YOU KNOW YOUR CROSS-EXAMINATION WAS EFFECTIVE WHEN . . .

The Judge Takes Over – Part 2 of Cross-Examination in the Evolution and Creationism Trials

This is the second discussion of the Dover trial in which the parents of children in the Dover, Pennsylvania school district sued to prevent the school board from introducing creationism into the curriculum under the guise of intelligent design. For Part One, click here. A comprehensive account of the Dover case was written by journalist Lauri Lebo in The Devil in Dover: An Insider’s Story of Dogma v. Darwin in Small Town America (The New Press 2008). The first post on the Dover case noted that like the Scopes trial, which by contrast involved the prosecution of a football coach for teaching evolution, the pivotal points were effective examinations of adverse witnesses. In the Scopes trial, it was Clarence Darrow’s examination of adverse witness William Jennings Bryan, and in the Dover bench trial, they were the cross-examinations of the board members.

Plaintiffs’ attorney Steve Harvey cross-examined board member Alan Bonsell about a donation of sixty copies of Pandas and People, an intelligent design text, to the school district. Prior to cross-examining Bonsell, Harvey had established the chain of events that led to the receipt of the books by the district. A fellow board member Bill Buckingham had solicited $850 from his church congregation, which he then put in his bank account. Buckingham then cut a check for that amount to Alan Bonsell’s father who then anonymously donated the books to the school district.

In his concession-seeking cross, Harvey began by having Bonsell admit that when asked about the donation of the books during his deposition, he never revealed he had received the check from Buckingham. Harvey read from the deposition Bonsell’s initial denials that he knew who donated and eventually his admission that his father had donated the books. And then Harvey extracted the admission from Bonsell that during the deposition he never mentioned anything about Buckingham giving him the $850 check.

You know your cross is effective when the judge takes over and skewers the witness. Journalist Lebo provides the full description of Judge Jones’ undressing Buckingham. Here is a taste of the Judge’s examination in a few excerpts from the book:

"As Jones listened, his expression grew darker. At the conclusion of the day’s testimony, he said he had a few questions of his own. He demanded to see the transcripts of Bonsell’s deposition. Harvey offered to provide a clean copy – his version was marked up with notes – later in chambers. 'I want it now, if you have it,' Jones said. 'Hand it up.'

". . . Finally, Jones looked up. 'When did you first become aware of the fact that your father was in possession of the $850 that was being donated to buy Of Pandas and People?' Jones asked.
'Well, Mr. Buckingham gave the check to me to pass to my father. He said this was money that he collected for donations to the book. So I gave it to him,' Bonsell said.
". . . Jones persisted. 'The specific question was asked to you, sir: You have never spoken to anyone-anybody else who was involved with the donation? And your answer was, I don’t know the other people. That didn’t say, who donated? That said, who was involved with the donation?' Jones said, 'Now you tell me why you didn’t say, Mr. Buckingham’s name.'
". . . By the time he (Judge Jones) was done with him, Bonsell was flapping his hands and stammering."

This interrogation was not the end for the judge. Lebo reports:

"Jones was under no delusion that no one had ever before lied in his courtroom. But there was a brazenness to what he had witnessed. He couldn’t ignore what Buckingham and Bonsell had done, he said. After he grilled Bonsell, Jones gathered copies of school board member’s depositions and court transcripts. He sent the information down to the federal courthouse’s second floor to the U.S. Attorney’s office with the recommendation that it investigate Dover’s school board members for perjury."

The Dover case illustrates how an effective concession-seeking cross in a bench trial can so reveal a witness’s exaggeration and misrepresentation that the judge feels compelled to make sure the truth will out and justice will be done.

CROSS-EXAMINATIONS IN THE EVOLUTION AND CREATIONISM TRIALS

The Scopes and Dover Trials

Cross-examination Handbook delves into the Scopes trial, focusing on Clarence Darrow’s examination of adverse witness William Jennings Bryan utilizing the reduction-to-the-absurd technique to defeat him. And, some say that the ordeal contributed to Bryan’s death five days after the trial.

While the 1925 Scopes trial involved the prosecution of a football coach for teaching evolution in violation of a Tennessee statute, a converse case alleging that elected school board members were trying to force religion, called intelligent design, into the school’s curriculum was filed in 2004. Kitzmiller et al. v. Dover Area School District, was brought by 11 parents of children in Dover, Pennsylvania, and cross-examinations of the school board members were the crowning jewels in the plaintiffs’ case. The full story of the Dover case is chronicled by journalist Lauri Lebo in The Devil in Dover: An Insider’s Story of Dogma v. Darwin in Small-Town America (New York Press 2008).

Depositions of the school board members served as the building blocks for plaintiffs’ counsel’s cross for it was during the depositions that they unexpectedly prevaricated. During board meetings, the members, particularly Alan Bonsell and Bill Buckingham, had publicly stated their concern that the biology curriculum contradicted fundamental religious beliefs and their desire to introduce creationism into the classroom. Their public statements had been recorded and reported in the news.

Through concession-seeking questioning, plaintiffs’ lawyers set out during the depositions to confirm the board member’s creationist remarks. They planned to use the concessions to get a temporary restraining order based on the United States Supreme Court decision of Lemon v. Kurtzman that prohibited the teaching of creationism in the public schools. But, the board members decided to either claim they didn’t remember or to deny that the subject of creationism came up at board meetings. The recordings of the board meetings were conveniently erased. Eventually the journalists who reported on the meetings testified at the trial that the board members had indeed discussed creationism.

During board member Buckingham’s deposition, he repeatedly swore that he did not know anything about an anonymous donation of sixty copies of Pandas and People, an intelligent design text, to the school district. This set up plaintiffs’ attorney Steve Harvey’s cross-examination of Buckingham at trial. Harvey produced Buckingham’s $850 check made out to the father of fellow board member Alan Bonsell’s and on the subject line of the check was written “Pandas and People books.” Alan Bonsell channeled the books through his father to the school district.

Having caught the witness’s lie with the check, Buckingham admitted he convinced his church congregation to contribute the money, which he then put in his bank account. Harvey then read Buckingham’s deposition in which he repeatedly claimed he didn’t know where the books came from. Journalist Lauri Lebo gives this account of what happened next.

As Harvey read his words back to him, Buckingham fidgeted. His cane kept getting stuck in a crack in the witness stand. Buckingham found it distracting. But everyone else in the courtroom seemed focused on the one point Harvey was driving home. Buckingham tried to hide the source of the money because it revealed his religious motivations.

Finally, Harvey stopped reading and glared. “Mr. Buckingham, you lied to me . . . isn’t that true?”
“How so?” Buckingham said.
“By not telling me you took a collection,” Harvey said.
“I did not take a collection,” Buckingham said.

Shortly after that Judge Jones, whom the journalist describes as having “his jaw clenched” stopped the line of questioning stating, “. . . you’ve made the point very effectively . . .”

Harvey’s cross was persuasive; it told the plaintiffs’ story that the board members were trying to introduce creationism, disguised as intelligent design, into the public schools and were willing to go to great lengths, including lying, to conceal their motivations. Beyond that, as will be discussed in a part 2 discussion of the Dover case, the cross drove Judge Jones to take extraordinary measures. Just as Darrow’s examination of Bryan in the Scopes trial was a key to the outcome, so too were plaintiffs’ counsel’s examinations of board members important to the outcome of the Dover trial.