Friday, January 06, 2006
Cobb County Appeal: The Plot Thickens
Cartwright's post, the AJC article, and Land's report are all well worth reading for those who are following the appeal in this case. Here are excerpts from the Fulton County Daily Report via law.com:
The trial record also included an affidavit from a Cobb parent who -- in the midst of circulating a petition against the stickers -- contacted the school system for a copy of the purported Rogers petition. The parent said she was told by Director of Communication Jay Dillon III that "if [the petition] exists, it is no longer in this building."
The sequence of events is important because U.S. District Judge Clarence Cooper's Jan. 13, 2005, decision ordering the stickers removed was partly based on assertions that religiously motivated citizens pressured school board members into inserting the stickers, which warned students that evolution "is a theory, not a fact." Selman v. Cobb County School District, 390 F. Supp 2d 1286. (The 11th Circuit case is No. 05-10341-1.)
In his appellate brief, Gunn noted that no such petition had ever been admitted into evidence, a point Carnes seized upon at oral argument. If there was no pre-sticker Rogers petition, Carnes said, Cooper's ruling and Bramlett's arguments relying on the petition were "just wrong."
In his post-argument response, Bramlett offered detailed testimony of opposing witnesses, as well as reports published in The Atlanta Journal-Constitution shortly after the textbooks were adopted -- all of which referred to the March pre-sticker
The appeals court then demanded Gunn, of Marietta's Brock, Clay & Calhoun, respond.
Gunn's submission doesn't directly deny the existence of the March 2002 petition, but he continued to point out that no such document was ever admitted into evidence.
He wrote that the March 2002 news stories never specified that the petition actually was filed with the school board, only that Rogers told the board it existed. He also posited that Cooper had mistaken a post-sticker petition, dated September 2002 and circulated in support of the stickers, for the March document.
"While the record is not perfectly clear, the evidence does not support the key factual findings that a petition and letter from Marjorie Rogers were the basis for the sticker," Gunn concluded. "Board members received a variety of input from a number of sources, including Ms. Rogers, but no petition or letter were ever entered into evidence."
That such an issue as basic as evidence and its very existence should become central to an appeal is "very unusual," said Laurie Webb Daniel, head of the appellate division for Atlanta's Holland & Knight.
"There seems to be two aspects to it," she said. "One underlying evidentiary issue relates to documents that may no longer exist. There are rules of evidence relating to that, though ... so it can be dealt with ..."
"From an appeals standpoint, the issue is whether there were objections to a document that didn't exist during trial. Not having a document is not that unusual ... but that issue should have been taken up in trial court."