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The attorney at the flashpoint

Monday, November 2nd, 2009

Missed this ’cause I’m out of town, but there was a great writeup of Denver civil rights attorney David Lane on the front page of yesterday’s Denver Post. I get accused of being everything from an anarchist to a militia member, and though I kind of like both of those tags, David Lane probably sums up my political beliefs better than anyone when he says that “the most dangerous entity on earth is a government that has the ability to do whatever it wants whenever it wants without control.”

In Colorado, if there’s a case where the government and the Constitution clash, Lane is often the attorney at the flashpoint. Whether it’s a teacher on a classroom tirade against George W. Bush or the Rainbow Family’s members fighting to get into a court hearing or the Hells Angels angry about being roused out of their clubhouse — or even the “Balloon Boy” — Lane is often the man in the middle.

And of all the controversial clients he has ever represented, none has been quite like Churchill, fired by CU after questions were raised about his scholarship. But those questions first arose after the emergence of an essay in which Churchill referred to some victims of the Sept. 11, 2001, attacks as “little Eichmanns.”

For Lane, it was a clear-cut First Amendment issue — he believed Churchill was fired not for plagiarism or fabrication, as CU leaders claimed, but for his speech.

And Lane won, sort of, when a jury sided with him, although the judge later issued a ruling tossing out the verdict. That case is still on appeal, and things may change.

One thing that hasn’t changed is the way Lane has been attacked for representing Churchill. Like the day he sat with a client, in prison for second-degree murder and facing a first-degree murder charge for a slaying behind bars.

“This guy’s doing second-degree murder time, facing the death penalty, and he says, ‘Can I ask you a personal question?’ ” Lane recalled. “I said, ‘Sure.’ He said, ‘No offense, but how do you represent a scumbag like Ward Churchill?’ “

The rest.

In Colorado, if there’s a case where the government and the Constitution clash, Lane is often the attorney at the flashpoint. Whether it’s a teacher on a classroom tirade against George W. Bush or the Rainbow Family’s members fighting to get into a court hearing or the Hells Angels angry about being roused out of their clubhouse — or even the “Balloon Boy” — Lane is often the man in the middle.
And of all the controversial clients he has ever represented, none has been quite like Churchill, fired by CU after questions were raised about his scholarship. But those questions first arose after the emergence of an essay in which Churchill referred to some victims of the Sept. 11, 2001, attacks as “little Eichmanns.”
For Lane, it was a clear-cut First Amendment issue — he believed Churchill was fired not for plagiarism or fabrication, as CU leaders claimed, but for his speech.
And Lane won, sort of, when a jury sided with him, although the judge later issued a ruling tossing out the verdict. That case is still on appeal, and things may change.
One thing that hasn’t changed is the way Lane has been attacked for representing Churchill. Like the day he sat with a client, in prison for second-degree murder and facing a first-degree murder charge for a slaying behind bars.
“This guy’s doing second-degree murder time, facing the death penalty, and he says, ‘Can I ask you a personal question?’ ” Lane recalled. “I said, ‘Sure.’ He said, ‘No offense, but how do you represent a scumbag like Ward Churchill?’ In Colorado, if there’s a case where the government and the Constitution clash, Lane is often the attorney at the flashpoint. Whether it’s a teacher on a classroom tirade against George W. Bush or the Rainbow Family’s members fighting to get into a court hearing or the Hells Angels angry about being roused out of their clubhouse — or even the “Balloon Boy” — Lane is often the man in the middle.
And of all the controversial clients he has ever represented, none has been quite like Churchill, fired by CU after questions were raised about his scholarship. But those questions first arose after the emergence of an essay in which Churchill referred to some victims of the Sept. 11, 2001, attacks as “little Eichmanns.”
For Lane, it was a clear-cut First Amendment issue — he believed Churchill was fired not for plagiarism or fabrication, as CU leaders claimed, but for his speech.
And Lane won, sort of, when a jury sided with him, although the judge later issued a ruling tossing out the verdict. That case is still on appeal, and things may change.
One thing that hasn’t changed is the way Lane has been attacked for representing Churchill. Like the day he sat with a client, in prison for second-degree murder and facing a first-degree murder charge for a slaying behind bars.
“This guy’s doing second-degree murder time, facing the death penalty, and he says, ‘Can I ask you a personal question?’ ” Lane recalled. “I said, ‘Sure.’ He said, ‘No offense, but how do you represent a scumbag like Ward Churchill?’ “

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Churchill ruling nowhere near the final resolution

Wednesday, July 8th, 2009

Scott Robinson, legal analyst for the Denver Post, has an interesting piece in today’s paper clarifying the oddity of Naves’ decision that the CU regents are a quasi-judicial authority. Although his words are pretty measured, it’s clear that Robinson doesn’t think much of Naves’ ruling.

The ruling by Chief Denver District Judge Larry Naves that set aside the jury’s $1 verdict in ex-professor Ward Churchill’s civil rights wrongful-termination lawsuit sets the stage for the inevitable appeal, an appeal that presents complicated and difficult legal issues that could wind up in the U.S. Supreme Court.

Update: Kevin O’Brien, writing for the University of Denver’s legal blog, The Race to the Bottom, is just as stumped by Judge Naves’ decision as the Denver Post’s legal analyst.

What is remarkable about the judge’s decision is that it adopted almost every argument proffered by CU’s legal briefs. Reading today’s trial decision felt like I was re-reading the CU briefs. For example, by not awarding even front pay in lieu of reinstatement, Judge Naves effectively blocked an award of attorney fees to Churchill on the basis that the $1 award represents a Pyhrric victory invalidating the award of attoreny fees under existing case law (in the event his quasi-judicial immunity ruling in favor of CU is overturned and the reinstatement and front-pay issues are no longer moot).

O’Brien also offers this, which I hadn’t even considered:

[I]t is clear today that Judge Naves’ ostensibly one-sided decision will raise the issue on whether he should have recused himself from hearing the case based upon the appearance of a conflict of interest since he is a CU law school alumnus.

That’s an interesting point to consider, although as O’Brien goes on to make clear, Naves’ alumni status alone does not constitute a “serious, objective risk of actual bias.” Anyway, The Race to the Bottom promises to “dissect” Naves’ ruling on its legal merits over the next few weeks, which should be required reading for anyone interested in the case.

Update II: Michael Roberts has a piece in for Westword (which kindly mentions me) and has this salient point to offer:

On the surface, this judgment makes little sense, since Naves could have come to this conclusion without even going through the motions of a trial.

Update III: The New York Times story also ends with a quote from Scott Robinson, noting the “extraordinary” nature of Naves’ ruling.

Update IV: There’s so much good stuff in The Race to the Bottom piece. Here’s another tidbit:

In effect, Judge Naves has, unless reversed on appeal, sanitized CU of the taint of the jury’s decision that CU terminated him not for research misconduct, but for expressing his first amendment rights in violation of the Constitution. Thus, not only is Churchill not entitled to the $1 jury award and the vindication the award represented, but his attorneys cannot seek reimbursement of their attorney fees conjectured to be over $1,000,000 since Churchill did not prevail in his Section 1983 first amendment claim. Most of this cost would never have been incurred by Churchill and his attorneys (or, for that matter, the jury’s time in sitting through a month long trial) had the issue of quasi-judicial immunity been determined before trial by Judge Naves through a motion for summary judgment that as a matter of law CU would prevail.

Note that last piece. As Michael Roberts pointed out above, essentially the whole trial was a charade. And a particularly vicious one as arranged by Naves, in that he seems to have let it continue solely to squander David Lane and Ward Churchill’s time and resources.

Update V: The Colorado Independent has a GREAT piece up on their site about Naves’ ruling, entitled “Judge rules against Churchill, grants CU Board odd absolutist powers”.

The jury decided that Churchill was in fact fired because talk radio hosts didn’t like what he wrote about the 9/11 attacks and because neither did GOP Gov. Bill Owens and neither did the CU Board of Regents — or at least that the Board didn’t think Churchill’s opinions were worth defending in the name of academic freedom and freedom of expression in general. Yesterday’s ruling suggests Judge Naves also places little value on Ward Churchill’s right to free expression, regurgitating in the ruling the defeated arguments of the state. And, not to be outdone, the Denver Post this morning jumps on board, regurgitating the regurgitations of the bench, reporting as fact in the second paragraph of its story the specious allegations of academic misconduct at the heart of the trial and that the state failed to substantiate for the jury.

Update VI: Democracy Now offers this in today’s show:

In Denver, a judge has denied former University of Colorado Professor Ward Churchill’s bid to return to his old job despite a jury’s finding he was wrongfully dismissed. Churchill sued the school after he was fired from a tenured position on charges of research misconduct. But Churchill maintains that the allegations were a pretext to remove him for his political beliefs. In April, a jury ruled in Churchill’s favor and ordered the school to pay his attorney fees. But on Tuesday, Chief Judge Larry Naves of Denver District Court said university officials are legally protected from Churchill’s bid to reverse his firing because they were acting as judicial officers. Churchill says he plans to appeal. His lawyer, David Lane said: “This is judicial activism in its worst form… a jury said Ward Churchill’s free speech was violated, and yet Judge Naves goes on for almost 50 pages, saying in so many words, ‘Too bad.’”

Update VII: Even the Wall Street Journal is noting that Judge Naves’ ruling “seems a little screwy”.

Update VIII: Marc Bousquet has piece on The Chronicle Review’s site, elegantly entitled “Colorado Judge Mugs Churchill”. (It’s also cross-posted on one of my favorite literary sites, The Valve.)

The crowing by the University of Colorado administration after the latest twist in the Churchill case illustrates this claim pretty well. Provost Phil DiStefano seems to have huffed a few lines of Hogwarts Ambiguity Powder to keep a straight face while dubbing CU’s trampling on Churchill’s academic freedom, subversion of faculty process and transparent political thuggery “a victory for faculty governance.”

He also notes Naves’ status as a CU alum.

DiStefano couldn’t have gotten his broomstick off the ground, though, without the teamwork of loyal CU alum Judge Larry J. Naves. The latter waved his wand of Dumbledorean Complexity over the jury’s verdict in order to vacate it, claiming that upon further reflection—you know, after the jury came up with a verdict he didn’t like—he believed that the Colorado regents were immune from lawsuits!

This is getting more and more interesting.

Update IX: I’ve been looking everywhere for full audio, or even a transcript, of the press conference given yesterday by David Lane, Ward Churchill’s attorney. As far as I can tell, it’s not on the internet. You can, however, hear snippets of it on yesterday’s Caplis and Silverman show, here, starting at 35:15.

Update X: From Denver’s main anti-Churchill site, Pirateballerina:

We contacted CU defense attorney Patrick O’Rourke this morning via email and learned that he intends to bill Churchill for out-of-pocket legal expenses, such as deposition transcripts, out-of-state travel, and witness fees. “We haven’t totaled those yet,” O’Rourke told us, “but those expenses will probably be significant.”

Rampant corruption, contempt for the Constitution, judicial thuggery, and now highway robbery. Seems par for course for team CU/Naves.

Update XI: I wish I could say I’m surprised about CU’s intent to bill Ward Churchill, but I’m not. CU has made it clear all along that their intent has been to not only trample Ward Churchill’s civil rights, but to completely destroy him.

I know Ward well enough to know that that’s not possible, but also I know CU’s administration well enough to know that they’d love nothing more.

Update XII: Good God. Even the rightwing educational watchdog group ACTA thinks Judge Naves’ ruling is off the mark. (Via Michael Roberts at Westword.)

The judge’s decision? It gets some things right, but is also problematic. Yes, peer review is critical to shared governance, academic autonomy, and professional standards. Yes, to reinstate Churchill would send an awful message to students — that academic standards don’t matter. But is the authority of trustees in fact comparable to that of judges here, as the opinion says? I am not so sure.

That’s pretty rich, in that ACTA was responsible for a portion of the drummed-up political pressure brought to bear on the University of Colorado to fire Churchill.

Update XIII: CU’s intent bill to Ward Churchill for out-of-pocket expenses is now in the Denver Post:

The University of Colorado will bill Ward Churchill for more than $10,000 in out-of-pocket costs the school incurred while defending against his wrongful termination suit, the university’s lawyer said today.

Update XIV: And from the Boulder Daily Camera:

CU attorney Patrick O’Rourke said he plans to file for recovery of those costs — which include flying witnesses in and out of Colorado and creating deposition transcripts — over the next 15 days and said the amount would be in the “five figures” and likely just shy of $50,000.

This is just conjecture, but it doesn’t seem impossible to me that this could be an attempt by CU to blackmail Ward Churchill out of filing an appeal. Right? Play up the amount of money they’ll be billing him in the local media, and then follow it with a phone call letting him know that they’ll rip up the invoice if he’ll only agree not to appeal. Hell, given what we’ve seen from CU so far, a little extortion hardly seems farfetched.

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Churchill v. CU — Update

Tuesday, July 7th, 2009

(Just got the following from Ward Churchill’s wife, Natsu Saito.)

July 7, 2009

On April 2, 2009, after hearing evidence for a month, a Denver jury unanimously found that Ward Churchill had been fired from the University of Colorado not because of research misconduct but in retaliation for speech protected by the First Amendment.

After more than four years of political attacks on Ward Churchill, a clear statement had been made:  the University of Colorado had violated the U.S. Constitution when it fired Churchill, a tenured full professor of American Indian Studies.

The normal remedy in such cases?  Reinstatement.

Today, July 7, 2009, Judge Larry Naves of the Denver District Court threw out the jury’s verdict, adopting the University’s argument that the Regents have “quasi-judicial” immunity from such lawsuits.  In essence, this means that the Regents and University administrators are free to continue to violate the Constitution.

In a 42-page opinion lifted wholesale from the University’s pleadings, Judge Naves went on to explain why Ward Churchill should not be given front pay, back pay, or be reinstated.

All of these are irrelevant, of course, if the jury’s verdict is not upheld. But the fact that the judge went to such pains to adopt the University’s arguments — which often directly contravened the factual record in this case — speaks volumes.

This ruling simply confirms what we have observed so often.  When given access to the facts, regular people on the street can make clear, reasoned decisions that uphold constitutional values.  It is rare, however, to find persons in positions of power who will not bow to political pressure.

Attorney David Lane will, of course, appeal this decision.  Ward Churchill’s reaction?  “I can’t think of any way to improve upon Steve Earle’s line from The Hard Way:  ‘There are some who break and bend.  I’m the other kind.’”

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Ward Churchill reinstatement update

Wednesday, July 1st, 2009

The Boulder Daily Camera — and, yeah, I’m reading the thing for the first time in months — has their semi-live, semi-updated blog of the hearing going here.

Update: No ruling today, but it should be coming early next week. David Lane, however, had enough fun with Dean Todd Gleeson (3:07 update) that I’ll probably be able to stand the wait.

Update II: There’s audio around from the local radio shows. I’ll post links to some in an update shortly.

Update III: The only Colorado journalist who seems to get what’s at stake in Ward Churchill’s reinstatement: Michael Roberts.

Update IV: KHOW neo-Stalinist shitbirds Caplis and Silverman have done something useful for perhaps the first time in their lives, and posted Ward Churchill’s full testimony here. And if you can’t get enough, you can also listen to their show, here, here, and here, which includes an interview with David Lane, if nothing else. I’ll listen to it today and update with highlights.

Update V: Nope, Caplis and Silverman, still useless. The audio which they claimed to be all of Ward Churchill’s testimony is only about two minutes long. As my dear old grandfather used to say, the geniuses at KHOW could fuck up a ball bearing with a rubber mallet. Anyway, maybe they’ll get it fixed, but I wouldn’t hold my breath if I were you.

Update VI: The University of Denver law school’s legal blog, The Race to the Bottom, which has pretty much set the standard for coverage of the Ward Churchill trial (for all but a few fringe cranks, that is), has two posts about yesterday’s hearing:

Which offers this tidbit:

Professor Churchill’s testimony was—as ever—eloquent. He emphasized that he filed a lawsuit as “a matter of principle to preserve the concept of academic freedom, which is to say that political powers cannot silence professors because they disagree with their beliefs.” (all quotes approximate) “And to obtain justice, restitution, restoration to the position that jury found I was illegally removed from.” Professor Churchill reasserted his trial testimony that when asked if he wanted money, he said no.

And:

Which makes this prediction:

My prediction is that Judge Naves will rule on the law, which is that reinstatement is the preferred remedy unless the offending employer can prove that reinstatement will severely damage the violating employer’s enterprise. The burden of proof is with the First Amendment violator, and CU does not seem to have met that burden. While the witnesses—especially Professor Jessor—spoke passionately about the importance of research integrity to maintain academic standards, this is a pretty esoteric concept.

They are, as we’ve come the expect, exactly the kind of fair, balanced, and accurate reporting which it has been nearly impossible to find in the Denver media.

Update VII: All right, I lied. As much as I wanted to listen to the Caplis and Silverman show to provide highlights, I just couldn’t bring myself to do it. Sorry.

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