By 12:58 PM people were lining the benches outside of Courtroom Six, waiting for the afternoon session to begin. We were greeted by a smiling Judge Naves who unlocked the courtroom doors and held them open, joking, "I'm a full-service judge!" By 1:25 PM nearly twenty-five people mingled in the courtroom, and within ten minutes that number jumped past forty.
The afternoon session began with O'Rourke's quiet questioning of Professor Hu-Dehart from Brown University. She described her past professional relationship with DiStefano and also discussed the interdisciplenary nature of ethnic studies. Questioning rapidly moved toward the subject of plagarism and falsification, and Hu-Dehart become increasingly more evasive. While she agreed that no professors should falsely cite personal opinions as facts, she gave round-about answers to straight-forward questions, indicating that one would probably expect "facts" from a publication to be related to the source an author cites.
When Lane began the re-direct examination, his focus was on the differences between opinion and fact, and academic freedom. Prof. Hu-Dehart emphasized the importance of unique academic opinions, stating, "We push the envelope by saying, "I think we might go in a different direction with this. I have reason to believe all the previous analysis of this issue may be a bit off... I'm going to stick my neck out." When questioned about the dangers of creating facts and speculating, Hu-Dehart said, "What's one person's fact is another's falsification," and gave the wild example of those who insist the Holocaust did not occur. When we hold up a photo of an oven from a concentration camp, she said, a non-believer in the Holocaust will insist it is a photo of something different. And we allow them to argue such beliefs.
Next on the stand was Phil DiStefano. Lane began by weaving a theoretical tale about Gallileo teaching at CU, professing incorrectly that the earth moves around the sun. If the church, he said, threatened to cut off funding from the University because of the off-color teachings, the University would have to respond with an unenthused, "Whatever." Of course, this story is meant to parallel Bill Owens public threat to stop CU's funding after the "firestorm" of Professor Churchill's 9/11 essay reached the media. And CU did not brush off the incident so unenthusiastically. Lane tried multiple times to ease DiStefano into saying that, in February 2005, only the 9/11 essay was "on the table." DiStefano wouldn't give in, insisting that the University was receiving numerous complaints via phone, e-mail, and letters regarding Prof. Churchill's academic misconduct; complaints that warranted further investigation.
The Standing Committee on Research Misconduct was the hot-topic of the day. At some point Lane pointed out that DiStefano passed legitimate complaints on to the SCRM for investigation. One such topic was whether Churchill misrepresented himself as a Native American and used the information for the purpose of getting published. Lane likened this to requiring an American Kennel Club dog to prove its lineage. DiStefano, of course, disagreed with the AKC analogy.
Another concern of Lane's regarding the SCRM was the membership, specifically that of law professor Marianne Wesson. According to Lane, Wesson, in the past, had compared Churchill to Michael Jackson, O.J. Simpson, and Bill Clinton. Lane suggested this was a major conflict of interest, but DiStefano would not agree that past personal statements influenced her decisions as part of the SCRM.
The final SCRM controversy of the day involved the issue of confidentiality. Lane showed DiStefano, and the rest of the courtroom, the SCRM rules regarding confidentiality: Basically, that members of the committee and committee support staff are required to keep faculty evaluation information private. At first, DiStefano stated he was unsure of the SCRM policy because he was not a member of the committee, but soon added that no records were truly confidential because of the Colorado Open Records Act. This, he said, justified any press releases. Lane immediately asked whether, "from the moment [the investigation] launched, there was a single, solitary open records request." DiStefano's defensive response? No, but "[a request] would have been there the following day!" While this elicited some laughs from Churchill supporters, DiStefano was likely correct in suggesting that without any press releases, the media would have been hounding CU for information.
Lane brought forward a memo released by a panel of CU employees, criticizing DiStefano for breaking confidentiality rules, and seemed shocked that DiStefano's recollection of the memo was scant. He repeatedly suggested that DiStefano unfairly permitted the breaking of confidentiality rules because it was "a super-duper high-profile case" DiSefano insisted, even in light of the CU panel suggesting otherwise, that he did not violate any confidentiality regulations.
The day ended with a few questions from O'Rourke, much more enthused and dramatic than his questions from 1:30pm. In a few short moments he had DiStefano telling the jury that, no, the investigation of Churchill was not a witch hunt, that he did follow all the rules and regulations in conducting the investigation, and that academic freedom had nothing to do with Churchill's dismissal. The finale? DiStefano explained how, if his ultimate goal was to fire Churchill, he would have done it in a much more effective manner without dragging any issues through the SCRM. Instead, CU chose to protect First Amendment and Due Process Rights and essentially give Churchill a fighting chance at keeping his job.