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Federal appeals judges are still wrestling with factual inconsistencies over how a petition — pushed by Marjorie Rogers, a self-described “six-day biblical creationist” — affected the Cobb County, Ga., school board’s decision to amend new science textbooks with stickers questioning the validity of evolution. A panel of the 11th U.S. Circuit Court of Appeals last month heard the school board’s appeal of a federal judge’s 2005 decision that the stickers, which say that evolution is “a theory, not a fact,” amounted to an unconstitutional endorsement of religion. Selman v. Cobb County School District, 390 F. Supp 2d 1286. (The 11th Circuit case is No. 05-10341-1.) During the arguments, judges sounded highly skeptical of the ruling by U.S. District Judge Clarence Cooper. They also upbraided Jeffrey O. Bramlett, the lawyer for the plaintiffs challenging the stickers, for making statements about the timeline of the case that 11th Circuit Judge Edward E. Carnes called “just wrong.” Carnes demanded that Bramlett provide a written explanation of his assertions that the stickers had been placed in the textbooks as a result of Rogers’ petition drive. Bramlett’s claims had been called into question by Cobb County’s attorney, Ernest Linwood Gunn IV, whose brief said the petition had not been circulated until four months after the disclaimers were inserted into the books. On Dec. 22, a week after the argument, Bramlett filed a 127-page response that said there were two petitions — one by Rogers, with more than 2,300 signatures delivered to the school board before the books were purchased, and a smaller petition delivered after the sticker plan was implemented. The day the 11th Circuit received Bramlett’s response, the court issued a one-page letter to Gunn instructing him, by today, to provide “any evidence regarding the timing of any petitions that may have been filed with the School Board.” Three unsuccessful attempts were made to reach Gunn, of Marietta’s Brock, Clay & Calhoun, prior to the Daily Report‘s going to press Friday evening. Bramlett’s brief cited sworn testimony from the trial before Cooper, in which Rogers said she presented the 2,300-signature document to the school board prior to its adoption of the textbooks. It also included corroborative testimony by former Cobb County School Superintendent Joseph Redden, who said he remembered receiving that petition and others “in favor of creationism, intelligent design [and] alternate views of evolution.” Bramlett also cited testimony showing that Rogers’ petition apparently had vanished, and that the later one cited in Gunn’s brief was much smaller, did not contain Rogers’ name and plainly stated that it supported retaining the stickers on the textbooks — so it was not the one cited by witnesses in Cooper’s courtroom. Bramlett, of Bondurant, Mixson & Elmore, was retained by plaintiff Jeffrey Selman and four others to lead the appellate effort after the school board challenged Cooper’s ruling. The debate over the facts gave Bramlett an opportunity to respond to the grilling he got during oral arguments. His responses then — that there seemed to have been a mix-up and that he had not been involved in the case at trial — did not satisfy Carnes and Judges Frank M. Hull and William H. Pryor Jr. “I really do understand the judges’ frustration when witnesses talk about documents that have not been admitted into evidence, and present evidence with no citations,” said Bramlett. He also admitted to being sidetracked by the judges’ focus on the timeline issue during oral arguments, which chewed up most of the hearing. “I certainly had planned to say other things in the 20 or so minutes we had,” he said, including a defense of Cooper’s discussion of Establishment Clause precedent. Noting that “giving judges the opportunity to ask questions is what oral arguments are all about,” Bramlett nonetheless said he was “frankly surprised at how granular they were in concentrating on this particular issue.” NO ‘SWEARING CONTEST’ Marietta sole practitioner Michael Eric Manely, who represented the sticker challengers at trial but was dismissed shortly after the school board filed its appeal, took issue with Bramlett’s performance. He said that when the judges raised the petition question, Bramlett should have “knocked that one out of the park,” pointing out that newspapers reported on the original petition before the stickers ever were created. Manely, who attended the arguments, said Bramlett should have rebutted Carnes’ assertion that the sticker was “factually accurate.” “We spent half of our case proving that evolution is a scientific fact,” said Manely. “Why did the appellate counsel jettison that argument?” he asked. Bramlett said he had no intention of arguing with the judges’ assertions that the stickers were accurate. “Getting into a swearing contest with a judge is not going to advance the case very far,” he said with a laugh. “If that’s what Judge Carnes thinks, I’m sure he’ll deal with it in his opinion.” Ever cautious, Bramlett said he would draw no conclusions from the court’s order to Gunn, nor would he speculate on opposing counsel’s reply. “This is a factual inquiry. I’m certainly not going to prejudge [opposing counsel's] response … and I never speculate on how an appeals court might rule.”

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