Insanity wins: Churchill wrongfully terminated

April 2, 2009

Ward Churchill, who was fired from his job as CU professor in 2007, sued CU for wrongful termination on First Amendment grounds. The jury found in his favor today, saying that Churchill’s speech (his infamous 9/11 essay) was one of the reasons CU fired him, and according to the law speech can play no part in the decision to fire a state employee.

This verdict stretches credulity. One could argue that the investigation of Churchill’s works began as a result of the uproar over his 9/11 essay. The timing of it certainly doesn’t look coincidental. The thing is, an investigation does not mean that Churchill’s termination was inevitable. The process took 2 years. Had Churchill shown real scholarship in his work the investigative committees would have had no reason to recommend his ouster, and the regents would have had little justification to do so. Yet the jury was convinced that while his essay was not the only reason he was fired, it was one of them, hence their verdict.

I followed the coverage of the trial a little bit, listening to Caplis & Silverman occasionally. Silverman noted during the trial that all of the jurors were under the age of 30. That concerned me, and my worst fears were vindicated. I listened to Caplis & Silverman today, and supposedly (it could not be confirmed at the time) one of the jurors called in. Dan Caplis had been gloating during the show today that while the jury voted in favor of Churchill, they only awarded him $1 in damages. He took this to mean that while CU lost, they had seen through Churchill’s charade and saw him for what he was: an academic fraud. The supposed juror who called in said this had nothing to do with the decision on damages. She said the jurors couldn’t make up their minds what to award him. Most of the jurors wanted to give him some amount, but one did not, and was apparently adamant about it. She said they spent several hours just on this subject. It sounded like they ultimately broke down and decided to award Churchill nothing just to get the matter overwith. The supposed juror said she couldn’t see why the legal system was asking them to make this decision anyway. They asked the judge if $0 was okay. The judge instructed that $1 was the minimum if they decided in favor of Churchill, and so that’s what they awarded. It was a cop out.

The supposed juror sounded confused and in over her head. When Caplis and Silverman asked her questions it was difficult for her to give a coherent answer. She said that the jury felt that their only job was to determine if Churchill had been fired because of his essay, and they didn’t consider other factors. It sounded like they found the credibility of CU’s witnesses suspect. She said she believed Churchill when he gave his testimony, and while she didn’t agree with all of his controversial 9/11 essay, she thought “he made some good points.” Unbelievable. She said the jurors reviewed the investigative committee report on Churchill’s plagiarism and academically unethical practices. She said she agreed with a couple things in the report, but she thought they nit-picked the rest, and she didn’t think that the violations cited in the report that she agreed with warranted his firing.

Apparently some of the fault for this falls on CU. I feel like they dropped the ball, like their attention has been diverted to other matters, and they didn’t consider this trial a priority. It looks like they didn’t do their due diligence in selecting a competent jury. I didn’t get a sense that the supposed juror who called in was competent to deal with the subject matter of the trial. She was only receptive to simple arguments, and lacked critical thinking skills.

This clip kind of reflects what a joke I think this trial was:

The Chewbacca Defense

Anyway, a separate hearing will be held to determine whether Churchill will be reinstated at CU, or the judge may just decide not to reinstate, but rather give him a lump sum. If Churchill is reinstated it’s going to be egg on CU’s face. In that case, how could CU be taken seriously again?

Not that anyone from CU administration is listening, but my one word of advice to them is the next time they receive complaints about the academic performance of their faculty, they should act to investigate it promptly rather than sit on it, which has been their modus operandi until this blew up in their face four years ago. Evidence of problems with Churchill’s scholarship had been mounting for years. The record that Caplis & Silverman were able to uncover through public document requests showed that Phil DiStephano yucked it up every time a complaint about Churchill came to his attention. He was apparently happy that Churchill was drawing the spotlight, perhaps bringing attention to CU in a sick sort of way. DiStephano had been helping Churchill advance his career at CU, until the controversy erupted. I shouldn’t single him out. The CU Administration has shown itself to be kind of like the Keystone Kops (again, no offense to the town of Keystone), stumbling into this investigation when they felt overwhelming public pressure. Maybe this will teach them a lesson? Are they learning the right lesson? Maybe not. A sad state of affairs indeed.

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Shredding the Constitution piece by piece

March 19, 2009

I heard on Caplis & Silverman yesterday that Colorado’s legislature had voted to change the allocation of our electoral votes for president. It is not law yet, but all it takes is for Gov. Bill Ritter to sign it, and then for enough states to “trigger” it into effect. I’ll explain.

The law that was voted and passed by our legislature says that when enough states have passed the same law to create a majority of states that are abiding by the same rules (270 electoral votes), our state will commence to allocate its electoral votes in the next presidential election solely according to the national popular vote. In other words, if a majority of Coloradans vote for one presidential candidate, but the majority of people in the U.S. vote another way, Colorado will throw its support behind the national popular vote winner. Colorado will select the electors of the candidate who has won the national popular vote so they can cast their votes for him or her in the electoral college, in fact ignoring the majority vote of its own residents. The only way this action would agree with the sentiments of Coloradans was if we voted for the same candidates in the same proportion as the nation as a whole.

Five years ago there was a referendum on the ballot that would have allocated Colorado’s electors according to the popular vote in Colorado, divvying it up by congressional district, and having two at large votes. I liked the idea in principle, but the flaw in my opinion was a provision in the referendum that would have made it apply to the 2004 presidential election, right when the referendum was being voted on. I felt that violated the principle of passing no ex post facto laws, because it effectively changed “the rules of the game” after the fact. If I had to pick today between that referendum and this…shall I say…piece of crap, I’d pick the referendum any day of the week, because while I think it was badly crafted it at least had the principle of allocating our votes in a representative fashion for Colorado. The current proposal does nothing of the kind.

This is the first step in getting rid of the electoral college system established by the Founding Fathers of the U.S., which was intended to give electoral powers in presidential elections to individual states so that presidential candidates would be forced to pay attention to individual state interests. It is an element of federalism. It gives small states more power than they would have in a purely majority rule democratic system, and as we saw in 2000, on rare occasion it gives the minority an advantage, a principle that the Founders felt was valuable.

The Founders also felt uncomfortable with the idea of “mob rule”. When the Constitution was ratified the only national offices that were voted on by popular vote in the states were seats in the House of Representatives. Senators were chosen by the state governments. The House was supposed to represent the interests of the citizenry–the vox populi. The Senate was supposed to represent the interests of the states. I realize there have been various rationales put forward for getting rid of the electoral college in the past, but the Founders did not feel comfortable with the popular vote directly electing a president. They wanted an intermediary, electors, who would act on the voters’ behalf, and in their best interests. If for example electors came to know something about a presidential candidate that the public did not, which would impair their abilities in office, they might choose to vote for someone else, even though the voters in their state voted for the candidate. Even though this scenario has never happened to my knowledge, the Founders thought about it. They thought of the presidency as a powerful position in the country, and did not want “the passions of the day” to have an overbearing influence on it.

Beyond the legalistic and historical aspects of this, if this effort succeeds it will further solidify the power of the big cities, the urban areas on the national stage. It will trump the influence of states as their own entities in the presidential election. To name the top 10 population areas: New York City, NY.; Los Angeles, CA.; Chicago, IL.; Houston, TX.; Phoenix, AZ.; Philadelphia, PA.; San Antonio, TX.; San Diego, CA.; and San Jose, CA. What’s long been predicted is that if we do away with the electoral college (which this scheme will effectively do, even if not in fact), the country will dance to the tune of these big cities in future presidential elections, to the exclusion of everyone else. Of the biggest cities in the country, Denver, CO. is #26. In our existing system, Denver tends to dominate Colorado’s electoral vote, because it has a large concentration of the state’s population. In the proposed system Denver will lose that power, because cities like New York City, Los Angeles, and Chicago will relegate Denver’s influence to that of a pipsqueak in the national discussion because its influence will have to be considered among all the other cities in the country, not just in Colorado.

The proponent of the bill, Colorado State House Rep. Andy Kerr, says that he believes in the principle of one man, one vote; and this bill, if it passes in enough states, accomplishes that. What he ignores is the influence of demographics, and that the electoral college system kind of limits demographic influence. A city’s influence is limited by its state boundaries. A collection of big cities doesn’t necessarily dominate the national discussion, because the state system limits their power. They can dominate their respective states, and even in the current system they tend to dominate in presidential elections, because they are the main population centers for their states, and the states they exist in carry a lot of influence. But there’s always the possibility that a collection of smaller, less influential states can act together to blunt their influence, because the electoral college system is not fully representative of a state’s size. Every state, no matter how small, gets at least 3 electoral votes. The proposal on the table does away with all of that.

One thing that interested me as I listened to Caplis & Silverman’s interview with Rep. Kerr on Tuesday was the use of the word “pact”, because the bill has a “trigger”: It only goes into effect when enough states pass the same bill to constitute 270 electoral votes. It is a tacit agreement among the states. From what I heard on the show, four other states have already passed the same bill. It reminded me of something in the Constitution, and I wondered if perhaps a legal case could be made against this proposal:

Section 10, clause 3 of the U.S. Constitution states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Could this “trigger” provision in the proposal be considered unconstitutional? Any legal scholars want to take this up? I’d be interested in hearing about it. Besides this possibility, there’s nothing technically unconstitutional about what the state is doing. It’s been well established that the states can allocate their electoral votes however they’d like, though it is strange that Colorado would actually choose to throw away what little power it has. It does however violate the spirit of the Constitution. The Constitution is about “We The People”, but it is also about the states and their rights. I just wonder if they’re allowed to do this on a collective basis–“I’ll do it if you do it.”

I just think that the presidential votes of Coloradans should be represented by Colorado’s electoral vote in some fashion. Right now it’s winner-take-all, which is not as representative as I’d like, but it’s at least somewhat representative. I really don’t like the idea of Colorado throwing away its vote.


Students want to rename Boulder High to Barack Obama High School

February 12, 2009

I heard on the local news last night that several Boulder High students have put forward a proposal to rename the school to Barack Obama High School to honor him being elected president. I must admit that “Obama High” does have kind of a ring to it, but I don’t like the idea. One of the comments read on the news said that Obama has only been president for a few weeks, and we should wait and see if he is successful before naming anything after him. Good idea. Personally I am attached to the name Boulder High. I graduated from there many years ago. I don’t talk about my high school experience much, but I would feel odd talking about “Obama High” at this point, because I’ve always thought of it as “Boulder High”. If it were renamed I would feel much the same way as sports fans do about the name “Invesco Field”, preferring the old “Mile High Stadium”.

To me the school is an institution of this town, not of one man. And we should consider that Boulder High was not renamed after other significant figures that were beloved in this town, such as President Kennedy, or Mercury astronaut Scott Carpenter who graduated from Boulder High and went to C.U. Let’s have some patience on this matter. I think it would be better to wait some time after Obama is out of office before taking up such a question. I realize that this will mean the current advocates of the name change will be gone from Boulder High by then, but I think that would be best. Names mean a lot to people and it would only be in hindsight that we could get a clear view of whether Obama personifies something special that we want to associate with the high school.

Edit 2/13/09: The Daily Camera reported yesterday that the students who were organizing the effort to change the name of Boulder High, a group named “Student Worker”, have decided not to pursue it after a lot of opposition was voiced about the idea. Sounds good to me. The leader of the group said that people got the wrong impression about how far along they were in the process. It sounded like they hadn’t even discussed it with any school officials, and it definitely sounded like they hadn’t discussed this with the student body (however they would do that). They just made their announcement to the press. They said yesterday that it was just a proposal and it wasn’t an effort to force this on anybody. I think this is a case of some overeager students assuming a bit too much about the sentiments of fellow students and alumni. They said they expected people to laugh at the proposal and not take it seriously. What they did not understand was that when they went to the media that raised its level of legitimacy as an issue in the minds of a lot of people, because people figure that the media is not going to waste time with badly organized efforts or goofy proposals. It’s impressive they even got the media to pay attention to this. I know a bit of what it’s like to try to get the attention of newspapers and TV news outlets. It’s not always easy.

There was video on the Daily Camera website of a press conference Student Worker held at Boulder High. The leader of the group went on at length explaining their decision, and talking about the opposition to the idea. Just a little nit, but I think this could’ve been shortened to a brief statement. I noticed at the end of the clip a woman by the name of Cynthia Scott gave a brief word of encouragement to the students, saying that their activism was great, and she liked that they engaged the community in an issue. I did a little search and apparently she’s a parent of a Boulder High student. This does concern me a bit, and this is only a suspicion I have, because I wonder if these students were egged into this by their parents or a few adults in the school. The representative for Student Worker who did most of the talking seemed very comfortable in front of the cameras, but I wonder about the two girls. They didn’t say much. Contrary to the appearance of all three, they are still just kids. I guess what I’d worry about is overexposure. Are high school students old enough to be getting this sort of media exposure and scrutiny? I know that there have been teen stars for years who have had much more exposure than this, but if you look at how their lives turned out not all of them are rosy. It takes a healthy and well developed sense of self to be able to take it that much. Not to say that this experience is the same thing, but I was struck by the adult encouragement. Would Ms. Scott like to see these kids “engage the community” more and get more media attention about more issues? I would hope not, for their sake. Discussing issues in school, getting up before the City Council or school board to speak out on an issue is one thing. To be the leader on an issue is something else, and these students got a taste for what that’s like. Some in this community like it that the students got that experience. These students might be more wary of it after this.


The Alex Midyette trial

February 11, 2009

Perhaps you have forgotten about this. It’s an old story by now. Jason Midyette, a 9-week-old infant died in the hospital in 2006 from massive head trauma. The Boulder DA’s office dragged its feet for more than a year before bringing charges. Molly Midyette, the mother, was tried and convicted in late 2007 of allowing child abuse resulting in death. Alex Midyette’s trial was delayed. The venue was changed. It just recently got under way. He is charged with inflicting the abuse that caused the infant’s death. It’s looking like a short affair. From the headlines I’ve been reading lately it sounds like it’s almost over.

The Daily Camera has been keeping a legal blog of the Alex Midyette trial. From what I heard at the time, the Camera’s blog coverage of Molly’s trial was excellent.


Boulder mayor to serve in the Obama Administration

February 11, 2009

True to form, the Obama Administration has hired Boulder Mayor Shaun McGrath to serve as deputy director in the Office of Intergovernmental Affairs. Apparently the job of the Office is to maintain a communication channel between the Executive Branch and the nation’s governors. McGrath has already served as program director for the Western Governors Association. So one can see where the job fits.

I can’t remember the last time someone from Boulder was selected, though, for a position in any administration, and I’ve lived in/had connections in Boulder since 1980. Normally Boulder is considered a backwater of politics, where the fringe hangs out. Politicians and lobbyists from Boulder, when going to the state capitol, used to avoid saying they were from here as much as possible, because revealing it made them pariahs. Politically not much about Boulder has changed, though the state certainly has. Since I think that most people in this country don’t know what they got when they elected Obama, I still wonder how they’ll take to the people he’s selected, and his decision-making.


JonBenet’s family cleared of crime

July 9, 2008

The AP today gave us news that John, Patsy, and JonBenet’s brother Burke were cleared of the murder of JonBenet Ramsey through a new DNA testing technique called “touch DNA”. The article says that some years back a blood stain on JonBenet’s underwear had DNA that did not match anyone in the family. What’s intriguing is the new “touch DNA” that’s been found matches the DNA of the blood stain. If this evidence is conclusive (I have a little doubt), then it adds a lot more weight to the theory that an intruder killed her. The lab where the newest test was done found the “touch DNA” where the attacker would have grasped her long underwear to pull it down.

The Boulder DA’s office released a statement apologizing profusely to the Ramsey family for putting them under a cloud of suspicion for more than a decade. John Ramsey expressed regret that his late wife Patsy was not alive to see this vindication.

The Boulder DA, Mary Lacy, said now that there is this preponderance of evidence, DNA databases can be scoured to see if a match to the real killer can be found. If this case could be wrapped up it would be a real victory. The embarrassment of the John Mark Karr affair was making me think we’d probably never find the killer, because it was more evidence that our crime authorities were acting like the Keystone Cops (no offense to the city of Keystone).


Where have you been?

January 29, 2008

I haven’t posted in a good while. The reason is I’ve been out of state since December and have been extremely busy. There have been topics I’ve wanted to keep up on but missed the opportunity because my own life has been like a whirlwind.

There was the Midyette case, which I hear has come to a resolution, though I haven’t researched it yet. I’ll definitely write something about this when I get around to it.

There was also the adverse possession/land grab case in Boulder. I haven’t had too much interest in this topic. I understand it’s scary to contemplate, but in my view it’s also pretty dry stuff. I remember years ago hearing about the legal concept of tenant land ownership, which adverse possession falls into, if I’m not mistaken. The basic idea of tenant land ownership is that even though you technically own the land and paid money for it, the state can take it away from you under certain conditions, including if you “abandon” your land. There’s a saying in this area of law: “use it, or lose it.” I haven’t looked at this story much, but maybe I’ll write up something more on it if it looks interesting to me.

I have a couple other topics I’ll be posting about soon.