From Pravda.
In reality, such an outcome was predestined. Blaming American foreign policy for spawning acts of terrorism automatically made Churchill a pariah in the eyes of the legal system, just as Malcolm X’s “chickens coming home to roost” statement in the wake of the John F. Kennedy assassination made him an outcast during the early 1960s.
Update: DU’s law school blog, The Race to the Bottom, has three more posts about the decision.
Offering this explanation for Judge Naves’ strange and — in my opinion — incredibly unethical decision to allow the trial to proceed all the way through before ruling on the quasi-judicial immunity issue:
Could it be that Judge Naves was shielding his ruling on the remedy by holding off ruling on quasi-judicial immunity until the trial was over? Maybe he was actually being crafty. If he had ruled on a motion for summary judgment earlier and stopped the trial at that point, then that ruling would have been subject to immediate appeal. Had he then been reversed, the trial itself would start at a much later time, leaving everything in limbo and perhaps taking Naves out of case on remand. This way, he accomplished three things: (1) expedited resolution of the issues, arguably important for the public interest; (2) exercised his own judicial discretion (or perhaps activism) to render a remedy he thought just, even if he is reversed on the severable immunity issue and (3) kept himself in the case, rather than risk it going to some other judge on remand.
Which primarily explains in more detail why Judge Naves waited until after the trial to rule on the quasi-judicial immunity issue:
One of the questions that must come to a thinking person’s mind is why would Judge Naves allow such an extensive trial to happen only to nullify it on what is essentially a legal technicality? The answer is that CU attorney Patrick O’Rourke did not raise this defense until after the trial on the basis that the specific elements would have to be proven in a trial-like setting anyway. If the jury had ruled for CU, there would be no reason to have raised the defense; since the jury ruled for Churchill on the First Amendment claim, O’Rourke could raise it as a post-trial motion.
Which explains Pat O’Rourke’s cleverness in essentially losing the jury trial, but winning through the quasi-judicial immunity ruling:
CU lawyer Pat O’Rourke has often been maligned throughout this trial. He wasn’t as dramatic or amusing as David Lane; his closing arguments were boring; his witnesses were impeached so often court observers began to cringe when they testified. But the startling outcome of Judge Naves’ Order is the legal version of the Tortoise and the Hare, or more specifically—the story of the Clever Trap.
Sleazy, yep. Cheap, sure. Effective, absolutely.
Update II: Michael Roberts writes about CU’s attempt to pry out-of-pocket legal fees out of Ward Churchill in Westword:
Hard to believe that CU really expects to get dime one of this amount — and even if Churchill is ultimately forced to pay, the sum will probably be dwarfed by the legal costs incurred while trying to pry it out of him. So why bother? Well, Churchill has inflicted loads of lousy publicity on the institution for several years now — at least from CU’s perspective. And the bad PR continues on HBO, which is airing Shouting Fire: Stories From the Edge of Free Speech, a documentary that makes the folks lobbying for Churchill’s ouster look downright McCarthyite. This is one way for CU to return the favor.
Petty, yep. Vindictive to the point of stupidity, sure. Just what we expect from CU, absolutely.
Update III: As CU winds up their spin machine, it’s worth remembering that they didn’t win this case. They got off for the same reason the occasional rapist, murderer or child molester gets off even though they’re guilty as hell and the evidence proves it: a sleazy lawyer and a technicality.
Update IV: The appeal’s on the way. From the Denver Post:
“We would be saying, this is flat-out wrong. He is extending quasi-judicial immunity someplace where it has never been before,” Lane said.
Update V: Anthropologist Max Forte weighs in:
When I say that the freedom of academics takes a serious blow, it is because Judge Larry Naves — incidentally, a man who allegedly got accepted into university with the assistance of the father of Condoleeza Rice (source) — has decided, in very contradictory terms, that university administrators both represent faculty, and, are like judges and therefore benefit from immunity from prosecution from faculty (not just vacating the jury’s verdict, but the whole trial). Simply put, they are free to fire, presumably on any grounds, at any time. This also effectively puts an end to anything meaningful about tenure.
Update VI: There’s an interesting post on the National Review’s site which, while noting the quasi-judicial immunity issue, takes far greater exception to the rest of Judge Naves’ ruling:
Even after vacating the jury’s verdict, the judge engages in what seems to be a superfluous discussion of Churchill’s request for reinstatement (after all, if the jury liability finding is vacated, there is no real basis for equitable relief). In this discussion, he misunderstands the role of nominal damages in constitutional cases, conflates damage awards with liability determinations, grants a staggering amount of discretion to university officials who terminate troublesome employees, and essentially uses Churchill’s protected speech as a pretext for justifying the university’s adverse actions. The message the judge sends to faculty is clear: Get along with your colleagues — or else.
