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Churchill v. University of Colorado: Morning of Sixth Day--March 16th.

The morning began a little after 9:00 am with the Plaintiff calling Dr. Paul Lombardo to ask him about the alleged misrepresentation of a writing from one of Churchill book’s, Struggle for the Land, on the General Allotment Act of 1887 – Allegation A of the University’s allegations from the University’s investigative report. The writing is reproduced below:

“one of the first of these was the General Allotmet Act of 1887, “which unilaterally negated Indian conrol over land tenure patterns within the reservations, forcibly replacing the traditional mode of collective use and occupancy with the Anglo-Saxon system of individual property ownership.” [63] The Act also imposed for the first time a formal eugenics code dubbed ‘blood quantum’ – by which American Indian identity would be federally defined on racial grounds rather than by native nationals themselves on the basis of group membership/citizenship.[64]

Dr. Lombardo’s received his Bachellor’s in 1971, his Masters in 1975 from the University of Chicago, and his Ph.D from the University of Virginia. His doctorate thesis focused on eugenics. Then Dr. Lombardo went to law school, where he focused on health law.

The Plaintiff’s attorney then focused on the definition of eugenics, providing context for his questioning. The Wikipedia definition of eugenics, as presented by the Plaintiff is, in part: “controlled breeding of humans to achieve desirable traits in future generations.” Dr. Lombardo then explained, in great detail, what eugenics is and presented a brief history of the meaning of the word and of the eugenics movement, both abroad and in the United States. He explained that the Holocaust was a example of eugenics, however, due to the Holocaust, people mistakingly associate eugenics with the Nazis regime.

Professor Lombardo stated that he is an expert on eugenics but is not an expert in Indian law. He was qualified by the Plantiff as an expert on eugenics, with no objections from the Defendant.

Plaintiff’s attorney focused on the University’s critique of the above-mentioned writing, particularly Churchill’s representation of the General Allotment Act of 1887 as a eugenics law. Dr. Lombardo commented that many of his colleagues who are eugenics-law experts examine, in their scholarship, laws which do not mention the word “eugenics” anywhere in the code. He stated: “The fact that there is no word eugenics does’t mean it’s not an eugenics law.” Dr. Lombardo further opined that the General Allotment Act of 1887 was an eugenics law and that Churchill correctely interpreted it as such.

Dr. Lombardo further opined that the Rogers case, which the University investigative committee argued was the first instance of use of the eugenics code, was not in fact code, but rather judge-made law. Dr. Lombardo explained the difference between the legislative branch, which enacts laws or writes code, and the judicial branch, which issues opinions, like Rogers, and is therefore judge-made law. In Dr. Lombardo’s opinion,

“[the Univerisity’s investigative] committee doesn’t know very much about the history of eugenics.” Furthermore, Dr. Lombardo testified that the committee members didn’t have expertise in eugenics.

The next line of questioning concerned the committee’s allegations that Churchill didn’t use pinpoint cites that listed the precise page the quotation could be found, but rather cited works generally. Dr. Lombardo explained that whereas legal scholarly writing reqires the use of pinpoint cites, other disciplines allow general citations to books, and sometimes even require general citations during the editorial review process. The jury’s attention was then turned to the investigative report itself, in which the committee cited the Roger’s case, without using pinpoint cites, to which Dr. Lombardo said: “if [the investigative committee members] want to be picky about citations, they should at least follow their own rules.”

Plaintiff’s attorney then asked Dr. Lombardo about Professor Gould and Dr. Lombardo described that Dr. Gould used Dr. Lombardo’s ideas in his works and cited his book regularly.

On cross-examination, Defendant’s attorney brought up that Dr. Lombardo has never, in fact, written about Indian eugenics law. Then, he pointed out that while Dr. Lombardo testifed as to Churchill’s interpretation of Indian eugenics law without being an expert on Indian law, Dr. Lombardo believes that the investigative committee members are not qualified to opine on this issue.

Defendant Attorney’s next line of questioning focused on the fact that administrative agencies do not always pass rules and regulations in accordance with federal legislation enacted by Congress. Therefore, the General Allotment Act of 1887 is not automatically an eugenics law since no where does the law use words used by Churchill in his writing that indicate an eugenics law.

The next point that Defendant’s Attorney tried to establish is that Churchill’s use of “blood quantum” meant that the General Allotment Act must have contained those words, and because the the Act didn’t contain these words, Churchill made up these words. To this, Lombardo replied that quotes can be used for different reasons, including to use a word in an unusual way or sarcastically, which may have been Churchill’s intent.

With this, the testimony of Dr. Lombardo concluded and the following juror question was presented: “were you (referring to Dr. Lombardo) cited as a source in the Gould essay,” and the answer was “generously, yes.” Seizing the moment, Defense followed up by asking Dr. Lombardo if he thought Dr. Gould’s citation to his works was a reasonable way for Dr. Gould to give credit to Dr. Lombardo’s work, to which Dr. Lombardo replied, “yes.”

After a short recess, Plaintiff called Professor Jones, the Dean of Academic Affairs and faculty member at a private liberal arts college, which is part of the network of Clermont Colleges. Dr. Jones has a Ph.D in psychology and neuroscience and has published about fifteen articles in national journals of neuroscience. As Dean of Academic Affairs, he oversees the academic programs and is involved with the American College of Trustees and Alumni (ACTA) writing several articles on the organization and speaking widely to several educational groups. After Dr. Jones gave a brief introduction, Defense objected on the grounds that Dr. Jones was not qualified to be an expert on the ACTA and institutional governance. Defendant’s motion was granted and the judge did not allow Plaintiff’s Attorney to even ask Dr. Jones what ACTA was.

The next witness was Professor Marianne Wesson, a CU law professor who has served as an Assistant US Attorney who prosecuted criminal cases for 1½ years and was the active dean of the University for one year. Arriving at CU to teach law in 1976, she was appointed by the CU Standing Committee on Research Misconduct (otherwise known as the “SCRM Committee”) to serve as chair of the investigative committee, the purpose of which was to investigate Churchill’s works further after the Standing Committee conducted an initial review of the allegations of research misconduct following Churchill’s 9/11 essay.

When asked if Professor Wesson remembered if Chancellor DeStefano made any negative comments about Churchill or his essay, her reply was that she didn’t remember but that the Chanceller was not in favor of the essay.

Planitiff’s Attorney then impeached Professor Wesson’s testimony about her asking to be the chair of the investigative committeee. She said she was asked to be chair rather than asked to be chair. While Professor Wesson did say in a prior deposition that she asked to be chair, she said that she misspoke and the fact was that she was asked to chair the committee.

The questions then turned to why Williams and Johannsen, who were both familiar with Indian studies, resigned from serving on the investigative committee. Professor Wesson said that Williams was angry about the publicity and thought that the university showed signs that it would not support the work of the committee.

The final line of questioning involved an email that Professor Wesson sent to Nancy Ehrenreich, a law professor at the University of Denver. Here is a relevant part of the email:

“I confess to being somewhat mystfied about the variety of people this unpleasant (to say the least) individual has been able to enlist to defend him. I know people say it’s the principle, but we aren't all out there defending Bob Guccione’s first amendment rights.”

Planintiff’s Attorney tried to get Professor to agree that she likened Churchill to Bob Guccione, the Penthouse publisher and pornographer. She finally replied that: “I found it [Professor’s 9/11 essay] cruel and gratuitous.”

Another part of the email read:

“Illustrated by the suggestion made by his lawyer over the weekend that he would be willing to walk away from his job and his constitutional claims and his “academic freedom...”

To address Defense Attorney’s earlier topic of quotations on cross-examination of Dr. Lombardo, Plaintiff’s Attorney asked Professor Wesson why she placed quotes around academic freedom, to which she replied that her intent was to use sarcasm. He then proceeded to ask her if quotations can have different meanings, not just to quote someone’s else writing, to which she replied “yes.” Then, she agreed that her association of Churchill’s academic freedom was negative.

Another part of the email read:

“But the rallying around reminds me of the rallying around OJ Simpson and Bill Clnton and now Michael Jacson and other charismatic male celebrity wrongdoers ...”

Plaintiff’s Attorney tried to establish that Professor Wesson meant the following by writing this part of the email: “People are rallying around all these dirtbags ... these slimeballs.” She replied that these are not the words she used, but she reiterated that she thought that Churchill’s essay was “cruel.”

The questioning in the morning ended with Professor Wesson saying that she did not disclose the contents of this Ehrenreich email to Churchill or Churchill’s counsel before she gave testimony in this case.


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