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How a Bad Expert Witness Can Ruin A Case

Trial analysis Uncategorized

by Brian Leubitz

While I am an attorney, I’m not expert on litigation. But, even from my pretty limited experience, I know just how powerful a really bad expert witness can be. And if you were watching today’s live blogging, you saw a really defeated expert witness. A couple of snips from Rick’s liveblogging will do the trick. First, we learn Prof. Miller is an expert with no expertise:

B: At your depo, you did not know how many states had laws that protect gays and lesbians against discrimination.
M: I did not know definition. Realize that some localities in states provide legislation.
B: Look at your depo, page 197, lines 18-23. Q I was asking about protections, to be more specific public housing, accommodation and work. A Put that way, I don’t know. You had not taken a closer look to know what is what before your depo?
M: Correct?
B: Q: IN how many states is their no state law re: discrimination on the basis of SO. M: I think that was answered? Q: I may have forgotten your answer. You don’t know the number? A: I don’t know the number, ya.” Was that your testimony?
M: Part of problem was that I did not know about state and local laws.

Next, we learn the “source” of Prof. Miller’s “expertise,” the defendant-intervenor’s lawyers:

T: Would you on the index of materials considered, would you just go down and they are numbered and just circle the ones that you found yourself and were not provided by counsel?
(M: Looking nervous.)
[Professor Miller is taking a lot of time to go through each document listed in the appendix to try to figure out which were provided by counsel and which he found himself. It’s slow going. Note that Prop. 8 never even tried this with one of our witnesses, because they were indeed experts. This is very embarrassing for Prop. 8. It looks like the lawyers did the work for their would-be remaining expert, which is a no-no of the first order. It ‘s as if the Prop. 8 side brought the guy in and said, “here are a bunch of documents. Can you testify that the prove our case?”

The judge is standing up, waling around, pouring himself water. He undid his robe and got some air in there. He’s watching the “witness” work through the list….slowly.)

Now the judge refastened his robe and is bouncing up and down. It’s silent. I have to believe that this whole exercise will not increase anyone’s confidence in this witness, especially that of the witness himself.]

And, here is where David Boies seems intent to go in for the last shreds of Prof. Miller’s credibility in this case.

M: In California, there is no opportunity to amend unless they pull it back.
B: How often has that happened in California?
M: Not infrequently.
B: When was last time?
M: I guess.
B: I’m not asking you to guess. I’m asking you to tell me the last time.
M: Many times it’s pulled back.
B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?
M: Discussed in 2005 special, but did not happen.
B: Give me last time in California?
M: I can give you example in Colorado.
B: We’re talking about Ca. You wanted to talk about CA.
T: Objection, He’s badgering the witness.
Judge Walker: Overruled. This is cross-examination.
B: Good God man.
M: I don’t know.

It is hard to imagine an expert who will be given less credibility than this guy. Now, you never know with the conservative bloc of the Supreme Court is willing to stretch to reach, but putting Prof. Miller is a net loss for the defendants. Whatever they gained, they more than lost in cross-examination.

But it really goes further than that. When an attorney puts on an “expert” who has so little background in the subject area, it tells the Court that this is a) the best they could find and b) probably the level of all of their witnesses. A bad expert can taint the whole case, the reputation of the attorneys, and the odds of winning. Combining the fact that they could only find two expert witnesses, the fact that this one did so poorly, and the fact that cross-examination did little to touch the plaintiff’s experts, the defense has a bit of work ahead of them.

At any moment of optimism, however, I go back to the basic lay of the land on this case. Due to the level of scrutiny in the case, Olson, Boies, et al. are playing on an uneven playing field. They have to roll the boulder up the hill. While Prof. Miller seems to be struggling to push it down the hill, they are still the ones pushing the easy way.



  • 1. Warner  |  January 25, 2010 at 11:05 am

    Not suprising.

    Prop 8 has never been known for great leaps and strides in logic, reason, and moral fortitude. I pity this guy in part because prop 8 was trying to use him in a compacity that he is not capable of fulfilling.

  • 2. Mikey  |  January 25, 2010 at 11:05 am

    Thank you for this. Getting the expert to contradict his depo was the key. Good job for plaintiffs counsel! 🙂

  • 3. Bob  |  January 25, 2010 at 11:09 am

    What's amazing is that according to Miller's webpage… his research and teaching interests do not even include gay and lesbian issues at all.

  • 4. TPAKyle  |  January 25, 2010 at 12:28 pm

    We could send a message to his posted e-mail address and ask him to elaborate.

    Personally, I'm interested in knowing when he first realized he had sold out his integrity.

  • 5. Rebecca  |  January 25, 2010 at 1:09 pm

    I'd like to email him just to say Thanks for helping the Plaintiffs.

  • 6. Tim  |  January 25, 2010 at 11:01 pm

    Now, now, I don't think we want to be the next examples of "harassment," you know?

  • 7. george  |  January 25, 2010 at 11:10 am

    Your last paragraph really sums it up; but you should change your title to "How you can Have a Bad Witness and Still Win A Case."

    This expert is needed only to bring in the relevant facts and testimony for the defense to argue at the end. Doesn't really matter how artfully they are brought in.

  • 8. Richard W. Fitch  |  January 25, 2010 at 11:19 am

    That seems the big unknown at this point. The case is going to SCOTUS, no matter who 'wins' at this level. The question is how much the Sups will relie on the actual testimony and how much on their own assumptions.

  • 9. fiona64  |  January 25, 2010 at 11:59 pm

    George, I suggest you learn how *not* to poke the cobra. You are only coming here to spread hate speech and nastiness, and I respectfully suggest you take up stamp collecting or some other more genteel hobby that makes you look less like a burke.

  • 10. unclesmedley  |  January 26, 2010 at 5:24 am

    Fiona… C'mon…! George was being neither hateful nor nasty. His point was not only relevant but cogent. There is altogether too much wishful thinking and confirmation bias muddling this thread.

    I'm strongly anti-eight, but wishing don't make the thing so. It'd be terrific, righteous and reassuring to see the good guys win this case in a landslide–but it is unlikely. Remember, there are many, savvy LGBT supporters who thought that pursuing this issue in California, in 2010, was a bad move. I hope they're wrong, but I know they're not crazy.

    So, stop harassing the messenger. Miller might be a stooge, but he entered some problematic notions into the record. That's all George was saying.

  • 11. fiona64  |  January 26, 2010 at 8:48 am

    Well, UncleSmedley … perhaps if you had read every single thread filled with George's misogyny and homophobic speech, you would come to a different conclusion.


  • 12. unclesmedley  |  January 26, 2010 at 11:50 am

    I haven't read them all, and of those I have read, the whiff of antagonism is discernible, but so too is a certain hyper-sensitivity on the other end of the rope.

    I lived in SF for almost 20 years. I had a gay business partner, a gay lawyer, countless LGBT friends and acquaintances, and still, I never fully adjusted to the element in that community that felt that the laws of common sense and proportion don't apply to them.

    10% of the population may very well persuade the other 90%. But they will never succeed in taking control of the agenda, and shouting down those that disagree…

    So, stop being so touchy and feeling so entitled. Democracy is a wonderful thing if your patient about it. It's hard work–"advanced citizenship"–that can be rewarding if you work hard and get lucky, but it is a horror to those in a hurry, and being "right" is simply not enough. It's a process.

    Regards ~ smedley

  • 13. Bill  |  January 25, 2010 at 11:26 am

    Boise just said this to the press:

    "What's remarkable is how many of their expert witnesses have become witnesses for us," Mr. Boies said at a news conference after the trial ended for the day. Andrew Pugno, a defense lawyer, said he thought Mr. Miller did a good job and that Mr. Boies asked questions that were irrelevant and outside the areas of the professor's expertise.

  • 14. Gery  |  January 25, 2010 at 11:45 am

    Which besgs the question, what is/ARE the professor's areas of expertise.

    I'm also going to suggest that were the line of questioning irrelevant, and I am in NO way a lawyer, couldn't defense have objected and should the objection have been true, would not Judge Walker have sustained… barrring that he's an activist judge, albeit Republican, and has, supposedly, already come to a ruling or somesuch nonsense?

  • 15. Gery  |  January 25, 2010 at 11:46 am

    Er… please insert "?" where appropriate. hehehe

  • 16. Ronnie  |  January 25, 2010 at 11:50 am

    Wow Pugno just proved my whole "Bigots only see what they want to see and hear what they want to hear!"…..notion.

    How could anybody say that this Miller guy did a good job?

    He made himself and the defense look like fools! did he not?

    Rose colored goggles only get you so far Mr. Pugno!

  • 17. Buddha Buck  |  January 25, 2010 at 1:01 pm

    It's not like he's going to come out and say "Well, we really fucked up with Dr. Miller today" now is he? He's got to put the best spin on this as he can.

  • 18. unclesmedley  |  January 26, 2010 at 5:25 am

    Ronnie… Re: your quote: Quo erat demonsrtratum.

    Lay off the kool-aid.

  • 19. atriana  |  January 25, 2010 at 11:27 am

    Can't wait until tomorrow.I thought only tv dramas could have characters like these…

  • 20. Ronnie  |  January 25, 2010 at 11:33 am

    "GOOD GOD MAN!"……..LMAO!!!!!!!!!

  • 21. Bill  |  January 25, 2010 at 11:49 am

    i LOVED that, too!!!!

    All three of those words.

  • 22. Tom  |  January 26, 2010 at 6:01 am

    I looked at the transcript, and I didn't see "good god man." So it does sound funny, but I'm not sure it was said.

  • 23. PaulN  |  January 25, 2010 at 12:38 pm

  • 24. Ronnie  |  January 25, 2010 at 12:46 pm

    heheheheheheheh…..move to strike!……. inappropriate use of propaganda!

    OVERRULED!!!!…… please proceed!


  • 25. Casey  |  January 25, 2010 at 11:45 am

    The level of scrutiny is literally the only thing still keeping me awake at night. The defense is performing poorly, but they have so much less pressure to prove their point than we do. The fact that our lawyers are actually from Earth, and like, think and stuff gives us a chance in hell, but it's still a matter of how the level of scrutiny is applied to their evidence.

    I think the only way to make myself feel better (and get people to ask me questions about this trial) is to get the T-SHIRT!

    I mean…good god, man!

  • 26. Tim  |  January 25, 2010 at 7:29 pm

    Exactly Casey, #18, Unfortunately we need to be deemed a subject class in need of protection before we can fight for marriage/equal rights in court.
    I think that is more important at this point. We need to be recognized as second class citizens(as bad as that sounds) before we can be recognized as equal.Our council needs to prove to the feds that we ARE being discriminated against and in need of the courts protection then all else will follow.
    Love Tim, Sonoma,Ca.

  • 27. Andrew  |  January 25, 2010 at 11:49 am

    Is it just me, or does it seem like the Prop8 guys are purposefully trying to loose?
    I mean, it would certainly continue their agenda of playing the helpless victim against the big meanie bullies that we are made out to be.
    Losing would also show just how "powerful" the GLBTQ community is and why we don't deserve to be protected against descrimination.
    And then, by losing, you can bet your bottom dollar that they'll appeal to the conservative SCOTUS where they believe they stand a better chance of officially making us 2nd class citizens.

    And they complain about a big secret gay agenda?!?

  • 28. Doug  |  January 25, 2010 at 11:53 am

    What you've said Andrew makes so much sense that it's really scary. Part of me thinks this is exactly what is going on.

  • 29. Bill  |  January 25, 2010 at 11:54 am

    This case is to be decided by Judge Walker alone. They can't really play any card as far as he is concerned. Each side had equal opportunity to present their side.

    It's not our fault the Yes on 8 team hired less than stellar council. And I am being quite kind when I say less than stellar.

    The transcripts show that our council is far more intelligent, and that they have taken this case way more seriously than the Yes on 8 side has.

    But I totally understand what you mean about them purposefully trying to loose.

    I made a comment yesterday asking if this was all make-believe. It has that kind of surreal quality to it.

  • 30. Marlene Bomer  |  January 25, 2010 at 12:00 pm

    The plaintiffs are making up for the less than stellar way they ran the No on 8 campaign.

  • 31. Roger  |  January 25, 2010 at 12:37 pm

    to Marlene @ post 17

    That's not entirely fair. The people running the present suit are a different lot from the ones responsible for the inept 'No on 8' campaign. They don't have anything to make up for.

  • 32. JefferyK  |  January 25, 2010 at 12:49 pm

    Actually, the folks behind the lawsuit went around the No on 8 campaign people, largely because they were so inept.

  • 33. jc  |  January 25, 2010 at 11:56 am

    glad i wasn't the only one pondering this. i was thinking, with their money and resources, surely the fight would be harder than it's been…it borders on suspicious how badly they've done. don't get me wrong, i WANT everything to go smoothly and well.

  • 34. Joe  |  January 25, 2010 at 11:58 am

    He didn't know if it were possible if the legislature and the governor would be able to pass same sex marriage in CA, not knowing that indeed the legislature tried three times to send legislation to the governor's desk, successful twice and both times did the governor veto it. Expert, my @$$.

  • 35. ricky leliefeld  |  January 25, 2010 at 12:00 pm

    I had to wait until the end of the day today to get to read all of the days happenings.WOW what a asshat.It scares me to think of the Supreme Court after the idiotic ruling they handed down the other day.But I believe Olsen and Bois are the Bomb. Thanks for all you are doing for us.

  • 36. James Parmley  |  January 25, 2010 at 12:01 pm

    Brian, despite your cautionary statement of the last paragraph, I'm dancing all around on the inside! I was just as apprehensive, too. Given the nature of being able to mishandle facts to design junk science and not knowing the expertise level of proponents witnesses, I was being very cautious about not acknowleging enough power to them. But if it's going to be like THIS…, LET THE DANCING BEARS ENTER THE RING!!!

  • 37. Charles  |  January 25, 2010 at 12:11 pm

    A not very good attempt at illustrating today.

  • 38. Charles  |  January 25, 2010 at 12:19 pm

    Ah, html doesn't work it seems… I don't want to give the direct link because it gives my user name and password in the address…

    too bad… If someone from the site is interested, I can send the picture 🙂

  • 39. Stine  |  January 25, 2010 at 8:04 pm

    you should just use & show us. hosts it anonymously.

  • 40. Charles  |  January 25, 2010 at 1:57 pm

    hanks for the tip! 🙂

    it's in the summary post!

  • 41. mike  |  January 25, 2010 at 11:39 pm

    uh, charles never do that even if they allow html. it's trivial to see the actual url, either in the source or just by looking at the url in the location bar.

  • 42. Judy  |  January 25, 2010 at 12:31 pm

    The defendants were able to examine this witness with lots of canned proof that our community is powerful. That's probably why they think this witness did a good job. To them that's all they heard. The cross-examination went right past them. They probably really think they're winning.

  • 43. Richard  |  January 25, 2010 at 12:33 pm

    I have heard of shooting yourself in the foot,ut I think the DI's just shot their case in the heart!

  • 44. Warner  |  January 25, 2010 at 12:36 pm

    implying the Defense has hearts.

    Hate to say it,but they seem colder than maggie gallagher after her gay hairdresser botched her haircut (and now you all know why she hates us, she wants all of us to pay for that!)

  • 45. Tim  |  January 25, 2010 at 12:39 pm

    I totally agree with the people who're worried. I have every confidence that Roberts, Alito, Scalia, and Thomas will come up with some unintuitive justification for upholding Prop 8. Sure, people have cited Olson's track record with SCOTUS cases, and sure, Kennedy's past opinions have been in favor of LGBT rights, but that latest ruling that overruled campaign finance reform laws really bothers me and makes me worry for the future of this case, and for American politics in general (it's bad enough WITH the preexisting limits).

    Also, reading the blog at makes my blood boil. I really should stay away from there, lest I get an aneurysm to their great satisfaction of reducing the gay population by 1. But seriously, that Pugno character is SO smug. And he's running for CA state assembly in a mostly Republican district! Ugh. Must calm down…

  • 46. Kohai  |  January 25, 2010 at 12:40 pm

    This trial is so much like the Kitzmiller vs Dover trial, it ain't even funny.

    When will Christians learn that when they have to go to court over one of their crusades, they should just bow out? Cause darling, ya'll just can't keep up with your own rhetoric and propaganda. You know you have it bad when every argument you make can be chopped up by a 5th grader in 5 minutes and Google.

  • 47. Asemodeus  |  January 25, 2010 at 12:53 pm

    Miller was actually a expert witness in that trial as well. For the good side as well.

    The reason why he is on the wrong side of this trial is due to his Christianity.

  • 48. Tim  |  January 25, 2010 at 1:03 pm

    That was a different Ken Miller, a biochemist. He was pretty thoroughly discredited, too. 🙂

  • 49. Kohai  |  January 25, 2010 at 2:34 pm

    different Kenneth Miller, the biologist, who is working on the Punctuated Equilibrium project. He is a Christan who is also one of the top evolutionary biology professors in the world. He teaches at Harvard, I think, and the Dover trial was won because of his testimony.

    They called the Judge in that case an activist as well after they were thoroughly trounced.

    as I said I don't think Christians are cut out for this court thingy.

  • 50. Tim  |  January 25, 2010 at 3:49 pm

    Whoops! I got him confused with Michael Behe V_V
    I knew it was a different Ken Miller though!

  • 51. Jonathan Justice  |  January 26, 2010 at 4:53 am

    You got it! These Christianist folks get themselves all hyped up inside their own special cultural enclaves, and then blast into the larger culture expecting to win while offering paltry evidence and poor manners. They do not learn because the knowledge would overturn their central cultural metaphors. While it is not really central, hetero only marriage is important to them because they can project their authoritarian and patriarchal values upon it with only limited fears of contradiction.

    In Dover, the matter was even more bald: What they sought was public affirmation of an entirely discredited theory of the origins and ordering of life because that theory offered a set of justifications for the hierarchical social order they prefer. In this context, appeals to democratic practices are only made when it is believed that the voting will support their preferred order.

  • 52. Ronnie  |  January 25, 2010 at 12:42 pm

    I mean seriously …..Good God Man!……

    If they think they are winning based on legality and their lack of evidentiary support….or more or less their lack of credible witnesses….i.e Miller… then are more COO COO and delusional they we thought….yeah?

  • 53. David from Sandy UT  |  January 25, 2010 at 12:48 pm

    Where are professor Miller’s poofy wig and red stick-on nose?

  • 54. Sean  |  January 25, 2010 at 12:57 pm

    Didn't you hear? He left those at home. Shows you how unprepared he was XP

  • 55. Ronnie  |  January 25, 2010 at 1:00 pm


  • 56. Dieter M.  |  January 25, 2010 at 12:49 pm


    Full story:

    The announcement of congressional hearings on the ban on open military service by homosexuals has been delayed at the request of the Obama administration until after Wednesday night's State of the Union Address because the president may announce that military leaders will support changing the law, according to a key lawmaker.

  • 57. Ronnie  |  January 25, 2010 at 12:57 pm

    Its about f-ing time……..oh I mean…….."GOOD GOD MAN"


  • 58. Ronnie  |  January 25, 2010 at 12:58 pm

    Ok maybe I am done with that for now…

  • 59. Sean  |  January 25, 2010 at 1:03 pm

    We need a T-shirt with that saying now. We just do.

  • 60. Ronnie  |  January 25, 2010 at 1:07 pm

    I working on it…

  • 61. Dieter M.  |  January 25, 2010 at 1:11 pm

    Already made my iron on design for my new "Good God Man t-shirt lol

  • 62. JimiG  |  January 25, 2010 at 12:58 pm

    Something just doesn't seem right, whats the old saying never trust a book by it's cover. There is to much at risk here for this to be 1 of 2 witnesses. Clearly they are up to something, Sorry I am a little worried and ya it's more than the future and all that it's personal.

    A lot of my friend sare against ss but as far as I can tell someone told them they should be and they have been and to change their minds means to admit they were wrong. None of us like doing that. So for people who are passionate or need more this eveince (or lack of) is very worrysome.

  • 63. Sean  |  January 25, 2010 at 1:02 pm

    Well, as for the lack of witnesses on the defense side, you have to remember that there used to be plenty more…but all but two or three of them dropped out. Probably for the best, considering who they have left…

  • 64. Kohai  |  January 25, 2010 at 2:26 pm

    Believe it or not, but this is a pattern of Christian Crusades like this. In Kitzmiller vs Dover trial, there were 5 witnesses scheduled for the defense (school board), but three decided not to show up. Same goes for the latest in creationism loss on the Christian side, just one witness for the creationism side showed up.

    I really don't think these guys are very good at this to be honest with you. They have never won a court case

  • 65. Kineslaw  |  January 25, 2010 at 2:29 pm

    I think the defense is making the assumption that the record in this trial won't matter much. Their chances of winning in trial court were really low going in, so they had little incentive to try hard.

    It will all come down to Kennedy in a few years. The record probably won't matter a whole lot, Kennedy will do what he wants to do, which will probably to uphold Prop 8.

    If they lose at the trial level they get to use the loss to drum up money for both their anti-gay cause and their judicial activist cause. The only risk to them is that their case is so weak Kennedy can't make himself rule in their favor, and that has to seem very low-risk indeed.

  • 66. Charles  |  January 25, 2010 at 8:41 pm

    What do you mean, "in a few years"? Can't we expect the case to go before SCOTUS before the end of the year?

  • 67. fiona64  |  January 26, 2010 at 12:03 am

    @Charles … much depends on how long the appeal takes, and even whether the SCOTUS will take it up vice kicking it back as a state's rights issues despite the clear violation of the 14th Amendment.

  • 68. JimiG  |  January 25, 2010 at 1:06 pm

    I went back twice but was never clear on what Miller was an expert on, was it ballets or voting agendas? I was wondering cause it is just kind of hard to tell why they put him on…

  • 69. Ronnie  |  January 25, 2010 at 1:08 pm

    Because Eric Cartmen was unavailable….lol

  • 70. Woody  |  January 25, 2010 at 1:50 pm

    Obviously ballet, cuz it didn't seem to be ballots or voting. 😉

    plié, croisé, etc, etc… wonder how much he knows about the Nutcracker…

    (Sorry JimmiG, couldn't resist. <3)

  • 71. Mr. HCI  |  January 25, 2010 at 1:07 pm

    I'm wondering if the PropH8ers thought this would be an easy judgement in their favor, and, therefore, didn't bother to put together much of a case or legal team.
    After all, NOM has made it clear that they consider our case obviously flawed, 'cause everyone knows marriage is one man/one woman.
    It floors me that they claim our rights are not being denied because there's no such thing as s-s marriage, and one cannot be denied that which does not exist.
    By that logic, denying women the right to vote wasn't discriminatory as it was a right they'd never possessed.

  • 72. Ronnie  |  January 25, 2010 at 1:12 pm

    1st I don't understand how they can say that it doesn't exist since it does in 8 countries and 8 states…MORONS!

    2nd the fact that they say "everyone knows it" is so condescending because I am apart of everyone and I don't know it ….do you know it?

    Does anybody know it? I don't know if you know but I don't know…you Know?

  • 73. Colt  |  January 25, 2010 at 1:28 pm

    SF Chron continues to have a really bad day–they just posted an article that fell somewhere in the middle of the Courage Campaign's coverage (i.e. the truth) and what the other side would say (almost complete lies). In their article (, Miller came off as much less of a bumbling idiot than he actually was, though they did mention how bloody long he spent searching through the list of sources to see which ones he'd actually found. No mention of the repeated hemming and hawing and frequent dunno-equivalents. Grrrrrrrrrrrrr!!

  • 74. Bill  |  January 25, 2010 at 1:34 pm

    This case is very similar to the CA Supreme Court. Even the arguments are very similar. There doesn't appear to be a case in favor, but perhaps Pugno et al. are expecting the US Supreme Court to pull their chestnuts out of the fire. Just as they got the Calif voters to overturn the CA Supreme Court ruling by forcing it to uphold the initiative (vox populi, vox dei–the voice of the people is the voice of God). Perhaps they are angling for the proposed constitutional amendment on marriage. Many politicians will listen to their outraged voters on the issue.

    I am surprised that the Roman Catholics and Mormons haven't put up better lawyers in the case, or at least financial backing. They have much to loose.

  • 75. Bill  |  January 25, 2010 at 1:45 pm

    I suppose it has to go to the US Supreme Court. I was thinking what would happen in the 9th Circuit upheld the suspect class/marriage, but then it would only apply in the western US. But perhaps I'm getting ahead of myself, since we haven't seen Walker's decision.

    Interesting question is that the 9th Circuit (or at least Judge Kowsinski) is in a battle with the US government on pay/benefits for the domestic spouse of one of it's employee/lawyers. She is suing the US government on the issue. Kowsinski (sp?) upheld the domestic benefits as the employer/manager of the Court's employees. But the US government (I can't remember the pay/benefits department) over ruled his decision as the employer.

  • 76. michael  |  January 25, 2010 at 1:53 pm

    OFF TOPIC but…..

    Found the video that we submitted today from the H8ers

    Posted it on our Facebook page that Calvin Started:

  • 77. Kineslaw  |  January 25, 2010 at 2:43 pm

    One of the interesting things about todays testimony was the inherent contradiction involved. Miller talked about how many papers and corporations sided with GLBTs. He did this to make GLBTs seem powerful, which is fine and dandy.

    However, if virtually every corporation and newspaper editorial board is in favor of same-sex marriage, then you have a situation where support is coming from the secular elites. Combine this with the fact that virtually all the opposition comes from religious groups and you end up reenforcing the point that the Plaintiffs are trying to prove.

    It is much tougher to prove that a policy is rational when all the elites of society are against that policy. It is much easier to prove a policy is based on animus when secular authorities line up neatly against the policy and only religious authorities are in favor of the policy.

    If we only get rational basis scrutiny, that might be the most important exchange of the trial.

  • 78. Richard W. Fitch  |  January 25, 2010 at 2:46 pm

    Hear! Hear!!

  • 79. Charles  |  January 25, 2010 at 8:53 pm


    His line of argumentation is basically:
    "Well, you see they're POWERFUL because there are people who agree with them!! And not only people, but people who are educated and intelligent! While we poor oppressed victims, we're only supported by uneducated religious whackjobs!"

    ….. I mean, even to them this must sound funny, right?

  • 80. george  |  January 26, 2010 at 12:29 am

    So, if the elites support something, and since elites are the only thinking people in the country, then anyone who diagrees with the elitist position is irrational or a religious fanatic. Ha, ha!

    See, this is the problem with the analysis on this web site and with progressives, generally: since they think they are so smart, they fail to see the logic and reason in other peoples' perspectives.

    They fail to grasp that as obvious their position seems to them, that well over half of the population sees their position as just as obviously correct. And just because their position is different, it isn't based on hatred, or bigotry, or religion, or stupidity.

    Many of us well-educated agnostics quite rationally believe that the definition of marriage should not be changed. For some of us, the reason is we think that children have a right to know and live with their biological parents; for others, it's a matter of common sense that men and women are designed to be together and procreate; for others, it's based on personal experience of growing up in a traditional family; for others, it's based on a rational resistance to change; for others, it's based on what their parents taught them about marriage and procreation; for others, it's a dislike of the public displays of sexual obsession displayed in gay events; for others, it's a review of the literature that suggests that homosexuality is environmentally caused; for others, it's based on the personal experience of successfully resisting homosexual urges; for some, it's because their religion teaches them that homosexuality is wrong; for others….. Yeah, you guys are sooooo smart.

  • 81. JTS  |  January 26, 2010 at 1:01 am

    "well over half" ??? Do you have real numbers to support this position? You can't use Prop8 – it barely passed and the voter turn-out cannot be said to represent all people in CA. There are other posts that analyze the composition of those that voted.

    We don't deny that you are all voting your own personal prejudice against homosexuals. But educated people will look at the facts and change their views when presented with evidence that contradicts their beliefs. Such as literature that shows that sexual orientation can be a genetic trait. That marriage is for far more than procreation. That suppressing one's sexuality can lead to severe depression and a terrible home environment for families. And as far sexual obsession – have you ever watched SPIKE TV? I rest my case.

    I find it offensive that you think your opinion gives you the right to deny me and my family the civil rights that you have by default. I would think that you would be in favor of an institution that stabilizes families for children.

    Prop 8 didn't make gay families go away. We are still here and we will continue to fight for our rights to live as equal citizens in this country no matter what happens here in CA.

  • 82. fiona64  |  January 26, 2010 at 1:46 am

    George wrote: So, if the elites support something, and since elites are the only thinking people in the country, then anyone who diagrees with the elitist position is irrational or a religious fanatic. Ha, ha!

    Oh, Georgie. Are you now trying to use "elite" as a pejorative? I know that your side of the fence uses "elite" or "elitist" as a synonym for "educated and well-spoken." So, I guess if you do not agree with the educated and well-spoken, you can draw your own conclusions.

    PS: Please show me the peer-reviewed, scientific literature that you mention here: "it’s a review of the literature that suggests that homosexuality is environmentally caused"

    I'll wait.

  • 83. James Sweet  |  January 26, 2010 at 1:51 am

    So, if the elites support something, and since elites are the only thinking people in the country, then anyone who diagrees with the elitist position is irrational or a religious fanatic.

    No, but anybody who holds an irrational position based on religious fanaticism would qualify for that, regardless of whether or not they agree with the "elites".

    FWIW, many of the so-called "elite" in this country have an overly tolerant attitude towards misogyny carried out in the name of traditional cultures/religions, i.e. classifying any attempt to pressure another society to adopt gender equality as a form of "cultural imperialism". This is an irrational and vile position which has it's roots in a fanatical deference to religious belief and "authentic" culture. I waste no time in criticizing this position either.

    "Eliteness" has nothing to do with it. Unless you are a populist idiot.

  • 84. Skemono  |  January 26, 2010 at 3:40 pm

    Many of us well-educated agnostics quite rationally believe that the definition of marriage should not be changed.

    Well, let's see what your "quite rational" rationales are.

    we think that children have a right to know and live with their biological parents

    Which is why those same people are also against divorce and remarrying, adoption, foster homes, artificial insemination, and surrogate mothers for opposite-sex couples, right?

    it’s a matter of common sense that men and women are designed to be together and procreate

    Hence infertile opposite-sex couples aren't allowed to marry. And of course the use of "common sense" in lieu of facts, studies, well-reasoned arguments… yeah! You're certainly showing us snobby elites how smart you are.

    it’s based on personal experience of growing up in a traditional family

    I… I can't even figure out the supposed rationale here. "I grew up in a 'traditional' family, therefore I have to deny gays and lesbians the right to marry and have children"?

    it’s based on a rational resistance to change

    That's not rational. That's just being contrary.

    it’s based on what their parents taught them about marriage and procreation

    That's also not rational. Blindly doing something because your parents said so is about as far away from rational as it gets, really.

    it’s a dislike of the public displays of sexual obsession displayed in gay events

    Oh, here we go–"homosexuality is icky!" Yes, that's certainly a rational reason to deprive gays of equal rights.

    it’s a review of the literature that suggests that homosexuality is environmentally caused

    Such as?

    it’s based on the personal experience of successfully resisting homosexual urges

    Note: "successfully resisting homosexual urges" doesn't mean they've gone away or that you're no longer gay. It just means that you're repressing your own desires and not acting on them. The fact that this is the best that reparative therapy can manage to do is another point in favor of sexual orientation being immutable.

    it’s because their religion teaches them that homosexuality is wrong

    See my remark about parents, above.

    Yeah, you guys are sooooo smart.

    That's about the only sensible thing you've said.

  • 85. Alan E.  |  January 25, 2010 at 3:46 pm

    I just finished reading the review of today's events over at, and a few major things stuck out.
    1) He claims that it us a good thing that they have spent almost as much time cross examining as the plaintiffs had in direct and giving out evidence. He doesn't account for the long hours of pointless or repetitive questioning.
    2) There us no mention whatsoever of the cross-examination.
    3) He completely misconstrues the reasoning for objecting to the 3rd surprise witness.

    The only way that I see to combat false information is to pick out key points of the reenacted marriage trial. It will be way too long to expect people to sit through the whole thing, so it is important to go through the transcripts now to pick out these key parts. Today's cross and Tam's testimony are especially important, but also places where the pro-8 rhetoric can be challenged easily and swiftly.

  • 86. Obscanity: You’ll k&hellip  |  January 25, 2010 at 11:54 pm

    […] How a Bad Expert Witness Can Ruin A Case « Prop 8 Trial Tracker. At any moment of optimism, however, I go back to the basic lay of the land on this case. Due to the level of scrutiny in the case, Olson, Boies, et al. are playing on an uneven playing field. They have to roll the boulder up the hill. While Prof. Miller seems to be struggling to push it down the hill, they are still the ones pushing the easy way. […]

  • 87. fern  |  January 26, 2010 at 3:14 am

    I surfed many forums during the prop 8 campaign all the pro could come up with was religion and the scriptures, aah! the scriptures I know some too like Asinius 5:0 and 5:1 who is Wordperct (Asinius means ass in latin).
    The con upset me a little too, plenty of whining and bickering (like ol' ladies),. When AFER came up many were against it and to me that was the only way.
    Now I feel pretty good thank you as I know you'll win this.

  • 88. trailrunnr  |  January 26, 2010 at 4:54 am

    My little job is to comb comment sections for otherwise intelligent people who misspell "lose" ("loose").

    Loose: my morals are loose.

    Lose: I lost my morals.

  • 89. Persnickety  |  January 26, 2010 at 11:09 am

    Thank you so much!!! Your efforts are greatly appreciated.

    It hurts every time I read "loose" when "lose" was intended.

    Can you work on the it's problem too?

  • 90. Wild Clover  |  January 26, 2010 at 2:03 pm

    Then there is also the "to", "too" problem, the "there, their, and they're" problem and affect/effect….all these cause almost physical pain akin to the screeching of nails on a chalkboard to me. I have difficulty taking seriously the arguments of folks who cannot take the time to both learn the proper use of words and to use them correctly. I personally try to use all my (fading) literacy skills when posting, lest I be perceived as an ignorant bozo.
    A local fundie church had on it's marquee for a week "No God ,No Pease. Know God, Know Pease" . All the message I got from that was that God is the dispenser of pease porridge hot, cold, and nine days old. I don't think that was the intent.
    In short, grammar natzis do us a service, if the folks being criticized realize that by writing like an ignoramus they harm their own message.

  • 91. Regan DuCasse  |  January 26, 2010 at 5:33 am

    I say it again: political visibility isn't the same as political POWER.
    Gays and lesbians being more involved in political access doesn't mean much.
    After all, there was a definite call to not make any donations or give financial support to the DNC, nor any other traditionally democratic candidates.
    Who did nothing but pay LIP service while holding out their hands for financial and political support, but when the chili hit the cheese, couldn't even bear to DISCUSS, any concerns of the gay constituency any further.

    That alone should have signaled to Miller and everyone else that the Democratic party has done little for gays and lesbians and much has had to be garnered through the courts, NOT the political system.

    Just because gay people have wishfully supported the Dems based on campaign promises and inclusion in the campaign process, the results post election don't match that support.
    Or am I being redundant here?

    In any case, there is serious SOCIAL POWERLESSNESS, in just the fact that gay parents lose their children. Financial support, property and pensions meant for surviving partners is confiscated, and couples are determinedly kept isolated in times of crisis. Families are destroyed or left seriously damaged but for marriage status.
    Indeed, NON married status is used as a tool to exploit gay vulnerability as surely as color or gender has in the past.
    That's a far more acute powerlessness and negative affect.
    This all speaks for itself. No gray shades of inference or implication.

    The opposition knows it's power, knows what to exploit and how, to full effect. And even after MUCH constant referral to that power even while it has been challenged, are trying to play victim of gay growing political power?!
    Notice how gays and lesbians are a 'tiny, miniscule, insignificant' group of people, until the majority has something to lose…like credibility.

    Then suddenly, gay people are a unimaginably large, monolithic, unstoppable juggernaut of power ready to steam roll all over people who 'disagree' with them.

    The hypocrisy, contradictions and fear laden tactics has no bounds and deserves all the scrutiny the courts can muster.
    Because it's the opposition that constantly changes the goal posts.
    And literally expects justices to legislate from the bench, exacting discrimination against gay couples, for ONE example, because 'they don't naturally procreate'.

    There are no laws that discriminate against a couple for that reason.
    See what I mean?
    Talk about redefining marriage! It's the opposition that apparently is doing that, for the aforementioned alone.

  • 92. Richard W. Fitch  |  January 26, 2010 at 3:18 pm

    Yes! Visibility does NOT equal power!

  • 93. paul o  |  January 26, 2010 at 5:49 am

    fiona: "burke" should be "berk". It's Cockney back-slang–i.e. a short version of a rhyming slang word. For example, "boat" means "face" –it's back-slang from "boat race". "Berk" is back slang from "berkshire hunt" which rhymes with ****.

    Just so you know what you are saying.

  • 94. fiona64  |  January 26, 2010 at 6:18 am

    Thanks, Paul. I knew the origin, but none of the ways I typed it looked right. 🙂

    Gotta go comb my Barnet …


  • 95. Polishing Feces: Pugno do&hellip  |  January 26, 2010 at 7:26 am

    […] ability to ignore what happened in the courtroom. Here is the sum total of his comment on Prof. Kenneth Miller: To show that homosexuals are not politically powerless, Dr. Miller provided “striking” […]

  • 96. jrw  |  January 26, 2010 at 10:20 am

    So, if DADT is ended before SCOTUS rules, will they say we now HAVE power now and rule against us?

  • 97. APOLARITY » Blog Ar&hellip  |  January 26, 2010 at 11:41 am

    […] see How a Bad Expert Witness Can Ruin A Case. […]

  • 98. The Prop 8 Trial: Day Ten&hellip  |  January 26, 2010 at 12:06 pm

    […] Kincaid's summary is here. Brian Leubitz thinks that Miller has been a net loss for the defense so […]

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