Churchill March 26th Morning: The CU Law School Connection

Dramatic Testimony of the Morning: “I don’t know which hurts more-- my 9/11 wounds or that a professor from my alma mater thought I deserved it.”

With Judge Larry Naves welcoming the members of the jury this morning by stating: “Isn’t it a privilege to live in Colorado,” the courtroom laughed but wondered if the trial would be truncated today due to the blizzard. The judge did indeed close the courtroom for the afternoon with the hope that tomorrow might allow the balance of the testimony to be given for the trial, instead of Monday.

However, the morning session was eventful as O’Rouke continued to parade CU’s Board of Regents before the jury to assert the following: (1) the disruption and harm to CU related to the 9/11 essay by Churchill was significant; (2) the 9/11 essay was protected speech; (3) the authorization to start an investigation by the Chancellor in February 2005 was not to find an alternative basis to permissibly fire Churchill; (4) the fact that 20 full professors, mostly employed by the University of Colorado, found by a preponderance of evidence that Churchill engaged in a pattern of falsification, fabrication, plagiarism constituting research misconduct was highly compelling in their decision to terminate Churchill; (5) the board members believe in a shared governance with professors who are independent professional employees who do not automatically follow the wishes of the Board; (6) the argument that Churchill should be held to the same standards applied to students attending the University of Colorado compelled them to vote for Churchill’s termination.

And, it is interesting to point out that the two members of CU’s Board of Regents who testified this morning earned their law degree from CU along with Judge Larry Naves.

Colorado Regent Kyle Hybl was called by O’Rouke first. Kyle Hybl explained that he is general counsel for the Broadmoor Hotel in Colorado Springs and took office as a member of the Board of Regents in 2007. He testified quickly that he decided to vote to terminate Churchill based on the information of falsification, plagiarism, and lying with respect to Churchill’s writing. Hybl claimed that firing Churchill was “for the good of the university” because research misconduct was established by twenty-five faculty members by clear and convincing evidence and to not terminate would create a problem with upholding students to these same standards.

Upon cross-examination, Lane challenged Regent Hybl on his assertion that the 9/11 essay was not on his radar screen until late December 2006 when he filed to run for the Board of Regents. Lane showed the jury Hybl’s video testimony before the Privilege and Tenure Committee indicating that it was on his radar screen in 2005. Hybl, in response, said it might have as early as late 2005.

Lane also brought up the “group defense” theory to explain how 20 full professors could all conclude that Churchill committed research misconduct by discussing how smart mean “group thought” that Iraq had weapons of mass destruction for justification for invasion. Lane then asked, if the report is inaccurate, then your decision is inaccurate, under the “garbage in, garbage out theory”?

O’Rouke on redirect asked if multiple levels of review were installed to insure the accuracy of the investigation and Hybl concurred explaining that is their purpose. He also explained that accuracy was further established by the higher burden of proof found not by the Investigative Committee (using “preponderance of evidence,” but by the reviewing “Privilege and Tenure Committee” in its report at Paragraph 6.1.3 that found the pattern of research misconduct by “clear and convincing evidence” since this much higher burden is required when termination was being considered by the university.

During the morning O’Rouke also called Colorado Regent Michael Carrigan, another CU Law School graduate to the witness stand. Carrigan testified that the usual commitment in time as a member of the CU Board of Regents is 40 hours a month, but during the spring of 2005, the Churchill crisis “left him hardly any time to devote to his law firm.” Carrigan also stated that in his mind the motivation for authorizing the Chancellor’s thorough investigation of all of Churchill’s writings and speeches was to determine the rights and obligations possessed by both the professor and the university. He wanted the investigation to determine whether Churchill was representing that the protected speech was coming from him as a private citizen or as a representative of the University of Colorado, a very important distinction in Carrigan’s mind.

In response to O’Rouke’s question used by Lane on cross examination in the past: “Were you sending out the Chancellor on a witch hunt?” Carrigan said “No.” But he did believe that Churchill’s 9/11 Essay did bring “dishonor to the University” and explained it with an emotionally gripping story. First, Carrigan described how he, and a CU alumnus injured in the 9/11 attack, viewed the 9/11 Essay: as an endorsement of violation and that 9/11 victims were not innocent even though civilians. The CU alumnus told Carrigan: “I don’t which hurts more-- my 9/11 wounds or that a professor from my alma mater thought I deserved it.”

Carrigan then testified that it would have been unconstitutional to fire Churchill based upon the 9/11 Essay. However, he explained why the New York Times quoted Carrigan in an interview that “We can’t fire him today, but he could be fired tomorrow” was not indicative of a planned witch hunt, but rather an attempt to explain the importance of tenure in protecting academic freedom, but that tenure does not protect a professor for life regardless of the behavior giving an example of a professor who habitually fails to attend the class he is teaching. Carrigan maintained that he really did not know the outcome of the investigation.

Carrigan also testified that termination of Ward Churchill would send a message that a strategy by a controversial professor to engage in outrageous speech cannot rely on the argument that the university cannot now investigate me. In other words, a professor cannot “immunize” himself from investigations of research misconduct under these circumstances because he would be given additional rights of protection than normal. By the way, this is the justification the U.S. Supreme Court in its decision cited by O’Rouke in his answer to Churchill’s complaint which stated the following:

The University’s conduct was appropriate because the University would have taken the same actions against Professor Churchill in the absence of any alleged unlawful conduct under the analysis described in Mr. Healthy.

Joseph Rosse, the CU Professor that chaired the Standing Committee on Research Misconduct, was called back to finish his testimony interrupted previously to accommodate a regent’s testimony. Lane continued where he left off on the contention that Rosse statement that termination was warranted since there was clear evidence of a pattern of research misconduct spanning a large portion of Churchill’s scholarship.

Lane skillfully collapsed the charges and characterized the pattern of misconduct spanning over 30 years of scholarship as the following:

1.      Convicted of misrepresenting of the General allotment Act of 1887 and the 1991 Indian Arts & Crafts Act in 1990;

2.      Convicted of the one liner by Churchill that there was “strong circumstantial evidence” for the Fort Clark Smallpox incident;

3.      Convicted of one instance of ghost writing

4.      Convicted of two instances of plagiarism

Consequently, he was convicted of falsifying stuff on 4 occasions, but even if he did this, he had lots of enemies. Rosse answered “Yes.” Lane then asked was this the “best stuff” you had? Rosse answered, “The only stuff.” Lane then asks, in 4,000 pages of scholarship and over 12,000 footnotes, this is all you got.” Rosse replied, “All we got.”

Lane then remarked, “But a pattern is something repeatedly done over and over again.” Is it your testimony that the pattern extended to all of Churchill’s 30 year record of scholarship? Rosse answered, “We only looked at what we saw; we did not presume more.”

Lane countered: “Also, Churchill was not sorry or did not apologize; this played a role in your decision? Rosse answered “The issue was whether was he took responsibility for these allegations.”

Lane pointedly responded: “Are you telling me that you wanted Churchill to just say, ‘I made this stuff up and I am sorry” you would not have terminated Churchill.’” But isn’t it true if he just said I made mistakes, this is not really fraud.” Rossa replied: “Right, if he said it was an honest mistake, then it would have affected the determination of whether it was intentional.” Rosse added that had Churchill written a rebuttal article to Lavelle’s attacking journal article, then a factor on the intent issue. Lane wondered if this should be so if Churchill believed that the article was so baseless as not warranting a response.

Lane asked whether Churchill was terminated to send a message that CU will not tolerate this.” Rosse said, “Yes, a fair statement.” Lane, “Pitcher of warm spit?” Rosse, “a cold way of putting it, but yes,”

O’Rouke then proceeded with his redirect of Rosse asking him about his “group think” testimony previously that followers go along with the position of the leader(s) and asked: “Has it been your experience that faculty group thinks with the regents and CU administration?” Armed with a PhD in Psychology, Rosse answered, “No,” and explained that the “Psychological reactance Theory” is useful to understand why this is true. The theory states that if you tell someone to do something, that person will do the opposite.

O’Rouke then asked: “What was more important: the lack of an apology or the misconduct? Rosse: “Misconduct was the main one.”

O’Rouke then asked the ubiquitous question: “You were not trying to go in there to prosecute Churchill.” Rosse responded, “That‘s correct.”

With O’Rouke finished with Rosse and with Lane stating he had no more questions, the jury gave the judge two questions:

1.     Was it more important for the SCRM (Standing) committee to have a full professor than someone who had expertise in Indian studies; “We wanted a full professor with the expertise.”

2.      Did the committee consider substituting another chair once Churchill raised the Wesson biased issue? “I recall approaching Professor McIntosh, but don’t know”

Again, these questions may indicate jury members’ perception of weakness in CU’s case: (1) that the Investigative Committee failed to properly include experts in Indian ethnic studies (CU would point to Robert Clinton, a published Indian law scholar but not a published Indian studies scholar according to Churchill’s expert on Indian studies, Eric Cheyfitz, and to Jose Limon, a Mexican American studies scholar, but not an Indian studies scholar); and (2) that the Investigative Committee did not properly investigate promptly bias or conflict of interest on the part of Wesson. These issues might have real traction with the jury since they bring into question the fairness of the investigation process.

In the Interest of Fairness and Accuracy--a Retraction

 Our March 17^th post stated “With the jury having an average age of 21…, maximum education of an associate’s degree, and less than half Caucasian, both sides are playing to their most important audience.” The information about jury education came from a court observer who covered the trial in the first week, and I used it without verifying that it was correct. The statement was repeated on our Colorado Matters interview on March 24^th. We have since received several comments indicating that at least one juror has a bachelor’s degree.

In fact, we have no official information about the personal details of the jury--not their ages, educational backgrounds or ethnicity. In the interest of fairness and accuracy that are the themes of this trial, we therefore retract the March 17^th written and March 24^th verbal statements, and apologize for any assumptions the statements prompted. This blog’s position is that the jurors seem to be doing a great job keeping track of the complex minutiae presented as evidence, and are asking perceptive, relevant questions.

Churchill v. University of Colorado: Counsel and His Handling of Ward Churchill

Pat O’Rourke was sometimes tough on Ward Churchill but on the whole treated the plaintiff with dignity and respect.

It was an attempt to get at the facts but the cross examination was not tinged by discordant or hostile attitudes. He began with an acknowledgement that they had been together for a long time (through some of the administrative process prior to trial) and that he would sometimes be asking direct questions.

In general, he allowed Churchill to answer the questions without interruption, declining to use the lawyerly tactic of asking the judge to require a yes or no answer. As a result, Churchill was allowed to give full explanations of his views. Indeed, at one point Churchill reached for a hypothetical and asked O’Rourke if he would serve as the case study, then began asking O’Rourke questions as if Churchill was the lawyer. O’Rourke rolled with the unusual behavior.

Typically, O’Rourke demonstrated throughout the cross a terrific mastery of the facts and exhibits (albeit making one significant mistake in the morning when he asserted that the Fay article and the piece attributed to the Institute for Natural Progress had the same title). On one occasion, he had on the screen a copy of the academic standards for CU. An email sent by Churchill to Mimi Wesson came up and O’Rourke by memory recited the exhibit number and it immediately flashed on the screen.

Whatever the outcome, it has been a thoughtful and professionally run trial.

Churchill March 25 Afternoon: CU's Defense in Full Swing

Lane continued his cross examination of Dean Gleeson that was continually marked by confrontational questions and answers that Lane then used repeatedly the video testimony in front of the Privilege and Tenure Committee to show Gleeson’s inconsistent testimony. Near the end of the afternoon, the judge allowed CU to stop the examination of Gleeson in order to allow Senator and prior CU regent to testify since the time was the only one available for her to testify at the trial for the defendant.

Lane first confronted Gleeson on the point that when the Department of Ethnic Studies was feeling so threatened by the public firestorm and accompanying email, it sent an open letter through Gleeson seeking support for the department. Gleeson said he could not retract the hate email, but did admit that he did not respond to the open letter.

Lane asked about the three faculty members who were brought up on charges of research misconduct since Ward Churchill’s investigation. Gleeson said three, but none of them were fired. In response to the question regarding whether any student had been thrown out of the University for improper footnotes, Gleeson said “I doubt it.” This question and answer was effective since Gleeson stated in the morning that he could not rightfully decide to retain Ward Churchill when “we don’t hold faculty members to the same standards we expect from students.”

On re-direct, CU counsel asked Gleeson a series of questions regarding research misconduct that Gleeson agreed with. First, don’t even middle school students understand that plagiarism is wrong? Second, do they also understand that they cannot do the work for another student and let the other student take credit for the work?

Gleeson made several emphatic statements about the extent of the research misconduct found by the Investigative Committee that he read and formed his opinion that there was ample evidence of fabrication, falsification, and plagiarism to an “extent I have never seen before.”

Gleeson pointed in particular to the statement in the Investigative Report at the end of Section C. He shared the Committee’s disappointment that Churchill did not acknowledge errors and inappropriateness of misleading his readers and denied he had plagiarized. Consequently, Gleeson said he was not confident that there was any way this matter would be mediated with Churchill since he would not repair the damage he caused with his research misconduct. Gleeson then said:

• Thus, I needed to look parents in the eye that our faculty would be held to the same standards s our students were. I was concerned that Churchill would train the next generation of scholars improperly and finally I told chancellor that I lost confidence in Churchill’s ability to review the scholarship within the department and within the university; I essentially lost trust that he was conducting himself at the same ethical level of other professors. Consequently, I recommended termination since there was a large pattern of research misconduct over the time of his otherwise outstanding career.

Then came a series of questions from the jury again indicating its leaning perhaps to Churchill’s side:

1. When the public was making these statements, did CU ever publicly state that this was Churchill’s right? Gleeson responded that the Investigative Report that was made public makes clear under case law on why Churchill’s speech was a fully protected under the U.S. Constitution.

2. It seems as though the essay caused a lot a friction, now that he has been fired, do the groups, parents, alumni, now seem to be settled in their minds or is there still friction? Gleeson responded that the friction has settled down, but still simmering.

3. Do you feel someone should apologize-- that he does not find that he did wrong-- just to satisfy others? Gleeson responded that if I were Churchill and my peers said my behavior was wrong, I would swallow my pride and apologize and correct the scholarship record.

4. Do you feel if there was no public outcry, do you feel that there would have been an investigation on his research? Gleeson responded, “No, but if misconduct allegations had come, then would have had to act on them.”

5. When asked for help [Ethnics Department]; why not respond to their letter? 

CU’s counsel then asked Gleeson whether he was committed to helping the Ethnic Studies Department to not only survive, but thrive? Gleeson answered, “Absolutely.”

CU called its next witness Joe Rosse, Ph.D. in Psychology.  Professor Rosse is the head of the Office of Research and Integrity and he chairs the Standing Committee on Research Misconduct (or SCRM). He explained that committee is charged with high standards of ethical conduct and it promulgates standards of good research and responds to allegations of misconduct.

He discussed the process of forming the investigative committee by looking at the criteria for the individuals we were looking for: recognized scholar, a full professor so not subject to pressure, expertise in the field in question, (law and Indian studies, history,) external and internal scholars in the mix.

Lane started his re-cross with an explanation of group think to help explain why 20 faculty members reviewing the research allegations, found a pattern of research misconduct. Lane asked if he had heard of group think: a belief that a group has the moral high ground; thinks everyone shares the same views; protects the group, and takes the lead on the view of the leader. He agreed that these are factors in “group think.” Lane then asked whether the resolution by the Board of Regents on 2/3/05 constituted a “tone and tenor that we are condemning Ward Churchill and we apologize for his essay” and thus constituted “the view of the leader” expecting followers to implicitly follow this lead.

The witness responded that still the committee had the duty to investigate the allegations and objectively determine whether misconduct had occurred.

Lane then pressured the witness on why he had selected Wesson to chair the committee. He noted that she had a great legal background and a prosecutor at one time in her career. Lane countered effectively, but don’t prosecutors normally put away the “bad guy” like OJ and others. However, the witness admitted that it was only a small part of his decision. Lane then showed the court his testimony before the P&T committee in which he said there were two factors: (1) Wesson knew the law; and (2) she was a former prosecutor. Lane again questioned why in his prior testimony he listed the two factors equally.

Then Lane came upon two issues with the witness that seemed compelling. First, he got the witness to admit that it would have been better for the witness to see the Wesson email potentially showing bias against Churchill because the Standing Committee on Research Misconduct really needed to determine whether the purported bias should disqualify Wesson. Then Lane asked why the Wesson email was never shown to us by CU, but he did not know.

Second, Lane asked why the Standing Committee allowed the Investigative Committee to refuse to not investigate the late additional allegations. He gave three reasons: (1) Churchill refused to play ball anymore; (2) the issues were not that significant; and (3) it was not a good use of CU’s resources. But Lane countered, “But what about the sacrosanct duty to discover the full scholarship record and correcting it where it is found to be flawed as professed often by members of the Investigative Committee?” The witness said in the end, it was not the best use of CU’s resources.

Somewhat rhetorically, Lane said isn’t the real reason was that you had enough to convict Churchill and to pursue additional allegations was like shooting a dead person?

CU’s counsel requested at this point to preempt the examination to allow the next witness to testify since it was the only time she could testify at the trial.

Then CU called Regent Gale Schwartz who is currently a senator in the Colorado General Assembly. She stated that Ward Churchill’s essay was ultimately found protected by the chancellor and “I agreed with that determination.” She also offered that “We should not compromise our own process and principles by which the institution is jointly governed.” This meant that she did not feel obligated to act on the governor’s wishes and meant to uphold the Constitution.

Lane did not have much time to cross examine her, but made some points regarding how disgraceful she found the essay to be and that it would not be right to instigate an investigation solely on the grounds of the 9/11 essay.

Churchill March 25 Morning: Churchill's Spouse Takes the Stand

Prepared by Carlos Rueda:

This morning’s session began with testimony from Mr. Churchill’s wife, Ms. Natsu Taylor Saito. She was a witness for the plaintiff. Mr. Lane started by asking her about her profession. She is currently a professor at Georgia State University’s College of Law. She has an interest in “critical race theory,” the history of groups of color, and legal history of American Indians. Prior to her current tenure at Georgia State University, she worked at the University of Colorado’s Department of Ethnic Studies.

Mr. Lane asked her about the 9/11 essay Mr. Churchill wrote and published on a website. Ms. Saito said that she and Mr. Churchill were together in Atlanta the morning of the attacks and watched it unfold on TV. She continued to explain that Mr. Churchill reacted to the media’s characterization of the attacks as “senseless.” Ms. Saito said Mr. Churchill thought calling and characterizing the attacks “senseless” was incorrect because such attacks, in some way, made sense to the terrorists. Therefore, in order to prevent such attacks in the future, Mr. Churchill wanted to understand the reasons behind the terrorist’s actions. She stated that Mr. Churchill wrote the 9/11 Essay in Atlanta following the attacks.

Next, Mr. Lane asked Ms. Saito how she perceived the Ethnic Studies Department at CU. She said that at the beginning it seemed the administration thought the department was valuable. She accepted a full-time tenured position at the department. Mr. Lane then asked her to explain tenure. She said it meant a position that can only be revoked in limited situations, such as sexual harassment, and that tenure was meant to protect the freedom of speech and academic thoughts of professors from political pressures. She stated that tenure allows scholars to freely publish their thoughts without worrying about their jobs. Mr. Lane then asked Ms. Saito whether tenure was under attack under Governor Owens. She answered with an unequivocal “yes.” She said faculty members were afraid their academic freedom protections would end, and that they were also afraid of losing their programs and tenure.

Moving on, Mr. Lane asked her how Mr. Churchill’s 9/11 essay exploded. Ms. Saito said that it was a “shock” because it became news in 2005, and the essay was published in 2001. People and media started calling and visiting their home. They started receiving emails and phone messages with baseless allegations and racist remarks. Mr. Lane showed several emails to the jury. One of them read as follows: “Tell Ward my ancestors killed a lot of Indians and I am proud of it.”

Mr. Lane asked Ms. Saito whether she looked to CU for protection. She said yes, the members of the Ethnic Studies Department wrote a letter to the administration indicating that the tenure system and ethnic studies were under attack, and that the university needed to back them up because racism was not correct. She said they attached numerous copies of several threatening, racist emails to the letter. Ms. Saito and the department wanted the University’s administration to create a public statement indicating that the Department of Ethnic Studies was important to CU and that anti-Indian, anti-Arab, anti-Black and all types of racism were unacceptable. CU, however, never made that public statement denouncing racism or stating the importance of ethnic studies.

Finally, Mr. Lane questioned Ms. Saito about the impact the research misconduct investigation had on Mr. Churchill and her. She stated that it was “exhausting and frustrating.” She went on to say that it was “painful to see all the people come out of nowhere and attack you;” that even the University was attacking him. Ms. Saito stated that the investigation was bad for their health. For example, Mr. Churchill was working 18 hours per day trying to keep their life from falling apart. She started to commute to Atlanta after she resigned from CU. Book deals and speaking engagements started to disappear. What was most hurtful, Ms. Saito said, was not only to see his reputation unjustly tarnished, but his life’s work be destroyed. She said it wasn’t about the money, that it was about Mr. Churchill’s work. That Mr. Churchill’s work constituted decades of telling the history of the American Indian and he was one of the most cited scholars in the field. That the baseless accusations by CU, the media, and people from the public, essentially vanished the story of American Indians told by Mr. Churchill for decades. The cross-examination of Ms. Saito was uneventful. In cross-examination, counsel for the defense only asked a couple of questions of no consequence.

Ms. Saito was the last witness for Mr. Churchill; the plaintiff rested his case.

The next witness was Dr. Gleeson, witness for the defense. Dr. Gleeson is the Dean for the College of Arts and Sciences at CU. He was the Dean of the College while Mr. Churchill was the Department head for the Department of Ethnic Studies.

The direct examination began by counsel for the defense asking Dr. Gleeson about his duties as dean. He said his duties were primarily managerial, and to oversee the direction of the college. He had been there for 8 years. Asked about the Department of Ethnic Studies, he said that he allowed the department to grow by hiring more faculty. Then he was asked whether Mr. Churchill received good job reviews; he said yes, that he was a popular teacher and received “satisfactory” reviews.

Counsel for the defense moved to ask about the period regarding the uproar about Mr. Churchill’s 9/11 website essay. Dr. Gleeson said that he, CU and the College started receiving a flood of emails from the public. People were asking for Mr. Churchill’s dismissal and some faculty were asking for protection. Dr. Gleeson said that he talked to the Chancellor and was told to consult with the law school in order to craft a response.

Dr. Gleeson was asked how it all started. He said that at first all the attention focused on the 9/11 essay, but then the attention moved to Mr. Churchill’s scholarship and whether he was advocating violence against the government. He said that CU started reviewing the emails it received from the public to determine whether they had some validity. From the emails they gathered and reviewed, he said, several allegations did probably have some validity. He said that is how the investigatory committee was created. Once the committee was created he had nothing to do with the investigation regarding the allegations of misconduct. He said that he only read the report once it was finished. Asked how he reacted to the report, Dr. Gleeson said he was impressed by the depth of the report and shocked at the conclusion.

Dr. Gleeson was asked why they didn’t just dismiss the allegations from the public. He said that as university officials they had a duty to investigate any alleged misconduct on the part of the faculty. He stated there was no difference between an allegation of sexual harassment and an allegation of academic misconduct. Dr. Gleeson agreed that most of the allegations originated from Mr. Churchill’s enemies and critics, however, he said that how a person feels is irrelevant if the allegations are correct. He also testified that parents threatened not to enroll their children at CU and fundraising was in danger.

On cross-examination, Mr. Lane started by publishing to the jury a grading scale between grades A to F, with corresponding adjectives, such as “Outstanding” for A, “Good” for B, “Satisfactory” for C, and so on. Mr. Lane asked Dr. Gleeson whether Mr. Churchill’s review rated him as “Satisfactory.” Mr. Gleeson said yes. Mr. Lane asked that such review would be equivalent to a “C.” Mr. Gleeson said not for purposes of employee review because he was not using Lane’s grading scale, but yes for purposes of Mr. Lane’s grading scale published to the jury. Mr. Lane then published a letter from Dr. Gleeson to Mr. Churchill. In the signed letter May 4, 2004 Dr. Gleeson commended Mr. Churchill with phrases such as “We are pleased to recognize your outstanding contribution to scholarship and teaching in the area of Native American studies.” The letter went on to say that CU was very interested in retaining him and consequently, his salary will be raised to $92,000, “contingent on you remaining a member of the faculty of the UCB faculty.”

Lane asked if he wrote the letter characterizing Churchill’s research as outstanding, not merely satisfactory. Gleeson said he probably did not draft it. Lane said, “But can’t we assume by you signing this letter that you have read the letter and endorsed at the statements contained therein.” Gleeson said “Yes.” Clearly, Lane’s line of questioning served the dual purpose of showing how Gleeson’s assistant ghost wrote the letter for Gleeson similar to Churchill’s ghost writing.

Lane then directed Gleeson to his testimony earlier in the morning on direct examination that the Churchill 9/11 essay was not well reasoned and thus the basis of his criticism. Lane used this opportunity to explain to Gleeson Churchill’s reasoning: that “When you are greasing the American economic oppression wheels, the consequence could be 13 year old children working in Indonesian sweatshops.” Isn’t this well reasoned to explain the connection between the 9/11 victims and “little Eichmanns.” Gleeson said it is not a very “robust” argument and Lane said it could not be any more robust and moved on.

Next, Lane put on the screen the statement by the Board of Regents on February 2, 2005 and had Gleeson focus on the following provision:

Within the next 30 days, the Office of the Chancellor will launch and oversee a thorough examination of Professor Churchill’s writing, speeches, tape recordings and other works. The purpose of this internal review is to determine whether Churchill may have overstepped his bounds as a faculty member, showing cause for dismissal as outlined in the Laws of the Regents.”

Gleeson stated that this provision represented concern over whether Churchill advocated violence against the government, but allegations were more widespread and not limited to the 9/11 essay. Lane challenged this assertion by bringing up Gleeson’s testimony before the Privilege & Tenure Committee in which Gleeson in the video says in response to the following question: “Any other reason besides the 9/11 essay when you (Gleeson) were solicited to put all this in motion. Gleeson said “No” and seemingly contradicted his prior statement on the stand. Gleeson explained that at the time he was solicited by the Chancellor, only the 9/11 essay was on the table for consideration, but by the time his committee was convened, he received new allegations related to research misconduct.

Lane then asked about the language in the Board of Regents Statement regarding “a thorough examination of Professor Churchill’s writing, speeches, tape recordings, and other works. Lane questioned that didn’t this amount to in essence an indication to “get Churchill by looking at everything.” Gleeson countered that “thorough” does not mean everything will be looked at.

Finally, Mr. Lane questioned Dr. Gleeson about the disruptions Dr. Gleeson testified about during direct examination were caused by Mr. Churchill. Mr. Lane asked him whether he knew of any student that missed classes or professors that canceled classes because of Mr. Churchill. Dr. Gleeson said no. Mr. Lane asked whether the Boulder Police was ever called to campus because of Mr. Churchill, Dr. Gleeson said no. Whether CU suffered any disruption in fund raising, Dr. Gleeson said no. Whether any parents did not enroll their children because of Mr. Churchill? No. Mr. Lane asked him what really were the disruptions. Dr. Gleeson admitted that only emails and phone calls constituted the bulk of the disruptions.

Churchill v. University of Colorado: Churchill and a “Pitcher of Warm Spit”

David Lane finished the direct examination of Churchill on Tuesday morning.  At one point, he threw an anticipated softball to Churchill, asking him how the controversy impacted his life. It was an opportunity to talk about the death threats, the emotional impact, the consequences of becoming an almost satanic figure. It was an opportunity to see the person underneath all of the allegations.

It didn't happen.  Churchill noted that he had been out of work for two years, that there were a number of books unfinished (interrupted to use his word), that he had been consumed by the case.

Lane had to prod him to say more. He pulled out that one professor described his scholarship as not worth a “pitcher of warm spit”, a phrase ordinarily applied to the position of Vice President of the United States and that Churchill was “angry” over what had happened.  Churchill indicated that within his scholarly community, his reputation had probably been unaffected but that the attacks probably affected the willingness of outsiders to consider his views, thereby allowing them to continue to adhere to the “we didn’t do anything wrong” myth.

The answers were honest and unrehearsed but they provided little insight into Ward Churchill on a pesonal level, something that might have garnered sympathy from the jury.  It was an opportunity lost.

March 24, Afternoon Session--End of Churchill's Testimony

The afternoon session began with cross-examination of Ward Churchill by CU's counsel, Pat O'Rourke, on the ghostwriting he did for Rebecca Robbins. According to Prof. Churchill, he submitted the writing to Prof. Robbins who then made no alterations to it and submitted it for publication. Prof. Churchill explained that Prof. Robbins was tasked with making the ultimate decision of whether to publish the article and she chose to do so without making any modifications. As a juror question later revealed, it was Prof. Robbins that ultimately submitted the article for publication and not Churchill.

O'Rourke then questioned Churchill regarding the plagiarism of Fay Cohen's article. O'Rourke provided evidence that Churchill included this article in his faculty review the first year he was a tenured faculty member but Churchill responded that he did not include the article on his resume.

Next, O'Rourke turned to the University's investigation by Prof. McIntosh on Churchill's claims that several Indians were told to "turn and scatter" by an army post surgeon. Churchill pointed out that the investigation was meant to be a non-adversarial fact-finding body and Prof. McIntosh "exceeded her charge" by trying to discredit the original source rather than addressing the validity of utilizing the source.

Lastly, O'Rourke attempted to weaken Churchill's position that he was the target of an agenda by the University to get rid of him. In doing so, O'Rourke named off the various committees and committee members who would have to be involved in having Churchill "railroaded". O'Rourke questioned the likelihood of none of the members speaking up in Churchill's defense. Churchill answered that it wasn't necessary for each of the members to be in contact with each other and actively seeking to get rid of him as a group, but rather, the external political pressures pushed each of them to work toward getting rid of him.

After O'Rourke's questioning, Churchill's counsel, Mr. Lane, had a brief redirect which focused on Churchill's job prospects after the University fired him for plagiarism. Churchill responded that he did receive a few verbal offers but also believed that being labeled a plagiarizer has adversely affected his job prospects. There have been some inquiries by faculty members at other institutions, but when they check with their institution, no way. Mr. Lane concluded by asking whether ghostwriting appeared within the definition of academic misconduct to which Churchill replied that it did not.

A number of juror questions were submitted to Churchill before he left the stand. One such question was whether the allegations of academic misconduct would have surfaced if not for 9/11. Churchill responded, "the simple answer is no, they would not." He then explained that the Indian Arts and Craft and Allotment Act issues have been known since 1999 and it wasn't until after 9/11 that they became reasons for dismissal. In Churchill's words, "one day I'm a highly valued member of the Arts and Sciences community, the next day they're trying to find a pretext to get rid of me."

This completed the plaintiff’s witnesses, and CU called Tilman “Tillie” Bishop, currently the vice-chair of the Board of Regents at the University of Colorado. Mr. Bishop recounted his background in the field of education and public policy having served as the administrator of Mesa College on the western slope for 31 years and as a representative and senator in Colorado’s General Assembly for 28 years. Mr. Bishop ran for the position based on a focus on the budget problems at CU. Elected to the board, he started in January, 2007 after the 9/11 Churchill essay became public.

Regent Bishop stated he voted yes for termination of Ward Churchill and was not pressured by any other regent, after all, he said, legal counsel advised the regents that they could be called as a witness and thus did not discuss the case among themselves.

In response to Mr. O’Rouke's question on how serious did Regent Bishop view the findings of Churchill’s research misconduct, he responded that he viewed them as “very serious” and ultimately for “the good of the university,” decided termination was required. Stating he did not just “rubber stamp” the decision of the Investigative Committee and the Privilege & Tenure Committee, he came to the conclusion that Churchill could not be allowed to return to the classroom for the simple reason that CU expects students to meet the highest standards in regards to research conduct, then CU should expect and require that these highest standards are also met by CU’s faculty.

On cross-examination by Mr. Lane, Regent Bishop seemed confused by the questions and the pressure exerted by Mr. Lane. He finally recalled that, as a state senator at the time (2/2/2005), he had not participated in the unanimous joint House and Senate Resolution to voice the General Assembly’s outrage over the 9/11 Churchill essay. He also stated emphatically that he did not take into account, whatsoever, the 9/11 Churchill essay in deciding to terminate Churchill. Pressed by Lane, Bishop said he not only did not read the 9/11 essay, but he does not know whether the essay compared the 9/11 victims in a favorable or unfavorable light. Both Lane and the jury seemed stunned and Lane pressed Bishop on this point several times—“for all you know, the essay could be comparing the victims to the Boys Scouts” and Bishop said “yes.” Bishop also said he did not read all of the Investigative Report trusting CU’s faculty on the committee investigating the allegations.

Churchill v. University of Colorado: Interview on Colorado NPR

We have assiduously kept the Churchill posts off the home page of the Race to the Bottom since they do not involve issues of corporate governance.  Nonetheless, we break our rule this once to note for anyone interested an interview for Colorado Matters on the coverage of the Churchill trial by the Race to the Bottom.  The interview can be found here.

Churchill v. University of Colorado: Colorado NPR Interview

For anyone interested, Colorado Matters did an interview with the Race to the Bottom in connection with its coverage of the Churchill Trial.  The interview can be found here.  

Churchill v. University of Colorado: Churchill’s Testimony and the Jury’s Reaction (Bad News for the Defense)

In one of the more intriguing practices taking place in this trial is the right of jurors to ask questions. After each major witness, they write out questions. The judge and counsel review them then the ones that survive any objection are asked.

In the aftermath of Churchill’s testimony, jurors asked four questions, at least two of them suggesting sympathy for Churchill and the other two allowing Churchill to provide a sympathetic response.

One of them suggested that the arguments of bias by Mimi Wesson, the chair of the investigatory committee, was sinking in. The juror asked: 

• “You mentioned that you emailed your questions to Mimi Wesson” and she would ask the questions and “sometimes altered” the questions. Is there a record of the hearing and “how would altering it change the outcome of the response?"

The question at least suggested that jurors were considering the possibility of bias in practice rather than just appearance. 

The second question went to whether Churchill had corrected a prior mistake and whether the Investigatory Committee was aware of the correction.

• Noting that there had been a minor essay with an error and a "major essay" that corrected the error, the juror wanted to know whether the "investigative committee and the P&T committee [were] given the major essay for review?”

Effectively the inquiry seemed to suggest sympathy with the idea that Churchill in at least one instance was willing to correct his own errors.  This is significant since an element of the CU case turns on the unwillingness of Churchill to confess error or feel the need to make corrections.  

The third question was about the ghost written work done on behalf of Rebecca Robbins. 

• “Did you turn in the work for Rebecca Robbins to be published or did you send work to Rebecca Robbins and” she turned it in.

The question suggests that the juror considers it important whether Robbins in fact approved the contents of the ghost written piece.  It suggests that the juror is not finding it per se invalid for Churchill to have ghost written the piece but is concerned about whether the putative author actually consented to the practice.  Churchill firmly stated that Robbins was the one who submitted the piece although under questioning from O’Rourke he indicated that the answer was based on what he assumed rather than actually knew.

Finally, one juror asked a very blunt question: 

• “Would all of these allegations have surfaced if not for the 9/11 essay?”

Needless to say, Churchill responded with an emphatic no, noting that the allegations had been floating around for some of the claims and that the University only chose to act after the 9/11 essay controversy.  All and all, the questions (albeit from individual jurors) suggest that they have concerns with many aspects of the Defendant's case and that a number of the Plaintiff's arguments are gaining traction.  

Churchill v. University of Colorado: Score One for the Plaintiff

The day saw a lengthy cross examination of Ward Churchill. Pat O’Rourke did what he could but in the end did not shake Churchill.  On occasion, the testimony brought out the unimportant nature of some of the charges.  O'Rourke was thorough and focused but he did not significantly weaken Churchill's testimony.

O’Rourke rightfully focused on the ghost writing issue.  Other issues have fallen in significance.  He noted that the CU rules prohibited “fabrication, falsification, plagiarism or other forms of misappropriation of ideas” and at one point asked whether the writing of pieces “from the ground up” was deceptive.

Churchill vigorously denied that it was.  He emphasized that there was nothing in the general standards that prohibited ghost writing, repeatedly referring to the lack of standards.  O’Rourke couldn't point to any definitive source for the requirement and was reduced to noting that no witness had claimed they engaged in the practice (although some of them clearly indicated that the practice was acceptable) and that 20 faculty members at CU (incidentally out of 1200) had found that the practice was improper.

Churchill, in contrast, pointed to authorities that acknowledged the practice was acceptable and pointed out that there were many new editions of textbooks published posthumously and not written by the putative author.

In the afternoon, O'Rourke switched his approach.  He tried to insinuate that the various imputed authors in fact did not approve of the ghost written piece. O’Rourke drew out that Churchill never discussed the article with one of the putative authors, Robbins, that she made no changes in the article, and that she was an expert in other areas, specifically rhetorical analysis. He emphasized that Churchill did not know if she read even one word of the draft.

Churchill in turn testified that she was a scholar and presumably could make up her mind, that agreeing to publish was sufficient proof.  “She is a third party scholar capable of making her own decisions.” He also noted that Robbins listed the piece on her resume, indicating support for the contents.

The toughest issue for Churchill is the one plagiarism allegation based upon the article written by Fay Cohen. The piece had been published in a volume edited by Churchill. Subsequently, in another book, an essay attributed to the Institute for Natural Progress contained clear evidence of plagiarism, as a side by side comparison showed.  Churchill helped start the Institute.  

Churchill claims that he was not responsible for the content and indeed the essay is attributed not to him but to an Institute that he had helped found.  The most damning piece of evidence is that he listed the article on an internal performance evaluation report at the University (something he claimed occurred accidentally because his report was prepared by administrative staff within the department). On the other hand, he did not apparently list it on his resume.  In later testimony, he noted that he had not been on the faculty at the time the pieces were written and took the position that the CU academic standards did not even apply to him.

The effort to use cross examination to discuss the smallpox incident evolved into a discussion of minutiae that made little indentation into Churchill's position.  O’Rourke largely focused on the proof of the existence of a smallpox infirmary in St. Louis, the one that produced the blankets containing smallpox. and on whether sick Indians had been ordered to scatter, spreading the deadly disease. The latter discussion went back and forth on whether the Indians were already sick when they entered Fort Union or became sick while there, differences that seemed all but insignificant. 

The weakest moment came with the discussion of the Allotment Act.  O’Rourke emphasized over and over that Churchill had cited the law in connection with a statement about the amount of blood necessary for someone to qualify as an Indian (blood quantum) and that no such blood quantum standards were in the law.  Churchill just as often repeated that while the “act itself can’t be read” literally to say anything about blood quantum, it did assign to the Bureau of Indian Affairs the task of administering the Act and the Bureau did apply a blood quantum test. In other words, it sounded entirely accurate to cite the Act that was responsible for the implementation of a blood quantum standard.

All and all, the cross tended to bring out problems with each of the allegations against Churchill.  A hint that it did not strengthen the University's case came from the questions that jurors wanted to ask Churchill.  That will be the subject of a subsequent post.  

Churchill March 24 morning: Starting Cross Examination

The morning started with Churchill producing a notebook he brought in to show how he collects research (this particular notebook contained research on the Fort Clark Smallpox Epidemic, which was conditionally admitted into evidence subject to Defense examination. Mr. Lane continued with his broad questions, which allowed Churchill to give expansive answers or comments to points brought up in previous testimony.

Why answers to Investigative Committee (“IC”) questions were incomplete or contradictory -- Churchill noted that when you spend 20-30 years accumulating information and then someone says, “Prove this point,” it takes time to accumulate the data. As you accumulate knowledge you are not marking everything to prove specific points. The IC rules allow for extension of the 120-day deadline, but four of the committee members didn’t seem to know that rule and Wesson didn’t tell them. (Lane refers to the IC as the “Wesson Committee,” possibly to distinguish it from the other two committees, and possibly to infer that Wesson had particular influence—or both.) Churchill noted that the question-answering process was that he would start responding to committee questions and they would insert another question to do, so there is a collection of partial answers. “An amazing amount of work that goes into preparing a response to a broad array of charges.” While the IC was five people working full time with secretarial support, he was one person on his own.

“Blood quantum” quote re Allotment Act – IC said there was no such language in the Act therefore it is a misquote. But Article III of the act allows the Secretary of Indian affairs to set policy to implement the act, and the way the passage describes the total effect of the Act is correct. The Indian Commission’s policy required someone to be one-half Indian to receive the land allotment of 160 acres. As a result of this limitation, Indians lost 100-150 million acres of land. Quotation marks can be used to indicate a term of art, sarcasm, that a particular term is suspect, or to indicate a direct quotation. Churchill always puts “blood quantum” in quotes because the term is meaningless and an anachronism; what the policy is really about is DNA or genetics, getting close to eugenics. In this case, quotes mean sarcasm.

Did CU pay for witnesses to come in? – Churchill presumed CU paid transportation, but for sure they weren’t paying for his witnesses. So the answer to why he didn’t present certain evidence during inquiry was cost ($1400 for Hawaiian witness) and time. And remember, Churchill didn’t get to the Privilege & Tenure Committee until after being convicted by two committees and having the results published electronically.

Confidentiality – Churchill’s understanding was that the entire process was to be confidential, as it is in the university overall. The University never before convened a press conference to announce forwarding complaints, supplementing complaints, and never before published the decision of a committee. Churchill got news of the progress of his case from the Rocky Mountain News.

Assertion that the University is duty bound to investigate any and all allegations of academic misconduct -- Churchill notes that there were multiple complaints filed in regard to the IC report, asserting misrepresentation of sources, outright fabrication, and massive plagiarism in the report itself. Churchill testified that the University took those complaints to Health Science Center to be investigated, and the Center said the report was not scientific research therefore not subject to investigation.

What effect has this investigation and decision had on Churchill’s life? – Churchill was fired on July 27, 2007, so he hasn’t had the (approximately) $105,000 compensation (salary and benefits) for about 2 years. He is not asking for money; he wants his job back and restitution (we assume that is back pay) and an acknowledgment that the process violated his rights.

Professor Radelet’s emphatic assertion yesterday that Churchill’s 30 yrs of academic research is now not worth a bucket of warm spit – Churchill assumes this is evidence of the belief that “if we can nail Churchill we can destroy the line of investigation for which he is the primary proponent” (i.e. the deliberate genocide of indigenous nations). “In the areas of academia where they really know about my work I’m not damaged, but this conviction allows others on the fringes to seal it off so what I set out to do years ago is limited. The Master Narrative says that while we (i.e. the white people in charge) are not perfect we’re pretty close and we have nothing to apologize for. It is an abomination and the people who made that happen are pathetic.”

Who is Philip Deer and what did he tell you? -- Philip is a Muskogee spiritual leader who is important in the American Indian movement. Churchill is not “traditional”; he doesn’t teach or run ceremonies but engages in activism through his writing. Philip told him that his family raised him in a way to understand things from Indian view but also to know how to talk to others who don’t understand. This gives Churchill a unique ability to talk to those outside to make them see how we see/value things on the inside (the Indian people). Churchill was quietly moved in describing his relationship with Deer, and with that answer, direct examination finished.

Mr. O’Rourke was quiet as he began cross examination. He noted that they—he and Churchill—had spent lots of time together, that he hoped to ask direct question and get direct answers.

O’Rourke started by getting Churchill to agree that in January 2005 a) Churchill was a public employee; b) people became enraged by his 9/11 essay; c) the University and Churchill personally received thousands of angry messages; d) government officials were threatening to cut University funding, parents were threatening to withhold children from school; e) there was a general firestorm. O’Rourke made sure the jury understood that Eichmann is credited with gleefully masterminding the intentional destruction of five million jews, which is why the reference in the 9/11 piece was so offensive. Churchill admitted he didn’t mean to imply that people working in the trade towers intentionally killed people, but he stood by his position that people who work for “profit maximization” are nevertheless at least indirectly responsible for people in other countries who work long hours for almost no pay.  The example Churchill gave was how their decisions could result in 13 year old children in Indonesia being chained to work in sweatshops.

O’Rourke showed that there is an existing policy (1998) on faculty research and a definition of “research misconduct” that includes fabrication, falsification, plagiarism, misappropriation no matter what discipline the faculty member is in, and that Churchill had never asked for an exception to this policy for ethnic studies work. O’Rourke then addressed the incident where Churchill had admitted to that four paragraphs had been plagiarized from Professor Fay Cohen's published article. Churchill said he does not know who wrote the article, but it was plagiarised.  Putting passages up on the screen, O’Rourke noted that not only the beginning four paragraphs, but the end and indeed the “whole thing, from stem to stern” was plagiarized. Churchill countered by noting that the middle portion was originally written.

Questioning and testimony then went into a somewhat hard to follow area regarding Churchill’s asserted copy editing of essays that later appeared in two publications. O’Rourke asserted that Churchill’s work on the essays was substantial; Churchill insisted it was just copy editing for consistent form, such things as substituting “nation” for “tribe.” O’Rourke was trying to make the point that Churchill could not have not noticed an article with the exact same title published in two separate journals he was involved with within a year. But Churchill had the text put back on the projected screen to note that in fact the titles were not identical, and no, he did not remember or notice editing articles on similar topics. (Not a great moment for Defense.)

Questioning then went to the topic of ghost writing. Churchill described Rebecca Robbins as someone who had agreed to write an article and then didn’t produce. Churchill was asked for a draft, which he wrote and sent to Robbins to change and publish as she pleased. He never discussed it with Robbins, and saw later that she published it verbatim. O’Rourke then projected a Churchill response to the IC committee where he said that what he has done from time to time is write under pseudonym using a real person’s name. O’Rourke wanted to emphasize the significance of Churchill’s 15 page “essay” in response to the IC’s query on ghost writing, but Churchill deflected this by referring to the IC’s originating question of “what is the difference between pseudonymic writing and ghost writing.”

Churchill insisted that writing under a pseudonym can be using a made-up or real name, which is different from ghost writing, which is providing raw material for someone else to either adopt or change and put their name on. Churchill noted that ghost writing happens all the time, and there is no agreed-upon standard against it. O’Rourke then dissected this reasoning to say that “If it happens all the time, we don’t know who has written anything, do we? Perhaps all the books in the library are ghost written? But if it is so common, why did all the witnesses you have brought in (naming them) say that they had never done this?” O’Rourke also asked the inevitable question of why Churchill hadn’t brought Robbins in to testify that she fully adopted the essay, but Churchill deflected that by saying it wasn’t his responsibility to prove he was innocent, but the University’s to prove he was guilty.

In this case, the devil is in the details, and cross examination is where they raise their little horns. O’Rourke had—and will continue to have after lunch break—lots of particular “you said this here but this there” sorts of questions for the Plaintiff. Churchill has yet to be shaken by any of them. He knows the details and does not lose track of who said what, when. His basic explanation doesn’t change, which makes him a very effective witness for his cause.

Churchill v. University of Colorado: The Man Himself

The courtroom was packed, noisy and stuffy this afternoon in anticipation of the testimony of Ward Churchill. Before Churchill could take the stand two other witnesses were called: Professor Tinker and Professor Russell Means.

Tinker described himself as a professor of American Indian Culture & Religious Studies at the Iliff School of Theology here in Denver, and as a spiritual leader of the Indian community Four Winds American Indian Council, also here in Denver. After telling the court that he had received his PhD in 1983, that he was a member of the Osage Nation, and that he was considered to be an elder (by others), Tinker was offered by plaintiff’s counsel as an expert on Indian tradition, Indian culture, and Indian Studies. Defense counsel did not object.

From that point Tinker was asked about Churchill’s reputation in the American Indian community, to which he answered that Churchill was widely respected within the community as a scholar, and that it was recognized that his body of work was prolific as well extremely important to the community. In terms of Churchill’s academic record, Tinker testified that he could attest to its accuracy by the fact that he frequently used Churchill’s work in his own classes. The last general area Tinker discussed with plaintiff’s counsel was the book Mother Earth by Sam Gill, another University of Colorado professor. Although Tinker’s testimony seemed a bit tangential in this area, he tried to make the point that, in his opinion, Gill’s work contains grave misrepresentations and yet despite complaints, Professor Gill had not to his knowledge been investigated.

Upon cross-examination defense counsel largely tried to make Tinker’s testimony seem irrelevant by asking whether he had ever done any research on the specific topics of the plagiarism allegations such as the Indian Arts & Crafts Act and General Allotment Act. Tinker denied having done any such research, saying that Indian Studies is a large discipline in which scholars focus on different aspects and he was focused on religious aspects. The cross examination was short but very tense, and at one uncomfortable point defense counsel spoke over Tinker to scold him, saying, “you have to let me finish the question because she can’t record both of us at the same time.”

After Professor Tinker testified, Professor Russell Means was sworn in. Meanes described himself as a chief facilitator for the Lakota Republic as well as a long time university lecturer. Means’ testimony was similar to that of Tinker, though focused somewhat more on the role of oral tradition and Churchill’s reputation for truth and honesty in the American Indian community. Means also discussed his review of the Standing Committee on Research Misconduct’s report, holding back tears and calling it a “scholarly massacre.” Although his most memorable statement that “they do not treat white professors at CU the same way,” was stricken, Means also testified to the fact that after the SCRM’s report was released he filed a complaint with the committee against CU Professor Wilkinson (originally wrongly identified as law school Dean Getches). Means said that he had found errors in Wilkinson’s work that were more egregious than any committed by Churchill, yet the SCRM issued a denial of the charges. Cross-examination largely focused on a clarification of the inquiry process triggered by the complaint filed against Wilkinson.

The bulk of the afternoon was spent on David Lane’s direct examination of Ward Churchill. Churchill began by telling the court his life’s history, from his childhood in central Illinois, to his service in Vietnam, to his college years, to settling in Boulder almost by accident, to his career path in Boulder and at the University of Colorado. The first part of Churchill’s testimony was fairly engaging. He described teaching, service and academic awards he had won as well as deeper motivating personal values.

Lane also questioned Churchill at some length about his 9/12 essay. Churchill described the essay as an attempt to explain the simple proposition that the terrorist attacks were a predictable result of U.S. foreign policy. In his testimony Churchill familiarized this idea by referencing phrases like “chicken coming home to roost,” from Malcolm X, “as you sow, so shall you reap,” and “what goes around comes around.” He explained that in writing the essay he was not espousing or endorsing a pro-terrorist stance, but was merely trying to apply the mainstream American response instead to the “other side,” saying that it could probably serve as an indicator of how U.S. action is received in other parts of the world. Churchill also explained the essay’s reference to a Nazi bureaucrat by saying that his mistake was in assuming that people would know the history of Adolf Eichmann, who facilitated the organization of the Holocaust. Churchill ended the first part of his testimony with a brief discussion of the origin and result of the media firestorm that took place in early 2005 when the 9/12 essay and Churchill himself came under great scrutiny.

After the break, Churchill resumed his description of the events that took place in early 2005, including an explanation of why he stepped down as the academic chair of the ethnic studies department in the midst of the media frenzy. Lane then transitioned Churchill into questions directly related to the allegations of the Standing Committee on Research Misconduct. From this point on, Churchill became increasingly longwinded, and occasionally Lane had to redirect him to the matters at issue. Most of the testimony was a reiteration of points that plaintiff’s counsel had already made, albeit from Churchill’s perspective.

Churchill addressed the Fay Cohen allegation by saying that he did not plagiarize Cohen, that he merely copy-edited a work in which Cohen was plagiarized, that he indicated in his editing that there could be a problem (an indication he said they chose not to believe), and that he had never included the work in his C.V.

In response to the Rebecca Robbins ghost-writing allegations, Churchill explained why and how he had produced the work. He went on to appeal to a long-standing tradition (even in academia) of ghost-writing, and even of scholars citing their own ghost-written works. In terms of alleged plagiarism of a Damned & the Dams pamphlet (by citing instead to a collaborative article written by Churchill and D&D which contained all of the information in the packet, but which was significantly more accessible to researchers than the packet itself) Churchill stressed that his citations have always intended to give credit where it is due.

In a discussion of the Fort Clark small pox epidemic, Churchill stated that he believed that the idea that the U.S. Army had intentionally inflicted American Indians with small pox was so widely known and accepted that he didn’t need to cite it. To that effect, plaintiff’s attorney offered into evidence middle school and high school texts making the same or similar points. Within this testimony Churchill critiqued the expertise of Marjorie McIntosh, with Lane’s help implying that Professor McIntosh was a mere “hobbyist” and not an expert in his field. Lane was careful to emphasize that the smallpox references in question constituted only 2 paragraphs out of a roughly 200-page text. This discussion eventually transitioned into one describing the scope of communication at the CU investigative hearings. Both the jurors and the crowd perked up a bit when Churchill described the circuitous process by which he was allowed to question his witnesses at the hearing: by typing a question and emailing it across the room to Professor Wesson, as chair of the committee, who would then read (either verbatim or sometimes in altered form) the question to the witness.

Churchill also addressed the John Smith small pox epidemic allegations. Explaining the circumstantial evidence that did exist, Churchill explained that his statement that “strong circumstantial evidence exists” was an opinion statement, and thus he did not believe that it needed to be supported by citation. Lane once again emphasized the significance of the statement at issue by drawing attention to the fact that it was one line in a work of approximately 60 pages.

The last issue touched upon this afternoon was a 1991 essay reprinted in a book in 1994, that focused on an opinion of a federal act, the Indian Arts and Crafts Act but that was written before the final text of the act was widely known. Churchill said that because the article is no longer in print he wasn’t aware of a way for him to retract it, and that his later essay that he uses now gives a more solid explanation of the act. After a brief discussion of the last issue Judge Naves kept Lane from transitioning into yet another allegation, making it clear that Churchill will likely testify for most of tomorrow.

Churchill v. University of Colorado: Monday, March 23, 2009 – Morning Session

Prepared by Carlos Rueda:

This morning’s session commenced with the testimony of Dr. Michael Radelet from the University of Colorado, witness for the defense.

Dr. Radelet was part of the committee that investigated the allegation of academic dishonesty regarding Mr. Churchill’s work. Specifically, Dr. Radelet was in charge of investigating and determining whether two sentences in one of Mr. Churchill’s books constituted academic dishonesty. The two sentences in question regarded the proposition that John Smith intentionally introduced small pox to the Indian population in 1616.

Under direct examination, Dr. Radelet testified that he, and the committee, concluded that Mr. Churchill did commit academic dishonesty on those two sentences because it was an absolute statement of fact and the source cited by Mr. Churchill did not support that assertion. Dr. Radelet stated that absolute statements of fact, unless generally known to the public, must be supported by a proper citation. He explained that the two sentences were absolute statements of fact and not opinion because Mr. Churchill did not disclose anywhere in his book that it was an opinion, and did not prefaced the sentences with the words “in my opinion.” Therefore, Dr. Radelet said that those two sentences must have been supported by an appropriate source in citations.

With regard to whether the source cited by Mr. Churchill was appropriate, Dr. Radelet testified that the source was not appropriate. He said that Mr. Churchill’s conclusion that John Smith introduced small pox with the intention of eliminating the Indians was a “far cry” from what he found in the source, because the source never specifically stated that “John Smith wanted to wipe out the Indians.” Dr. Radelet concluded that Mr. Churchill’s assertion was inappropriate because there wasn’t a preponderance of the evidence to establish the assertion was truthful.

Later, also on direct, Dr. Radelet was asked whether a few problems with Mr. Churchill’s footnotes was really a problem when Mr. Churchill had authored over 4,000 pages. He said “yes.” He stated that even a couple of problematic footnotes raises a serious doubt about the credibility of Mr. Churchill’s work. That “it goes to the heart of a researcher’s career.” In conclusion, Dr. Radelet said, “everything he has done is worth nothing.”

When asked whether he ever felt pressured by the administration at the University, Dr. Radelet said he was never pressured by anyone. He said that he did not want Mr. Churchill to be fired over those two sentences and the other findings of research misconduct, but felt that the appropriate consequence would have been a 5 year suspension.

On cross examination, Mr. Lane started questioning Dr. Radelet regarding his conceptualization of bias. On direct examination, Dr. Radelet said that bias was an observable behavior from which a person can determine whether someone has a bias against another. During direct examination Dr. Radelet testified that he never observed or experienced any type of bias against Mr. Churchill. Mr. Lane asked him whether one needs objective and observable evidence in order to establish whether there is bias. Dr. Radelet said “yes,” that observable evidence such as an attitude can establish evidence of bias. He said that he looks at specific behavior. Mr. Lane then brought up Professor Wesson’s email where she compared Mr. Churchill to O.J. Simpson, and asked Dr. Radelet whether that email was observable evidence of Professor Wesson’s, and therefore the committee’s, bias against Mr. Churchill. Dr. Radelet said “no,” attempted to explain why, but Mr. Lane stopped him asking him to restrict himself to a yes or no answer. Dr. Radelet asked to explain, but Mr. Lane said that the defense counsel could ask him to do so later.

Next, Mr. Lane moved on to the two sentences regarding John Smith. Mr. Lane asked Dr. Radelet whether those mere sentences in the entire book were really a big deal. Dr. Radelet, on the witness stand, said “yes,” that they were “a very, very big deal.” He said they were a big deal because the two sentences assert how small pox was introduced to the continent, and because future students and scholars will accept those two sentences as the truth and might cite them in their own work. Meanwhile, Mr. Lane was preparing to publish a video of Dr. Radelet’s deposition to the jury. The video is shown in the court and it shows Dr. Radelet saying that “those two sentences are not a big deal.” Furthermore, Dr. Radelet is shown in the video saying that the sentences were not a big deal “because there are a lot of mistakes in scholarly work” and if one went to a library one could have a great bonfire every day over all the books with poor footnotes. Mr. Lane asked him whether or not it was a big deal. Dr. Radelet said that it was a big deal when the central theme of the work is based on the statement. Mr. Lane then asked whether those two sentences in the middle of the book really were the central theme of the book. Dr. Radelet said yes because the two sentences assert that John Smith did introduce small pox to the Indian population.

Moving on, Mr. Lane attempted to question Dr. Radelet on a paper Dr. Radelet published twenty years ago in a law review. Mr. Lane then asked him if he had ever been accused of academic dishonesty, Dr. Radalet said “no,” but that there had been critics. Mr. Lane then attempted to introduce extrinsic evidence to impeach him, but he was unsuccessful because of the defense’s objections.

Churchill v. University of Colorado: Friday, March 20 – Afternoon

This afternoon’s session resumed with the continued cross examination of Professor Robert N. Clinton by plaintiff’s counsel, Mr. Bruce.

Professor Clinton testified that the committee tried to investigate fairly, methodically, efficiently, and that it ignored the content of the 9/11 essay, giving Churchill the benefit of the doubt in the investigation. Despite the committee’s conclusion that there was serious research misconduct, the recommendation was to only discipline Churchill and not terminate him. Professor Clinton believes the committee chair, Professor Wesson, was fair.

Mr. Bruce then turned to the distinction between an actual conflict of interest and the appearance of impropriety. Clinton agreed that the standard was for the committee to avoid even the appearance of impropriety in its investigation. Mr. Bruce’s line of questioning explored the presence of an undisclosed fact that could form the basis for the appearance of impropriety. Professor Clinton affirmed that if an undisclosed fact exists that could form a basis for the appearance of impropriety, then “the better part of valor is to disclose it.” Mr. Bruce then turned back to Professor Wesson’s e-mail to DU law professor Nancy Ehrenreich, in which Wesson made unflattering comparisons between Churchill and O.J. Simpson, Michael Jackson, and Bill Clinton. Wesson did not disclose this e-mail, and the committee members were unaware of it until the hearing. Even in light of Wesson’s failure to disclose an e-mail in which she questioned why academics were supporting Churchill, Professor Clinton still felt Wesson was being “absolutely fair” during the investigation.

Mr. Bruce then questioned Clinton on his statement during the morning session that the committee had at no time denied Churchill an opportunity to present evidence. Mr. Bruce asked Clinton about a situation where he had successfully requested a schedule adjustment to the investigation process for himself and juxtaposed this was the committee’s denial of Churchill’s request for an extension to submit additional evidence. Clinton disagreed that this had the practical effect of denying Churchill the chance to present some of his evidence, focusing on the deadline the committee was under to submit a report, some previous extensions already granted to Churchill, and his failure to give the committee what he kept promising them as further evidence. Clinton imbued the discussion with the idea that Churchill should have had all this evidence lined up when he was writing and dismissed any logistical difficulties with gathering documents or witnesses to support him during the investigation.

Mr. Bruce then questioned Clinton about the committee’s investigative report. The first issue concerned an error in the report. Professor Clinton stated that all committee members adopted the substance of the report in its entirety, regardless of which member took primary responsibility for writing each individual section, as they all heard the evidence collectively. Through the editing process, it was called to their attention that there was a mistake made by the committee, which Clinton insisted they correct. Mr. Bruce projected a statement from Clinton’s website entitled “Minor Correction to Ward Churchill Report.” This website was where the correction to the report was posted. Clinton testified that when you make an error that other people might rely on in their scholarship, the appropriate thing to do is to correct it and make the public aware of the correction. He said that’s what the committee did by posting this correction on his website, even though there was some disagreement about the method of notifying the public of the error. Some committee members wanted it posted next to the report on CU's website.  However, Clinton thought this would be inadequate to put academics on notice of the error and had it also posted on the news section of the Chronocle of Higher Education Website.  In essence, the committee agreed unanimously about the substance of the correction, but apparently some members criticized the degree of notice given to the public by that method of correction.

Pointing to the investigative report, Bruce asked Clinton about the ghost writing issue and whether Churchill violated an established standard of citing an author’s name and thereby committed research misconduct. Mr. Bruce pointed out the conclusion of the committee’s report that focused on this research misconduct did not have a citation for the “established standard” to which the committee was holding Churchill. Witness says that “any reasonable professor” would have known this was research misconduct.

Mr. Bruce then addressed an allegation against Churchill involving an essay he had ghost written for Rebecca Robins, who was credited with the work, and then cited to in his own published writings. Clinton stated the committee found Churchill couldn’t provide written proof that Rebecca Robins consented to her name being put on his work and that there was “no proof whatsoever” that Robinson had ever even read or was aware of the essay.

The next major issue turned on the distinction between citing generally to whole works and specific pinpoint cites for particular facts or ideas. Mr. Bruce pointed out that Professor Clinton had criticized Churchill for a “poor scholarly practice” of citing to whole works rather than using pinpoint cites, even though Professor Clinton had done the same in his own work. Professor Clinton drew a distinction between citing to a whole work that was eight pages long, as opposed to Churchill citing to a whole work that was three hundred and fifty pages long. Mr. Bruce then provided examples of Professor Clinton’s footnotes to longer whole works. Professor Clinton then explained the difference between a “see generally” cite of the general, overarching ideas of a whole work and a pinpoint cite of a very specific fact, such as those that Churchill had cited generally and for which the committee could find no substantiation. Clinton said this was a problem throughout Churchill’s work. Mr. Bruce was struggling with holding Clinton to answering his questions and confining his responses to their scope, resorting to ending most of his questions with “yes or no.”

Mr. Bruce questioned Clinton on his 1990 work entitled “Rights of Indigenous Peoples,” noting that its footnotes two, three, and four are all cites to whole works, although two and three do not use the “see generally” form, while four does. Mr. Bruce managed to wring an admission from Clinton that “we don’t always use ‘see generally’” for general citations.

Mr. Bruce then switched gears to the allegation that centers on “blood quantum.” Quoting from Churchill’s work: The Allotment Act “imposed for the first time a formal eugenics code—dubbed ‘blood quantum’—by which American Indian identity would be federally defined on racial grounds rather than by native nations themselves on the basis of group membership/citizenship.” Plaintiff’s position is that this allegation is based on entirely on the use of quotation marks in this passage, and that all the committee based its investigation on was the fact that the Allotment Act did not include the precise language “blood quantum.” Clinton disagreed, saying the Act was not the first time this federal blood quantum definition of Indian identity was imposed; he then referenced the Rogers case, calling it an earlier eugenics code. Clinton summarized the charge by saying it’s not that Churchill’s claim about federal blood quantum requirements was all wrong, but rather that Churchill’s sources did not say what he indicated they said. Clinton concluded that the existence of blood quantum requirements is not controversial, but the degree of their use is.

On redirect, defense counsel Mr. O’Rourke then questioned Clinton regarding the Allotment Act. Clinton clarified that Churchill’s use of quotation marks in this work misrepresented that the Act contained the term “blood quantum” when in fact it did not.

Clinton then confirmed that Churchill was granted four extensions during the investigation before being denied a final extension beyond April 15th to present additional evidence.

All five committee members agreed on the language of the correction to notify scholars of the mistake in Churchill’s work, but they disagreed on where to publish it to give proper notice to scholars who might rely upon its substance.

O’Rourke then argued that because Churchill wrote the John Smith piece, it was Churchill's responsibility to have the evidence at the time he wrote it, not the committee’s failing in not finding additional sources to support the work.

Judge Naves then asked the jury for questions of Clinton; there being none, the witness was excused.

Plaintiff’s counsel then called Professor Eric Cheyfitz to testify. Mr. Lane began the questioning on Professor Cheyitz’s scholarship and background. Cheyfitz is an endowed chair of the American Studies department at Cornell University. American Studies is the history, politics, and social life of the United States, now expanded to include the Americas. His scholarship includes American Indian studies. He is familiar with Federal Indian law and general traditions and histories associated with his specialty: American Indian studies. Mr. Lane offered Cheyitz as an expert in Indian Studies and Indian law, which Judge Naves accepted after no objection by CU's counsel.

Professor Cheyfitz testified as follows regarding Professor Churchill:

Churchill’s work is widely known as one of the preeminent scholars in the field of Indian studies. Chefyitz has been reading Churchill’s works for about fifteen years. He met him in January 2007 when he came to CU to testify on Churchill’s behalf. The quality of Churchill’s scholarship and academic work is “exceptionally high." The witness hasn’t used any of Churchill’s works in his own classes but refers to them “all the time.in my classes.” Chefyitz described Churchill’s reputation within the field as “widely known and respected, and controversial as well, although many of us are controversial.”

Cheyfitz explained Churchill is controversial because Churchill has pointed out that the Jewish Holocaust has taken over the entire field of Holocaust studies, arguing that the Native American Holocaust is also worthy of study. The witness is Jewish but recognizes the importance of the Native American Holocaust in history, as well as the denial of the “Native American genocide” by the U.S. Government throughout its history. He says this is a powerful debate within the field of American Indian Studies. Cheyfitz summarized Churchill’s position, citing Churchill’s proposal that the U.S. Government intentionally carried out a holocaust against Native Americans, although he is not alone among American Indian scholars in holding this position.

Mr. Lane asked how "Critical Race Theory" (CRT) questions the “master narrative" given by conquering Europeans.  Cheyfitz stated that CRT relates to how judicial decision are not only affected by the law, but also by considerations of race, class, gender, and politics that impact judicial decisions as well. Mr. Lane wove the challenging of the “master narrative,” the account of American history generally accepted by the establishment, throughout the remaining questions.

Mr. Lane then asked Professor Cheyfitz how he learned about the controversy of Churchill’s 9/11 essay. Cheyfitz first learned of the essay through the national media and believes that it received tremendous national media attention. Cheyfitz has read the essay and written about his conclusions. He wrote that the Eichmann reference “demonized the people in the trade towers” but overall thought it was one of the best essays on civil disobedience in the tradion of Henry David Thoreau's "Civil Disobedience."  As far as comparing American foreign policy to Nazis Germany, Chefyitz stated it was useful in some ways and is what Churchill is known for. He pointed out that Nazi concentration camps were modeled on Indian reservations in America.

Mr. Lane asked if Cheyfitz read the investigative committee report and what his impressions were. Professor Cheyfitz said he did read the entire report because the charges against Churchill and the potential loss of Churchill's scholarship, if upheld, would be a “blow to the field”of American Indian Studies in the US.  This, he said is true, for two additional reasons: this probe constituted an extensive investigation of a well-respected scholar for research misconduct and drew national media attention with a resulting negative impact on the field. Cheyfitz thinks the scholars in the field of American Indian Studies who read the whole report, as he did, were skeptical of the charges against Churchill. His reaction to the report is encapsulated in an essay entitled “Framing Ward Churchill.” The essence of this essay is that the charges were “fundamentally baseless and motivated by the political circumstances surrounding the 9/11 essay.”

Mr. Lane then questioned Cheyfitz on a letter he and a group of other academics supporting Churchill wrote to formally file a complaint of research misconduct against the committee at CU. Cheyfitz testified that the committee’s actions in investigating Churchill’s academically proper interpretations of the Allotment Act and the smallpox incident were inaccurate. The committee overlooked several pieces of evidence that supported Churchill’s arguments. Cheyfitz also found the plagiarism charges “frivolous.” After filing a formal complaint of research misconduct against the committee with CU, Cheyfitz never received a response. Cheyfitz agreed that CU was “duty bound” to investigate all complaints of research misconduct, and though this complaint came from outside the university, unlike those against Churchill, Cheyfitz has still never received any response that the investigation should now be conducted by an independent body outside of the CU sphere of infuence due to the conflict of interest or the appearance of bias related to the deficiencies pointed out by the Cheyfitz (and others) complaint of research misconduct by CU's investigative committee.

Mr. Lane then went through all the allegations against Churchill, except the allegation of plagiarism, one by one:

Misrepresentation of the Allotment Act. Cheyfitz stated that Professor Lavelle’s critique of Churchill’s conclusions was “shoddy scholarship” based on inaccurate characterizations of the tribes as autonomous and other misunderstandings of their relationships to the federal government.

Federal blood quantum requirements. Cheyfitz explained that the federal government imposed a racial definition of Indian identity on the tribes, rather than their accepted definition based on citizenship and culture. Churchill’s position is that it’s racist to use blood quantum requirements to define Indian identity because, as there is more intermarriage over time between Indians and other racial/ethnic groups, eventually there will be no one left according to blood quantum who is defined as Indian. So what the federal government is doing is eliminating Indians as a group through the blood quantum definition.

The first eugenics code. Cheyfitz agreed that although the word “eugenics” does not appear in the Allotment Act, the Act implies eugenics in its implementation by federal agencies. Cheyfitz explained the difference between a code and case law is that codes are passed by Congress and case law is made by judges. So Professor Clinton was wrong in saying the first eugenics code was in the Rogers case, both because that is common law and not a code and because, according to Cheyfitz who has written extensively on that case, Rogers does not deal with eugenics as the Allotment Act does.

Use of quotation marks. The committee asserted that quotations around “mixed blood” and “full blood” Indians in Churchill’s work implies the Allotment Act contains these terms verbatim, and because the Act does not expressly contain this language, this constitutes academic misconduct. Cheyfitz disagreed and stated quotation marks serve many purposes, and the use of quotations here does not necessarily imply these words were used in the Act.

Ghost writing. The committee found research misconduct on Churchill’s part where he ghost wrote the Rebecca Robbins essay “from the ground up” and then cited that essay in his own work. Cheyfitz opined there is nothing wrong in this because another professional (Robins) signed off on the essay and applied her authority to it, so she stands behind those ideas as if she wrote it herself. There was no coercion or deception involved, and no basis for research misconduct allegations. Likewise, Churchill’s work on the Indian Arts and Crafts Act did not constitute research misconduct.

John Smith and the deliberate spread of smallpox. Churchill’s work contained two sentences on this topic, positing his belief that there is strong circumstantial evidence that Smith introduced smallpox to an Indian tribe intentionally for the purpose of clearing the way for the invaders. Mr. Lane asked if these two sentences were fact or opinion. Cheyfitz answered they were opinion, but the committee “turned it into the absolute statement” and used it as “another brick in the building of their case of research misconduct.” Cheyfitz stated this “is a completely baseless charge in all respects” because the citation Churchill used did support his conclusion, despite the committee’s assertion that it did not. Chefyitz characterized the John Smith issue is up for debate between reasonable scholars, and the committee’s portraying it otherwise and endorsing the opposite position from Churchill’s as an absolute constitutes research misconduct in itself. Cheyfitz said there is reason to believe that smallpox was deliberately spread amongst Indian tribes because there were vaccines  available for the disease in North America as early as the 1700’s, but they were not made generally available to Indians by the federal government which knew that Indians were particular vulnerable to this disease.

The U.S. Army committed genocide against the Indians. This was one of Churchill’s conclusions that the committee found to be contrary to his cited sources. The committee found Churchill misrepresented his sources and fabricated his conclusions because his own estimate of Native Americans who died in the smallpox epidemic was 144,000, while he cited a source that put the number at 400,000. Cheyfitz said that the assertion as to how the Indians were killed, through deliberate genocidal means, is the real issue here, not the disparity in numbers. Cheyitz stated this is not a significant misrepresentation in the overall context because the source cited from Thornton also cited Stern & Stern that did give the 400,000 number.

Mr. Lane finished his questioning of Cheyfitz on plagiarism, which Cheyitz agreed is wrong, adding it should be understood that there is no single, simple definition of plagiarism. Cheyfitz testified he has checked Churchill’s footnotes randomly in his general scholarship and has discovered those footnotes are accurate. Cheyfitz added he has never seen anyone fired in the academic world for similar charges.

Cross Examination by Mr. O’Rourke:

Cheyfitz stated he thinks there should have been at least one American Indian studies expert on the committee, not just someone familiar with Federal Indian law (Robert Clinton), and there was not.

Mr. O’Rourke then questioned Cheyfitz on the definition of plagiarism. Cheyitz stated context is extremely important in defining plagiarism, and he agrees with Posner’s definition of plagiarism, which requires some gain on the part of the person plagiarizing another’s work. Cheyfitz said he does not completely agree with Churchill’s definition which does not explicitly include context, noting that some people accept Churchill’s definition but he thinks it needs fine-tuning. Mr. O’Rourke then made the point that when Churchill was an associate professor seeking promotion to full professor, one of the considerations in his promotion was the quality and quantity of his published works. The implication is that Churchill did indeed have something to gain from plagiarism.

To summation, while Mr. O'Rourke tried to make points with the jury by going over the issues of research misconduct with Cheyfitz, Cheyfitz skillfully and dramatically countered O'Rourke in every instance.

Churchill v. University of Colorado: Morning of March 20, 2009

The morning began with a continuation of the deposition of Professor Mann, read by the attorneys, with sometimes, amusing interpretations of Professor Mann’s answers. The jurors, courtroom visitors and the attorneys occasionally laughed.

Professor Mann tried to avert from the questions by replying that she did not remember and by elaborating on her answers, which is what attorneys aspire to avoid during cross-examination. She commented that free speech and academic freedom were crucial in scholarship and that even if she vehemently disagrees with someone’s view, she believes it is important for that view to be expressed.

CU’s attorney asked numerous times, and Professor Mann replied several times that she had not seen primary and secondary sources supporting Professor Churchill’s proposition that smallpox blankets were dispersed to the American Indians. She then clarified that “It doesn’t mean that [the primary or secondary source] doesn’t exist. It means I haven’t seen it.” The attorney established, by getting a positive response from Professor Mann, that “it is not appropriate” to fabricate facts that are not supported by primary and/or secondary sources supporting some of Professor Churchill’s propositions about the spreading of smallpox to the American Indian population.

The line of questioning moved to alleged academic misconduct of Professor Churchill’s proposition about a commander at the St. Louis infirmatory recommending to the American Indians to seek shelter with healthy relatives as far away as possible in order to recover from small pox. Professor Mann described that, while unsupported by primary and secondary sources, “that’s a traditionally logical thing to say” because it’s general knowledge that ill American Indians sought the company and care of healthy family members to increase their rate of recovery.

A brief redirect followed with Professor Mann reiterating her earlier point that the audience for which a work is written is a critical consideration for an author when he or she is deciding which footnotes to use. She further explained that summary footnotes are more appropriate for works intended for a general audience, like the college freshman and sophomores who Professor Churchill was writing for.

Professor Mann described a situation where she wrote an article with footnotes and was told by the editor to remove the footnotes.

CU’s attorney, determined to drill the point that work unsupported by primary and secondary sources is not appropriate, asked this question again on re-cross, which concluded Professor Mann’s deposition.

Judge Naves then explained to the jurors that while it is general procedure for Plaintiff to present his/her case-in-chief and call his/her witnesses, CU would call a witness out of sequence because that witness would not later be available during CU’s case-in-chief.

With that, the defense called Robert Clinton, an affiliated law professor from the Universitys of San Diego and Arizona State. He has taught Indian law and Indian history since 1974 and was on CU’s investigative committeee, investigating Professor Churchill and allegation of research misconduct.

His testimony was persuasive because his speech was incredibly clear and articulate. Professor Clinton’s stories were logical and colorful, even as he desribed dry subjects like peer-review and the wording of the General Allotment Act. He was also quietly charismatic, in my opinion. He told a story to the jury and was very patient. CU’s attorney, O’Rourke didn’t even have to prompt Professor Clinton with many questions because Professor Clinton’s story naturally proceeded where O’Rourke wanted him to go. This largely uninterrupted testimony was very successful.

Professor Clinton described to the jury what peer-review meant and proceeded to describe the colonization by Europeans of American Indian territory. He proceeded to explain that he was a chief justice in one of the American Indian tribal courts and that because of his impartial role as a judge, he wanted to insure that Ward Churchill had an opportunity to be heard and to defend himself when Clinton served on CU’s investigative committee.

The testimony then moved to research misconduct, and Clinton described, and repeated this many times throughout his testimony, that the job of the investigative committee was not to establish whether or not Professor Churchill’s propositions were true but whether they were supported by primary and secondary sources. He explained the importance of supporting propositions with sources and likened this process to a medical researcher’s support of medical research with data. He further said that a scholar is doing other scholars a “disservice” by writing propositions without support or inappropriately citing propositions because other scholars rely on the propositions in that writing. 

O’Rouke asked whether Professor Clinton thought that Professor Wesson was biased in leading the investigative committee and Professor Clinton replied that she was not.

Questioning then turned to the General Allotment Act. Professor Clinton eloquently educated the jury (as he did throughout his testimony) about the Allotment Act and the eugenics code theory and Ward Churchill’s interpretation of those topics. He proceeded to explain that Professor Churchill engaged in academic misconduct when he cited the General Allotment Act as the source for his propositions about the blood quantum theory because the Act does not mention blood quantum and nor does it mention half or quarter blood tests of "Indianess." Clinton also explained that he understood eugenics to mean to be something that excludes, segregates, or decimates certain races, which is associated with the Nazis Germany. He explained that the investigative committee thought that Professor Churchill also engaged in academic misconduct when he proposed that the General Allotment Act was the first instance of Congress enacting an "eugenics code." He clarified that the committee's point of citing the Rogers case in the report was to demonstrate that during the 19^th century, U.S. law looked at “Indians ... through a racial lens,” not to show that it was a eugenics case. He further proceeded to put a hole in the testimony of one of the Plaintiff’s experts that the committee had misused the Rogers case, and therefore, not following its own standards of academic research conduct.

The testimony shifted to Professor Clinton describing that publishing a work under another scholar’s name also constitutes research misconduct even if it means doing more work. He reiterated that the content is not what matters in research misconduct – it’s the plagiarism and the misuse of sources.

The next line of questioning was about a work Professor Clinton co-authored in a subsequent edition in 1982, The Handbook on Federal Indian Law, most likely in anticipation of the plaintiff’s attack of this topic. He explained, that while the name Felix Cohen was used as the author of the book, an explanation followed that Cohn didn’t actually write the 1982 edition and listed the authors. The editors felt it was important to attribute the book to Cohen because he wrote the first edition and it was “the Bible of Indian law,” as Professor Clinton puts it.

Again, the defense tried to establish that Professor Clinton’s evaluation of Professor Churchill’s works was impartial and fair while he sat on the investigative committee by highlighting that Professor Clinton sat on the bench as the chief justice of an Indian trial court.

The direct examination and the morning session concluded with several questions about the Indian oral tradition and Professor Churchill’s use of it to support some of his propositions. Professor Clinton educated the jury about the importance of oral tradition and the passage of information from generation to generation in the American Indian culture. He explained to the jury that the committee reached the conclusion that Professor Churchill engaged in research misconduct because at the time he made his claims, he apparently did not support his findings with sources that actually supported his claims.  According to Clinton, Churchill then used the defense that he was relying on oral tradition but failed to produce any source for the applicable oral tradition.  He apparently did so only after the committee began to investigate him.

Churchill Trial, March 19th Afternoon: Laughing Together

There is an art to using cross examination to prove a case. While Law & Order makes us think that cross examination is for the purpose of “shaking up” the witness’s testimony, in a case where most of the witnesses are going to be called by the Plaintiff, the Defense has to use those people to show the jury what he/she wants them to know, to present original evidence, not just refute what the witness has said. For example, in this morning’s cross of Professor Stannard, O’Rourke went through a word-by-word examination of what Churchill wrote to explain how Churchill arrived at the figure of 400,000 people dying as a result of the smallpox pandemic. The way O’Rourke went through the passages was not designed to ask a real question of Stannard, since the Professor could hardly even follow the quickly posted phrases. No, the “question” was designed to tell the jury, “Look, Churchill explains himself in a way that doesn’t make sense and doesn’t add up.”

The next witness after Stannard was Professor Philo Hutcheson of Georgia State, who was certified as an expert in faculty behaviors and academic tenure. Professor Hutcheson opened by explaining what tenure is and the extensive, year-long process for granting tenure. He also described three instances of faculty misconduct from the first half of last century that resulted in tenured professors being dismissed as a result of saying or doing things that weren’t politically popular at the time. Then we went to lunch.

During the lunch break, my blog colleagues and I were speculating on why O’Rourke was not protesting Hutcheson's testimony on university tenure and discipline processes in general, as he successfully halted Professor Bell’s testimony on that subject. We figured O’Rourke wanted to use the witness to make some points, and boy, were we right.

(We should insert this parenthetical to explain the various CU committees that are involved and somewhat on trial here. There is a Standing Committee on Research Misconduct (SCRM) that, as name implies, serves at all times and receives and initially reviews allegations of research misconduct. If the SCRM determines that an investigation is warranted, it goes to an ad hoc Investigative Committee that looks into specific allegations, and which produced the report that is most referred to in this trial. The report then goes back to the SCRM for recommendation to the Provost. If discipline is to be imposed, the faculty member may request a hearing before the Privilege and Tenure Committee (P&T). In this case evidence includes the conclusions of the Investigative Committee on the specific allegations of misconduct, as well as the conclusions from the P&T regarding accusations of bias in the Investigative and SCRM committees.)

Professor Hutcheson ended direct testimony by saying that the usual discipline for academic errors might be loss of summer pay, and the worst would be a year’s suspension with pay. Cross examination then commenced.

Mr. O’Rourke started with a strident series of “Do you think it is appropriate…?” questions, forcing Professor Hutcheson to answer “yes” to all. Do you think it is appropriate for a faculty committee to review allegations of misconduct? Do you think it appropriate for this committee to give the professor opportunity to present evidence to explain the conduct? Do you think it is appropriate to give the professor opportunity to present documents?

O’Rourke, noting that the P&T found eight different examples of academic misconduct, further noted that plagiarism is not merely a footnote. “How many times have you written a document from the ground up, asked someone else to put their name on it and then cited that work as a source for something else?” Professor Hutcheson replied that he has agreed to be listed as a co-author on an article that a student wrote; O’Rourke countered that Churchill's ghost-writing didn’t claim to be co-authoring.

O’Rourke, continuing in the “isn’t it true” mode of cross examination where a statement passes as a question, got Hutcheson to agree that fabrication, falsification and plagiarism do not fall under the protection of academic freedom, nor under the protection of tenure. O’Rourke then referred back to Hutchinson’s description of the careful and thorough process of granting tenure to advise the jury that, “But Professor Churchill didn’t go through that process when he was hired by CU, did he?” Turns out Churchill was hired as fully tenured, so the careful tenure process is irrelevant.

Redirect from Bruce let Hutcheson say he thought the university should have had an ethnic or Indian studies expert on the P&T because “What constitutes ‘truth’ in a discipline or field varies so that people not in that field don’t get it.” In his re-cross, O’Rourke likened the job of the P&T to that of the jury—that the P&T got testimony on scholarship standards just like the jury is getting so having an ethnic studies expert on the panel is not necessary, right? Hutcheson said no, the jury is deciding on due process, not scholarship standards. O’Rourke: “Then all this evidence the jury has heard about different scholarship standards is irrelevant?” Even Hutcheson admitted it was a clever question.

The next, and possibly briefest, witness was Emma Perez, a professor of ethnic studies at CU who succeeded Churchill as chair of the department. She was one of a group of professors who, after reading the Investigation Committee Report, filed a grievance on the basis that the report was filled with fabrications, and that the committee should be held to the same standards they were accusing Churchill of violating. She admitted that while the university “does not support” the ethnic studies department, she continues to hire (with difficulty) faculty and hold classes. Cross examination revealed that while there are over 1000 tenured and tenure-track faculty at CU, less than 10 signed the grievance. “Yes,” Perez said, “Disappointing, isn’t it?”

Ah, technology. About ten minutes into the two and a half hour video deposition of the next witness, the video “broke.” Jovial atmosphere in the court (evidently all video testimonies have had technical difficulties) while the younger attorneys tried to fix the glitch, including laughter when it broke down again at the same place. After about a half hour interruption, the parties resorted to the “old fashioned” way of conveying recorded depositions, which was to read the transcript. Messrs Bruce and O’Rourke each read themselves, while Mr. Lane read Dr. Barbara Alice Mann's transcript. To my view, it was a much more satisfying delivery of the testimony, since we didn’t have to endure the audio echo in the room, and having seen a few moments of the colorful Dr. Mann, we could envision her words and spirit through Mr. Lane’s expressive reading. It probably went quicker too.  Save the stoic bespectacled member of the jury who has given insightful questions in the past to the judge, all other members of the jury openly smiled or laughed during the few instances of Lane's funny take on the reading,

Dr. Mann is an eminent historian, teacher and writer at the University of Toledo. She is herself native American (and not personally picky about which term—native American, Indian, indigenous—is used to describe her) and has published nine books. Her latest is “The Gift of Disease” which includes a chapter on the 1837 smallpox epidemic. She has known Professor Churchill for over 20 years (although she wasn’t quite clear on the timeline) and asked him to write the foreword for one of her books when he was “more famous” than she at the time. She was—even through a male voice—an authoritative, confident witness.

Dr. Mann’s testimony displayed her very personal, detailed and intimate knowledge of the smallpox epidemic. She clarified that primary research is reading something that was written as the event was happening; even something that is old, but was nevertheless written, say, six months after the event is not primary. For example, the story about the three Arikara women who might have spread smallpox is a secondary, not primary, story because it was written by someone named Pilcher who was trying to explain months later where the epidemic might have started.

Further, in Dr. Mann’s view, oral history must be treated carefully. She will use and refer to oral history of her own [native american] nation, but will not presume to refer to the oral history of another nation. When things are written down, they may be referred to and referenced freely, but oral stories need permission to be shared.

Since so much of this trial seems to be about footnotes, Dr. Mann gave some useful descriptions of different footnote styles; one where an author is summarizing ideas and may put one footnote at the end of a paragraph to reference general thoughts on the topic, and the other where a specific fact is stated and the source needs to be identified. She also described the difference between a “trade” book and an academic book. Trade books are written to be sold to the general public, and editors encourage (or insist on) authors to minimize footnotes. Academic books are designed for “full steroid geeks.”

In response to Plaintiff counsel’s questions, Dr. Mann unequivocally said that—contradicting the Investigation Committee’s Report—there was indeed a “reasonable basis” for Churchill’s claim that the smallpox epidemic was a result of blankets taken from an infirmary in St. Louis, and the claim that army doctors at Fort Clark told the infected Indians to scatter. Dr. Mann is a repository of minute detail about those events. Consequently, she completely backed up all of Churchill's claims and refuted the findings of the investigative committee. 

During cross examination, Dr. Mann agreed that fabrication—making something up "out of whole cloth" versus coming to a conclusion based on facts--is research misconduct. Dr. Mann herself uses the notation “I believe” in her footnotes to distinguish between facts that she knows are true because she has a document to prove it and her conjectures. She is also careful in her use of quoted text, making sure the quote is conveyed in the same context in which it is made.

Dr. Mann’s transcribed testimony will continue tomorrow morning.

Churchill v. University of Colorado: Morning, March 19th

The court recommenced this morning a little after 9:00 am with the cross examination of Professor Marjorie McIntosh by one of Churchill’s attorneys, Robert Bruce. Professor McIntosh is a defense witness who was presented out of turn through prerecorded video. Currently, Professor McIntosh is in England presenting a lecture series.

Unfortunately, the audio of Professor McIntosh’s testimony was difficult to hear when sitting in the crowd, which made it difficult to take notes. I imagine the audio quality was better for the jury as they sat much closer to the speakers and the video screen. At the start of the trial this morning, only seven people sat in the crowd. By 10:30 am, however, around 20 more observers had trickled into the courtroom.

Professor McIntosh’s testimony started this morning with Bruce questioning her about the investigative committee’s research concerning the 1837 smallpox epidemic. Professor McIntosh took a lead role in reviewing Churchill’s writings regarding the smallpox epidemic and the allegations that he fabricated some his statements. Professor McIntosh spent 400 hours researching this issue and wrote the first draft of the section of the committee report that found that Churchill had fabricated some of his statements on this subject.  

After this brief intro, Bruce asked Professor McIntosh questions about Native American history. Bruce’s questions implied that she was wrongfully critical of Churchill’s work because reasonable historians could differ on the interpretations of Native American history and Churchill’s interpretations were reasonable. This line of questioning was hard to follow, perhaps due in part to poor audio quality. Bruce asked about specific statements Churchill made in his writings and compared them to statements made by other sources. In my opinion, it was hard to determine whether these statements supported each other or not.  

Professor McIntosh explained that she concluded that Churchill committed research misconduct in part because many of his statements did not cite sources. She noted, however, that if a source directly supported what Churchill said, even without citation, she gave him the benefit of the doubt. Bruce fired back with questions about sources he represented as support for Churchill’s statements. Professor McIntosh replied either that these sources did not support Churchill’s work or that she had not come across the source. When asked about oral sources that Churchill may have used, Professor McIntosh said Churchill had not indicated the use of oral sources in any of his writings.

Next Bruce asked Professor McIntosh how she voted at the end of the investigative process. She voted in the group recommending suspension. Bruce also questioned Professor McIntosh about how the others on the committee voted. She did not want to answer this question because she stated that the committee agreed to keep the votes confidential. After a brief side discussion (on the video), Professor McIntosh was instructed to answer the question. She reluctantly answered that Professor Robert Clinton also voted for suspension and Professor Jose Limon voted for dismissal.  

Next Bruce turned to “allegation F” of the committee report. This concerned the allegation that Churchill committed plagiarism by writing articles under Professor Robbins’ name. Prompted by Bruce’s questioning, Professor McIntosh admitted the committee never investigated whether Professor Robbins fully endorsed every word of the article actually written by Churchill. She added, however, that under the rules of plagiarism, whether or not she endorsed every word was irrelevant because it was still plagiarism. In addition, Professor McIntosh noted that Professor Robbins refused to talk with the committee.

Next Bruce asked about the committee’s criticism of Churchill’s failure to cite specific page numbers when citing sources (aka – pinpoint cites). Professor McIntosh replied that it is fine to cite short articles in whole but whole books require a pinpoint cite. Bruce questioned Professor McIntosh about whether the editors have some control over the written work before being published. She agreed that editors make comments. When asked whether it is possible an editor would ask the author to leave out certain things to save space, Professor McIntosh admitted that this may be possible but the author would have to approve any changes. 

In his final line of questioning, Bruce asked about the scholarly record of Native American history. Professor McIntosh conceded that experts in Native American studies should correct the scholarly record. Professor McIntosh admitted that neither she nor anyone else on the committee was an expert in Native American Studies. Bruce used these questions to imply that the committee had no business second guessing Churchill who is an expert in Native American Studies. Professor McIntosh commented that the committee’s duty was not to correct the scholarly record but to investigate Churchill’s work and the allegations of misconduct.

O’Rourke began his redirect by jumping into the pinpoint citation issue. Professor McIntosh explained that the committee did not find that failure to pinpoint cite in and of itself was an act of plagiarism or research misconduct. She added, it was poor scholarly practice but did not rise to the level of plagiarism or research misconduct.  

Next O’Rourke asked whether the committee found support for particular propositions Churchill made in his writings. This led to a string of “no” answers by Professor McIntosh.

Then Plaintiff called Professor David Stannard to testify. Professor Stannard works at the University of Hawaii as the chair of the American Studies department. Professor Stannard described his very extensive resume. And after a few questions, he was qualified as an expert in population studies without an objection. Under questioning by Bruce, Professor Stannard explained that he looks at many sources to figure out populations. Through his studies, he found many population statistics traditionally cited were wrong.  

Bruce then began questioning Professor Stannard about the numbers Churchill used when describing the population death estimates from the Fort Clark smallpox epidemic. Churchill’s writings estimated this number to be as high as 400,000 deaths. Bruce asked whether this number could be reconciled with other sources. Professor Stannard answered “yes.” Apparently, the committee report was concerned with the numbers used by Churchill and found that Churchill could not get these numbers through the sources he cited. Professor Stannard explained that the committee was wrong in this conclusion because the source cited by Churchill only cited one other source (Stern & Stern) when discussing the number of deaths and this other source contained a table of deaths and if the high numbers listed on the table were added together it equaled 382,000 deaths. Professor Stannard asserted that this number is close to 400,000 and because the numbers in the table were admittedly incomplete there was a legitimate basis for Churchill to say the deaths may be as high as 400,000.  Professor Stannard explained that since the 1960's, his field had concluded that the population of indigenous people was grosssly understanded for the simple reason that when they were counted by missionaries, the prior epidemic (e.g., small pox introduced by the intruding culture) had already decimated the indigenous population.

Professor Stannard added that investigative committee was wrongfully concerned that Churchill’s estimates of the deaths seemed to fluctuate. Professor Stannard discounted the committee's concern by saying population estimates change. Professor Stannard mentioned the “revolution in demography,” which he said changed how experts in demography looked at the numbers traditionally cited.  This witness completely suppor Churchill's position that a reasonable scholar in the field would conclude that 400,000 was a reasonable figure for the number of deaths posite by Churchill.

O’Rourke’s began his cross by asking how well Professor Stannard knew Churchill. Professor Stannard would not agree that he knew Churchill fairly well, but admitted that they knew each other.  They had met when Professor Stannard was a visiting professor at CU.  O’Rourke asked why Professor Stannard did not speak to the Privilege and Tenure (P&T) committee and why Churchill did not ask him to speak with the committee. Professor Stannard thought O’Rourke was speaking about the investigation committee and went on a rant about how he would not have spoken to them because it was a witch-hunt designed to get Churchill fired.  Professor Stannard used the opportunity to state that "no self-respecting professor"would participate in a committee where academic freedom was the true issue. O’Rourke could not get Professor Stannard to admit that he would have no reason to believe that the P&T committee would have listened to what he had to say about Churchill’s work.  

Next, O’Rourke asked Professor Stannard about how Churchill came to the 400,000 number discussed on direct. Professor Stannard admitted he was hypothesizing about how Churchill could have reasonably come to this number. O’Rourke, showing more emotion than he has in the past, asked whether Professor Stannard wanted to know how Churchill actually came to the number. Professor Stannard quipped if you can get inside of Churchill's head, "go for it." O’Rourke displayed Churchill’s response to the Privilege and Tenure committee regarding how he came to 400,000 deaths. O’Rourke walked Professor Stannard through Churchill’s response. In Churchill’s response to t his committee, he never mentioned the source that Professor Stannard pointed to as supporting the 400,000 number. In fact, in Churchill’s response, he adds up numbers and then says that it would be reasonable to triple the number (without citation as to why) and concludes that the highest number estimate he could arrive at was 144,000 deaths.  

This exchange involved O’Rourke walking back and forth to a video screen displaying Churchill’s response while questioning Professor Stannard. This movement combined with O’Rourke’s voice grabbed the attention of everyone in the courtroom. O’Rourke, keeping the same tone, asserted in the form of a question that Professor Stannard came here today to hypothesize to the jury about what Churchill must have thought when coming to this number without reading Churchill’s response to how he actually came to the number. Professor Stannard conceded Churchill’s lawyers never gave him Churchill’s response and he never read it.  

On redirect, Bruce asked whether a reasonable scholar could conclude there were nearly 400,000 deaths caused by the smallpox pandemic. Professor Stannard answered yes. Next, Bruce asked whether Churchill was being investigated because of his writings or his responses. Professor Stannard answered his writings. O’Rourke had one question on recross. He asked whether the 144,000 is close to 400,000. Professor Stannard said no.

Professor Stannard’s direct examination was not very exciting. It involved many long narrative explanations. Professor Stannard’s testimony was damaging to the defense in that it seemed to show a source supporting the 400,000 number used by Churchill. However, I wonder how much the jury heard. The jury seemed to be lulled asleep by the testimony. On the other hand, O’Rourke’s highly charged exchange with Professor Stannard appeared to wake up everyone.

Churchill v. University of Colorado: Sequestering the Jury?

On the first day of trial, the Judge indicated that jurors did not have to stick together at lunch.  They were not sequestered and were free to go home after each session.  This is normal practice.

As we (and others) provide extensive coverage of the trial, one wonders whether in fact trial courts should sequester juries more often.  The NYTimes has written about this problem.  In a recent article, the Times noted the following: 

• Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

• A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

In some cases, the problem may be even more severe than the Times indicated.  As we noted in our coverage of the Nacchio trial, daily transcripts are now produced.  These transcripts will contain all of the events of the day, including assorted hearings conducted outside of the presence of the jury.  To the extent discussed in newspapers and blogs, these events can become know to jurors who are conducting their own exploration over the Internet.  

It suggests the need to more frequently sequester juries.

Churchill v. University of Colorado--March 18, Afternoon Session

The afternoon resumed with continued testimony from Jose Limon, Director of the Center for Mexican American Studies at the University of Texas. The defense asked Limon about the sufficiency of “oral history.” Limon responded that oral history must be corroborated with other sources of evidence.

Next the defense turned to Churchill’s article, The Fort Clark Smallpox Pandemic Revisted: A Case Study of Genocide and Denial, attacking specific examples of claimed fabrication. In the article, there is a section entitled Arithmetical Genocide, which discusses the Indian Arts and Crafts Act. In this section Churchill writes:

A person can be an “American Indian artist” only if he or she is “certifiably” of “one quarter or more degree of Indian blood by birth.”

The defense asked Limon whether in his experience as a scholar, the use of quotations suggested that the words came directly from the Indian Arts and Crafts Act. Limon responded that he believed that was the interpretation of the use of quotations in the passage. The defense asked Limon how we would characterize the scholarly misconduct associated with citing an Act for something that it does not contain. He responded that it would be fabrication.

Next the defense asked Limon what his motive was for recommending that CU terminate Churchill. Limon responded, “We found a clear and repeated pattern of certain instances of research misconduct. On the basis of those findings, I decided to vote for dismissal.”

Plaintiff’s re-cross by Bruce was very brief asking whether Limon knew if the Indian Arts and Crafts Act amended a prior act. Limon responded that he did not know. Bruce also addressed attorney’s question regarding support for “oral” history, by asking Limon to recall whether Churchill had asked for more time to produce evidence. Limon recalled this, and recalled that this request was denied.

Bruce next called Dr. Myron Hulen, retired Professor Emeritia from CSU. Hulen was affiliated with the American Association of University Professors (AAUP), which seemed to be the reason he was called as a witness. Bruce began questions about the principles of academic freedom adopted by the AAUP and the Association of American Universities. Bruce, however, did not get very far into this questioning with two quick objections by O’Rourke based on relevance. These objections were sustained and with that, Bruce had no further questions. O’Rourke had no questions and Hulen’s testimony ended a mere seven minutes after it began.

Bruce next called Elaine Katzenberger, publisher and director of City Lights Books in San Francisco. Katzenberger described the small publishing house and bookstore as a cultural landmark in San Francisco that publishes around ten to twelve books per year. Katzenberger related that she had edited and published five books written by Ward Churchill. Her relationship with Churchill began in 1995 when she solicited an essay he wrote for an anthology published by City Lights.

Bruce questioned her about her role as a publisher and the differences between editors and publishers. Beginning a line of questioning about fact-checking, several objections were made and numerous  side-bars consumed the early part of the questioning. Bruce moved on to questions about Katzenberger’s familiarity with Churchill’s writing style. Katzenberger stated that after reading and rereading his work for fourteen years she considered herself very familiar with Churchill’s work. Turning to several of the disputed essays, Katzenberger stated that she could determine which articles he worked on because he has a very consistent style that she described as a “methodical approach.”

Bruce then turned to a September 2006 letter sent from CU to City Lights Books. The letter provided information about Churchill’s firing and provided a website about CU’s findings of falsification. In a very strong moment for the plaintiff, Katzenberger stated that she has fielded lots of attacks concerning Churchill’s published work over the years and have been privy to “other sides of the attacks” and to information that dispelled attacks. Based on her experience, she stated that she did not give the letter much credence.

O’Rourke began his cross by asking if she had visited the website provide by CU to verify the allegations against Churchill. Katzenberger responded that she did not visit the site because she felt that if there were material plagiarized in Struggle for the Land someone would have come forward to address it during the nine years it was available, and this did not happen. Based on her experiences with Churchill she stated that she felt it unnecessary to visit the website.

The court took a thirty-minute recess following Katzenberger’s testimony to prepare for the video testimony of Dr. Marjorie McIntosh, which consumed the rest of the afternoon. McIntosh, a defense witness, was presented out of turn because she is currently in England presenting a lecture series.

In the video, McIntosh stated that she is a Distinguished Professor of History Emertia at CU. Establishing the weight of her testimony, O’Rourke went over both her scholarly history and her initial position concerning Churchill’s First Amendment rights prior to joining the investigative committee. McIntosh stated that she did not know Churchill personally but was troubled by calls to fire him. Relating some brief personal history demonstrating her support for free speech, McIntosh stated that she was troubled by calls to fire Churchill when the media first broached the story. “My sympathies were very much with Professor Churchill,” McIntosh stated. When she was asked to join the investigative committee she said that she was wary of becoming part of a “right wing conspiracy to get Professor Churchill.” However, after reading the Ad Hoc committee’s report, she believed they had made a strong statement in defense of Professor Churchill and thus many of her concerns with joining a scholarly witch-hunt were allayed.

McIntosh’s introduction posed a strong juxtaposition to the picture painted by Churchill’s attorneys of Mimi Wesson. Whereas Wesson had been accused of joining the committee with biases that could be construed as anti-Churchill, McIntosh was presented as having a bias in the other direction.

Discussing her qualifications to analyze Churchill’s work, McIntosh described her work as focused on the history of England between 1300-1600 and the history of women in Africa in the 1900s. Her study of Africa, she stated, helped her ability to judge the importance of oral history and traditions in scholarly work. She said she brought awareness for “relevant methodologies.” She also stated that she has a reputation for being fair-minded and balanced.

O’Rourke then asked whether McIntosh detected any bias on the part of other committee members, including Mimi Wesson. She responded that she saw “no evidence of any kind” of a bias on Wesson’s part: “I was struck by how neutral and fair she was at all times; I saw no bias.”

Turning to the investigative committee’s research concerning the 1837 smallpox epidemic, McIntosh went through a lengthy discussion of her findings on Churchill’s claim that smallpox was spread into the Native American Indian communities through blankets intentionally infected by the United States Army. McIntosh stated that the committee gave him “a great big benefit of the doubt,” taking additional steps to ensure that he had the best possible chance to demonstrate that his work was substantiated. She stated that although they gave Churchill leeway to provide sources for his oral history, he could not provide sufficient support.

Discussing Churchill’s ghostwriting essays, McIntosh stated that publishing under someone else’s name is unacceptable. This, she said, does not honor historical record because if someone writes an article under someone else’s name it becomes impossible to tell who wrote what and who is responsible for the work.  Even worse, she said was Churchill's practice of citing the work and representing that it was someone's work when that actually was not the case:  the appearance given that the citations by multiple authors bolstered his claims.

McIntosh described the broad to narrow questions posed to Churchill by the committee, and she said that based on the evidence she concluded that statements that blankets were taken from infirmaries in St. Louis were fabricated.

On Cross-examination, Bruce immediately asked questions about McIntosh’s CV, clearly challenging her ability to understand oral history in Native American Indian society. McIntosh was immediately on the defensive, arms folded and much shorter responses. While McIntosh gave very elaborate and long answers to O’Rourke’s questions, most of her responses to Bruce were yes and no responses, followed by a brief clarifying statement.

Bruce began asking questions about her knowledge of critical race theory, but McIntosh said she was not familiar with that term. Discussing the 9/11 essay, McIntosh stated that the committee did not discuss the essay because they were charged only with investigating a particular set of allegations that did not include the 9/11 essay. Bruce turned the questions to the motive behind the investigation, to separate her testimony from retaliatory motives of the university. Bruce asked her if she believed that someone else would look into motives and whether retribution was a motivation, and McIntosh stated that they did not focus on whether proper motives existed upon which to start an investigation. Also distinguishing her testimony, Bruce asked questions about McIntosh’s understanding about the timing of the allegations. He asked whether she knew that the allegations had been brought before the standing committee years before; to which O’Rourke stipulated that the standing committee had not received a complaint, but some people in the community had heard of complaints before the convening of the investigative committee that led to Churchill’s dismissal.

The day ended a few minutes early at a convenient break in the video deposition. The final hour of the deposition will resume at 9:00 a.m. tomorrow morning.