“Darwin’s Dilemma” Case: Blood in the Water?

THIS is another update to what we’ve been calling the “Darwin’s Dilemma Exhibition Case.” The next few indented paragraphs provide background information, which most of you can skip:

A lawsuit filed by the American Freedom Alliance (AFA) charges that the California Science Center (CSC) violated both the First Amendment and a contract to rent its theater when it canceled a screening of Darwin’s Dilemma. The AFA is an outfit promoting “the controversy” about evolution — in the interest of what they call “academic freedom.” The film they wanted to show includes appearances by Richard von Sternberg, Jonathan Wells, and Stephen Meyer, all “senior fellows” with the Discovery Institute, discussing that the Cambrian “explosion” is evidence of intelligent design.

The theater owner getting sued is the California Science Center, which canceled a contract for showing the film, alleging that a Discoveroid press release (which the Science Center hadn’t approved) violated a contract clause requiring their prior approval of all promotional materials. Technically, although two Discoveroid “senior fellows” were scheduled to conduct a discussion session after the showing of the film, the Discovery Institute wasn’t a party to the exhibition agreement.

Thus there’s an issue as to whether the unauthorized publicity sent out by the Discovery Institute gave the Science Center grounds to cancel the contract. It’s also an issue whether the Discovery Institute was working so closely with the AFA (the plaintiff) that their unauthorized publicity notices were issued with the AFA’s knowledge and tacit consent, breaching the contract.

The AFA alleges that the contract violation was a “false pretext” for cancellation of the exhibition contract. It’s really discrimination and a violation of the First Amendment, thus a violation of the AFA’s constitutional rights. The Science Center thinks this is a contract case; the AFA is treating it as a civil rights case.

The National Center for Science Education (NCSE) has all the court pleadings available online. See: American Freedom Alliance v. California Science Center et al.

Our last post on this topic was the 03 Sep ’10 Update, in which we discussed that the plaintiff has filed a Third Amended Complaint. It’s archived at the NCSE site here: Third Amended Complaint.

The news since then is that three new pleadings have been filed, and they can be seen at the NCSE site. The Science Center filed its Demurrer to Third Amended Complaint. It’s technical and not particularly interesting, but we note that it’s filed by the California Attorney General’s office, which indicates the governmental status of the California Science Center. That may be important as the case progresses, because the state shouldn’t be in the business of promoting religion. On the other hand, the creationists are screaming that the state can’t engage in “viewpoint discrimination.”

The most interesting pleading filed recently is the one where the Discovery Institute asserts Attorney-Client Privilege. The guts of that is this Affidavit of Bruce Chapman, president of the Discovery Institute. It’s worth reading in order to understand the rest of what we’re saying here.

Basically, Chapman claims that Becker, the plaintiff’s lawyer, has been working closely with the Discoveroids since April of 2009 (before this case began), mostly with Casey Luskin. Further, Chapman says he has always regarded Becker as a lawyer for the Discoveroids, so everything Becker knows about them — including communications about the California Science Center matter — is protected from discovery by the “attorney client privilege.”

What’s that all about? Here, dear reader, we must caution you that we’re guessing, but we’ll suppress our wilder speculations. Your Curmudgeon has standards, and it would be inappropriate to go beyond what we think is a reasonable interpretation of the pleadings. See what you make of it.

Back in May, the Science Center filed a motion to compel further production of documents from Plaintiff. They were asking for the production of communications between Becker and the Discoveroids, and they were claiming that the plaintiff (AFA) was improperly invoking the attorney-client privilege to shield communications with a critical witness (Becker). In an attached memorandum, they say that the outcome of certain issues depends on the relationship between the AFA and the Discoveroids.

It seems obvious to us that the Science Center has, from the beginning, suspected a close working relationship between the Discoveroids and the AFA — so close that the Discoveroids’ allegedly independent publicity notices were actually sent out with the knowledge and approval of AFA, thus breaching the contract and justifying the Science Center’s cancellation of the movie showing. [Addendum: Some of that is spelled out on page 5 of the Science Center’s pleading of 29 April, in which they mention some email between AFA and the Discoveroids about the Discoveroids’ publicity notices. The email is copied starting at page 19.]

Unless such a close working relationship can be established, the publicity notices sent out by the Discoveroids — who weren’t a party to the movie exhibition contract — didn’t cause a breach of contract. It appears to us that the Science Center suspects Becker — the lawyer who is suing them — is the witness they need to establish that relationship. They think his correspondence, email, etc. will provide evidence that the Discoveroids’ publicity notices were coordinated with the AFA.

If those suspicions are true, Becker is an absolutely key witness. But he won’t turn over his evidence because — it’s being claimed — that evidence is protected by his attorney-client relationship with the Discoveroids. That’s what Chapman’s affidavit is all about.

So here it is in a nutshell: Becker is suing the Science Center, which needs Becker’s evidence to defend against Becker’s lawsuit, and Becker says he won’t supply the evidence because of Becker’s alleged professional relationship with the Discoveroids, and the Discoveroids want Becker’s lawsuit to be successful. Tricky business, isn’t it?

Can a lawyer function as an advocate and also be a witness in the same case? Usually not, unless his evidence is about a purely custodial or clerical matter (for example, he may have witnessed a will). Otherwise it’s highly unusual and probably unethical for the lawyer representing one of the parties in a lawsuit to also be a witness in that case — for either side.

Beyond that, it seems like an ethical nightmare if a lawyer has evidence that would be harmful to his client’s case and he refuses to divulge it. Nevertheless, we suspect that’s the potential scenario lurking beneath all the legalese in these recent pleadings.

We’ve already said that we don’t know the facts, and therefore our suspicions may be all wrong. But the Science Center is trying to investigate the possibility of a close relationship between the Discoveroids and the AFA that supports their claim of a breach of contract. The Discoveroids (for some reason) are now saying that everything Becker knows about that is privileged and can’t be disclosed. Thus Chapman’s affidavit.

The key to everything here is the Becker-Luskin connection. If we’re correct in our suspicions, this situation could develop into a massive slime-fest. This might be more fun and more revealing of creationist ethics than even the Kitzmiller case.

Will Becker be compelled to turn over his communications, or will the judge let him keep his secrets and proceed with the case? In other words, can Becker maintain what may be a cover-up, hiding behind the attorney-client privilege? It’s ironic, considering how Casey recently crowed about a separate Discoveroid suit against the Science Center to obtain their emails — which AFA’s latest complaint now alleges reveal the Science Center’s “viewpoint discrimination.” Casey’s Discoveroid post bragging about that is here.

This case is starting to look far more interesting than a simple breach of contract. The California Attorney General’s office (they’re representing the Science Center) probably have a good idea what’s going on, and they’re likely to pursue their efforts to obtain evidence of the Becker-Luskin connection.

Your humble Curmudgeon is only reading the pleadings and trying to make sense of it all, so at this stage your guess is as good as ours. It may be that Becker is an entirely honorable man, trying to fulfill his ethical duties to two different clients in an awkward seeming but innocent situation. Yes, that may very well be how it works out — but we smell blood in the water.

Update: See Discovery Institute: “Darwin’s Dilemma” and VD.

Copyright © 2010. The Sensuous Curmudgeon. All rights reserved.

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15 responses to ““Darwin’s Dilemma” Case: Blood in the Water?

  1. Becker can submit the documents for the judge to review in camera, and if the judge determines the documents have no probative value, he can deny the demand for their production, and the attorney client privilege remains intact.

    OTOH, if the judge agrees the documents sought have probative value, he can order production AND order Becker to relinquish the case to another attorney, since Becker then becomes a fact witness.

    Basically, it sounds like Becker wants to use the old Mafia lawyer trick: after acting on behalf of his clients in aiding and abetting their actions, he then tries to use their attorney -client privilege to shield the evidence of mischief from the court’s eyes —

    “Did I hire the hit-man who killed the witness against my client in his murder trial? Pshaw! I won’t dignify that question with a response, and all my phone records of calls to the hitman’s phone and my client’s phone are privileged communications….”

  2. Longie says:

    Becker can submit the documents for the judge to review …

    That’s probably how this will play out. For that purpose it’s essential that nothing be withheld — and certainly that nothing be destroyed. That’s where trouble can lurk.

  3. I smell some unenthusiastic, lackluster, and possibly insincere/incomplete document production in the offing.

    When DI and the attorney start screaming “privilege” — after the initial pleading that DI wasn’t involved with AFA — there’s a good chance you’re getting close to something they don’t want the public to know about.

  4. Being not quite so humble, the two emails I read between the AFA and the Disco Tute (Crowther, I believe) went along these lines:

    Disco: Hope the contract is solid ’cause when the PR goes out the merde is going to hit la fan.

    AFA: Solid as a rock, Crow baby, send out the PR.

    As we knew from the beginning this entire movie thing was an act of provocation. They were hoping to get caught. Flaming bag of poop on the doorstep, ring the bell and run. Then claim Freedom of Speech when caught.

    The DI knew that mentioning the Smithsonian in the PR would be a huge red flag. That’s why they did it. What they expected was an outcry from the Darwinists and lots of ballyhoo.

    What they didn’t expect was getting kicked out of the theater. The link between the AFA and the Disco Tute is solid. Can’t deny that one. They also knew that the CSC would never approve such an inaccurately worded press release as the DI issued, which is why they did it anyway.

    IANAL, however, my considered opinion is that it doesn’t matter if the CSC had internal emails calling the Tuters flaming creationist morons. That’s irrelevant. The note from the AFA to the Disco Tute authorizing them to issue the PR is the smoking gun and the only thing the CSC needed to break the contract.

    It’s also quite ironic that the DI filed a Freedom of Information claim for CSC internal emails because “they had something to hide” and then Crowther runs away crying like a little girl screaming, “Attorney client privilege! Boo hoo!”

  5. Doc Bill says:

    Being not quite so humble, the two emails I read between the AFA and the Disco Tute (Crowther, I believe) went along these lines …

    Do you have a link to that material? We’re playing with a lawyer’s reputation here, so I’d rather that we posted only verifiable information. If you don’t have a link, or something else that justifies what you’ve said, I might have to edit your comment to indicate that it’s speculation only.

  6. The e-mails to which Doc Bill refers are likely incorporated within the defendants’ opposition to plaintiffs’ motion for order granting leave to file second amended complaint, as housed at the NCSE archive. There are several e-mails between the ASA and the DI contained therein.

  7. You are correct, rubble. My caution was unjustified. Thanks for the information.

  8. Interesting development. I had always figured some level of collusion. The DI likes these “heads I win, tails you lose” situations. If they couldn’t bask in the reflected glow of the Smithsonian, they could at least throw a righteous temper tantrum about discrimination.

    The choice of the CSC makes more sense now, since Luskin is a member of the California Bar. But, I still figured that they would be smart enough to not commit any communications to writing.

  9. carlsonjok says: “Interesting development.”

    It’s really interesting if you read Chapman’s affidavit to see how thin the evidence is that Becker was acting as a Discoveroid attorney. It looks like he wasn’t paid (except by getting access to their archives — a priceless treasure) and there’s no mention of any retainer agreement. The judge should have some fun with this.

  10. Doc Bill says: “the two emails I read between the AFA and the Disco Tute”

    I added an addendum to the post with a link to the email you mentioned.

  11. Your caution is justified! Trust, but verify. Remember that?

    (I trust you, honey, to go out with the “girls” every Friday night, but I hired a PI to follow you around so we can make a scrapbook and share the memories.)

    I tend to follow this stuff closely, but I don’t keep a history or links to where I’ve been. That’s why I tried to make it clear it was my recollection. Mind like a steel sieve, you know. For example, I read all the appendices from the official investigation of the Sternberg Affair where I “discovered” that it wasn’t the first time Sternberg had published creationism under the radar. He was told never to do that again. It’s one email, but pesky to find.

  12. Having just re-read the emails between the AFA and the DI, I don’t see how the AFA will get around the plain evidence.

    The AFA sent copies of their PR’s to the Disco Tute.
    The AFA knew, because the DI told them, that the DI was going to issue their own PR’s advertising the event.
    The AFA was clearly working closely with the DI to publicize the event.
    The AFA even knew the DI was going to invoke the name of the Smithsonian, because the DI told them!
    The AFA also knew, but blew it off, that the contract with the CSC required the AFA to run all PR’s through the CSC for approval.
    In no instance did the AFA say to the DI, “Hey, guys, we should run this stuff by the CSC.”

    Whether deliberately or by accident the AFA violated the terms of the contract with the CSC. How else can the DI spin it?

    Regardless, to paraphrase Crowther, it’s going to be fun to watch.

  13. I suspect that a lot of the bluster and blather from Luskin about how the contractual matter is just a ruse or excuse for “discrimination” stems from the likely fact that the AFA and the DI were in it together.

    When have the DI not had its slimy fingers in a public attempt to rubbish science, and when has it not sought deniability for same? Why was the AFA even involved, when the rot in Darwin’s Dilemma comes primarily from DI “fellows”? Deniability seems to be the only plausible reason, and if the correspondence is released, dang, the deniability (probably) goes away.

    If that isn’t blood from this matter that we smell in the water, it must be blood from all of the other sleazy acts that the DI pulled. I’m betting that we’re mostly smelling fresher blood.

  14. Becker and Luskin seem to be asking for the Judge to let them have it both ways in their favor. I don’t think the Judge is going to let them have that way. Too bad the DI/AFA don’t get their ass counter sued. Their attacks on science education and their bold face lies continue to grow day by day.

  15. Dover wasn’t enough. They still haven’t learned the lesson. You can’t tell one story in court and another somewhere else and not get caught.

    But they want to tell scientists that we are doing it wrong.