Churchill v. University of Colorado: Morning, March 19th

The court recommenced this morning a little after 9:00 am with the cross examination of Professor Marjorie McIntosh by one of Churchill’s attorneys, Robert Bruce. Professor McIntosh is a defense witness who was presented out of turn through prerecorded video. Currently, Professor McIntosh is in England presenting a lecture series.

Unfortunately, the audio of Professor McIntosh’s testimony was difficult to hear when sitting in the crowd, which made it difficult to take notes. I imagine the audio quality was better for the jury as they sat much closer to the speakers and the video screen. At the start of the trial this morning, only seven people sat in the crowd. By 10:30 am, however, around 20 more observers had trickled into the courtroom.

Professor McIntosh’s testimony started this morning with Bruce questioning her about the investigative committee’s research concerning the 1837 smallpox epidemic. Professor McIntosh took a lead role in reviewing Churchill’s writings regarding the smallpox epidemic and the allegations that he fabricated some his statements. Professor McIntosh spent 400 hours researching this issue and wrote the first draft of the section of the committee report that found that Churchill had fabricated some of his statements on this subject.  

After this brief intro, Bruce asked Professor McIntosh questions about Native American history. Bruce’s questions implied that she was wrongfully critical of Churchill’s work because reasonable historians could differ on the interpretations of Native American history and Churchill’s interpretations were reasonable. This line of questioning was hard to follow, perhaps due in part to poor audio quality. Bruce asked about specific statements Churchill made in his writings and compared them to statements made by other sources. In my opinion, it was hard to determine whether these statements supported each other or not.  

Professor McIntosh explained that she concluded that Churchill committed research misconduct in part because many of his statements did not cite sources. She noted, however, that if a source directly supported what Churchill said, even without citation, she gave him the benefit of the doubt. Bruce fired back with questions about sources he represented as support for Churchill’s statements. Professor McIntosh replied either that these sources did not support Churchill’s work or that she had not come across the source. When asked about oral sources that Churchill may have used, Professor McIntosh said Churchill had not indicated the use of oral sources in any of his writings.

Next Bruce asked Professor McIntosh how she voted at the end of the investigative process. She voted in the group recommending suspension. Bruce also questioned Professor McIntosh about how the others on the committee voted. She did not want to answer this question because she stated that the committee agreed to keep the votes confidential. After a brief side discussion (on the video), Professor McIntosh was instructed to answer the question. She reluctantly answered that Professor Robert Clinton also voted for suspension and Professor Jose Limon voted for dismissal.  

Next Bruce turned to “allegation F” of the committee report. This concerned the allegation that Churchill committed plagiarism by writing articles under Professor Robbins’ name. Prompted by Bruce’s questioning, Professor McIntosh admitted the committee never investigated whether Professor Robbins fully endorsed every word of the article actually written by Churchill. She added, however, that under the rules of plagiarism, whether or not she endorsed every word was irrelevant because it was still plagiarism. In addition, Professor McIntosh noted that Professor Robbins refused to talk with the committee.

Next Bruce asked about the committee’s criticism of Churchill’s failure to cite specific page numbers when citing sources (aka – pinpoint cites). Professor McIntosh replied that it is fine to cite short articles in whole but whole books require a pinpoint cite. Bruce questioned Professor McIntosh about whether the editors have some control over the written work before being published. She agreed that editors make comments. When asked whether it is possible an editor would ask the author to leave out certain things to save space, Professor McIntosh admitted that this may be possible but the author would have to approve any changes. 

In his final line of questioning, Bruce asked about the scholarly record of Native American history. Professor McIntosh conceded that experts in Native American studies should correct the scholarly record. Professor McIntosh admitted that neither she nor anyone else on the committee was an expert in Native American Studies. Bruce used these questions to imply that the committee had no business second guessing Churchill who is an expert in Native American Studies. Professor McIntosh commented that the committee’s duty was not to correct the scholarly record but to investigate Churchill’s work and the allegations of misconduct.

O’Rourke began his redirect by jumping into the pinpoint citation issue. Professor McIntosh explained that the committee did not find that failure to pinpoint cite in and of itself was an act of plagiarism or research misconduct. She added, it was poor scholarly practice but did not rise to the level of plagiarism or research misconduct.  

Next O’Rourke asked whether the committee found support for particular propositions Churchill made in his writings. This led to a string of “no” answers by Professor McIntosh.

Then Plaintiff called Professor David Stannard to testify. Professor Stannard works at the University of Hawaii as the chair of the American Studies department. Professor Stannard described his very extensive resume. And after a few questions, he was qualified as an expert in population studies without an objection. Under questioning by Bruce, Professor Stannard explained that he looks at many sources to figure out populations. Through his studies, he found many population statistics traditionally cited were wrong.  

Bruce then began questioning Professor Stannard about the numbers Churchill used when describing the population death estimates from the Fort Clark smallpox epidemic. Churchill’s writings estimated this number to be as high as 400,000 deaths. Bruce asked whether this number could be reconciled with other sources. Professor Stannard answered “yes.” Apparently, the committee report was concerned with the numbers used by Churchill and found that Churchill could not get these numbers through the sources he cited. Professor Stannard explained that the committee was wrong in this conclusion because the source cited by Churchill only cited one other source (Stern & Stern) when discussing the number of deaths and this other source contained a table of deaths and if the high numbers listed on the table were added together it equaled 382,000 deaths. Professor Stannard asserted that this number is close to 400,000 and because the numbers in the table were admittedly incomplete there was a legitimate basis for Churchill to say the deaths may be as high as 400,000.  Professor Stannard explained that since the 1960's, his field had concluded that the population of indigenous people was grosssly understanded for the simple reason that when they were counted by missionaries, the prior epidemic (e.g., small pox introduced by the intruding culture) had already decimated the indigenous population.

Professor Stannard added that investigative committee was wrongfully concerned that Churchill’s estimates of the deaths seemed to fluctuate. Professor Stannard discounted the committee's concern by saying population estimates change. Professor Stannard mentioned the “revolution in demography,” which he said changed how experts in demography looked at the numbers traditionally cited.  This witness completely suppor Churchill's position that a reasonable scholar in the field would conclude that 400,000 was a reasonable figure for the number of deaths posite by Churchill.

O’Rourke’s began his cross by asking how well Professor Stannard knew Churchill. Professor Stannard would not agree that he knew Churchill fairly well, but admitted that they knew each other.  They had met when Professor Stannard was a visiting professor at CU.  O’Rourke asked why Professor Stannard did not speak to the Privilege and Tenure (P&T) committee and why Churchill did not ask him to speak with the committee. Professor Stannard thought O’Rourke was speaking about the investigation committee and went on a rant about how he would not have spoken to them because it was a witch-hunt designed to get Churchill fired.  Professor Stannard used the opportunity to state that "no self-respecting professor"would participate in a committee where academic freedom was the true issue. O’Rourke could not get Professor Stannard to admit that he would have no reason to believe that the P&T committee would have listened to what he had to say about Churchill’s work.  

Next, O’Rourke asked Professor Stannard about how Churchill came to the 400,000 number discussed on direct. Professor Stannard admitted he was hypothesizing about how Churchill could have reasonably come to this number. O’Rourke, showing more emotion than he has in the past, asked whether Professor Stannard wanted to know how Churchill actually came to the number. Professor Stannard quipped if you can get inside of Churchill's head, "go for it." O’Rourke displayed Churchill’s response to the Privilege and Tenure committee regarding how he came to 400,000 deaths. O’Rourke walked Professor Stannard through Churchill’s response. In Churchill’s response to t his committee, he never mentioned the source that Professor Stannard pointed to as supporting the 400,000 number. In fact, in Churchill’s response, he adds up numbers and then says that it would be reasonable to triple the number (without citation as to why) and concludes that the highest number estimate he could arrive at was 144,000 deaths.  

This exchange involved O’Rourke walking back and forth to a video screen displaying Churchill’s response while questioning Professor Stannard. This movement combined with O’Rourke’s voice grabbed the attention of everyone in the courtroom. O’Rourke, keeping the same tone, asserted in the form of a question that Professor Stannard came here today to hypothesize to the jury about what Churchill must have thought when coming to this number without reading Churchill’s response to how he actually came to the number. Professor Stannard conceded Churchill’s lawyers never gave him Churchill’s response and he never read it.  

On redirect, Bruce asked whether a reasonable scholar could conclude there were nearly 400,000 deaths caused by the smallpox pandemic. Professor Stannard answered yes. Next, Bruce asked whether Churchill was being investigated because of his writings or his responses. Professor Stannard answered his writings. O’Rourke had one question on recross. He asked whether the 144,000 is close to 400,000. Professor Stannard said no.

Professor Stannard’s direct examination was not very exciting. It involved many long narrative explanations. Professor Stannard’s testimony was damaging to the defense in that it seemed to show a source supporting the 400,000 number used by Churchill. However, I wonder how much the jury heard. The jury seemed to be lulled asleep by the testimony. On the other hand, O’Rourke’s highly charged exchange with Professor Stannard appeared to wake up everyone.