Churchill v. University of Colorado: Score One for the Plaintiff

The day saw a lengthy cross examination of Ward Churchill. Pat O’Rourke did what he could but in the end did not shake Churchill.  On occasion, the testimony brought out the unimportant nature of some of the charges.  O'Rourke was thorough and focused but he did not significantly weaken Churchill's testimony.

O’Rourke rightfully focused on the ghost writing issue.  Other issues have fallen in significance.  He noted that the CU rules prohibited “fabrication, falsification, plagiarism or other forms of misappropriation of ideas” and at one point asked whether the writing of pieces “from the ground up” was deceptive.

Churchill vigorously denied that it was.  He emphasized that there was nothing in the general standards that prohibited ghost writing, repeatedly referring to the lack of standards.  O’Rourke couldn't point to any definitive source for the requirement and was reduced to noting that no witness had claimed they engaged in the practice (although some of them clearly indicated that the practice was acceptable) and that 20 faculty members at CU (incidentally out of 1200) had found that the practice was improper.

Churchill, in contrast, pointed to authorities that acknowledged the practice was acceptable and pointed out that there were many new editions of textbooks published posthumously and not written by the putative author.

In the afternoon, O'Rourke switched his approach.  He tried to insinuate that the various imputed authors in fact did not approve of the ghost written piece. O’Rourke drew out that Churchill never discussed the article with one of the putative authors, Robbins, that she made no changes in the article, and that she was an expert in other areas, specifically rhetorical analysis. He emphasized that Churchill did not know if she read even one word of the draft.

Churchill in turn testified that she was a scholar and presumably could make up her mind, that agreeing to publish was sufficient proof.  “She is a third party scholar capable of making her own decisions.” He also noted that Robbins listed the piece on her resume, indicating support for the contents.

The toughest issue for Churchill is the one plagiarism allegation based upon the article written by Fay Cohen. The piece had been published in a volume edited by Churchill. Subsequently, in another book, an essay attributed to the Institute for Natural Progress contained clear evidence of plagiarism, as a side by side comparison showed.  Churchill helped start the Institute.  

Churchill claims that he was not responsible for the content and indeed the essay is attributed not to him but to an Institute that he had helped found.  The most damning piece of evidence is that he listed the article on an internal performance evaluation report at the University (something he claimed occurred accidentally because his report was prepared by administrative staff within the department). On the other hand, he did not apparently list it on his resume.  In later testimony, he noted that he had not been on the faculty at the time the pieces were written and took the position that the CU academic standards did not even apply to him.

The effort to use cross examination to discuss the smallpox incident evolved into a discussion of minutiae that made little indentation into Churchill's position.  O’Rourke largely focused on the proof of the existence of a smallpox infirmary in St. Louis, the one that produced the blankets containing smallpox. and on whether sick Indians had been ordered to scatter, spreading the deadly disease. The latter discussion went back and forth on whether the Indians were already sick when they entered Fort Union or became sick while there, differences that seemed all but insignificant. 

The weakest moment came with the discussion of the Allotment Act.  O’Rourke emphasized over and over that Churchill had cited the law in connection with a statement about the amount of blood necessary for someone to qualify as an Indian (blood quantum) and that no such blood quantum standards were in the law.  Churchill just as often repeated that while the “act itself can’t be read” literally to say anything about blood quantum, it did assign to the Bureau of Indian Affairs the task of administering the Act and the Bureau did apply a blood quantum test. In other words, it sounded entirely accurate to cite the Act that was responsible for the implementation of a blood quantum standard.

All and all, the cross tended to bring out problems with each of the allegations against Churchill.  A hint that it did not strengthen the University's case came from the questions that jurors wanted to ask Churchill.  That will be the subject of a subsequent post.