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.