Wednesday, 01 April, 2009, was Day 18 in Ward Churchill’s wrongful termination lawsuit against the University of Colorado, featuring the presentation of closing arguments by both David Lane (Ward Churchill’s attorney) and Patrick O’Rourke (the defense attorney for CU). The case then immediately proceeded to the jury, which deliberated for about four hours before breaking until Thursday morning.

…Just Before Closing

Before proceeding to closing arguments, there was some explosive testimony by Regents of the University of Colorado, with some stellar cross-examination, and some last-ditch efforts by the University defense team to bring in last-minute witnesses to, in fact, counter some of its own previous witnesses. On Tuesday, 31 March, 2009, former CU Regent Jerry Rutledge “contradicted himself in court, when he testified that the school didn’t investigate Churchill solely because the regents were offended by his 9/11 essay. In a previous deposition he gave, which Lane played for the jury, Rutledge could be seen answering ‘yes’ to the same question. During the same prior testimony, Rutledge also said he would have fired Churchill for his essay if he legally could have done so” (source, plus see the following video).

On Monday, 30 March, Lane also got CU Regent Pat Hayes to admit the following (paraphrased, not a verbatim quote): “Hayes conceded that [CU Interim Chancellor] DiStefano did not limit his examination to the 9/11 essay, and she agreed that she wanted DiStefano to examine everything, all Churchill’s works that were available, to look for cause for dismissal. She also clearly stated that the 9/11 essay motivated the investigation, and that essay is why she voted to authorize the investigation on 2/3/05″ (source).

CU also brought in Dr. Thomas Brown, one of the most avid and persistent of Ward Churchill’s witch hunters, who seems to have based at least part of his career on dismantling Churchill. I was curious to know, and repeatedly asked Brown in an exchange, who is his current employer (he is regularly cited as a Lamar University sociology professor, except that he is no longer there) — curious to see if his diligence had been rewarded with promotion or tenure. I never got an answer. Thanks to his testimony in court, we now learn that he is at Northeast Lakeview College in Texas, a community college, where he is an assistant professor (not exactly a “step up”).

Closing Arguments: David Lane, for Ward Churchill

Quite appropriately, David Lane referred to former Colorado Governor Bill Owens as a “liar,” when Owens claimed he did not threaten to punish CU if Betsy Hoffman, then CU President, did not fire Churchill. In a sworn deposition, she asserted that Owens had done so, and all he would say is that he did not recall his message having that “tenor.”

Lane successfully argued that CU Interim Chancellor Phil DiStefano’s statement on 03 February, 2005 vowing to undertake a thorough examination of the majority of Churchill’s writings and speeches to see if he could find grounds for firing Churchill, was the “smoking gun” in the case (source). The “academic” investigation clearly followed from political anger and a pre-existing desire for punishment. As Lane explained, the jury does not need to find that the 9/11 essay was the sole factor motivating the firing of Churchill, but that it was a “substantial and motivating” factor (source).

Tools of the Master Race

Lane argued that Churchill’s case essentially revolved around Churchill’s challenge to a Western, white master narrative: “When you tell the truth about the master narrative, the master slaps you down for it….Basically, white guys in suits write history” (source). The CU Standing Committee on Research Misconduct essentially adopted a very simplistic, naive, positivist/empiricist view of history in line with Leopold von Ranke’s dictum that the job of the historian is to show what really happened, how it was (“wie es eigentlich gewesen [ist]“), and to do that one goes to the archives and treats the documents as “facts.” That is a disputed view of the nature of historiography, something the CU committee never lets on, which either betrays that they were ill-equipped for such discussions, or that they were dishonest for not broaching these debates. This brings back to mind the comment by University of Arizona law professor and professor of American Indian studies, Robert Williams, who said this of the committee assigned to investigate Churchill’s work: “I wanted to see some adult supervision.”

Closing Arguments: Patrick O’Rourke, for CU

Patrick O’Rourke referred to Churchill’s case as “first amendment fraud,” asserting (but surely with much less substantiation than at the beginning of the trial), that Churchill had been fired on the basis of what he thinks is overwhelming evidence of academic fraud. O’Rourke reached for hyperbole, declaring: “What we’ve learned is that in Ward Churchill’s world, there are no standards and no accountability” (source). Clearly, Churchill does feel his scholarship is accountable to the suppressed and dominated, and his standards are not those of the master: positivist research that will have “scholars” uncritically transcribe the contents of white documents stored in white archives built for white purposes. Then again, it was not O’Rourke’s job to tell the other side of the story, which in any event repeatedly kicked holes in his defense.

O’Rourke made an important mistake in his closing argument. He exclaimed that, “What you’ve heard is an effort to sanitize hatred and mask it as intellectual inquiry” (source). The focus then, he seems to agree, is the one that Churchill’s case presents as its focus: outrage over his public writing, deemed “hatred,” and placing “intellectual inquiry” in a secondary position in his sentence, just as the academic investigation was secondary to the overriding motive to fire Churchill for his “hatred.”

Wait and See…

Judge Naves provided the following instructions to the jury for their deliberation:

In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence:

1) That a majority of the Board of Regents of the University of Colorado used Plaintiff’s protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment, and

2) That the Defendants’ acts were the proximate or legal cause of damages sustained by the Plaintiff.

[F]or damages to the proximate or legal result of wrongful conduct, it must be shown that, except for such conduct, the damages would not have occurred.

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.

In determining such damages, you shall consider the following: (1) Any noneconomic losses or injuries which Plaintiff Churchill has had to the present time, including physical and mental pain and suffering, inconvenience, emotional distress, loss of reputation, and impairment of the quality of life; and (2) any economic losses or injuries which plaintiff has had to the present time. (source)

No matter what, the jury has a difficult case to ponder. Is there a preponderance of evidence that Ward Churchill’s firing was primarily motivated by political reasons? If yes, then they have to find in Churchill’s favour — “If the 9/11 essay formed any part of their decision to fire Ward Churchill, you have to find for him,” as Lane told the jury (source). However, what if the jurors wish to reexamine the CU case, that all of this was about “academic fraud”? Is there a preponderance of evidence to suggest that there was clear and definite fraud?

I don’t think CU has advanced enough evidence for that; indeed, at least one of its charges, that of plagiarism, has been demolished beyond repair, and that of ghostwriting was rendered virtually inadmissible since CU policy itself does not prohibit it. Where charges of “fabrication” are concerned, “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” (source). The jurors thus have to decide if the charges made by CU, even if true beyond question (and the long list of witnesses brought in by Lane suggests the contrary), were enough to justify firing Churchill.

The law students and faculty posting on The Race to the Bottom are predicting that Ward Churchill will win this case (also see this). I will not be surprised by any outcome of the jury deliberations, nor particularly disappointed if Churchill does not win — a very much needed discussion took place, and critical points in Churchill’s defense were cemented when previously they had been barely aired. It would be great to have the full transcripts of all of the testimonies. In the meantime, let’s wait and see what the jury decides.

News Videos of Closing Arguments

Further Reading:

1. “Churchill jurors finish deliberating for the day,” by Felisa Cardona, The Denver Post, 01 April, 2009.
2. “Churchill’s lawsuit against CU may go to jury today — Regents testified he was fired for poor scholarship, not a controversial essay,” by Felisa Cardona, The Denver Post, 01 April, 2009.
3. “Judge tosses 1 of 2 claims in Churchill lawsuit,” by the Associated Press, The Denver Post, 01 April, 2009.
4. “Regents admit Churchill essay sparked probe,” by Felisa Cardona, The Denver Post, 01 April, 2009.
5. “The Importance of Professor’s Morley Testimony to CU and Churchill,” The Race to the Bottom, 30 March, 2009.
6. “Churchill v. University of Colorado: Monday, March 30 – Afternoon,” The Race to the Bottom, 30 March, 2009.
7. “Churchill v. University of Colorado: Jury Deliberations Begin Tomorrow,” The Race to the Bottom, 31 March, 2009.
8. “Churchill Trial, final afternoon: The Smoking Gun,” The Race to the Bottom, 31 March, 2009.
9. “Churchill Trial: Motions and Making a Record,” The Race to the Bottom, 31 March, 2009.
10. “Churchill Trial, March 31st: Last Day–Jury Instructions and Regents Revealed,” The Race to the Bottom, 01 April, 2009.
11. “Churchill Trial: Closing Arguments,” The Race to the Bottom, 01 April, 2009.
12. “Churchill v. University of Colorado: A Prognostication,” The Race to the Bottom, 01 April, 2009.
13. “Churchill v. CU: Who Wins and Why–Closing Arguments and Jury Instructions,” The Race to the Bottom, 01 April, 2009.
14. “Churchill jury will resume deliberations Thursday — Former CU professor asking for money, job back,” by John Aguilar, The Daily Camera, 01 April, 2009.
15. “CHURCHILL TRIAL BLOG: No verdict; deliberations to resume Thursday,” by John Aguilar, The Daily Camera, 01 April, 2009.
16. “Judge dismisses one of Churchill’s two claims — Jury will get the case after closing arguments Wednesday morning,” by John Aguilar, The Daily Camera, 31 March, 2009.
17. “Jury Deliberating Churchill’s Case To Reclaim Job,” by Ivan Moreno, AP Writer, and Raj Chohan, Denver – CBS4, 01 April, 2009.
18. “Closing Arguments Get Going In Churchill Trial,” Associated Press, 01 April, 2009.
19. “Testimony In Churchill Case Wraps Up,” by Michelle Griego, Denver – CBS4, 31 March, 2009.
20. “Jury ponders Churchill case,” by Chris Vanderveen, 9NEWS, 01 April, 2009.
21. “Churchill’s lawsuit against CU may go to jury today,” by Felisa Cardona, 9NEWS, 01 April, 2009.
22. “Churchill Jury Begins Deliberations — Jurors Hear 2 Hours Of Closing Arguments,” by Steve Saunders, 7NEWS Anchor, 01 April, 2009.
23. “Churchill Blog: Jury Deliberates Case — Case Now In Jury’s Hands,” by Steve Saunders, 7NEWS Reporter, 01 April, 2009.