Churchill v. University of Colorado: A Prognostication
J. Robert Brown | Wednesday, April 1, 2009 at 04:00PM On this Blog, we like to go out on a limb. After more than three weeks of trial, we are prepared to predict the final outcome. The prognostication is not based on a predetermined view. It is based upon an assessment of the evidence presented at trial, some of which I observed directly, others I received from students in conversations or through their posts on The Race to the Bottom.
But before we prognosticate, let's review the course of the trial.
The case comes down to one issue: Was Churchill fired because of his speech? CU (Pat O'Rourke) did a good job in establishing that once these matters surfaced (including those derived from the newspapers), the University was duty bound to investigate.
David Lane worked hard at trying to demonstrate bias in what followed, particularly the work of the investigation committee headed by Mimi Wesson. He hammered at the personal views expressed by Wesson about Churchill in a personal email, suggesting bias, then linked the views to a number of acts arguably detrimental to Churchill, including the refusal to provide an extension beyond the 120 days presumed in the rules and Wesson's altering of witness questions given to her by Churchill (he had to type them out and she would read them).
From personal observation, I would have guessed that the jury wasn't particularly moved by the approach. From questions asked by the jury, however, it seems that they were. At least some of them seemed concerned about the fairness of the process.
With respect to the allegations of misconduct, they were effectively challenged. Considerable testimony came out a trial indicating that he may have been sloppy in his footnote practices (the Smallpox Epidemic, John Smith) but the evidence of fabrication was substantially weaker than what seemed the case at the beginning of the trial (in fairness the committee only found fabrication for certain specific facts in the Smallpox description). There were some facts unaccounted for in the smallpox matter but there were at least possible explanations.
The ghost writing issue got some traction but in the end the argument that there were no standards making the practice per se wrong seemed the stronger. CU seemed to recognize this and Pat O'Rourke introduced facts suggesting that the ghost writing had been done without the input or perhaps permission of the relative authors but in the end was largely unsuccessful.
The objectively strongest argument of misconduct was the plagiarism of the article by Fay Cohen (which did occur) but the article was not directly attributed to Churchill and was written before he joined the faculty. Moreover, even if deemed to have been an example of misconduct by Churchill, it is not a basis for dismissal.
The case therefore largely turns on the issue of ghost writing for others. Churchill himself admitted that on occasion he had written pieces published under the names of others. None of the recipients of the largess testified so there was no affirmative evidence in the record suggesting that they were unaware of this or that they objected. In other words, the evidence is that he wrote the pieces and the recipients agreed with the contents.
Churchill is guilty of sloppiness not fabrication. He is guilty of ghost writing but not in a malicious fashion. There is some evidence of plagiarism but he has an explanation. It is not a firing offense. This jury has been paying attention and often asked questions that cut right through the verbiage, getting to the most important point of a witness. They will have to overcome very tough instructions that establish a high burden for Churchill. Nonetheless, they will.
Young they may be but thoughtful and thorough will be the verdict and it will be in favor of Ward Churchill.
Reader Comments (6)
*All* of the fabricated facts are still unaccounted for. Churchill's defense is that when he said that Army officers passed out blankets, he really meant the local Indian agent, not the Army. When he said that Army doctors violated quarantine, he really meant a fur trader doing home remedies, not Army doctors. When he said blankets came from a military infirmary in St. Louis, he really meant that a fur trader brought them from Baltimore. And when he said Mandan Indians at Fort Clark, he didn't really mean the Mandans, he meant all of the Plains tribes to the north of Fort Clark.
In other words, Churchill no longer defends any of the fabricated elements of his published tale. The Army, the Mandans, and Fort Clark have all disappeared from his latest conspiracy theory. If he can bamboozle an intelligent law professor with such nonsense, then I think he probably bamboozled the jury too. I agree with your prediction.
A large fine would certainly hurt CU and help professor Churchill, but to me (a WC supporter for a decade) getting his job back is the key. I want him to be on campus for years to come to remind CU officials and local political leaders that you can't fire someone for being a radical. It seems to me that CU wins if Churchill is gone because he will disappear from the media, which is what CU has wanted all along. They probably would have paid him a considerable sum years ago to just go away.
Thomas Brown -- Tasting a little of the sour grape today? As one of the instigators of the anti-Churchill angry mob, and as witnesses for the Defense, I don't think your opinion carries any weight. You are just another in a series of Bart Simpson's that the Defense trotted out in front of the Jury.
All of CU's witnesses (that I can recall) were the same folks who violated Churchill's rights in the first place -- all saying little more than "I didn't do it". Churchill presented witnesses not involved with the investigation who came in as third parties and contested the evidence. CU didn't do any of that. They just put the same folks who screwed up on the stand to stammer that they really really didn't screw up, and that you should trust them when they say that they didn't do anything wrong.
But under questioning, lie after lie was exposed.
What CU needed was a few good independent expert witnesses in Native Studies of their own that could have stepped in and provided testimony. They didn't, and the result is that Churchill's expert witnesses went un-rebutted by CU. That will be costly for CU.