[Our loyal readership is keeping us abreast of errors in posts, so corrections have been made to March 31 posts.]

The attorneys stayed true to character in their closing arguments—the character of their clients, that is. Mr. Lane was expressive, sarcastic, and very liberal with the accuracy of facts he referred to. Making a dramatic and emotionally evocative statement seemed to matter more to him than being factual. He used one hand-held visual aid and seemed to be speaking ad-lib. He certainly connected well with the packed court room, evoking laughter or snickers at several points.

Mr. O’Rourke was animated (for him), but went—again!—through the specifics of who said what about this or that, using the projector to do so. He was extremely factual in highlighting portions of evidence, but the exactitude held no drama, no excitement, no laughs and was almost hard to follow. The case certainly won’t hang on the persuasion of closing arguments, which is fortunate for the defense.

Even with long lines to get through security, the court room was full by 9:00 and packed by 9:15, including a lot more attorneys and reporters than usual.

Jury Instructions

A copy of the jury instructions was given to each juror in order to “read along so you better understand the law,” then Judge Naves read the instructions, loudly and deliberately. We quote some key elements:

In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence:

1) That a majority of the Board of Regents of the University of Colorado used Plaintiff’s protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment, and

2) That the Defendants’ acts were the proximate or legal cause of damages sustained by the Plaintiff.

[F]or damages to the proximate or legal result of wrongful conduct, it must be shown that, except for such conduct, the damages would not have occurred.

If you find in the Plaintiff’s favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendants have shown by a preponderance of the evidence that the Plaintiff would have been dismissed for other reasons even in the absence of the protected speech activity. If you find that the Plaintiff would have been dismissed for reasons apart from the speech activity, then your verdict should be for the Defendants.

In determining such damages, you shall consider the following: (1) Any noneconomic losses or injuries which Plaintiff Churchill has had to the present time, including physical and mental pain and suffering, inconvenience, emotional distress, loss of reputation, and impairment of the quality of life; and (2) any economic losses or injuries which plaintiff has had to the present time.

At the end of closing arguments, Judge Naves revealed who were the two alternates, as those people will not be included in the consideration. It turns out they were the man who took the most notes, and the man who asked the most questions.

[Apologies in advance for the inevitable errors in the next sections. Our intention is to capture the flavor and color of the comments; we do not certify them as exact quotes.]

Plaintiff’s Counsel selected colorful comments:

My great-grandmother came to this country from Russia. She always told us we were lucky to live in a free country, because in Russia, if you criticize your government you will be put in jail. You jurors are in charge of preserving, protecting and defending the Constitution, and this may be the most important thing you ever do. You sat here for a month. Who came into this courtroom and told you lie after lie? I did my best to show who is lying and who is telling truth.

What do I have to prove? I have to show you that the University of Colorado fired Ward Churchill and that his protected speech was a substantial or a motivating factor in the decision-making process. I don’t have to prove that protected speech activity was only reason he was fired, I just have to show you that that 9/11 essay formed part of the reason they fired him.

For the sake of argument let’s assume that every trumped up reason they gave for firing is true, that’s not the end of the case. If they used his protected speech on top of all that, then you have to find for Ward Churchill. Even if he’s guilty as charged, they don’t get to use that AND the 9/11 essay as the reason they fired him. Look inside your heart…can anyone say they didn’t use that 9/11 essay to fire him?

You heard a lot of information to show that ethnic studies is about connecting the dots because there is no evidence from 1600. When you connect the dots you may get a pentagon (holds up paper with dot grid and pentagon outlined on it). Then someone else comes along and connects other dots and it becomes a star (holds up paper with star). That doesn’t mean the pentagon is false, just that you’ve looked at it a certain way and someone else says it is another way.

When you tell the truth about the master narrative you get slapped down by the master.

Your former governor came into this courtroom, looked you in the eye, swore to tell the truth and lied to you. Hank Brown was in the US Congress voting to send troops to Iraq—he is the master narrative that Ward Churchill wrote about.

The overarching issue, according to them, is that “if it looks fair, it is fair.” The appearance of justice is not justice. As long as you hide your bias well enough, everything is fine.

Lying liers lied. The SCRM committee was picking pet poodles to be on the Wesson committee. They had their pious little routine, their charade of fairness because someday we’ll be in front of these chumps on the jury. It is April Fool’s day….but you’re smarter than all that.

The ghostwriting—this horrible, capital offense. Their sanctimonious, pious witness (Professor Morley) said that alone is worth firing. I asked so many witnesses to show one scrap of evidence of an established standard against ghostwriting. Have they proved its an established standard? Why are they doing this? Because they don’t like what he said in the 9/11essay.

They talked about a pattern of research misconduct and then showed three bad footnotes over 30 years. That’s one every 10 years. They all get up and say there was no joy in firing him, that it was sad to see….if he had only groveled a bit.

All because he told the truth as he saw it about this country’s foreign policy, and people listen so that is threatening to people like Owens and Brown.

You didn’t hear Ward Churchill ask for a penny, but you don’t have power to give his job back. If you find for Ward Churchill the judge has power to do things like order the University to give his job back. What are damages? Damages are justice. Easy to say that he’s out $100k per year….but what is a man’s reputation worth? What is a destroyed reputation worth? I don’t know. It’s worth a hell of a lot more than a little bit of money. It’s your job to figure out the justice of that.

Mr. O’Rourke said “He’s done the worse things you can do. The story keeps changing; he can’t tell a consistent story” Duh, that’s what history is about! When new evidence comes in the story changes.

Hank Brown withheld tens of thousands of dollars from CU as director of the Daniels Fund. Then he becomes president of CU and all the money starts flowing back in because “don’t worry about it, the Churchill problem is being solved.” Tell me how fair and unbiased and impartial they were.

White guys in suits write history in this country.

You are here to do justice, and you know what justice is…because those rules are not confusing because you can feel them. You know when something is fair and when it is not. What they did to this man is not fair. It makes a mockery out of free speech in this country. Are you going to stand up for free speech and freedom in this society?

Defense Counsel colorful comments:

Lewis Carroll’s “Through the Looking Glass” is the story of leaving one world and going to another. We have heard that there is the usual world and Ward Churchill’s world. Ward Churchill’s world is a place where there are no standards and no accountability.

What we saw is that Churchill can justify everything and explain nothing.

In academic world, publication is the measure of performance. What Ward Churchill did undermines that trust. Professor Churchill admits he wrote work that other people claimed credit for.

The story keeps changing, and it’s always wrong. You can’t invent history because you want a better story. You don’t get to invent details. You can’t embellish oral history; if you don’t know it, don’t say it.

They want to talk about how these things are just a difference of opinion. It is not a difference of opinion to steal someone else’s work. Not a difference of opinion to misrepresent your work on a faculty report. Not a difference of opinion to be fundamentally dishonest.

Research misconduct matters. Prof Williams said there are no standards, the rules don’t apply to Ward Churchill. But if you work at CU, the policy applies. It says simple things, that you cannot plagiarize or falsify or fabricate.

They had a lot of rhetoric about “show me where ghostwriting is prohibited.” The policy says that because research misconduct can be a lot of things, it can be more than what is listed. Ghostwriting is just wrong. It strikes at the heart of what a university is.

If you were looking for a reason to dismiss someone you wouldn’t send an inquiry through years of multilayer faculty processing, it doesn’t make sense.

Lane said Ward Churchill is ready, willing and able to identify sources. But four years later he brings notebooks into the courtroom and still can’t do it. He’s still trying to manufacture answers, and he’s still failing.

The issue is not whether or not you agree with every finding in the report. Prof Churchill has tried to present new evidence to show that the committees were wrong. There is no evidence that any members of the P&T acted in anything other than good faith.

And then the conspiracy--how Hank Brown has got to be the lynchpin of the whole conspiracy. He wasn’t even at the University in 2005 when this erupted. It would be ridiculous to think that dozens of faculty members would conspire to get rid of this guy.

We just heard from Mr. Lane about how Professor Churchill didn’t grovel….what utter nonsense. What Professor Churchill didn’t do is recognize ever, to this day, that there are standards of scholarship and that he needs to meet them.

You have to find that protected speech was a determinative factor in the decision to dismiss. The evidence has been overwhelming that faculty said this conduct can’t stand.

What you have before you is first amendment fraud. The Chancellor did not say: I am finding a reason to fire this person. He said speech was protected in spite of the damage it caused.

This is not about 3 footnotes. These representations are the central premises of Churchill’s work found in 11 different books. It is not honest error.

Professor Churchill is trying to use the First Amendment to excuse his fraud. You are here to protect the Constitution and the best way you can to that is to say you can’t take the First Amendment and use it to justify fraud.