Implications and Explications in Judge Naves' Order
Charlene Hunter
12 Comments
One of the ongoing issues in the post-verdict motions, responses and replies was a debate about what the jury verdict actually meant. Clearly the jury found the Regents had violated the First Amendment, but what did the one dollar nominal award mean? David Lane asserted throughout the briefs and in the hearing last week that the jury’s decision meant a) that there had been no research misconduct, and b) that the jury gave Churchill exactly what he asked for in court—no money and the right to get his job back.
Judge Naves utterly rejected both these interpretations of the jury’s verdict. All the jury found is that “the University did not prove that a majority of the Regents would have voted to dismiss Professor Churchill in the absence of his political speech. That is a very different question than whether Professor Churchill engaged in research misconduct” for which there was “no such finding by the jury” and “remains the province of the University’s faculty.”
Regarding Churchill’s assertion that the jury award of only one dollar was victory in giving him exactly what he wanted, Judge Naves wrote: “…it was clear from the nature of the testimony that Professor Churchill (and other witnesses) provided, as well as the argument of his counsel and his pre-trial pleadings, that Professor Churchill was seeking compensation for lost wages, loss of reputation, and emotional distress.” The Order recites the sequence of questions the jury asked the Judge about what to do if they found in favor of Churchill but wanted to award him no damages. Judge Naves instructed the jury to nonetheless award the nominal damage of one dollar, which the jury did less than an hour later. Based on this exchange, Judge Naves found as a matter of law that the jury determined Churchill did not incur any actual damages, not that the jury was “giving Churchill what he asked for.” In other words, Judge Naves has now ruled on what the jury’s verdict meant, so the debate is over (for now).
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Reader Comments (12)
"All the jury found is that the University did not prove that a majority of the Regents would have voted to dismiss Professor Churchill in the absence of his political speech. That is a very different question than whether Professor Churchill engaged in research misconduct for which there was no such finding by the jury and remains the province of the University’s faculty."
No such finding? In this post on your blog, http://www.theracetothebottom.org/ward-churchill/churchill-trial-concern-over-a-jury-instruction.html, we were told that this was the instruction to the jury:
"If you find in the Plaintiff's favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendants have shown by a preponderance of the evidence that the Plaintiff would have been dismissed for other reasons even in the absence of the protected speech activity. If you find that the Plaintiff would have been dismissed for reasons apart from the speech activity, then your verdict should be for the Defendants."
It seems that the jury did then come to a finding on research misconduct -- they did not believe there was any, they did not see that the University fired Churchill for any reason other than exercising his freedom of speech.
Someone has overlooked something, either you or Judge Naves.
Also, for the record, it would be useful if you provided the actual court documents: the ruling by Judge Naves, but also the complete and unedited list of instructions to the jury.
The jury did not have to believe that there was no research conduct in order to determine that but for the protected speech, Churchill would not have been fired. They could have believed that there was research misconduct but that it was not serious enough to warrant firing, or that were it not for the protected speech the Regents would have followed the P&T Committee's recommendation to sanction but not terminate employment, or any number of other things. The University is not bound to fire a faculty member if academic misconduct (or any other misconduct) is discovered, they merely MAY fire someone on that basis. The judge is saying simply that the jury determined that the protected speech was an unconstitutionally motivating factor in the decision to fire and that infering anything else about whether there was or wasn't research misconduct is not for either the jury or him to do.
http://www.law.du.edu/index.php/corporate-governance/churchill-v-u-of-co
Note that the trial was about CU's conduct, not Churchill's. The jurors were not asked to arrive at a decision on Churchill's conduct. CU did not call a single expert witness re the research misconduct issues. Instead, CU took a minimalist strategy that focused on due process. It was a risky move, but it paid off in the end.
As for the second jury instruction you raised, Max, this is one of those situations where the law is an ass. The jury was instructed to engage in counterfactual speculation about what would happen in an alternate universe in which the Regents had never heard of Churchill's offensive comments. Nonetheless, I agree with their speculation -- that Churchill probably would not have been fired in that alternate universe. Still, that does not mean that he is innocent of misconduct -- simply that he would not have been fired for it.
Finally, note that Churchill's lawyer selected the most unqualified jurors he could get. In voir dire, he used seventeen exceptions to exclude educated members of the panel. He wound up with a jury that had only a single person with any university education, and she had ties to CU's Ethnic Studies department.
So not only were the jurors asked to speculate about what the university would have done in that alternate universe -- they were doing so without any useful experience or knowledge of how universities work.
The ones I remember most were:
--Dr. Robert Clinton
--Dr. Jose Limon
The CU attorney repeatedly raised issues of plagiarism, fabrication, etc. To say that the jury did not consider this, seems a little bizarre to me, especially when CU's case was entirely about its right to fire someone for research misconduct. However, feel free to rewrite.
Leah, you are definitely mistaken.
And CU agreed to that selection. It's not like David Lane had sole, absolute and exclusive authority to pick who he wanted.
You are confused. The poster's name appears at the bottom of their post. I only posted the link to the Churchill document site that you requested, not the post that you are responding to.
However, I do agree with Thomas that CU did not call any outside experts to testify about Churchill's misconduct, instead choosing only to call various people involved in CU's internal misconduct investigation, such as Clinton and Limon, to testify about the process and committee's findings. For example, CU could have called a whole list of 1837 smallpox epidemic experts (Russell Thornton, etc.) to refute Churchill's claims. Even Churchill's own witnesses about the smallpox epidemic were unable to support his conclusions. In this sense, expert witness would mean someone who had previously published on the topic, which would not describe any of the committee members.
The point is that it is disingenuous to claim that the jurors' ears were totally sealed off from any discussion about academic misconduct, regardless of the level of expertise of those called to testify, the fact remains that the CU Investigative Committee report and most of its contents were replayed for the jurors, the argument being -- and this is critical to remember now -- that Ward Churchill had been fired because of research misconduct, and *not* because of his free speech.
What I question is how in Judge Naves' opinion, and some opinions above, there is this idea that the two subjects never met. They did, and the jurors came to their conclusion.
I agree that the jurors came to a conclusion that research misconduct did not occur. But I would also aruge that the jurors were totally unqualified to come to that conclusion, both by their lack of education and expertise, and by their lack of exposure to all of the relevant facts.
Furthermore, both Churchill and Lane lied to the jury during the trial. I heard Churchill tell at least two bald-faced lies while under oath. This also made it difficult for the jury to come to an informed decision. I agree with Judge Naves that the faculty process elading to the research misconduct decisions need to be respected. The fact that the Facaulty Senate committees all unanimously agreed that Churchill had committed serious misconduct deserving sanction cannot be ignored.