Friday the 27th; Morning Session: Lawyer v. Lawyer
Rachael Szucs | Friday, March 27, 2009 at 03:08PM Today would have marked the end of the trial, but thanks to Denver’s unpredictable weather and the cancellation of yesterday’s afternoon session, closing arguments must wait a short while longer. Markedly fewer observers were in the courtroom this morning, but with Denver streets still full of snow, slush, and ice, this came as no surprise. Fortunately for me, it meant (almost) front-row seats to today’s show… And today was a great day for prime seating.
Lane re-started the cross-examination of attorney and Regent Michael Carrigan, and after a short recap from yesterday afternoon, began asking him about his job at Holland and Hart. Two times Defendant’s counsel objected based on relevance, but both were overruled, on Lane’s promise to connect his questions to the issue at hand. Lane was trying to demonstrate to the jury that Regent Carrigan’s experience as an attorney meant he was familiar with the Colorado Rules of Civil Procedure, and the importance of correcting any errors or mis-statements that occur during depositions. Carrigan conceded that he was familiar with the 30-day time frame for corrections.
Regent Carrigan then unsealed a transcript of his own deposition, provided by Lane. Carrigan then explained the purpose of sealing a transcript, per Lane’s request…. To ensure the integrity of the transcript and make sure that the record is not tampered with. In the deposition, Carrigan said that there was a thorough review of all of Churchill’s academic work, but during his testimony from yesterday, he stated otherwise.
“How many times have you read your deposition transcript?” asked Lane. “Probably twice,” was Carrigan’s response. Lane’s point was that Carrigan saw his own mis-statement at least twice, but that he failed to provide an amendment to the incorrect statement and sign the corresponding affidavit.
Carrigan tried to explain the discrepancy between what he said in the deposition and on the witness stand. “Part of scholarship is, when you’re holding yourself out making statements, whether you are doing so as a scholar or as a private citizen.” According to Carrigan’s explanation, the purpose of Churchill’s review was to see if he inappropriately used the name of the University and protections of the University to make strong, personal, controversial political statements. CU did not, however, undergo a thorough review of Churchill’s academic work for evidence of academic misconduct until after news reports and various other complaints surfaced.
Lane tried time and again to suggest that this explanation was in conflict with DiStefano’s statement that “The Office of the Chancellor will launch and oversee a thorough examination of Professor Churchill’s writings, speeches, tape recordings, and other works.” Carrigan would not agree.
The questioning and answering between Lane and Carrigan transformed into a tense exchange just short of a shouting match. At some point Carrigan fumed something to the effect of: If he wants to take shots he can write an editorial! Judge Naves promptly responded with, “That was an inappropriate comment,” and Carrigan quickly apologized. Lane, O’Rourke, and Judge Naves stopped the cross-examination to discuss, quietly, the conflict brewing between Lane and Carrigan.
The conflict was temporarily quelled and questioning resumed, with Lane formulating an analogy to Senator Joseph McCarthy. Lane referenced a time when people were targeted and punished for political beliefs. “You agree it would not be all right to start an investigation against someone based on their political beliefs, you agree with that, don’t you?” questioned Lane, and he received an affirmative response. “But isn’t the 9/11 essay a statement of political belief by Ward Churchill?” Lane asked. Carrigan agreed, but went on to say that even the First Amendment does not protect all speech, in all circumstances, and in all situations.
Lane continued. “Was there any evidence of Ward Churchill’s scholarship on the table other than the 9/ll essay?” Carrigan suggested that an element of scholarship is how one uses his title of “Scholar,” so technically issues of scholarship were on the table. When Lane asked whether Carrigan was denying that he launched an investigation based on political beliefs rather than scholarship issues, Carrigan would not answer yes or no. Lane refused to progress with questioning until Carrigan answered. Carrigan sat silently. Eventually, Lane resumed.
Lane referenced Carrigan’s deposition. Within that deposition Carrigan admitted that Chancellor DiStefano’s review was going beyond the 9/11 essay and he supported Chancellor DiStefano doing a review to establish grounds for Churchill’s dismissal. Lane then brought up interviews Carrigan had with CNN and the New York Times, and a “We can fire him (Churchill), we just can’t fire him tomorrow” comment allegedly made by Carrigan. Carrigan would not admit to making the statement, nor would he deny it. Lane wanted to use the phrase as evidence of Carrigan’s desire to terminate Churchill, while Carrigan insisted the phrase meant that tenured professors are not immune from termination. While professors are entitled to due process, termination is appropriate if a professor oversteps his boundaries.
Questioning then turned to Mr. John Sternberg. Sternberg sent an e-mail to Carrigan on March 13th 2005 expressing concern that Churchill had not been fired. Carrigan responded to Sternberg a few days later, explaining what he viewed as the only two options to resolve the Churchill conflict.
1. Pay Churchill a modest amount to make him “go away”
2. Proceeding with our [CU’s] process toward discipline
Lane suggested that Carrigan was set on moving towards discipline, but, not surprisingly, Carrigan insisted that Lane’s interpretation was incorrect. On the stand, Carrigan said that he was unsure of what the end result would be, that he wasn’t sure the University was actually moving towards discipline, and that he was not suggesting that he, personally, hoped to move towards discipline. He explained that Lane misrepresented the point of the e-mail and was taking individual sentences out of context. With that, Lane ended his questioning.
O’Rourke then began his re-direct, which involved Carrigan reading from the transcript of his deposition. Lane interrupted to request that Carrigan explicitly say whether he was reading a question or answer from the transcript. Judge Naves, seemingly agitated, said that it was Defendant’s counsel’s decision to proceed as he desired. Lane again murmured it would be helpful to display the transcript on the projection screen. O’Rourke acted like he did not hear the request, but eventually did display the transcript on the screen. According to the transcript, in February 2005, Carrigan understood DiStefano’s review to be about whether Churchill abused his role as a professor to further his political beliefs.
O’Rourke asked, “Would you have authorized the chancellor to go out and dig for Churchill’s footnotes?” “No,” was the reply. Carrigan continued by saying that he did not believe the Chancellor conducted a witch-hunt, and that all allegations of research misconduct surfaced from third parties. According to Carrigan, “What we authorized the Chancellor to do is see if Churchill overstepped his bounds as a faculty member,” while third parties brought other allegations of academic misconduct to the table. The Chancellor and Regents then needed to decide whether to ignore or assess serious allegations of academic misconduct, and it was decided that allegations brought by other parties (and again, not the Chancellor or CU) warranted further investigation.
Defendant’s counsel then examined an Internet printout form the Denver Post; an article describing evidence of Churchill’s academic misconduct. Carrigan requested a moment to review the article, and then affirmed that it was an example of reports that came to the University of research misconduct. O’Rourke followed with another, similar article from the Rocky Mountain News. Carrigan explained that these articles justified follow-up on behalf of the University, and that if similar accusations had surfaced about a student, the University would be required to investigate that issue, as well.
Mr. Lane expressed some concern over the use of newspaper articles, in that they are merely hearsay. Judge Naves then explained to the jury that the purpose of the articles is to demonstrate that other allegations surfaced about Churchill’s academic misconduct, perhaps prompting the University’s investigation, and not that the contents of the articles served as evidence that academic misconduct actually existed.
Carrigan then answered a laundry list of questions posed by O’Rourke. He agreed that investigations are appropriate when there is genuine concern that a public employee’s action may cause long-term harm to a University. He also stated that he did not approve of the Churchill investigation out of dislike for the professor, and that he did not know for certain or necessarily believe that Churchill would be terminated, but that as a Regent he was obligated to ensure the University took appropriate measures to address the third party allegations. Carrigan further explained that numerous actors outside of the University wanted CU to take quick action based on Churchill’s speech alone, but that the Regents did not feel this was appropriate. Instead, the Regents agreed that the First Amendment protected Churchill’s speech.
Per Carrigan’s analysis, if the school failed to investigate the accusations of Churchill’s plagiarism, it would send a terrible message to the students and University community. Basically, that all one needs to do is say something controversial to immunize himself from further investigations regarding accusations of plagiarism.
At 11:03, Lane finally got around to his re-cross. Lane suggested that the Regents did not dive headlong into the SCRM report on Churchill and independently investigate whether it was correct, but relied instead on the materials provided to them by the Committee. Lane asked Carrigan with a dramatic, wary tone, whether every responsible regent would have read every word of every document provided by the committee before deciding whether to terminate a man’s 30-year career (The latter part was emphasized, no doubt, to emotionally sway the jury.) “I sat down and read as much as I could, I think I read it all, yes,” replied Carrigan, who further conceded that it would be irresponsible of other regents, by his own personal terms, to not read each document.
Lane then returned to the previously mentioned e-mail from Mr. Rosenberg to the Regents of the University. Carrigan and Lane got into a heated debate about the meaning, characterization, and point of the e-mail. Lane wanted to paraphrase the e-mail, but Carrigan insisted that Lane’s paraphrasing created an unfair characterization. An example:
Lane: Paragraph one says that ‘option one’ is paying off Churchill.
Carriagn: I’d call that a settlement.
Lane became increasingly annoyed by Carrigan's evasion of yes/no answers. At one point he mused, “Here’s a trick question, can you give a yes or no answer to a question?” That question was, of course, overruled. Finally, Carrigan said that, yes, he did tell Mr. Sternberg that there existed two options regarding the Churchill situation. Lane continually argued that CU had more than two options, but Carrigan, quite vehemently, would not acknowledge that there were more than two options.
At this time questioning of Carrigan ended and jurors submitted their questions, of which there was only one:
“Is it possible in your opinion that the newspaper sent out allegations of research misconduct made from persons outside the university, so that an investigation could legitimately be made on something besides the 9/11 essay?”
Carrigan’s paraphrased response: Newspapers were competing to find information about Churchill to beat out other journalists to the “prime story.”
After Carrigan answered, both O’Rourke and Lane were able to ask a further, related question. O’Rourke repeated what had been said in earlier testimony, but Lane’s questioning was quite amusing. He asked Carrigan whether he knew Paul Campos, a faculty member at the CU College of Law and columnist for the Rocky Mountain News. In a nutshell, Lane suggested that Campos, who allegedly “spent buckets of ink against Ward Churchill in the Rocky Mountain News,” could have leaked academic misconduct allegations from LaVelle to the newspaper.
Carrigan’s response? “That is laughable, Mr. Lane.” Lane’s reply: “Isn’t it hilarious?”
Regent Carrigan looked very ready to leave his spot on the witness stand when Judge Naves announced the nine minute, 45 second (really!) break.
After the break, CU called its next witness, Paul Schauer, Regent from 2003 until 2009. Prior to that, Mr. Schauer served as a legislator, managed trade associations, and is currently looking for future opportunities. He decided to serve as a regent because of his respect for the Institution: Some of his children and children-in-law attended CU. As a regent, he hoped to maintain the school’s integrity and assist the school through difficult financial times. Regents are uncompensated and only give as much time to the school as they deem necessary.
O’Rourke then questioned Mr. Schauer about January 2005 and his recollection of Ward Churchill. Schauer responded that he was busy at that time, and not giving much time and attention toward CU. He recalled hearing comments about Churchill’s 9/11 essay, and also received e-mails, phone calls, and mail letters regarding Churchill. “Yes, it was a firestorm at the time.” He affirmed that alumni and others threatened to withhold financial support from the school, which was a major concern of the Regents. Without alumni support and student tuition, the University would falter. Schauer explained that the school does not obtain a substantial portion of its finances from the state, but that what they do receive is crucial.
In 2005 Schauer felt it was appropriate for the Regents to meet to discuss the Churchill matter. O’Rourke continued to describe the 9/11 controversy as a “firestorm,” which was likely used to suggest to the jury that the CU was battling massive amounts of negative feedback and needed to seek out a remedy. “Did you believe it was appropriate to apologize to those Churchill had offended,” O’Rourke asked. Schauer agreed that it was, and described personal relationships he had with individuals who died during the 9/11 attacks.
O’Rourke asked Schauer about his understanding of DiStefano’s statement regarding the Churchill investigation (an analysis of all Churchill writing, speeches, etc), but Schauer did not provide a clear response. Schauer did agree, however that in February 2005, there were no allegations of research misconduct on the table. After allegations of research misconduct surfaced, however, Schauer felt it was the responsibility of Chancellor DiStefano and the University to investigate the allegations, in order to maintain the reputation of CU.
O’Rourke moved on to more direct questions. “Did you, as a regent, send the Chancellor out on a mission to fire Ward Churchill?” “No,” replied Schauer. He also stated that, for as long as he (Schauer) has known DiStefano, DiSefano has acted fairly.
Lane objected to O’Rourke’s leading questions, and his objection was sustained. After O’Rourke rephrased his questions, Schauer admitted that he voted to terminate Professor Churchill because his academic conduct was not up to the standards desired by the University. Again and again, Lane returned to various re-statements of the same question: Whether Schauer’s decision to terminate Churchill was based on the 9/11 essay. His answer was always the same: No.
Before Lane could cross-examine the witness, Judge Naves stopped the proceedings for a lunch break.
General Thoughts/Opinions: While O’Rourke’s questioning of Schauer reduced some of the tension in the courtroom, the morning session, overall, was very intense. Tempers flared, nerves were tested, and I saw Judge Naves rub his eyes more than once… Perhaps out of frustration at the often-heated (and sometimes childish) exchanges between Lane and Carrigan. I am very curious to hear the jurors’ final thoughts on this case. Based on the single juror question from this morning, it seems at least one individual is not convinced that the third-party allegations of academic misconduct are actually independent of the University and the 9/11 essay. I can't imagine that Lane's hypothetical (or what Carrigan called a conspiracy) regarding Professor Campos and his ties to the Rocky Mountain News helped ease any suspicions... Even if the link is highly speculative. Time will tell…Only a few more days until we’ll have an answer!
Reader Comments (5)
Inside Higher Education
February 9, 2005
"Not everyone backing Brown's version of the dispute appears to be part of the right wing. One of the scholars Brown says has had his findings distorted by Churchill is Russell Thornton, a professor of anthropology at the University of California at Los Angeles. Thornton, who is a Cherokee, has written extensively about the horrors of U.S. treatment of Indians. But his study of the Mandan concluded that the epidemic was not intentional.
Thornton said in an interview last night that Brown's essay was correct. He said that people have periodically told him over the years that Churchill has "misrepresented my work."
"Issues like Ward Churchill cast aspersions on legitimate Indian scholars," Thornton said. Of U.S. treatment of Native Americans, Thornton said, "The history is bad enough -- there's no need to embellish it."
I was surprised that CU would call a witness who made these statements.
In response: For what its worth...during the early days of the trial when DeStefano was on the stand, Lane, in his questioning, noted that LaVelle (in '96) had contacted Dean Getches about WC... but that the issue was not looked into by CU or forwarded to the SCRM until '05.