Churchill v. University of Colorado: Afternoon, March 16th

Churchill’s attorney, David Lane, wanted the jury to remember three words at the end of the day; bias, meaningless, and rules.  The afternoon session consisted of further direct examination of Professor Marianne Wesson, a Professor at Colorado’s School of Law, until there were only fifteen minutes left. 

David Lane began the afternoon session by inquiring why Professor Wesson did not recuse herself from the investigative committee because she could have appeared biased to a reasonable person, further directing the witness and the jury to an email she wrote denouncing Professor Churchill’s 9-12 essay. In that email,  Professor Wesson makes very biased comments about Professor Churchill and her feelings towards him. She responded by detailing the 125 page investigation report that her committee produced. She defended herself by saying that she also publically stated that she believed that Professor Churchill had a general constitutional right to his freedom of speech; however, she was unsure if he held that right under all conditions as a professor at a state run institution. 

In response to another question from Lane, Wesson stated that before serving on the investigation committee, she reviewed all her email containing the word "Churchill" and turned them over to the chairman of the  Standing (SCRM) committee due to the possible appearance of a conflict of interest.  Lane asked her why these email were not turned over to the plaintiff, but Wesson stated she could only speculate why this occurred, but Lane stated he did not want speculation.

Lane moved on to question Professor Wesson about the actual instances of plagiarism that the investigative committee was looking into. After Professor Wesson admitted that she was not a scholar in American Indian studies and after she was asked if she knew that in Indian studies they don’t necessarily believe that citations need to be provided for footnotes and it is the author's call whether or not to do so, Professor Wesson quickly stated that to not give credit and to not cite would be against Churchill’s own beliefs. Moreover, that was not the problem, the problem was that Professor Churchill cited people, but did so improperly.

Lane went through different instances of alleged acts of plagiarism involving the Rebecca Robbins’ and Fay Cohen’s writings. After Lane got Professor Wesson to admit that in some situations not providing footnotes would be appropriate, he described the process that the committee took in investigating the alleged misconduct of Professor Churchill. Each of the committee members took one or more of the alleged instances of misconduct, dividing up the work, and then all signed on a completed report, presenting it as their own work collectively. Lane then analogizes a mistake made by professors in the investigation report to a mistake that Professor Churchill was in fact charged for making. Because both situations were similar, Professor Churchill signing on to the essay after editing it, and the committee members also signed on after reviewing the report, he inferred that they were the same sort of mistake, as he claimed its insignificance.

Wesson admitted that one of the instances of Professor Churchill’s plagiarism was not significant enough by itself. Before she admitted this, Lane went through a lengthy process of revealing how interpretation happens with respect to statutes and laws. For example, the Constitution of the United States does not in words indicate any right to privacy. However, the Supreme Court of the United States has interpreted a right to privacy in the Constitution. Then he went on to compare that to the Allotment Act and the Arts and Crafts Act for American Indian studies and what that in fact meant. While the words that Professor Churchill uses to describe these statutes, that an individual must have a certain level of “blood quantum” to be recognized under these acts, that language was something to be interpreted based on other sources and conclusions just as a right to privacy is interpreted under our Constitution. Lane wrapped up his attempt to show jurors the insignificance of these alleged acts of misconduct taken by Professor Churchill when he showed that the investigating committee didn’t even have a solid motive to explain Churchill’s actions.

The last area Lane questioned Wesson was the longest:  the laws generally, the rules of the committee, and the University of Colorado. Lane honed in on the issue of privacy with respect to the files of faculty members during investigations as required by University Policy and by the rules assigned to the investigation committee. In the investigation committee’s set of rules that Lane read to the court, the privacy of “all information” gathered as a part of the investigation is emphasized--it requires all members of the committee to agree to them. After she is asked what that statement means, Wesson claims that this is a self explanatory statement. Then she was shown a statement of her deposition in which she said that “all information” is ambiguous. Pounding away at this discrepancy, Lane tries to rationalize with Wesson as to how “all information” means anything other than “all information.” Wesson eventually states that there is certain insignificant information that can be released, but that interviews of witnesses and similar evidence can not be released, and there is some gray area between the two.

Moving onto the University’s policy, Lane reads a document from 1986 that states the confidentiality of all University faculty members’ personal personnel files are private. Professor Wesson states that while this is true, she was told by University counsel that the Colorado Open Records Act overrode this in some situations and that the University was going to release its findings to the public as required by state law. Lane dissected the applicable sections of the Colorado Open Records Act with Professor Wesson on the stand, reading the applicable sections that appear to state the personal files of state employees are not subject to the Act. In a pretty brilliant move, Lane ties statute interpretation into this line of questioning because no where does it state directly whether the investigation of someone’s academic record is in the statute or not in the statute, but based on other language it has thus been interpreted.

Lane questions her further on letting this information go public by asking who she gave her report to after it was signed, why it was in fact released, who released it, and why was there a press conference with national media personnel present. She stated that she did not release the information, that it was turned over to another committee, and that she had no direct influence on the publicity of the final committee report. In light of the rules, Lane focuses his questioning on Professor Wesson’s requirement that before she would agree to be on any committee, she wanted the results to become public. After a disagreement over how to phrase this “requirement” or “insistence,” but eventually agreeing that something was there, Lane presented no further questions.

With only fifteen minutes, cross examination was light but focused on the policy of keeping the personal files of faculty members private. O’Rourke questioned Professor Wesson about the depositions and other investigative meetings where it was clearly stated in front of Professor Churchill and his Attorneys that the results and findings were going to be made public regardless of the outcome. Before wrapping up for the day, O’Rourke focused on three Colorado court cases that state certain information about public employees does have to be released as required by the Colorado Open Records Act. When Professor Wesson was asked about the University’s policy on personal files of faculty members and why it might have been out of date, she said that they can move at the speed of a “glacier” with getting that policy changed.

Overall the afternoon session was very interesting and combative. Professor Wesson would not give Lane the answers he wanted and tried to dance around the questions asked. She was hesitant to commit herself to questions that seemed somewhat straight forward, so much so, that Lane even told her he was not trying to trick her. It was a very interesting and fun afternoon at the courthouse. Cross examination of Professor Wesson will continue tomorrow morning.