Churchill Trial, Day 3, Afternoon Session
Leah Jensen | Wednesday, March 11, 2009 at 07:15PM The afternoon session of Day 3 was a “who’s who” event. As people in the gallery learned that Former Governor Bill Owens would be the first on the stand, they filed in eagerly, even calling friends and significant others to urge them to hurry down to the courthouse to observe.
The jury, with an average age of not more than 30, entered the room around 1:35 and the questioning was quickly underway. The Governor smiled somewhat hesitantly as Lane wasted no time getting directly to some hot-button deposition videos. In CU President Betsy Hoffman’s deposition video she related that the Governor had told her in a “short but very threatening phone-call” to fire Churchill or he would “unleash [his] plan.” The former Governor laughed quietly at these statements as he watched the video. When Lane asked him about the phone-call he responded that he did not remember the phone-call and does not “deal in angry ways.”
Lane then turned to questioning concerning the Governor’s line item veto power. Lane asked the Governor whether he could cut CU’s budget if he didn’t like their actions; the former Governor replied that while he could, he only increased CU’s budget while Governor, backing such legislation as Referendum C providing CU with more funding. Pointing out that actually cutting the budget and threatening to do so, were different things, Lane suggested that “unleashing his plan” involved threatening to slash the University’s funding.
Statements made by Owens on the Bill O’Reilly show were then placed on the projector. On the show Owens remarked that if CU did not follow the proper procedures, Churchill would be a very wealthy man. Additionally, Owens stated, “I have bully pulpit authority and that is why I said he should be fired from day one,” and “I have budget authority over the budget.” Lane asked Owens if this was a veiled threat. Owens responded, “it is not a veiled threat, it is a fact.”
When asked questions about the legal implications of retaliation and First Amendment rights, Owens continued to assert that he was not an attorney. But when cornered by Lane, Owens conceded that as Governor he is charged with knowing the United States Constitution and that punishing someone for protected speech would be wrong.
On cross-examination O’Rourke quickly brought the jury’s attention to a Board of Regent’s meeting where they stated that they would not fire Churchill immediately and needed to further examine his First Amendment rights. Owens responded that he was not in charge of hiring and firing Churchill and that he agreed with the Regents response.
O’Rourke proceeded perfunctorily, in stark contrast to Lane’s oratorical style, asking Owens if anyone from CU told him they were looking for ways to fire Churchill. Owens responded that no one had contacted him to discuss firing him for the 9/11 essay or for any other allegations.
Addressing Owens’ duty to know and understand the U.S. and state constitutions, O’Rourke drew the jury’s attention to the complexity of the First Amendment. O’Rourke pointed out that the First Amendment is silent with respect to public universities and stated that this area of law has evolved out of complex case-law over the years. Based on the O’Rourke’s classification of the First Amendment as complex, he asked Owens whether he believed it was wise for the Regents to proceed cautiously--to which Owens responded that the Regents acted properly in seeking legal advice about both CU’s and Churchill’s rights and responsibilities.
At the end of questioning the jury asked Owens if he was more concerned with CU’s funding or with Churchill’s First Amendment rights. Owens responded that the two ideas were not mutually exclusive.
After a brief recess, Lane called David Getches, Dean of the University of Colorado law school to the stand. Lane started by painting a picture of the heart of the controversy during January through March of 2005. He conjured images of a voracious press and a Governor calling for Churchill’s termination. Getches said he was not acting as counsel but opined to Chancellor DiStefano that firing Churchill would violate Churchill's First Amendment rights.
After attention was drawn to case-law, Lane began questioning about the Jeffries case. Lane discussed the Court of Appeals case, which held that a public university professor can be terminated when his statements cause such a disruption to the institution that the institution is prevented from functioning properly. Lane asked whether a couple emails complaining about a professor could rise to this level. Getches said that he believed the content of emails could rise to a level of seriousness that would allow the University to legally terminate a professor.
Lane then projected an email sent from Getches to DiStefano stating that Getches thought the essay was “inaccurate and irresponsible,” and that these “comments cast serious doubt on [Churchill’s] competence and integrity as a scholar.”
Questioning the timing of allegations of fraud and plagarism, Lane asked Getches about his relationship with legal scholar John LaVelle. Getches related that LaVelle did not care for Churchill and thought he would be trouble for CU. In 1999 LaVelle sent Churchill an essay, which contained allegations that Churchill had plagiarized work done by Dr. Fay Cohen.
In 2005, during the heat of the Churchill controversy, Getches said he contacted LaVelle concerning a copyright matter. Lane questioned the timing of this conversation extensively, but Getches insisted that he did not contact LaVelle to try to address the allegations from the 1999 essay. However, during the unrelated conversation, Getches stated that LaVelle wanted to talk about the Churchill controversy again and said he would send an electronic version of the essay. This essay and a further conversation were ultimately the source of the allegations of fraud and plagiarism.
Turning to the standing committee, Lane asked Getches if an unbiased judge is important to due process. Getches, of course, agreed that it was. Lane then proceeded to question Getches relationship with the head of the standing committee, Mimi Wesson. Lane recounted statements made by Wesson where she expressed her dislike for Churchill and compared the current controversy to situations where other people rushed to the defense of O.J. Simpson, President Bill Clinton, Michael Jackson and other male celebrity wrong-doers. Lane asked whether he believed these statements qualified Wesson as an unbiased judge, and Getches suggested they did not.
On Cross Examination O’Rourke went through each of Lane’s discussion points in turn. First addressing the email to DiStefano, O’Rourke made the point that at this time Getches had not read the case law and was not educated on the boundaries of First Amendment jurisprudence.
O’Rourke addressed the Supreme court decision in the Jeffries case which stated that the government can fire someone for a statement they believe is reasonably likely to disrupt the institution, whether it indeed has that effect or not. O’Rourke asked Getches whether losing the financial support of alumni, or losing potential students as an affect of a professor’s statements could potentially disrupt an institution, and Getches said that this would.
Turning to the LaVelle article, O’Rourke clearly wanted to point out again that while Getches had not contacted LaVelle, once allegations of misconduct arise, the timing is irrelevant and the university has a duty to investigate. Addressing Wesson’s suitability as an unbiased judge, O’Rourke displayed an email from Wesson stating that she did not believe Churchill should lose tenure for his 9/11 speech but that his "record was not off limits." O’Rourke stated that this showed that Wesson was committed to ferreting out the truth rather than jumping to conclusions.
On redirect, Lane again brought attention to Wesson’s comments that Churchill was "unpleasant" and that compared him (or persons rushing to the defense of) to OJ Simpson, Bill Clinton and Michael Jackson. Lane wanted to know if Getches would want to be judged by someone who had those views of him. Getches indicated that he would "prefer" not.
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