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.
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.
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