After sitting through this trial for the last three weeks, I was anxious to understand the impact of the jury instructions will have on Churchill and CU on winning this case.  And of course, I was anxious to hear the closing arguments of Lane and O'Rouke both of whom I have come to admire their consummate professionalism and skills in the delivery of their cases. 

It was a high stakes battle today between "heavyweights" with demeanors and styles that were truly an extension of their clients' personalities.  Lane, the master of making complex concepts easily accessable to the jury through the use of understandable analogies, delivered a compelling emotional appeal to the jury to protect 1st amendment rights.  O'Rouke, the master of accessing the facts in the case to buttress his arguments, methodically and rationally presented CU's case aided by an animated PowerPoint presentation.  But before diving into the arguments by each lawyer and how these arguments were tailored to improve their chances of winning under the jury instructions, I want to address the overarching themes offered by each lawyer.

Lane started and ended his closing argument on the theme that not only is their work on the jury "the most important job in America today, but the US is not free unless the Constitution is protected and you are in charge of protecting it.  All the reporters are here to witness whether it is okay to criticize the "Master Narrative" (official story of history) and tell another side of the story."  For thirty years, Ward Churchill has dared to speak the truth.   Returning to this theme at the end of his closing argument, he said to the jury:  "You know justice is; you know what is not fair."  "All the reporters in the front row are present and want to know what you will do with the First Amendment right to free speech.  Send a message that the 1st Amendment will be protected."

O'Rouke creatively started with Lewsis Carroll's "Through the Looking Glass" which he said is the story of leaving one world and going to another.  We have heards that there is the usual world and "Ward Churchill's worl."  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.  O'Rouke continued with this theme throughout his closing argument.  For example, in "Churchill's World, he sanitized hatred and masked it as intellectual inquiry."

Now let’s turn our attention to the jury instructions that focused the attention of Lane & O’Rouke during their closing arguments.  But first, and significantly, last night Lane lost a very important instruction that he wanted and even a claim in his complaint.  On the loss of a claim in Churchill, Lane had listed a separate claim that the investigation of Churchill's works chilled his 1st amendment rights.  However, Judge Naves ruled after extensive legal citation and analysis that an investigation, by itself, is not an adverse tangible employment action in a 1st amendement claim.  

On the loss on the jury instructions, Lane had requested that Churchill only show by the preponderance of the evidence that any of the regents used Plaintiff's protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment.  After O'Rouke brought up the issue, Judge Naves liked O'Rouke's argument that since the Board of Regents make a decision on a majority vote, then the instruction should state

"When it terminated Professor Churchill's employment, did a majority of the Board of Regents of the University of Colorado use Plaintiff's protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment."

This raises the issue, at least in Lane's mind, that if the jury decision comes to this, is whether the majority means 5 out of 9 or 4 out of 8 since Regent Carlisle did not vote for dismissal, only suspension and demotion of Ward Churchill.   The likely interpretation is that Churchill has to convince the jury that 5 out of 9 members of the board possessed the requisite intent to discharge where the substantial or motivating factor was his protected speech associated with his 9/11 essay. 

Consequently, Lane spent considerable time in his closing arguments pointing to the testimony of three regents in particular, Lucero, Bosley, Rutledge, and how they lied on whether they had told Betsy Hoffman, then president of CU, that they wanted Churchill fired for his 9/11 comments, before the special meeting of the Board of Regents on February 3, 2005.  He also focused on Regent Tilman Bishop who surprisingly testified (hard to believe) that he did not know much of anything about the 9/11 essay--he did not know whether the comparison of the 9/11 victims was a positive or negative comparison (could have been compared to the "Boy Scouts)."  After referring to the impeaching of their testimony with his video clipping deposition gun, Lane is confident that he has at least four members of the Board of Regents that may have used the 9/11 protected speech as a substantial or motivating factor in their decision to terminate Churchill.  Consequently, Lane must hope that the evidence will indicate to the jury that at least one more member of the Board will possess a similar bad intent in their termination decision.

Even if Lane meets this first threshold, CU can raise the affirmative defense in the next part of the jury instruction: 

"Have the Defendants shown by a preponderance of the evidence that the Plaintiff would have been dismisssed for other reasons even in the absence of the portected speech activity?" 

Consequently, O'Rouke focused on the testimony of the professors sitting on the Investigative Committee and the Privilege & Tenure Committee that all concluded that there was a pattern of research misconduct that fell below the standard of professional integrity.  And he addressed each and every one of the eight remaining allegations where full professors had determined by "clear and convincing evidence," a higher standard than "preponderance of the evidence" burden of proof for Churchill's claim and CU's affirmative defense.  The one smoking gun of evidence that O'Rouke focused on related to the Fay Cohen plagiarism charge.  O'Rouke pointed out that the plagiarized article was listed in Churchill's CU internal annual report that he signed, but did not prepare according to Churchill.  O'Rouke discounted Churchill's claim that his CV (academic resume usually online an university's website) never had this article listed since CU has never seen his CV.  This was quite a suprise because a CV is usually listed on CU's website for professors, a common practice of all universities.

Lane had 20 minutes of rebuttal and he needed it to address O'Rouke's onslaught of evidence; for example, each slide with a picture of a professor with a key sentence in their testimony.  Since all CU has to do to win even if the jury finds that, indeed, a majority of the board used the 9/11 Essay as a substanstial or motivating factor in deciding to terminate Churchill, is to show that CU would have fired Churchill anyway based upon his research misconduct.  Critically, however, O'Rouke would have to convince all six jurors on this point the way Lane would have to convince all six jurors on the "majority of the board" instruction.  Consequently, Lane needs to convince only one juror to find that the research misconduct was a product of a "kangaroo court" and a "biased investigation."

We have predicted today in this blog that Churchill would win, but it is a very close call.  Lane did not get the instructions he wanted while O'Rouke does not have the best facts related to the Board of Regents early 9/11 comments and the factors they considered in making the dismissal decision.  If Lane can pass the first hurdle, and this is a big if, by convincing all six jurors that a majority of the board used as a substantial or motivating factor the protected 9/11 essay in their decision to dismiss Churchill, then I like Lane's chances that today he convinced one juror that the research misconduct allegations were effectively refuted by the experts Churchill brought in and by Churchill's own explanations. 

However, as Lane told the jury again today, if you really believe Churchill did these things--fabricated, falsified, and plagiarized, "kick us out of court."