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From the September, 2005 issue of Touchstone


Darwin Takes the Fifth by Edward Sisson

Darwin Takes the Fifth

What Really Happened at the Kansas Evolution Hearings

by Edward Sisson

Last May, I had the pleasure of participating in the Kansas State Board of Education’s “evolution” hearings. Readers may recall that I contributed an essay, “Darwin or Lose,” to the “Darwin’s Last Stand?” issue (July/August 2004), in which I discussed how the use of courtroom-style litigation tactics by spokesmen for “mainstream science” has deformed the scientific debate over the origin of life and its diversification into the vast array of different species we see today. The hearings gave me an opportunity to see first-hand the use of such tactics.

High-Profile Hearings

The teaching of evolution became a high-profile issue in Kansas in 1999, when the board removed evolution from the curriculum. Later, a new majority on the board voted to put evolution back into the curriculum, and now another new majority is considering including in the curriculum scientific criticisms of evolution.

The board organized the hearings to take testimony for and against the scientific validity of two assertions: (1) that natural chemical processes alone are the cause of the origination of life (“chemical evolution”), and (2) that Darwinian “natural selection” alone, without any intelligent guidance or control, is the cause of the subsequent diversification of forms of life.

It scheduled six days of testimony—three for the challengers to evolution, followed by three for its defenders. No objections would be allowed to interrupt the testimony, and each person who spoke would be subject to cross-examination by counsel for the other side. Following cross-examination, the three members of the board conducting the hearings would ask questions.

Two of the individuals most responsible for the hearings, Bill Harris and John Calvert, offered 23 witnesses to testify over their three days, challenging the scientific basis for chemical evolution and natural selection. Harris, professor of medicine at the University of Missouri/Kansas City, and Calvert, a lawyer, are the co-founders of the nonprofit Intelligent Design Network, a group that provides scientific and legal resources to state and local education agencies in support of the teaching of problems with the theory of evolution.

The witnesses included seventeen Ph.D.’s: Ten university science professors (including Harris), five other science Ph.D.’s who have published books on evolution and intelligent design, and two university philosophy professors. The other six witnesses were two masters’ degree holders, three high-school biology teachers, and Calvert himself, who would provide the legal argument for why it is lawful to teach criticisms of chemical evolution and natural selection.

Mainstream Boycott

Harris and Calvert asked me to help prepare their witnesses for cross-examination, and to prepare to cross-examine the opposition witnesses, but when the board scheduled the hearings, an advocacy group called Kansas Citizens for Science (KCFS) promptly called for a boycott. A nonprofit whose directors include scientists and laypersons, KCFS had been prominent in opposing the board’s 1999 decision to remove evolution from the curriculum. “Scientific merit is not established through public discourse and debate,” their resolution stated, “but rather, internally, through a consensus of those with the specialized background necessary to make such judgment.”

A KCFS executive, Liz Craig, posted on the group’s website that her “strategy at this point is . . . [to] portray [critics of natural selection] in the harshest light possible, as political opportunists, evangelical activists, ignoramuses, breakers of rules, unprincipled bullies, etc.” She added, “Our target is the moderates who are not that well educated about the issues, most of whom probably are theistic evolutionists.”

One of the leading institutions of mainstream science, the American Association for the Advancement of Science (AAAS), issued a press release announcing that it, too, would boycott the hearings, because “the event is likely to sow confusion rather than understanding among the public.”

Calling the hearings an “event” disparaged the hearings as serious attempts to explore the questions at hand, and saying the testimony would “sow confusion rather than understanding” insulted the witnesses, particularly the ten university science professors, whose universities presumably engaged them to teach science precisely because of their proven ability to sow understanding, not confusion, among their students.

The releases worked, and the boycott held. However, a well-known Topeka trial lawyer, Pedro Irigonegaray, appeared and announced that he would cross-examine our witnesses and speak for the defense.

He had had some involvement with evolution and intelligent design several years earlier, moderating a panel discussion. But it was never clear whom he represented. A KCFS executive, Jack Krebs, closely and publicly assisted him throughout the hearings, but he never acknowledged representing KCFS or any other person or organization. “Mainstream science” was his client, he announced.

The Hearings

I sat beside Harris and Calvert at counsel table throughout the hearings. As they began, the press filled the hearing room, an auditorium with a small stage. Reporters from many national news organizations were present. Video camera tripods lined both aisles, making it difficult to get to the stage, where the two counsel tables were located.

Calvert conducted the direct examination. Our witnesses included some of the major figures in the current challenges to chemical evolution and natural selection.

Michael Behe, a biochemist at Lehigh University and author of Darwin’s Black Box, explained “irreducible complexity” and the statistical improbability of natural selection as the cause of life’s diversity. Charles Thaxton, co-author of The Mystery of Life’s Origin, testified to the impossibility of life arising from non-life solely through chemical processes.

Steven Meyer, one of the editors of Darwinism, Design, and Public Education, explained the theory of intelligent design and some of the evidence for it. The author of Icons of Evolution, Jonathan Wells, described the falsified “evidence” for natural selection presented in high-school biology textbooks. At the conclusion, Calvert spoke, providing a legal argument for the constitutionality of teaching the scientific evidence our witnesses had just provided.

KCFS mounted an extensive public relations campaign aimed at the press—indeed, the group was everywhere, except at the witness stand itself, where I would have had the opportunity to question them. And it had some indication of what my line of questioning would be, had they presented witnesses. On the morning of the second day, from my seat at counsel table, I saw a copy of the “Darwin’s Last Stand?” issue lying face up on Irigonegaray’s table.

Instead of presenting witnesses, KCFS presented public relations. They held several press conferences and related events, and manned a booth outside the hearing room with handouts characterizing the hearings as an “attack on scientists,” describing our side as “anti-science activists,” condemning Intelligent Design as a pseudo-science, and (in an outreach to the “theistic evolutionists” of KCFS’s website post) arguing that evolution does not deny the role of a divine creator in the creation and development of life.

Ad Hominem Examination

As a result of the boycott, my role of cross-examining the other side’s witnesses was reduced to preparing to cross-examine Irigonegaray. But my other role remained: to help Harris and Calvert prepare their witnesses for Irigonegaray’s cross-examinations. In light of the KCFS strategy to portray our side as “evangelical activists,” we expected the cross-examinations would be implicit ad hominem attacks.

Irigonegaray confirmed our expectations. He directed his questions not to the substance of the witnesses’ testimony, but to their beliefs on other matters, in an attempt to paint each witness as an “evangelical activist” and “ignoramus.” Invariably his first three questions were: “What is the age of the earth?”, “Do you believe in common descent?”, and “Do you believe that humans are descended from pre-hominids?” He also cross-examined Calvert on his legal argument. But he did not direct his questions to the merits of the witnesses’ scientific testimony.

On the fourth day of the hearings, Irigonegaray took the podium and presented what he labeled a “closing argument.” This amounted to a two-hour diatribe focused on two points. First, he denied that evolution, as taught in the schools, postulates that no intelligence is necessary to account for the diversity and complexity of life. In this, he was appealing to KCFS’s “target[,] the moderates who are not that well educated about the issues, most of whom are probably theistic evolutionists.”

Second, he denounced the members of the board and Calvert as being motivated by political interests and for wasting taxpayer money. In this, he was applying KCFS’s “strategy [to] portray them in the harshest light possible, as political opportunists” and “breakers of rules.”

Irigonegaray used the hearings not as an opportunity to debate science, but as an opportunity to defend his side against the charge of atheism and to score political points against board members who will soon be up for reelection. Why—other than to retain the allegiance of “theistic evolutionist moderates” who are “not well educated about the issues”—would he deny the obvious fact that evolution as taught in the schools asserts that no intelligent intervention was necessary to originate life or to produce any of the diversity and complexity of life? Why—other than to harm their reputations—would he deliver personal attacks on board members?


While he spoke, I took notes to prepare to cross-examine him. And then Irigonegaray revealed just which side was best described, to use KCFS’s words, as “breakers of rules.” The procedural rules clearly stated that anyone who spoke would be subject to cross-examination. Indeed, he had used the rule to question our lead counsel after his presentation.

But when he concluded his speech, he announced that he was a lawyer giving an argument, not a witness, and thus he would refuse to undergo cross-examination—even though he had himself taken advantage of the right of cross-examination the day before, when he questioned our side’s lead lawyer, who was also a lawyer giving a legal argument.

Indeed, as part of his presentation, he read a lengthy statement from a KCFS executive who was in the room at that very moment. Obviously, the author could have read his own statement in person at that time, but then he would have been subject to cross-examination. Irigonegaray’s tactic effectively allowed the author to testify, yet escape cross-examination.

The tactic mimicked Clarence Darrow’s conduct of the Scopes trial, where he got the right to cross-examine William Jennings Bryan only after agreeing that he would then sit to be cross-examined by Bryan. But after cross-examining Bryan, Darrow announced that he had no defense, asked the jury to find Scopes guilty, and closed the evidence—thereby escaping the witness stand himself.

According to KCFS, the hearings were improper because “scientific merit is not established through public discourse and debate” but “internally” through the “consensus” of scientists who have a “specialized background.” But what if more and more scientists who have the specialized background necessary to judge the issues are challenging that consensus? Must the people’s elected representatives merely rubber-stamp the “consensus”?

Artful Dodgers

As noted above, the fundamental objection of the spokesmen for “mainstream science” to the hearings was that the “public discourse and debate” should be excluded from the process by which the public decides whether statements have scientific merit. But to the contrary, where the issue concerns the teaching of public-school students, public discourse and debate are not merely permitted, they are necessary.

All of us should applaud the efforts of the Kansas State Board of Education, which conducted fair, professional hearings and provided ample time (three days per side) for each side to present its scientific testimony, and provided for cross-examination by counsel to properly test that testimony. The board properly refused to serve as a mere rubber stamp. It invited scientific challengers to testify before it and invited the defenders of the consensus, too.

Our witnesses stood up to public cross-examination by legal counsel. The other side dodged it. Yet it is the other side’s position—the side that hides from public cross-examination by counsel—that is being taught in our schools across the country.

Those whose position is already being taught in our schools should, when invited by the people’s elected representatives, present witnesses who will submit themselves to public cross-examination by prepared legal counsel to assure us, the public, that the positions being taught to our children are sound and valid.

Postscript. On August 9, the board voted 6–4 to approve the proposed changes pending review by a Denver-based education consultant. A final vote is expected in September or October.

The transcripts of the hearings, the witnesses’ written submissions, and other materials can be found at
Information about the Intelligent Design Network can be found at

Edward Sisson is a partner at a large Washington-based international law firm, specializing in litigation arising out of multi-million-dollar corporate acquisitions. He also maintains an extensive pro bono practice in the areas of international democracy, human rights, and the arts. His law degree is from Georgetown University and his bachelor (of science) from the Massachusetts Institute of Technology. ?Darwin or Lose? is a shortened and revised version of his ?Teaching the Flaws in Neo-Darwinism,? which appeared in Uncommon Dissent: Intellectuals Who Find Darwinism Unconvincing, edited by William Dembski (ISI Books, 2004).

“Darwin Takes the Fifth” first appeared in the September 2005 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.

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