The star witness for the afternoon was Phil DiStefano, the acting Chancellor during 2005 when the outcry against Ward Churchill hit its fever pitch.
David Lane brought him through a series of questions about those events, focusing on his statement to the Regents that he would, within the next 30 days, launch an investigation into Churchill’s speeches, writings, and recordings. DiStefano essentially acknowledged that he was looking for anything that would justify Churchill’s dismissal.
DiStefano came across as straightforward enough if not understated until Lane questioned him about the publicity emanating from DiStefano's office about the Churchill incident, despite obligations of confidentiality. DiStefano had sent out assorted media advisorys and emails about the status of the investigation. Lane asserted that he had complained to CU that he had to learn about developments with Churchill by reading the Rocky Mountain News.
Distefano essentially took the position that the confidentiality requirements did not apply to him, but were instead applied to the committee conducting the investigation and its process. Lane confronted him with a complaint filed by Churchill about the confidentiality violations and a faculty committee decision that found that there had been disclosures that were inappropriate and "likley prejudicial to Professor Churchill." Distefano indicated that he did not remember the decision. He also indicated that he disagreed with the committee's findings but apparently never appealed or otherwise took steps to undo the decision. It would have been better for the Defendant if DiStefano rather than Lane had alerted the jury to the decision.
But the real star of much of the afternoon was in fact not exactly a person. CU Law School came up a number of times. DiStefano acknowledged that he relied on the dean of the Law School, David Getches (along with university counsel and others), for advice on whether Churchill’s article constituted protected speech. Sometime after the controversy broke over the 9/11 essay, DiStefano received the following email from Getches:
Ward Churchill’s paper, which has just come to light, expresses some opinions protected by the first amendment that we find objectionable and outrageous. Just as one does not have a 1st amendment right to cry ‘fire’ in a crowded theater, one cannot incite others to violent or illegal action. Churchill’s paper may be over the line.
Whether or not his particular remarks are protected by the 1st amendment, they are not befitting of someone in a position of leadership at CU. Since it has been disseminated, his paper has caused anguish to Jews and members of the very minority groups the Ethnic Studies program serves, and to 9/11 victims’ families. He has deeply embarrassed CU and flouted the principals of human decency that CU stands for.
Moreover, his inaccurate and irresponsible comments cast serious doubt on his competence and integrity as a scholar. Therefor—
Actions 1) Remove him as Director of Ethnic Studies, 2) Suspend him with pay pending review by committee of his competence and fitness to continue as a faculty member at CU
Lane sought to use the views in the email to cast doubts on the neutrality of Mimi Wesson, a law faculty member, who headed one of the committee that made findings of misconduct by Churchill. Lane noted some arguably critical comments by Wesson in an email and tried to paint Getches and Wesson as friends, noting they worked in the same building and had worked together for 20 years.
DiStefano disagreed with the characterization (calling them colleagues) and noting that law faculty do not all think the same way.
Both names came up repeatedly throughout the afternoon. It is very clear that one of the ways David Lane intends to challenge the CU process is to attack the credibility of the members of the various faculty committees.