the Race to the Bottom

Definitely not a yawn this afternoon.

Regent Tom Lucero’s cross examination continued in the afternoon covering the usual territory. No, Lucero doesn’t believe it is appropriate to launch an investigation because the Regents or administration disagree with Churchill’s politics. On redirect, Lucero repeated his position that a particular viewpoint on college campuses is overrepresented (read, liberal, socialistic, etc.) and his way of fixing that is to hire more faculty, not have less. No re-cross, nor jury questions.

And now for the smoking gun. Or, as one activist leader and Churchill supporter who has been a trial regular put it: “We have the ringleader testifying today.”

Thomas Brown, professor of sociology currently at Northeast Lakeview College in Live Oak, Texas (near San Antonio), negotiated his wheelchair to sit in front of the witness box and was requested to speak slowly for the benefit of the court reporter (and the rest of us!). Prompted by CU counsel Kari Hershey, Prof Brown spoke strongly, loudly, forthrightly about the fact that he is familiar with Churchill’s writings and is the person who contacted Paul Campos of the Rocky Mountain News to raise concerns about Churchill’s academic misconduct. He was never, ever contacted by any person from CU, never asked to bring allegations forward, never encouraged by the University in any way. Prof Brown submitted his findings of Churchill’s plagiarism, misrepresentation and ghostwriting (presumably to the SCRM committee, but that wasn’t clear) in 2005. Many of those allegations ended up being proven in the various reports, but some were dismissed for lack of evidence. Prof Brown appeared extremely proud of his role in “shifting the public debate.” He noted, “It was clear to me that the debate was focused on issues of academic freedom and that the university would support academic freedom. I was trying to shift the public debate to focus on Professor Churchill’s research misconduct.”

Mr. Lane objected to the testimony before it was presented, and reiterated his objection as it started. Prof Brown was not on the defense's witness list, but was brought in by the defense as a rebuttal witness to the notion—raised by a juror in a question and expounded on by Lane—that CU sought out allegations of academic misconduct as a way to “get” Churchill through stories planted by Campos for CU.

Lane: But your Honor, they are rebutting their own witness!

Judge Naves: There is nothing wrong with rebutting your own case, if that is what you choose to do.

As a rebuttal witness, Brown was not sequestered or given instructions to not listen to testimony or read about the trial, so Lane made him confirm that he had been reading (blogs!) and following the trial. Firing questions to match Brown’s rapid speech, Lane asked about the allegation that Paul Campos was/is in cahoots with the University. “Oh, you mean the conspiracy theory,” was Brown’s reply. No, didn’t say conspiracy. “Well, cahoots means conspiracy.” Brown didn’t know anything about Campos’s connection to the University other than he was a CU law professor; Brown contacted him as a journalist. Yes, Brown did compare Churchill to Timothy McVeigh in a post on his personal website, but Lane cut him off before he could explain why. Yes, CU did pay for him to come here from Texas, but re-direct established that the University did not pay him for testimony, only travel expenses. No re-cross or jury questions, so the testimony was relatively brief.

The next defense witness was Peter Bryant, a Business School professor at CU for 28 years after getting degrees from Harvard, Purdue and Stanford. Prof Bryant described himself as like a jury foreman in that he was the person who ran the meetings, but didn’t have more of a say in the outcome. Hershey took him through the now very familiar territory of yes, the committee unanimously found that Churchill had plagiarized, falsified, fabricated, all of which are below minimum standards of professional integrity. No evidence of CU creating the controversy; his understanding is that Hamilton College in NY objected to a proposed lecture by Prof Churchill and that started the publicity. The publicity led to awareness of Churchill and his writings, and that provided the opportunity for people to respond with allegations. The evidence did not prove the university retaliated, and yes, Churchill was allowed to present testimony on that. No, the P&T did not “sacrifice” Churchill to save the tenure system. Etc.

No cross examination, no jury questions.

The final (hooray!!) witness was Stephen Ludwig who started serving as a Regent in 2007, replacing Pete Steinhauer in a statewide position. He of course knew of the Churchill controversy, but in order to keep an open mind, he never read the 9/11 essay. He and the committee reviewed seven 3-inch binders of reports and evidence, one from CU and six from Churchill. The Regents were careful not to talk to each other about the case. The most striking thing about the evidence—and most compelling reason to dismiss—was that 27 professors all came to the conclusion that there was research misconduct, which strikes at the very foundation of the university’s mission.

Dismissing Churchill was a very hard decision to make. “What Ward Churchill has done is very important to this country. The Native American community is our most oppressed group, and we have cultural amnesia about that. We need people who are larger than life, controversial, to bring that to our attention and Churchill fits that. As a tenured professor, he had an amazing platform to change that. So the decision was not easy.”

On cross, Lane asked if Ludwig if he relied on the good faith of the various review committees in coming to his decision? And if you found out that the reports you relied on were skewed and one-sided and unfair, it would be a surprise, right? Yes.

No significant statements on re-direct. Nothing further for re-cross. No jury question. And at 3:11 p.m. the University rests and the evidentiary stage of the trial is complete.

The judge dismissed the jury, letting them know that tomorrow morning both sides would present closing arguments and the jury could expect to be sequestered for their decision by noon. The rest of us stayed for comments on the record regarding various motions, including jury instructions, about which we will post separately.

Color Commentary -- A certain camaraderie builds in the course of a nearly 4-week trial, regardless of which side you are on. The courtroom regulars have been primarily Churchill supporters, some quite clearly of Native American descent, some students, some middle-aged white liberals. As we RTTB reporters have become known, we are greeted warmly, and frequently complemented on our work. Some regulars want to engage in partisan conversation, which we avoid. Counsel and staff for both sides are unfailingly polite to each other, helping out with bottles of water, locating text on the computer, helping witnesses navigate their way through the notebooks and cords on the floor to the stand. We have gotten to anticipate and still chuckle at Judge Naves’ custom of giving jurors a break of 18-1/2 or 17-3/4 minutes. The last few days the standing joke has been how evidence has been gone through in “mind-numbing detail” and the goal (generally missed) was to not repeat that. The breakout laughter moment of the afternoon was when the last defense witness was asked his last direct question and replied, “Do I get a lifeline?” To which Mr. Lane spoke up to say, “Sure, and I’m it!”

We in law school often hear about how professionalism (meaning common sense politeness) has taken a beating and needs reinvigorating. It has therefore been a privilege to see masters conduct themselves to the highest standards of the profession.