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Feb 8, 2005 10:12 pm

More Churchill Links ...

The controversy around the University of Colorado's Professor Ward Churchill continues to build. Here are some additional, substantial links:

Thomas Brown,"The Genocide That Wasn't: Ward Churchill's Research Fraud." An assistant professor of sociology at Lamar University with a doctorate from Johns Hopkins, Brown charges Churchill"has committed research fraud, and very possibly committed perjury as well." Specifically, says Brown, Churchill"invented a story about the US Army deliberately creating a smallpox epidemic among the Mandan people in 1837 by distributing infected blankets. While there was a smallpox epidemic on the Plains in 1837, it was entirely accidental, the Army wasn't involved, and nearly every element of Churchill's story is a total invention."

Timothy Burke, It's a Fair Cop," Easily Distracted, 8 Feb. Tim reflects on soft-leftnicity, academic hackery, and the tenured condition.

Paul Campos,"Truth Tricky for Churchill," Rocky Mountain News 8 Feb. A professor of law at the University of Colorado surveys the range of charges that might be brought against Churchill.

Digby,"Witnessing History," Hullabaloo, 6 Feb.

Editors Report,"Churchill's Identity Revealed in Wake of Nazi Comment," Indian Country Today, 3 February. More about Churchill's claim of a native American identity.

In addition to Digby, another source that continues to defend Churchill is"An online publication of news analysis and commentary" since November 2002, has a mailing address in Arlington, Virginia, but offers little else by way of self-description. But, see its publication of a press release by Churchill's publisher,
AK Press, Ward Churchill Under Attack," 1 Feb; and
Rosemarie Jackowski,"Ward Churchill: Super Patriot," 2 Feb.
Joshua Frank,"The Distortions of Acumen: Liberals Trash Ward Churchill." 4 Feb.
Steven Best,"First They Came After Ward, Then ...," 5 Feb.
Jordy Cummings,"Same As It Ever Was," 5 Feb.
Kurt Nimmo,"Churchill, Eichman, and Those 9/11 Technocrats," 5 Feb.
Kurt Nimmo,"
Growing Chorus: Prosecute Ward Churchill for Treason," 6 Feb.
Mickey Z.,"Warning: More Hate Speech from W. Churchill," 6 Feb.

Thanks to Mark Grimsley at War Historian, Glenn Reynolds at Instapundit, and Moby Lives for the tips.

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Richard Henry Morgan - 2/10/2005

Now that I think about it, my criticism of Churchill is silly on one point. When he files a motion on his own behalf in his own trial, nobody would reasonably think his "expertise" in Native American history was implicated, even if he made reference to it in the brief. But if one submitted, as a professor, an amicus brief in one's field, then I think the question of professional integrity is raised.

Van L. Hayhow - 2/10/2005

Thanks for the statute reference. I agree, a criminal trial would have to be an official proceeding. How much more official can it be if you can be put in jail if you lose? So I don't think the reference to the statute in the article is a good one. For anyone not familiar with court procedure, I judge faced with a pre-trial memo or other document not under oath that is complete nonsense does have some remedies, the main one being contempt of court. Judges are reluctant to use them for fear of penalizing someone harshly who turns out to be sincere but ill informed.

Richard Henry Morgan - 2/9/2005

Mr. Hayhow makes some interesting points. I point out the weaknesses of the abandonment of Frye as a marker for the dissolution of standards -- it may have applied to expert scientific testimony only, but since the standards there were usually stronger than for expert testimony in general, the implications applied a fortiori to expert testimony in general.

As Mr. Hayhow puts it, briefs generally aren't submitted under penalty of perjury. This is one way to introduce dubious material before a judge. As bad as post-Frye pre-Daubert standards were, the standards for accepting amicus briefs are often even worse, introducing another Mack truck-sized hole for injecting false material. On this site, one lawyer discussed his solution to that problem. When confronted with the problem of a scholar who submitted false material in an amicus brief, he merely threatened to call the guy as a witness, and expose him on the stand. The scholar promptly withdrew the amicus brief. Obviously some scholars see amicus briefs as a cost-free way to achieve a sort of bifurcation: their academic lives, where their reputation is important to them; and their political lives, where their academic reputation can be leveraged to political ends, and where they generally aren't subjected to the same standards of evaluation.

BTW, I did find the Colorado statute cited. It refers to a Class 1 misdemeanor, perjury in the second degree, which pertains to situations where a person makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law, to a government official with the intent of misleading him in the performance of his duty, in other than an official proceeding. The applicability to Churchill's brief seems dubious (I think a criminal trial certainly counts as an official proceeding). I suspect the statute was designed to apply to such situations as affirmations of fact in voter registration or driver's licenses or such.

Richard Henry Morgan - 2/9/2005

I would simply add that Churchill's trial brief dates from 1992, which is seven years before the Daubert standard was put forth by the US Supreme Court. Of course, not all expert testimony is expert science testimony ...

Hugo Schwyzer - 2/9/2005

Darn it, Ralph, stop appealing to my better nature. Our shared faith gives you a most unfair insight.

Jason Nelson - 2/8/2005

Thank you for making my point more clearly than I ever could Mr. Schwyzer.

Richard Henry Morgan - 2/8/2005

I should have said between the codification of 1975 which resulted in the dropping of the Frye rule, and the Daubert ruling, 24 years of nonsense prevailed.

Richard Henry Morgan - 2/8/2005

Yep, Daubert is a retrenchment from the more liberal post-Frye standard, perhaps in reaction to the problems that resulted from not codifying Frye. But Daubert dates only from 1999. Between the 1975 codification and the dropping of the Frye rule by rule 702, nearly two and a half decades passed, during which much nonsense made its way to the jury.

Consider the infamous Massachusetts nanny baby-shaking case. In that case a professor testified, as an expert, to facts in contradiction to what she had written on the subject and had published in peer reviewed journals and textbooks. Under Daubert, were it a federal case, the judge would have been well within his power to exclude her testimony.

Ralph E. Luker - 2/8/2005

Yes, of course; but Michael Bellesiles had tenure. Now he doesn't. Joe Ellis had tenure -- it didn't keep him from being suspended. Tenure obviously isn't absolute and, in your heart of hearts, I don't think you believe it should be.

Van L. Hayhow - 2/8/2005

As to the Frye issue, for scientific expert testimony on the federal level the Duabert line of cases is more strict than Frye thought of being. I don't know whether it will carry over to other areas of expert witnesses or not. As to the issue of perjury by Churchill I could not down load the statute cited in the article nor am I familiar with Colorado procedure. That said, if the statements were contained in a pre-trial memo or motion it would not be perjury under most proceudres that I am familiar with. These documents are not under oath. If Colorado did require that the pretrial memo be verified (for example, in Mass. many pretrial motions in criminal cases must be supported by an affidavit) then that would suppport a perjury charge if there was a lie. If some one is simply mistaken that is not perjury. Also, some states, like Mass., also impose a requirement of materiality. If Colorado does that as well, that would be another hurdle to overcome.

Hugo Schwyzer - 2/8/2005

"Our" SOB means a tenured professor under attack for his views. I don't share his views, I share his livelihood and I am similarly protected by tenure. From my own experiences, I'm a "tenure absolutist", bceause I am well aware that the same thing that protects Churchill's extreme views (and perhaps, his shoddy scholarship, though I don't know enough there) protects me and so many of my colleagues.

Richard Henry Morgan - 2/8/2005

I'm sensitive to the demands of developing lecture notes, and the reliance on secondary sources, both for publication and lectures. Such is the nature of things. I too remember the Mandan claims, but I've had no lecture responsibility in that area, so I haven't been put in that awkward position.

So yes, let's agree Churchill didn't "invent" the Mandan story. Can we agree that any academic providing a legal deposition as an expert, or testifying as such, has the responsibility of due diligence -- must go back and read the original sources, the secondary literature, and until then has simply repeated the equivalent of urban legends, and not fulfilled his responsibility as a scholar?

To transfer this to the legal front, when some time back federal rules of evidence were codified by statute, the Frye rule was left out. Under the Frye rule, an expert could testify only to what the consensus of experts in the field was (the court not being deemed the proper forum for settling academic disputes on the cutting edge). With the dropping of the Frye rule, the tendency has been to "let it all in, and let the jury decide". Now if experts in the field can't arrive at a consensus, how is it proper to leave such matters to the judgment of non-experts? It's particularly in the shadow of the abandonment of Frye that junk history regularly makes it to the jury.

Ralph E. Luker - 2/8/2005

Richard, Actually, I'm inclined to think that Brown is incorrect about saying that Churchill "invented" the story. Even if Churchill's account is wrong about the Mandans, smallpox, and the complicity of agents of the United States government being responsible -- and I am prepared to believe that he is -- still, that story has been around as an urban legend among American historians for a very long time. Truth is that I may even have told it to some of my students. I certainly didn't research it and I didn't put it into print, but I don't believe that Churchill "invented" it.

Richard Henry Morgan - 2/8/2005

Churchill is not the first, nor I fear the last, to invent just-so stories for publication and for legal cases. There was a very famous case some years back where one of the bigshots of American Indian history testified in court as an expert witness that scalping was introduced to American Indians by the white man. The research by William Sturtevant and James Axtell has pretty much refuted that claim. Similarly, it is often categorically stated that Amherst had smallpox spread to Native Americans. The record is, in fact, a lot less clear.

Ralph E. Luker - 2/8/2005

Yah. You may have to rethink this one, Hugo. Quite frankly, Bellesiles was my dog in that fight, too; until several scholars convinced me otherwise. I don't know what he's guilty of or what he's innocent of, but I know that the decisions can't be made on the grounds of his politics.

David Lion Salmanson - 2/8/2005

Er, what do you mean our SOB, Hugo, or was this sarcasm regarding Nixon's failed foreign policy? I probably claim the closest connection to him as I've cited some of his work on the uranium industry in Indian Country and even then, I think the guy is kind of a schmuck and, given his rep, glad I've never met him.

Jonathan Dresner - 2/8/2005

I disagree. Picking allies based on their enemies is, among other things, how we got Osama bin Laden into the paramilitary business.

I am very protective of Churchill's rights, and many of the people calling loudly for his ouster wouldn't respect my rights, either. And even some of his arguments are worthwhile. But his tactics and his rhetoric are counterproductive, at best.

Unless we are willing to be discriminating and clear and evenhanded in our advocacy, it is merely partisanship. And if it is partisanship, it plays into and strengthens some of the most troublingly generalized arguments against Churchill being made by his detractors.

There is a difference, or at least I think there is, between who we like in this debate and what his important in this debate.

Hugo Schwyzer - 2/8/2005

Despite everything he has said and done, I feel fiercely protective of Ward Churchill. And I'd like to point out, he has been remarkably fortunate in his enemies. Reading the names of those calling loudest for his removal is an excellent reminder of why he must be defended. He may be an SOB, but he's our SOB.

Jonathan Dresner - 2/8/2005

Not to mention some very interesting political skewings in those areas. DIVERSITY!

Ralph E. Luker - 2/8/2005

Manan, You have all kinds of good reasons for being snarky. Just as long as our friendship survives my jumping the snark, it's o.k.

Manan Ahmed - 2/8/2005

Sorry for the snarkiness, Ralph. There are lots of claims made in the Economics and Business schools that need to survive scrutiny and those salaries can fund a lot more than two young assistant professors.

Ralph E. Luker - 2/8/2005

Manan, Your point about a sense of proportionality is an important one. I still believe that it's important to examine cases like Churchill's. After all, he's commanding resources at the University of Colorado that could fund two young assistant professors. I don't object to that -- if his claims about himself and his claims about the historical record will survive scrutiny. If they can't, I can recommend at least two honest young scholars with doctorates to replace him.

Manan Ahmed - 2/8/2005

Well I am glad there isn't a war on to distract us from bringing to light the dingbats of the loony left.

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