. Could you just read a couple of the titles and journal articles into the record?

A.

A title here is Skeletons of Terrestrial Cetaceans, which are whales, and The Relationship of Whales to Artiodactyls, which are the hoofed mammals.

Q. And what publication is that from?

A. That comes from Nature I believe. Another article here from Science is called Origin of Whales From Early Artiodactyls, which again are the hoofed mammals, Hands and Feet of Eocene Protocedite, which is an early group of whales from Pakistan. Those are couple of examples.

Q. So now the testimony you're about to give about whales, does this come from this and other peer reviewed studies?

A. Yes. If I could have the next slide I can show you a bit about this. Once again we're going to use this hat rack cladogram relationship diagram, and again it's turned on its side so that you've got living cetacea, whales, on the bottom in blue. That group of whales and dolphins has a bunch of fossil relatives. The closest one are called basilosaurids. Outside them are protocetids, and there's a couple of forms from the Eocene called ambulocetis and pachycetis, and outside that are hippos, which are the closest living relatives of whales, and outside of that we've just listed some early Eocene artiodactyls, or hoofed mammals, from which we have recognized certain characteristics that are shared between hippos and whale, as odd as it might seem.

The skeletons you see there are some fossils from the Eocene of hoofed mammals, members of the group artiodachtyl, the ones with the even toes, and we just put them up there to show that we do have fossils of such things. The next slide gives you a sense of hippos, which no one needs any introduction to, so we'll pass to the next slide, which is a particularly interesting set of photographic views of a skull, or a partial skull and brain case of an animal called pachycetis, the critter in the yellow, well, orange or whatever that is, outlined term, that is again closer to whales of today than hippos and the other Eocene artiodachtyls are.

This is a another of some of the oldest whales which come from Pakistan, India, Egypt, that area of the world, which once was the edge of an ancient sea in the early part of the Tertiary period, fifty, sixty million years ago when all this was happening. The images on the right are photographs of one of the brain cases and skulls of pachycetis, and the reason for showing this is just to let you know, although I won't go into any detail, that what pachycetis shares with whales that live today are not that it has a blow hole or flukes or anything like that, but that it has an ear region with features that are only found in whales.

And by this we infer that they share a common ancestor with the first whales. That would be fairly tenuous evidence if we didn't have other evidence, but the next slide will show you that the evidence of this animal does not make it look a lot like a whale either. It's obviously a four-legged critter. It is happy running around on the ground. It looks like a garden variety quadruped, four-footed critter that runs around doing its business, whatever it does, and except for this funny ear region you might not really get a sense of its relationship to whales.

And so we note that they are quadrupedal, or four-legged, but the next slide shows you something interesting about them. That stop slide has now changed to just admit a little bit of the insights that we get from isotopes. These are isotopes of oxygen, and oxygen comes in different kind of molecular forms, and the percentage of those forms varies between terrestrial and aquatic horizons, environments, so that when we find bones that are made with oxygen elements that contain this isotopic signal, we can get an idea of whether these animals were primarily terrestrial or aquatic.

In the next slide there's a little indication on this slide there, you can see that the isotopes for pachycetis demonstrates that it falls in the fresh water marine kind of realm. So we think if this evidence is correct that this animal was spending at least part of its time in water, including brackish or marine water. So it's already getting out there somewhere, but it's still a quadrupedal critter.

The next slide I think is going to give you a sense of ambulocetis, which means walking whale. Again it still has legs, and as the restoration at the top shows it looks like it's perfectly okay getting around on land, but the next indication on this slide will show you that the limbs are large and paddle like. So the hands and the feet are clearly already being broadened and are apparently some use to the animal in getting around in the water, and these are actual skeletons again from the Eocene.

The next slide shows you protocetids, which are ancient whale relatives that are a little bit closer than the last one was to the whales of today, and protocetids are kind of interesting. If you, the next indication I think will show that the hips on these animals have been decoupled from the backbone. That is they are no longer connected to the spinal column.

Why this would be might be difficult to fathom, pardon the pun, except that these animals are probably using their backbone, moving it up and down the way whales swim in the water, and if you have your limbs encumbered to your backbone it's just going to be that much more difficult to do it. This may be part of the reason why the decoupling is there, and yet these animals, as you'll see from the next indication, still have skulls in which they're getting some increasingly whale-like characteristics, including the nostrils, which are beginning to move backward along the skull.

As you know, in whales the blow hole is right up close to the eyes. The next slide I think shows that even though these animals are quite aquatic and have a lot of whale features, they still have ankle bones that are very much like the ankle bones in the hoofed mammals from which they evolved, including ankles with a double pulley joint and a lever arm off the end.

Even though these animals are spending more and more time in water, they can still deal okay on lands. The next slide I think will show a basilosaurid, which is the next step toward living whales, and this is quite a different proposition. The next indication will show you where the nostrils are, they're moving even farther up along the skull, and the next indication shows you about the hind limb bones, which are again the next indication is a close-up of this, the hind limbs are now not just decoupled from the back bone, they've become extremely reduced.

But as you'll notice, right in the middle of that slide is that pulley shaped bone with a little hook off it. That is the ankle. And so the ankle is still like the ankle of a terrestrial animal, a hoofed mammal, from which they evolved, even though this animal couldn't any more walk on land than it could fly. So what we're seeing here is the progression of features more and more whale-like from animals that are terrestrial and conventional land going animals through some really minor features beginning in such odd regions as the ear, which you might not expect to be one of the first things that would change, all the way down to this, the final thing we have here is the living cetacean, which looks, you know, very much like the whales of today because they are the whales of today, and they've almost completely lost the hind limbs. So this is the situation as paleontologists know it in a kind of a, you know, very vague general nutshell.

Q. And this is completely contradictory to which Pandas has said?

A. Well, you look at the treatment that they've given us and that we've just seen, they've told us that there are no clear transitional fossils and that the fossil record of whales is a poster child for the absence of unambiguous transitional fossils, but we think the transition is pretty good.

Q. Now, most of these fossils that you have just pointed to were in fact discovered after the publication of Pandas in 1993?

A. Many of them were. Some of them were still around. Basilosaurids, the last, second to last guys I showed, have been known since the Civil War.

Q. Does the fact that Pandas suggests that there are no transitional fossils and kind of insert an intelligent designer as the cause because of that, what's the implication of finding new evidence where Pandas asserts a designer?

A. Well, again I think it sets a very confusing message to students as well as to everybody, the public included, that I don't know what you're supposed to think from this. Either there is no designer or the methods of intelligent design are very badly flawed, but in each case it confuses rather than advances the educational purpose.

Q. Well, does it also not show up a flaw in the logic of intelligent design, so the fact that we don't have transitional fossils today means the only other possibility is there must have been a designer, whereas in fact what we have no found is no, there are other possibilities we may actually find natural causes for?

A. And so the fallacy is that if we don't have enough evidence for evolution, we must therefore conclude that these things had a supernatural origin.

Q. What's homology? Last concept, Your Honor.

A. Homology is the central concept of comparative biology. It's the idea that allows you to compare structures in different animals, the kinds of structures that enable you to say that the bone you have here that we call a humerus is a humerus in a human, it's a humerus in a bat or a goat or a bird or a frog, and this is a very old concept. The notion of homology, the ability to compare comparable parts among organisms, goes back to the 1700's. Goethe was one of the first people who developed this concept in vertebrates as well as in plants because he was besides being the author of Faust and a great poet he was also a great morphologist.

He worked on plants and animals and was a great contributor to these ideas of morphology. Goethe, many of the other German scholars who worked with him, some of French scholars in days, and many of the scholars in Britain at this same time, contributed to this, including notably Sir Richard Owen, who was a little bit older than Darwin but really contemporary with him, but a complete anti-Darwinist in the sense of not accepting natural selection and not accepting the possibility of change from one species to the others in ways that Darwin and the evolutionists proposed.

What is so interesting about the presentation of homology by intelligent design advocates as with creation science, scientists and so on, is that they take a concept that isn't even evolutionary and they manage to completely destroy the fundamental basis on which it's built. Let's go back to the thinking of Richard Owen. In 1846 and 1848 a man who is Darwin's bitterest enemy, he is the only man that Darwin was ever said to have hated, so he's not exactly a big fan, these guys do not form a mutual admiration society, but Owen is a cosmic morphologist, he's the greatest paleontologist and comparative anatomist of his generation, and Owen said look, we have to be able to compare structures, and we can do it on a number of different criteria.

And he's not talking about evolution as saying look, this bone is a humerus because it connects to the same bones in all the animals we're looking at. Connects to the shoulder joint on the one hand, on the one arm, and it connects to the forearm bones on the other side, and that's the way we find it and that's how we can tell that this is a humerus, and this is the same in a goat.

So it's in the same position, that's the first thing. The second thing is it's made of the same stuff, it's bone, and this bone -- so it's not muscle or it's not glass, it's not anything else. It's made from the same stuff, and that's another way you can tell it's the same thing. Another criterion he used is that it develops in the same way. So for example it develops along the arm primordium and it's first beginning to be formed in cartilage and the cartilage is largely replaced by bone as the bone develops in its place.

So you have criteria of position, of what it's made of, and how it develops, and these are only a few of the criteria that people use. This is before people talk about evolution in connection to homology. Now, what Darwin did by publishing The Origin of Species, many more people accepted that organisms had common ancestors, that common ancestry explained the diversity of life. And now homology had a second dimension to it. That is that homology, the resemblances that Owen had talked about and many other morphologists had talked about, why were they similar? Because they were inherited from common ancestors. So common ancestry is not the rationale for homology. It's an explanation of the similarities that we see that is, that were actually established in pre-Darwinian terms by most classical scholars that we have.

Q. And so homology is a very well established concept within biology?

A. Yeah, and when I started by talking about how we classify things, how we make up these cladograms, we have to make sure that we're using homologous features, this is features that actually be compared and not just random features that aren't correlated to each other. Otherwise our classification systems would be invalid.

Q. And what you're talking about is something that's been established not just for a few years but for a really long time?

A. Hundreds of years.

Q. And what does Pandas do with homology?

A. It's really weird. If I can give you an example, this one here comes from their figure 5-2. This is their drawing of a dog, a wolf, and an animal called the Tasmanian wolf, which is considered by all scientists to be a marsupial and not a placental mammal. Marsupial are animals like possums and kangaroos and phalangers and koalas and wombats that are a quite a different branch from the placental mammals, humans, primates, bats, wolves, things like that.

The caption here seems to make very little of the similarity between the dog and the wolf and a lot of the supposed identity between the Tasmanian wolf on the bottom, which they say in the caption is allegedly only distantly related to it. If I could have the next slide, this is what they're talking about in making these comparisons.

Q. And now this is from page 29 of Pandas?

A. It is. It says, "Despite these close parallels, because the two animals, that is the Tasmanian wolf and the conventional wolf, differ in a few features, the standard approach is to classify them in widely different categories." So the wolf with the dog and Tasmanian wolf with the kangaroo as a marsupial. Okay, and they're saying if similarity is the basis for classification, what do we do when these similarities conflict?

The marsupial wolf is strikingly similar to the placental wolf in most features. Yet it's like the kangaroo in one significant feature, by which they mean the pouch. Upon which similarity do we build our classification scheme? Should we use the pouch or should we use everything else they're saying. So in other words, they're trying to say that the resemblances between the wolf and the dog are simply superficial, and that just because those other marsupials have pouches doesn't mean we should always classify them together.

I don't think there's ever been any doubt about this since marsupials were discovered. I don't think that there has been mass confusion about marsupials versus placentals. But the next slide I think I would, if I may I would like to show you how a morphologist would look at this question.

Q. I'm sorry, are those these photos taken from Pandas?

A. No. These are photos taken from literature.

Q. And are these reasonable depictions of what these animals look like?

A. Yes. I think as mug shots they're okay. The Tasmanian wolf, the last one died in a zoo in the 1930's. I don't think we know of any living population since then. The dogs and the North American wolf of course are still around. The Tasmanian wolf is a very strange animal. You can see its stripes, its funny ears, its snout and so forth, but superficial similarities as we have seen are not the basis on which we establish science. Let's take a look at next set of slides. What we've done here is to take actual skulls from our museum. Here's a dog and a wolf.

Q. And this is how scientists, real scientists would make these comparisons?

A. Oh, yeah, and in each case we have taken features of the jaws and teeth just to show you the comparability among them. I don't need to run through all the features. I just want you to take a look and see that on this slide the no's and the yes's and the numbers line up pretty well between the dog and the wolf. Do you want me to go through the similarities? Okay, it's close enough for government work.

Then the next one here is the North American wolf and the so-called Tasmanian wolf, and in these features again every one of them is opposite, where you get no's, you get yes's, the numbers are wrong, and the carnassial tooth we see in the wolf above is missing in the Tasmanian wolf. So in these features they're completely different.

Let's go to the next slide, just looking at it the front way, which was not shown in Pandas, but the dog and the wolf, just to show that they both have nasal bones that are narrow or pinched in shape, with three incisors. The next slide contrasts the wolf with the Tasmanian wolf. The Tasmanian wolf has wide nasals and it has four incisors, which you wouldn't see from the side shot that the Pandas authors showed.

The next slide shows you a few of these skulls from underneath. The Tasmanian wolf has holes in the roof of its mouth, or palatal holes, which are lacked by the dog and the North American wolf. And the next slide shows the jawbones of these animals which have an opposite number of molars and premolar teeth between the Tasmanian wolf, and the dog and wolf.

Also you'll see that Tasmanian wolf has a couple of structures at the back of the jaw which we call the reflected lamina. The term is not important, but it's just a significant feature that's not present in the dog and the wolf. Well, let's do our next comparison and look at the Tasmanian wolf as it relates to the kangaroo, which we know is a marsupial.

In all the features that we've been looking at so far the kangaroo and the Tasmanian wolf correspond exactly with one exception, which is that the kangaroo doesn't have three premolars, and it doesn't have three premolars because the front of its face is modified in a way that many plant eating animals are modified. They lose those front cheek teeth and they developed the very most front teeth in the skull into a cropping organism that they use to, a cropping organ that they use to crop grass and other plants. Except for that, the features of the two skulls correspond. The next one, if you like that here's the Tasmanian wolf against the possum, and although --

Q. That's another marsupial?

A. Another marsupial, yeah, our garden variety possum here, and although we saw that the kangaroo didn't have those first three premolars in front, the possum does. And the possum corresponds in all respects to those features in the Tasmanian wolf. Let's go a little bit further and look at then from the front. In each case all three, the kangaroo, the possum, and the Tasmanian wolf, have wide nasals. They have a different number of incisors, but they don't have three, except the kangaroo, which has very strange front incisors.

The next slide shows these three marsupials from the bottom. So I can just go back one, thank you. Shows these three skulls from the bottom. You can see that they all have palatal holes, holes in the roof of the mouth, which the dog and the wolf don't have. And the next slide I believe shows the jaws of these three animals, which everyone classifies as marsupials, which all have four molars, three premolars, except the kangaroo for reasons explained before, and they all have this reflected lamina in the back of the jaw.

So what are we to conclude from this? As the next slide shows -- oh, there are genetic similarities as well. I should mention that there have been several molecular studies that leave no doubt that marsupials are not just united by the pouch. They're even united by many molecular similarities that have nothing to do with the pouch as far as we can tell.

Q. Can you just read into the record the name of these articles and journals they're from?

A. Sure. One is from Molecular Phylogenetics and Evolution. Its title is, "Nuclear Gene Sequences Provide Evidence that a Monophyly of Australodelphian Marsupials" by which monophyly means that they all come from the same ancestors, the australodelphian marsupials means the guys that we know that are down there in Australia and some South American mammals.

Here's "An Analysis of Marsupial Interordinal Relationships," that means the relationships within the marsupials, "Based on 12-S RNA, TRN A Valine, 16-SR RNA, and Cytochrome B Sequences." So here are four different molecules essentially, and this is in the Journal of Mammalian Evolution.

Here's a paper from the Royal Society of London on mitochondrial genomes. Again these are DN A that comes out of the mitochondria of cells, on a bandicoot, a brush tailed possum, confirm the monophyly of australodelphian marsupials once again.

Q. Are these just a representative sample of the peer reviewed literature that's out there?

A. Yes.

Q. So there's many more than this?

A. Yes.

Q. So --

A. I think the next slide might give us an indication that in summary it's not just the pouch. It's all these similarities here that link the Tasmanian wolf to the other marsupials and exclude them from the placentals, and that probably should be brought out to students. I believe the next slide gives us an indication of --

Q. Well, let me just stop you there. So from what you have just explained to us, this homology is used to kind of systematically compare animals?

A. Yes. It's a method as I said that goes back to the 1700's, looking for unusual similarities, listing all of them, putting them all together, and seeing which array of features makes the most sense.

Q. And is this widely accepted in science?

A. Yes. As I noted before, it's the basis by which we can do classification. Those shared features that we use for classification would not be anywhere if we didn't use the concept of homology.

Q. And as we saw, Pandas seems to suggest that the classification and comparisons are arbitrary. How does Pandas use this misrepresentation of homology?

A. I think the next slide might give some indication of that. It seems quite clear from their text that they prefer the explanation of special creation over descent. The highlighted passages here from page 125 of Pandas ask if there is any alternative explanation. They say yes, another theory is that marsupials were all designed with these reproductive structures.

An intelligent designer they say might reasonably be expected to use a variety, if a limited variety, of design approaches to produce a single engineering solution. They say that even if we assume that an intelligent designer had a good reason for all these decisions, it doesn't follow that such reasons will be obvious to us. That's a perplexing statement, because it means that even though we have not been able to find a convincing pattern, and even though we do not know what the overarching plan is, we can still conclude that something was designed and could not have evolved.

They go on to say that, "These questions can nevertheless generate research in areas we might never investigate." I think as a scientist I'd be very concerned about how you can generate research questions when you have closed off an empirical avenue of, a very conventional empirical avenue of investigation, which is that these similarities are the result of common ancestry and provide no program for analyzing what intelligent design is, what the nature of the designer is, what the rules of design are by that designer, and this is I think classically a science stopper, especially when you tell students that these ideas should be considered but then you forbid discussion, you forbid questions.

Q. Now, it says in there that intelligent design should generate research. Are you aware of a significant body of scientific research on intelligent design?

A. Well, before I left I checked our electronic database in biology that's available through our library that surveys thousands of peer reviewed scientific journals, and I looked for intelligent design in the field of biology and all I could find were instances where humans had for example designed ergonomic chairs. And they wanted this to be intelligent design. Okay? But they didn't say anything about a creator or that these had evolved, and obviously we don't think chairs have evolved, we know that they are designed by humans.

Other instances referred to for example DN A splicing, where people are designing DNA if you will. They want to do it intelligently. Things like that, but I never saw a single instance where intelligent design had been used as a research program or even as a scientific concept. And similar studies made by other people have I believe turned up the same lack of stimulation of research in any scientific field.

Q. So we hear intelligent design proponents claim that some of their propositions are testable. How do you square that?

A. Well, they began by claiming that intelligent design should be considered on the same playing field with conventional science. They've had a couple of decades now to show that it should be. They don't seem terribly interested in producing reports, peer reviewed literature that will actually document that and change the scientific paradigm. So I'm not really sure what efforts they're trying to make to change the science.

Q. I guess what I'm asking about is that intelligent design makes claims that are testable, and those are claims that they have made about evolution.

A. I don't think any scientific society that's weighed in on this has accepted intelligent design as testable. Speaking for myself, I don't regard intelligent design as a testable idea scientifically. I regard it as a proposition of things that can't be tested scientifically but you recourse to when scientific explanations have failed. Parts of the things that are alleged to make up intelligent design or that are associated with it, such as irreducible complexity, may be a testable proposition, but let's take a look at that.

Irreducible complexity on its face is a simple statement about a machine or some kind of structure that has several parts. If you take away one of those parts, then it stops functioning. Well, any 8-year-old with a broken bicycle chain knows that he can't ride around anymore with a broken bicycle chain, if that part is broken it's not going to work. No one's got a Nobel prize for that proposition. This only makes sense in the context of intelligent design when irreducible complexity is invoked as a way to assert that no structure could have evolved by natural means.

Therefore, it is irreducibly complex. And as we've seen in cases where works like Pandas have asserted this, we've often found that there is evidence to the contrary that we can produce transitional sequences of things, or that the intelligent design advocates have simply left out a lot of the information probably because they do not accept it.

Q. So an essential component of the intelligent design argument is that evolution doesn't work?

A. That's correct.

Q. And they've given a number of examples involving the fossil record, involving your fields of expertise, whether it's no pre-Cambrian ancestors or the inability of fish to have evolved or birds to have evolved or we saw whales to have evolved, and in fact what has science done with all of the scientific predictions or those assertions where evolution doesn't work or that Pandas comes --

A. Well, they've been tested by the discovery of new evidence such as fossils, such as molecular evidence, such as new evidence in developmental biology, and in a great many cases we found that the proceeding difficulties or absences of evidence have disappeared. It's an important principle in philosophy that absence of evidence is not evidence of absence.

Q. But in fact the examples that Pandas has given to show that in fact evolution doesn't work have been refuted by the scientific community?

A. I believe that would be the interpretation of the scientific community, yes.

Q. And in fact the examples that Pandas has selected are only a very few of far more evidence that's out there supporting evolution?

A. Yes.

Q. And they haven't attacked those other bits of evidence?

A. No.

Q. But even those few bits of evidence that they have selected to argue that evolution doesn't work have largely been invalidated by empirical studies?

A. In many cases we would say that we've got a much better resolution to this. I certainly don't want to present we've solved every problem. Otherwise I'd have to go home and retire.

Q. We are going to try to get you home this weekend. Turn to the last slide we have here. Would you say intelligent design is a scientific proposition?

A. I don't think there's anything scientific about intelligent design. As I say, I think it's a sort of idea that you recur to when your scientific explanations fail.

Q. Do you think it's a religious proposition? And I direct your attention to page 122 of Pandas, and perhaps if you can read this passage into the record.

A. Well, this concerns me. They say, "For the design proponent, there is another explanation of the origin of analogous features and unrelated groups." They say, "For example, the skulls of marsupial wolves and of placental wolves are similar because one particular skull best suited the requirements of both organisms." We call this idea teleology. That is, they define this as organism that's designed for certain functions or purposes.

Now, when they say an organism is designed, that's maybe a statement, a static statement, it may be in the passive voice, but did someone design it. Again and again in Pandas they say that an intelligent designer has designed this for certain functions or purposes. This indeed is teleology, that things are there for, created for a certain end or purpose, and this is a philosophical and overtly religious notion that is absent from ideas of evolutionary biology.

Q. So teleology is not a scientific term?

A. No, not in the sense they're using it at all.

Q. Dr. Padian, you are familiar with the four-paragraph statement that the Dover school district is reading to students?

A. I've read it before.

Q. I'm not going to ask you to critique it paragraph by paragraph, other witnesses have done that. Let me just ask you, the Dover school district's response has been it's a one-minute statement, students don't have to stay in the classroom to listen to it, you know, what's the big deal? Why are we fighting this? Why are students harmed? Why is anybody harmed by reading this one-minute statement to the students?

A. Well, in my view, having educated students for thirty years, and so at a variety of levels from middle school up to graduate students my sense is that it's very difficult to constrain inquiry just by saying you're going to cut it off, and it's very difficult to say that if you just read a statement it's not going to harm anybody. It's quite clear from the evidence that's been given and from the fact that we're sitting here and by the situation that's developed in Dover, clear from news reports of people arguing with each other, parents arguing with other parents and teachers, teachers arguing with the school board, school board members arguing with each other and quitting, who knows how many bitter conversations have taken place in supermarket aisles and across telephone wires.

MR. MUISE: I'm going to object, Your Honor. This is going far down the road of speculation.

THE COURT: I'll overrule the objection to the extent that I'm not hearing anything that I haven't heard before, but why don't you interject a question at this point.

Q. So as a science educator, as somebody who has educated students for thirty years, why is this statement a problem?

A. It's clearly caused a great division in students, a great confusion. If some students are allowed to -- well, if students are required or allowed to hear a statement that is not read by their teacher, and unlike any other statement in the curriculum they may not ask questions about this and they may not discuss it further, this roping off of this kind of a statement means that it's to be treated differently.

It essentially ostracizes this area of study. It makes students confused, and they do ask questions. My students ask me questions about this kind of thing all the time. I don't think you can say that by cutting off inquiry you're going to stop people from asking questions. There are questions that intelligent design raises for students, and not just about science.

They are going to ask about if we have a situation where certain structures cannot evolve, that the natural processes that were perhaps created by a creator aren't sufficient to accomplish things, then what does this say about the perfection of the creation or the creator? What does this say about the ability of the creator to intervene in natural processes? If the creator can intervene, why doesn't he do so more often to relieve pain and suffering? And if this is a problem, of what good is prayer?

These concern me as someone who educates students in the science realm because they're not just asking questions about science. And if we close off inquiry to students and say that something cannot be anymore discussed in science, just accept it this way, or if we make religious propositions part of the science curriculum, then you cannot prevent them from being scrutinized in ways that are completely inappropriate in my view, in the purview of natural science, which never claims to answer such kinds of questions.

Q. And from your perspective as a scientist, what's the problem with this one-minute statement?

A. I think it makes people stupid. I think essentially it makes them ignorant. It confuses them unnecessarily about things that are well understood in science, about which there is no controversy, about ideas that have existed since the 1700's, about a broad body of scientific knowledge that's been developed over centuries by people with religious backgrounds and all walks of life, from all countries and faiths, on which everyone can understand.

I can do paleontology with people in Morocco, in Zimbabwe, in South Africa, in China, in India, any place around the world. I have co-authors in many countries around the world. We don't all share the same religious faith. We don't share the same philosophical outlook, but one thing is clear, and that is when we sit down at the table and do science, we put the rest of the stuff behind.

MR. ROTHSCHILD: I have no further questions.

THE COURT: Why don't we get started, we've only been at it about an hour. So we can get started with your cross, and then we'll take a break.

MR. MUISE: Thank you, Your Honor.

THE COURT: Why don't we try to break, Mr. Muise, in about fifteen minutes or so. That'll give you some time to get started.

CROSS EXAMINATION BY MR. MUISE:

Q. Good afternoon, Dr. Padian.

A. Mr. Muise.

Q. Sir, you just testified that you believe that this reading of this one-minute statement will clearly cause a great division in students?

A. Did I say those words exactly?

Q. I believe it was --

A. Something to that effect?

Q. -- something to that effect, is that correct?

A. Well, I don't know without looking at the transcript or what my exact words were.

Q. Is it similar to those words?

A. I think what I would say is it would cause great confusion among students.

Q. You've never interviewed any students, is that correct?

A. Ive talked to my own students. I have not talked to Dover students.

Q. None of the students who may have heard this statement?

A. Not the students that may have heard that statement.

Q. But it's your opinion that this would cause students to ask questions such as what good is prayer?

A. Yes.

Q. And why is there suffering?

A. Yes.

Q. From reading this one-minute statement?

A. Yes.

Q. And that's your expert opinion?

A. Well, it has a lot to do with it.

Q. Sir, you're not a microbiologist, correct?

A. No, sir.

Q. You're not an expert probability theory?

A. No, sir.

Q. As a paleontologist is it accurate to say that what you are doing is essentially reconstructing the life of the past by accumulating data concerning patterns and then trying to infer processes that account for the change of life through time? Would that be an accurate description?

A. That's a reasonably good statement.

Q. It's reasonably based on comparative evidence, is that correct?

A. Yes, sir.

Q. For example, you know what the function of the feathers of different shapes are in birds today, and you would look at those same structures in fossils animal and then infer that they were used for a similar purpose in the fossil animal? Is that the sort of reasoning you apply?

A. They might be, yes. That would be one line of evidence. There may be others.

Q. But that's the sort of reasoning that you apply as a paleontologist?

A. That's part of it, yes.

Q. And you heard a lot about feathers in hair-like features. With the case of hair-like feathers that cover the body or the whole body of fossils, you infer that they are de facto insulation, correct?

A. Yes.

Q. And they would have to be insulation because they wouldn't simply exist on the body and not have something to do with warming or cooling, is that fair?

A. And this is because they trap air.

Q. And you conclude that they're used for insulation based on what we know about hair and feathers today, correct?

A. Yes.

Q. And that's scientific reasoning?

A. That's part of it, unless we have evidence to the contrary from some other source.

Q. So paleontologists make reasoned inferences based on the comparative evidence? Is that correct?

A. We do our best.

Q. But not all reasoned inferences made by paleontologists are correct?

A. I certainly wouldn't claim that.

Q. For example, your dissertation advisor John Ostram at one point reasoned that there was an intermediate state for the first wing used for flying and, that stage involved the use of these wing-like features to chase down insects, and he called it the insect hypothesis, correct?

A. He suggested that as a hypothesis, that's correct.

Q. And that was based on his reasoned inference from the evidence?

A. Yes.

Q. Now, a few scientists had another reasoned inference based on that same evidence, correct?

A. Yeah.

Q. And that involved moving the prey catching function from the hands to the mouth and then they're relying on these wing-like features for balance and lift, is that correct?

A. Yes.

Q. So that seemed to work better, correct?

A. Yes, it surmounted a problem of balance.

Q. So you had scientists looking at the same evidence and drawing different reasoned conclusions?

A. Sequentially.

Q. Is the approach to paleontology similar to how scientists consider the structural similarity in embryology?

A. In what sense?

Q. The same sort of reasoned inferences from structural similarities.

A. Yes, with the difference that we can observe how individual embryos develop, but it's really hard to do that with fossils because you have a single specimen which is at one stage of death, and whereas in embryos of living animals we can do a lot of comparative work.

Q. The sort of comparative work that was done with the Heckle embryos, are you familiar with the Heckle embryos?

A. Somewhat. It's not exactly my field of the specialization history of science. I have a little familiarity with the case, yes.

Q. And those were drawings that had appeared in biology textbooks for many years?

A. Some versions of those drawings appeared in biology texts for many years, yes.

Q. And they were subsequently determined to be fraudulent, is that correct?

A. I don't know if I'd use the word fraudulent. I would say that they were certainly inaccurate. It's not clear to me that Heckle intended to show anything fraudulently, but as with the situation of the insect wing or the insect net hypothesis, when we get more evidence we get better answers, and John Ostram as soon as he heard the insect net hypothesis was, actually had a big problem with it surmounted by these guys in Arizona who very cleverly postulated what would happen with the upset of balance. He said the insect net hypothesis is dead. It did its job. And in the same way, when we get better drawings of embryos, if we know about them we'll try to use them.

Q. Now, with regard to those embryos, is it your understanding they were fudged in some respect? Because you said you don't want to use the word fraudulent because --

A. Yeah, I don't know the details, Mr. Muise. I'm not an embryologist.

Q. Thank you.

A. I haven't studied those, I'm sorry.

Q. Sir, Darwin was not the first to propose the concept of evolution, correct?

A. Correct.

Q. And I want to be clear on this. When we're using the term evolution in this sense, we're talking about changes over time. Life as changed over time. Is that accurate?

A. That's part of it. There's also in there common ancestry of all organisms, which is a separate consideration of evolution that comes and goes, yes.

Q. When we generally use the term evolution, you're saying common ancestry is similar to the general term of evolution?

A. Change through time is a good one for a general explanation of evolution to be more specific. Other individuals, including Darwin, have a more precise or different definition. Darwin's I believe for example is descent with modification.

Q. And that would be a reference to change over time?

A. Yes, sure.

Q. And I believe you testified he was preceded by others I believe it was by as much as two centuries?

A. Yes. Loc Buffon, many of the previous, Lamarck had a theory of evolution very different from his.

Q. But Darwin's evidence though persuaded people to accept evolution as an explanation for the diversification of life, is that correct?

A. It was, even though as noted before his book was about natural selection.

Q. And I believe as you have noted before, he used artificial selection as an analogy for natural selection, correct?

A. Yes, I did. Yes.

Q. And artificial selection is what for example a dog breeder would use to breed a variation of a particular dog, correct?

A. That's correct.

Q. So when Darwin was writing he was not talking about how major new adaptive changes took place. He was talking about how minor variations could be selected upon by natural forces, correct?

A. Because he wanted to get people to accept the baby steps, and then he would let the bigger ones take care of themselves.

Q. Right. You used that term baby steps in your report as well. That's what Darwin was taking about?

A. Relatively speaking, yes.

Q. And I believe you stated that he made only passing reference as to how new major adaptive types might emerge, is that correct?

A. That's correct.

Q. So Darwin's main concern in his writing was with the mechanism of natural selection?

A. That was what his book was about, that first book.

Q. Now, this mechanism of natural selection, isn't it true that it cannot be observed directly in the fossil record?

A. As I mentioned when Mr. Walczak asked me, there are two ways to look at natural selection. Darwin's view of looking at individuals replacing individuals in populations is at one level, but natural selection also figures very importantly in the evolution of adaptations, and if you know that the cause of adaptation is natural selection, which by definition it is, then you can watch adaptations emerging in the fossil record, then scientist would conclude from this that they are looking at natural selection doing this, and the way we tell it's natural selection rather than something that's random is that we're looking at functional improvement, the change of functions from one thing to the other with the emergence of new types of organisms and organs.

Q. Do you remember in your report you wrote a statement, "His main concern," referring to Darwin, "however was with a mechanism of natural selection, which cannot be observed directly in the fossil record."

A. In his sense, yes. But as of looking at individuals and telling this fossil clam was more fit than that fossil claim or how many offspring it left.

Q. Are you saying in his sense of natural selection that you can't observe that directly in the fossil record?

A. In his sense of natural selection it's very difficult.

Q. And I want to see if I'm following what your argument is. Is it the use of the demonstration of adaptation as a proxy for natural selection that you claim that you can observe it in the fossil record, is that correct?

A. Rather than a proxy I would say it's an effect of natural selection.

Q. I'm sorry, I didn't hear --

A. It's an effect of natural selection at the individual level, exactly what Darwin was talking about, but rather than seeing it at the individual level, we're seeing its effects in the wholesale transformation of lineages over time.

Q. Now, is it that these effects, what you're concluding, are the result of natural selection?

A. That is the standard interpretation of evolutionary biologists, because adaptation is defined as being produced by natural selection.

Q. Now, you're familiar with, I'm not sure if it's a term or a concept, of punctuated equilibrium?

A. Yes, sir.

Q. And did that pose a significant challenge to the theory of evolution?

A. No.

Q. Or did it not challenge the notion, which was the prevailing notion, that the pattern of evolution is slow and yet gradual?

A. That's an interesting question. When Darwin uses the word gradual, and we all accept that Darwin accepted gradual evolution, we have to remember that words meant different things in Darwin's time than they do today. The meanings of words have changed. So for example when Darwin was on the Beagle, fresh out of Cambridge, and he's traveling around the world for five years, and he goes to Chile in the course of collecting specimens on some of the days that he's off the boat, and he gets up in the mountains and he's around Concepcion, and at that time there's a violent earthquake that shakes the whole coastline.

It throws buildings down, ruins the city, hundreds of people are dead. The coastline is jacked up about twenty feet in some places, leaving putrefying sea creatures clinging to the rocks, Darwin in his journal describes this as a gradual change. If you told anyone in California that earthquakes are gradual, they'd think you ought to be taken out and shot. But in that, gradual means step-like, and when Darwin was talking about gradual change, he meant equally step-like as well as proceeding slowly and steadily.

So it's very difficult sometimes to interpret Darwin just by reading him through today's lenses. Punctual equilibrium is I think you're exactly right, is a different idea than there is really tiny, tiny, tiny changes that are constantly, constantly, constantly, constantly changing like this, but it amounts to the same thing, because punctuated equilibrium is a statement about how morphology in a lineage changes through time, and the empirical evidence that Niles Eldridge and Steve Gould, who proposed this in 1972, they proposed that for most of the time in the fossil record eight species, that is individuals of a particular species, not whole groups of marsupials or whole groups of whales, are going to remain static.

Rather, that within an individual lineage alone that there's not going to be this, that is gradual change toward from one point to point

A in a very slow and stately fashion, but rather that it's going to be pretty much business as usual, and then a fairly rapid change to another form that then becomes progressively more stable, and in the intervening years this indeed has been confirmed by a number of paleontological studies.

Q. I'll let you take a look at this for reference if you'd like. In your deposition you said, "Punctuated equilibrium challenge that notion that the prevailing pattern of evolution is slow and gradual. That's a huge challenge. It was regarded as such. In fact, it was regarded as a greater challenge than his proponent suggested."

A. That's right. It was regarded this way not because it challenged the paleontologists, they were happy with it, and one of the interesting things that Eldridge and Gould did when they proposed this is that they didn't say to the population biologists and the speciation biologists, they didn't say, you know, guys, look, you got the completely wrong model here. You've been thinking about this slow steady thing.

Instead what they said was we've been paying attention to the wrong model in evolution because Ernst Mayr in the 1940's and 50's proposed that actually probably what's happening is you have a whole big species range, and then there's this little population on the fringe in which evolution can evolve very -- I'm sorry, in which genes and the genetic constitution can evolve much more likely than it can through the whole range of population, and that here evolution may be very fast.

This may be where the new species comes in, and Eldridge and Gould said maybe now it's just coming back and taking over the ancestral range. They thought that the evolutionary biologist would be happy with this, the people that worked at the population levels and studied speciation. Instead they were apoplectic. They really didn't think that this was a mechanism. They just never had studied stasis before because, you know, if you are going to write a grant for research to study evolution, you say I want to study how things don't change, they'd think you were nuts.

And so no one had really looked at it this way. So they turned the whole study on its head, and that's pretty much how it led to decades of inquiry by different kinds of scientists about it, and we're still talking about what is making these populations states of static through time. It's a great, great question.

Q. So again just following up on this punctuated equilibrium question, and I think this is how you referenced it in your deposition, you said, "Basically scientists don't know whether it applies to 90 percent of the cases or 40 cases of the cases," but in either case whether you have a punctuated pattern or a gradual pattern you surmise that selection could still be working within those patterns," is that --

A. Yes.

Q. Basically summarizing what you had just described?

A. Selection is not excluded from working at any of those levels. It's just all this is a statement about what we'd say is morphology through time really.

Q. And again you cannot observe the selective process in the fossil record, you observe what you believe to be its effects in that first selection?

A. And in the case of punctuation --

Q. Is that yes? I'm not sure --

A. Yes, I'm sorry, it is a yes, but in the case of punctuation where morphology is static, population biologists, population geneticists have said that the reason that these morphologies stay stable in time is exactly because of selection, and the term they use is a certain kind of selection which is called stabilizing selection. It's a form of natural selection that weeds out the extremes that are produced in a population and canalizes the middle. So as far as population biologists were concerned, and it surprised me, they felt that they could see population processes, individual and individual, in these fossil sequences. Now, whether that's the case is not for me so say.

Q. Is natural selection responsible for punctuated equilibrium?

A. That's a great question. We're not really sure what happens in the transition, and as I said even in keeping a morphology static, that can be a kind of selection that we know very well from populations occurring today.

MR. MUISE: This may be a good time to take a break, Your Honor.

THE COURT: All right, then why don't we do that. We'll break for fifteen minutes, take our afternoon recess, and we'll return with continued cross examination by Mr. Muise after that.

(Recess taken at 2:33 p.m. Trial proceedings resumed at 2:55 p.m.)