How you know when a process has too many lawyers

This is Larry Lessig. This is the third episode of the third season of the podcast, The Law Such As It Is. This season is considering the tenure revocation of Francesca Gino from the Harvard Business School. In the last episode, Francesca and I discussed the first part of the two-part process that eventually removed her as an HBS professor. That first part was the process run by HBS to determine her guilt. I said that first part was flawed. Francesca was gagged. She had no opportunity to build an effective defense. And while HBS relied heavily upon a forensic report produced by a company called Maidstone, Francesca was denied the opportunity to hire her own forensic analyst. HBS thus determined her guilt before she was given any meaningful opportunity to build a defense. We know this flaw in the process was hugely consequential because once Francesca was free to hire a forensic firm, and once that firm had had an opportunity to study the Maidstone reports and demonstrate the errors in those reports. Harvard effectively withdrew those reports. HBS had thus determined her guilt based on a flawed report. Indeed, members of the committee expressly stated they had relied upon this flawed report in reaching their conclusions. Francesca had thus been denied the opportunity to show the report was flawed before it was used to condemn her to everything else that would follow. everything terrible followed from this error. Let's call this fundamental error number one, because once this error was made and she was determined to be guilty, then all the resources of the Harvard Business School were deployed to defend this flawed determination of guilt. HBS hired the law firm of Ropes Gray, a powerful Boston firm that deployed at least five lawyers to defend the HBS determination. That defense is now the topic of this second part of the story. From the moment the dean notified Francesca that she was to be removed until the university confirmed that determination and took away her tenure. Stay tuned. Francesca, thanks for continuing this conversation. So the last time we'd stopped at the point in the story where you had learned from the business school that it had concluded that you'd engaged in academic misconduct. the dean called you into his office to tell you that and he asked a colleague of yours to quote counsel you out which means what it means asking a colleague to come to me and say leave don't fight don't fight but you are innocent so you are not going to leave without a fight This is June 13th, 2023. Later in that month, the dean asks the university to begin what's called the third statute proceedings, which sounds so archaic. Do you actually have any idea what third statute means here? I had to look it up, and I think it comes from very old universities that had a set of rules for the way they think about their governance. and discipline. So this is the third of the statutes. Exactly. In our rules. And of course, it's been around since the beginning, but has it ever been used to actually revoke somebody's tenure before? No, as far as I know, I'm the first person who's ever gone through this process at Harvard. And so I think you got a sense, a little bit of a clue of why that might be. This is jumping ahead in the story a little bit, but in January, so six months later, the lawyers representing you in this third statute procedure met with Harvard, right? And what happened in that meeting? We told Harvard that the committee got it wrong, that there were errors in the Maidstone analysis, and we wanted a chance to present our case, to discuss the merits of my case. And Harvard indicated an interest to just pay me to go away, and that involved me resigning, and I decided again that I wouldn't resign. But this kind of gives you a clear sense of what actually happens whenever there's a fight like this. There's like a meeting, they offer you a little bit of money, and they say, in exchange, you're just going to not fight any of the things we're saying. Yeah, I think that is the belief that Harvard has deep pockets and Ynetworks and that if you decide to fight, it's going to be a hard fight. Yeah, I guess you've discovered that that's in fact true. Okay, so you chose not to resign. Going back now again, so in June, HBS asked them to begin the proceeding to end your tenure. At the end of July, you received a one-page letter from the president, President Gay, telling you that a complaint had been lodged based on the research misconduct proceedings that HBS had conducted, and thus they were initiating this 10-year revocation process. But then you didn't hear again from them for a couple months, right? That's right. I only heard from Harvard again on October 25th. I received an email from President Gay with the third statute complaint. And the email was very brief. It was, I think, six sentences long, and it indicated that a hearing committee would be convened. To review whether your tenure should be revoked. Exactly. So the 25th was a significant day in the life of Harvard, at least in the life of the president, because the 24th of October, Harvard had learned something about President Gay. Is that right? Yeah, they had learned that Gay had also been accused of academic misconduct. Yeah. So I imagine, you know, you've gone through this process. You wouldn't wish it on anyone or anything like this process on anyone. But of course, her process turned out not to be quite the process you've gone through. So Harvard learned of the charges that were made by the New York Post on the 24th of October. Within eight weeks, they had had two separate investigations to determine that while there were multiple instances of her failing to cite work that she had relied upon, for example, by paraphrasing the work or including it without any citation at all. in their view the miscitations were neither quote reckless nor quote intentional and therefore did not constitute academic misconduct but the timing here was unfortunate because it raised an obvious question right you later discovered that at the time president gay determined to bring the third statute procedure against you she declared quote we have to make an example of this woman end quote of this woman meaning you, maybe also hoping it would be a kind of distraction from what was also going on at the time with her. Now, I think what's important about this is it just underscores how consequential the flawed HBS procedure was to you and to your case. Because obviously, based on that flawed HBS procedure, the president had decided that you were guilty. And, you know, I have no problem with the idea that you're going to make an example of somebody who has committed academic fraud, but only after you really determine whether they've committed academic fraud. But here that determination had been made on the basis of a report that Harvard would subsequently effectively withdraw. So President Gay, of course, couldn't know that. But her determination to make an example of you flowed from this flawed investigative committee determination. but shortly after that in January President Gay resigns from the presidency maybe it was a promise by her to resign that led the committee to limit its judgment against her we don't know that but despite the clear examples of her using the work of others without acknowledgement she remains a member of the Harvard faculty today without any third statute proceedings against her okay so this third statute proceeding was to have three stages. HBS would file a complaint. That complaint was to substantiate the charges made against you, the charges that would constitute academic misconduct. You then were to answer that complaint. And then there would be a hearing by a faculty committee, the hearing committee, about that complaint and that answer. So let's talk a little bit about this hearing committee. How big was the committee? There were seven members. I was told that it was supposed to be eight, but some HBS professors felt conflicted, and so he ended up being seven people. Okay. And so I don't care to know, I don't think we should talk about names, but just what's the mix? What kind of people were on this committee? Three members were faculty members from Harvard Business School, and then the other four members were from within Harvard. So there was a person who was from the Harvard Divinity School, the chair of the committee, and then there was one from the Harvard Graduate School of Education, one from the law school, and one was a biology professor. Okay, and these are all tenured professors. That's exactly right. And I take it they're still carrying their teaching load at the time they're serving on this committee. Yes, I believe so. Okay, so it's fair to say this is, in effect, a part-time committee drafted by the university to weigh the evidence against you to determine whether HBS had met the burden that they had to meet in order to remove you. So what was that burden of what we call burden of proof that they had to meet? It's clear and convincing evidence of grave misconduct or neglect of duty. Okay. Clear and convincing evidence. Not that there was some anomaly with the data that was involved with the papers because that much was given. We all acknowledge that there was weirdness in the data. Rather, it's clear and convincing evidence that you had caused or intended to produce that anomaly or those anomalies within the data, right? So this is not within your field of expertise. It's mine. Let's talk a little bit about what it means to say clear and convincing. You know, ordinarily in a civil case, a civil lawsuit, the plaintiff or complainant or anybody who wants something from the court has to prove something by what's called a preponderance of the evidence standard. And that just means that the jury or the judge, the fact finder, must believe that the charge is more likely true than not. But that wasn't the standard in your case. In your case, the burden the business school had was not a preponderance of the evidence, but clear and convincing, which is a much higher standard of proof. It's not quite the beyond the reasonable doubt standard of criminal law, but it's still very substantial. So now I want to just unpack this standard a bit because when we get to the actual evidence, not with you today, but with others in later episodes, I'm going to argue that the evidence doesn't even meet the preponderance standard because your claim, and I'm convinced of this as well is not that you couldn't prove my guilt, but I'm not guilty, period. I didn't do anything wrong. But the reason it's important to think about the standard here is because, again, it just makes clear how bizarre this whole action was or bizarre that it was allowed to proceed as far as it did. Because to meet the clear and convincing standard, fact finder must have what's referred to as a, firm conviction of your guilt. And that guilt must be, quote, highly probable, absence, quote, serious or substantial doubt. So again, we're going to be asking when we get to the evidence whether that standard's met. And I'm going to ask the listener when they hear the evidence whether they think that standard is met, but especially whether they think the standard is met in the way that, you know, some prominent courts have described it. So the Ninth Circuit Court of Appeals said clear and convincing means when the evidence, quote, leaves you with a firm belief that the conviction or conviction that it is highly probable that the factual contentions of the claim or defense are true. New Jersey Supreme Court says the, quote, evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved are true. Colorado Supreme Court, quote, if considering all the evidence you find it to be highly probable and you have no serious or substantial doubt, end quote. I might be biased. Of course, I am biased. I have a view here. I'm advancing my belief on the basis of view. But I'm going to predict that no fair listener, after they hear the evidence, which will come in the later episodes, will be able to conclude that the evidence comes anywhere close to these standards. And not surprisingly, I guess you would say, because you have said, and again, I believe you are right about this, that you did not in fact commit academic fraud. Okay, so the hearing committee, the faculty committee that was to determine this eventually was to receive these documents, the complaints, the answer, any exhibits associated with them, and then the testimony about them, and then weigh that. And hearing that to determine whether by clear and convincing evidence they had established you were responsible for the data anomalies that had been identified. Now, that was a big job. It's a hard job. So by the end, how many pages was the record that this committee was supposed to understand to do its work? Over 2,500 pages. 2,500 pages. And during this process, beginning with the process of the third statute, what were the rules that were applied to you? Like what were the obligations that you had during this process? The largest one was confidentiality. The third statute procedure stated that any public statement or publicity about the process has to be avoided. And then what's interesting is that the hearing committee, in a sense made the rules around confidentiality even tougher. So in one of their memorandum to us, they indicated that this is a confidential personal matter. And so anything related to the third statute proceeding could not be disclosed. And in fact, if any information would to be disclosed, there would be consequences because the committee might determine that there was bad faith on the part of the person disclosing. So you were essentially, once again, gagged in this process, as you were at the very beginning by the business school, watching the world talk about you and this process, but unable to talk back in this process. So when you think back on that, how did that make you feel as you watched that? Were you good at ignoring it or not paying attention? Absolutely not. I had so many emotions when learning about confidentiality because it truly felt like I was in a cage. I finally had explanations for the anomalies. I was ready to talk about them, and I just couldn't publicize them. I just had to stay quiet. And what's interesting that some of my co-authors reaching out were making comments about the fact that it seemed like I was just sitting and waiting for the leave to pass. And they had no idea about the process that I was going through, what it entailed, and what the truth about the anomalies was. Right. So you believe you're coming to understand, developing a way to understand and explain what these anomalies were and how they were created. You couldn't talk about it, but everybody could talk about the anomalies on the outside. They could accuse you of committing fraud, knowingly committing fraud, and you're tied to not saying anything about it. Now, the weird thing about this confidentiality to me is that when I heard about it, I kind of thought it would be forever, but what was striking about their rules is that the confidentiality ended at the moment the process was over, right? Yes. So there was an additional confidentiality request before the hearing. So there we were asked to sign an agreement, a confidentiality agreement, by which we couldn't talk about the hearing forever. And that is the point where I decided not to sign it. It just seemed really strange, especially in a world where HBS had pushed for the HBS report to be public. And now the world thinks that I have committed fraud when that was not the case. Right. So you would have been unable to do what you're doing right now. Talk about this procedure. There was one side of the story that had been published and your side would not. And you and your lawyer said, no, you're not going to sign that. And at that point, they backed off, right? And they said, okay, well, you at least have to maintain confidentiality during this process. That's right. And it was a difficult decision because, again, you're thinking through, will there be negative consequences by pushing back? But it felt the right decision to make. Yeah I think it was Okay so we have a process complaint answer then a hearing And so when was the complaint actually filed I don know the exact date because when he was attached to the October 25 note he had no date but probably late June early July of 2023 Okay And so this complaint incorporated the HBS report, right? Yeah. So it's based on the HBS report. Yes. And so your job then, or the job of your lawyers was to file an answer to that complaint. And that's what you and your lawyers then worked on. And you worked on it for one year, right? For one year, you guys were working through this complaint and building the response to the arguments they had made to make it clear to the committee that in fact, the allegations were not correct. Is that right? Yeah, that's all correct. So July 28th to August 1st. And one of the most important elements of this complaint was a forensic report produced by a company called Maidstone, which had done the analysis to support HBS's conclusion that there was academic misconduct here. Okay, so let's talk about the answer that you finally completed after one year or year's worth of work. So how long was this answer? It was 93 pages, single spaced. Wow. And were you proud of it? Were you proud of what it could show? I felt it was a really strong answer. In fact, I think I'm very naive. I thought that when the answer was submitted, I thought that the committee would look at it and read it carefully and possibly decide to have an open conversations about the fact that We recognize that HBS got it wrong, and so we're going to end the process. Yeah. Yeah, I would say that was naive. But I can see, based on the answer, I can see why you could feel that, because it is an extremely powerful document responding to the Maidstone claims, the complaint based on the Maidstone claims. And so when you think about what it showed, like what do you think it actually showed? He did two things really well. First, he told this story for what it was. Why is it that we got to where we are? Why is it that Harvard HBS got it wrong? And importantly, he previewed the arguments that my independent experts would be making. And also he previewed my testimony. And it explained how Mainstone and HBS were wrong, not just about one of the allegations, but across all four. Okay, so you're laying out exactly why the evidence that the business school had relied on was mistaken and that it didn't show what they thought it showed. And you had your own forensic experts who had looked at the same material to draw this conclusion, the conclusion they drew. and let's just emphasize again, because it was a long time ago when we did the other episode with you, you didn't get to have those forensic experts until after HBS had made its determination that you were guilty. They had the Maidstone report, and they determined you were guilty, and then you could hire your forensic experts, and your forensic experts could then point out the problems in the Maidstone report. Okay, now we're going to cover more in detail the specifics of the Maidstone errors in the subsequent episodes. But if you had to characterize the Maidstone report, what kind of mistakes did it make? And more importantly, what kind of conclusions did it or did it not draw when it was looking at the evidence against you? What Maystone did was to analyze different versions of data files for each of the allegations. And in particular, they were looking at an earlier version of a data set and a later version. And what they did is identified some discrepancies between the earlier version and the later version. But what they didn't do is explain the discrepancies. I don't even think that that's what they were asked to do. And also what they didn't do is to say these discrepancies are fraud and Francesca is responsible. That is actually a conclusion that the HBS investigation committee made, not Maidstone. Maystone. And Maystone also made some errors in their analysis. I think the one that stands out to me is in looking at the discrepancies, they ignored the fact that there was a column in one of the data sets that said, exclude these participants. And so, of course, they saw a discrepancy since the excluded participants were in fact excluded in the later data set, but then they realized that that was the case. Yeah. So this is just a classic example of how Now, had you had your own experts to review the Maidstone report at the time Maidstone made their report, before the business school committee had concluded you were guilty, they could have pointed out these mistakes. They could have pointed out the weaknesses. And maybe Maidstone would have corrected them. Maybe they would have withdrawn them. But the point is, at that point, before a conclusion about your guilt was made, there could have been an exchange to reveal the weakness of the foundation that this was all going to be based on. You have said that when you filed your answer, you had this naive belief that they would read it and say, huzzah, okay, we're finished. We see that there's no guilt here or at least no ability to show by clear and convincing evidence that you're guilty. You filed this on August 1st, 2024. And two weeks later-ish, on August 16th, Harvard was supposed to submit its testimony in support of its complaint. To be clear, it's not the complaint, but the evidence to support the charges in the complaint. Is that right? Yeah, that's my understanding. And I expect, you know, you were expecting that part of that testimony would again be the Maidstone reports. Yeah, and throughout the HBS, sorry, throughout the third statute proceedings, HBS kept saying that the HBS investigation process was a painstaking and comprehensive process. And they kept referring to the report as the reason for the third statute proceedings. So what I expected to do was to just respond to those analysis. In fact, that's what you had spent the last year working on responding to. Okay, so then August 16th happens, and Harvard makes its filing, and its filing was not quite what you expected it to be, right? So what did Harvard do on August 16th? HBS dropped Maystone, And what they submitted instead was a 230 pages report by Stanford professor Jeremy Fries. Okay, so who's Jeremy Fries? He's a professor of sociology. And what he also does is interested in social science methods. Okay, so he is a tenured professor at Stanford. does he typically do kind of expert reports like this? No, and in fact he mentioned that this was the first opportunity that he had to do something like this. Okay, so you're expecting evidence that's explaining the Maidstone report and the arguments from that to demonstrate your guilt. You would spend a year preparing the response to that. this 230 page report is dropped on you and the maidstone report is gone and this becomes the basis of the harvard prosecution against you this new report yes and i remember reading it and it was a shock i i felt shattered i remember standing in front of my husband greg and trying to explain the situation, the disbelief, and asking him to take the kids away so that I could spend the next month just trying to address this additional report. And it just felt awful. I sent my kids away with my husband earlier to focus on the response. And now I was doing, again, the same thing. And I remember my husband looking at me and say, hey, you're in the ninth inning, stand up straight and give it your best game. I'm going to take off with the kids and let you be. And I just had so many tears coming down my face. Yeah, I mean, it's literally astonishing. I mean, it's not astonishing that they would want to do this. You know, given the weakness in the mainstream report, the reports that HBS had relied upon to find your guilt in the first place. It's not surprising they would want a different report. But I think it's literally astonishing that this would be allowed because you had spent, how much money had you spent at that point to write the defense to the Maidstone report in the original complaint over the course of that year? It was over $2 million. Okay, $2 million and 14 months of work, a year plus the time before that. And now you had to start over with a brand new report. But even worse, you had had one year to prepare the response to the first Maidstone report. And now you were given one month to prepare a response to the second. And was that all you had to do in the course of that one month before everything was supposed to be completed? Not really. I had to respond to the report that Friese wrote, but that also required going back to the data, trying to understand his analysis and point out the places where he was wrong. And I had to figure out how to do that in a way that didn't create a Frankenstein type of response because I have the data collada allegation to address, the Maidstone reports to address, what the committee suggested. and it was almost starting from scratch. And I remember being home alone and every day of that month, I woke up and glued myself to my chair and worked for 14, 16 hours a day. And you have to also remember the context. We have lawyers on each side and as we are trying to pivot and respond to the report, there are constant back and forth in between lawyers for requests that Harvard is making. At that point, it was the forensic image of my computer. Okay, so let's focus a little bit about how the freeze report was actually different from the Maidstone report. Like, what was it, if you had to summarize, that characterized the big differences between the two reports? It had new charges. It brought in new evidence to sustain those charges. And it also presented very different analysis. But what was also striking is that Fries did something that Maidstone did not do. He constructed what he called the falsification scenarios that, according to him, explained how the anomalies could have been created in a way that indicated fraud. Falsification scenarios. Falsification scenarios. And personally, I found it really hard to read what he wrote, because he had such great confidence in this falsification scenarios. And yet they came from a person who knew nothing about my research practices and how I worked. Right. So these were hypothetical ways in which fraud might have been committed. And the question was whether these would convert into clear and convincing evidence, evidence that is firm and creates in the minds of the fact finder a firm belief or conviction that it is highly probable that they are correct. that's the aim that they were trying to achieve. And this falsification scenarios was the first time, I just want to emphasize this point, because it's important, first time in the whole of this process, where people had painted these hypothetical scenarios as a way to produce evidence that this is in fact what you had done, right? that's right and he came at a really tricky moment uh for some of the analysis again i wanted to have more information and by then discovery was over yeah let's be clear about that so like when he produces new charges and new evidence um if you're going to respond to that you might yourself need some evidence so the typical way you would do that is ask for discovery the process of getting evidence from the other side. But the timing for discovery was over. The rules of the committee forbid you from having any more discovery, right? That's exactly right. So no more discovery. So you have this one month period where you couldn't get even the evidence to respond to the extent you needed the evidence to respond to these new charges, new allegations, and these falsification scenarios. Stanford's not far from Hollywood, but maybe this is an aspiration to his Hollywood career as he writes the theory of how fraud is conducted. It just felt like I had got punched again and I had my hands tied in my back. Yeah. Okay. So you had great lawyers. I really liked your lawyers. They objected to this new report. They objected to this whole process, right? They asked that the report not be considered, stated that the hearing committee were to endorse the substitution of this new report over the maidstone report quote the integrity of the hearing will be compromised and will be conducted under protest and over the strong objection of you responded right yeah and were they surprised themselves did they like i don't want to reach confidence here but was this something that anybody was expecting everybody was incredibly shocked. And again, not only I had to pivot, but all my experts had to pivot. Yeah. Pivot, because they had developed expert reports based on the allegations that had originally been made. Now there are a whole bunch of new allegations that were made. And so they needed to shift what they were looking at and how they were looking at it. That's right. And again, over a very short period of time. Yeah. okay so your lawyers objected the objection was denied you asked for more time i did i did ask for more time since we needed it and you didn't get any more time we did not all right um so let's be clear about the core mistake here right you know the hearing committee was free to consider whatever evidence it wanted but hbs had made it clear that it didn't really consider the hearing committee to be what we would call a primary fact finder. I mean, that's lawyer speak for, you know, what the, for example, ordinary jury trial court does. They hear the evidence, they weigh the disputes, they make a determination. It was clear that Harvard Business School didn't want the hearing committee to do that because when you had asked for the time to lay out all of the evidence and your response to the evidence, you'd ask for six days, The business school said, you don't need six days. You only needed two days because all of the factual work had already been done by the investigative committee in the business school. So now we've already gone through the mistakes that that committee made originally, the process mistakes, gagging you and forbidding you from actually investigating the charges against you, forbidding you from attaining your own forensics firm. And of course, that made this investigative committee a particularly terrible fact-finding court. No court gags the defendant or denies her the freedom to develop expert support to defend herself. But now the point is even stronger because Harvard itself had determined that what the investigative committee had done was flawed because it was based on a report that Harvard itself was now no longer or the business school was no longer using to prosecute the case against you. It decided to withdraw the Maidstone report, substitute a whole new report. And that new report was really new. The evidence was new. The charges were new. The theories, the falsification scenarios were new. And so given this fundamental shift, I would have thought, you know, the obvious thing for the hearing committee to do was to say, hey, hold up here. you know in the language of judicial litigation you could have said look you don't get the opportunity to reach high your case in this appellate court you either defend the judgment or we'll send it back you can you can try it again then you're in your investigative committee and see whether what freeze says stands up but it's completely wrong for what in effect the business school had argued should be an appellate court to basically hold its own trial or if that's what they're going to do. It's completely wrong to do that while limiting your opportunity both to develop a defense by giving you just one month to respond to a 230-page report and by presenting a limit on the defense that gave you just two days to now respond to all this new evidence. So I'm going to call this fundamental mistake number two. The first fundamental mistake was gagging you during the investigation. The second now is for the hearing committee to become, in effect, the primary fact finder. And not just because this is not what a part-time committee could reasonably have been asked to do, but also because it conducted this primary fact finding enterprise so incredibly poorly. And even now, worse, you're faced with a record that's just a total mess. So what did your team at this point believe they needed to accomplish in their final filings with hearing committee? I think you said it correctly. And well, it felt like a mess because this fundamental mistakes had a really important implication which was we need to defend what in the record We need to build on the response that previewed our arguments But in addition to that we need to really dig deep into the 230 report by Freeze and ensure that every single explanation that he provides or different theories, we address it. Yeah. So you've got – you're fighting on four fronts at the same time, including the data collada allegations. So all of these things are out there for you in this short time to respond. So by September 13th, less than a month after they replied, you needed to answer everything in this new complaint, which you did. What exactly did your team then produce in response to all of this stuff? So my testimony, my reply was 181 pages. My forensic expert submitted a report that was 203 pages long. Then I had data experts that submitted a 43-page report and a behavioral science expert that submitted a report of 64 pages. And then we had written testimony by three different witnesses. Okay, so in the end, Harvard had submitted about 1,700 pages against you. considering the report, the complaints, the various experts and fact witnesses, plus the supporting materials like the data files and copies of the relevant emails, you'd responded with about 600 pages. So that's a total of about 2,300 pages for this part-time faculty committee to work through without considering the supporting materials that they could also be referencing. Okay, so two weeks after that, two weeks after September 13th, the end of September, Harvard was given the last word against you. What did they file at that point? At that point, Dean Datar and the research integrity officer submitted a supplemental statement, and then Freeze submitted a 112-page rebuttal to our September 13 submission, and then a forensic expert that was hired by HBS submitted a 62-page rebuttal too. Okay, so all of this is weird because you don't normally, at least in a criminal proceeding, it's the defendant that gets the last word on the facts. So here they are giving the last twist to the facts that the committee is going to have a chance to review. But okay, you know, it's not a criminal trial. Maybe just say whatever about that. But the point is there's a big mess sitting before the committee. And so the committee now is to conduct hearings. And there are just two days of hearings scheduled. And this is November 15th and 16th, which I think are Friday and Saturday. That's right. Because that's the only time they could fit because they all are busy professors doing all the things busy professors do. And so the hearing begins. So let's fill in the context a little bit about what is the hearing like? Where is it? What's the room feel like? I think that people might feel like it's a science presentation and instead it was not. The room felt very much like and looked very much like a courtroom. So you have the committee sitting on one side of the room with their counsel by their side and also a chair where people, in a sense, would get deposed or cross-examined. There is a podium in the middle of the room, and then behind the podium you have one side sitting with the lawyers and the other side sitting with the lawyers. And I remember not even being able to see some of the committee members, which in a context like this one was really hard. And because they were far away or because? Because the podium was right in the middle of it and is blocking the view. And so I was there with my forensic expert and HBS had their forensic experts in the room. And then the witnesses would come in at the time at which they were cross-examined. And it was just a surreal moment and a surreal room. HBS brought this large billboards to show the committee, and that was really strange. And if you just look around, there were more lawyers than faculty members. So HBS has one set of lawyers from, I think, Ropes Gray is their lawyers, right? That's right. Really great Boston firm, really, really good lawyers. And then the committee, you said, had its own lawyers or lawyer, I guess, was one lawyer was present. Were there more present? I believe there were a couple of them plus Harvard General Counsel. General Counsel was present. So I think there were five or maybe even six lawyers on the HBS side. I had two. There are lawyers everywhere. Yeah. So you had two, and then the committee had two or three. And then there's just seven members of the committee and you, and then the witnesses. Okay. So you were given six hours of testimony or six hours to present your side of the case. And so in those six hours, you were supposed to examine the HBS witnesses, present your own defense, show the mistakes in the Maidstone report, which though Harvard had walked away from it, the committee was free to consider it if it wanted. show the mistakes that HBS had made based on the Maidstone report, show the mistakes in the Freeze report, and also try to explain your theory of what had happened with these four papers written up to 14 years before, as we're going to get to in a minute, to explain how these anomalies had been produced. So when you think back on the hearing, leaving the hearing after those two days, How did you feel about what had been presented? The hearing was very contorted in a sense. Again, rather than talking science, you have time that is constrained where you have the opportunity for direct arguments and then you're cross-examined by lawyers. So the feeling was weird as I left the room. But I remember thinking that if the committee decided on the merits of the case, then I would be back to HBS as a professor. I felt good about the arguments that were made. And then I remember feeling really exhausted. I was cross-examined on day two of the hearing. And I basically woke up with no voice whatsoever, which somehow felt very fitting to the moment. Since, again, it was just a really constrained process and last two days. Were there big surprises that came out of the hearing that you hadn't expected? The most shocking one was the research integrity officer when he was giving his testimony. There were a lot of things that he said that either he has a bad memory or they were just lies. So he, for example, claimed that he encouraged me multiple times to hire a forensic firm. That's not true. But when he was asked about those conversations, he said, I don't remember. Or he mentioned that the evidence in the HBS investigation was not full evidence because I somehow directed which files to copy on my computer. And when asked why is it that Francesca directed which files to copy, he said, oh, because we wanted to protect our privacy. And as it turns out, he was so concerned about my privacy that there are 400,000 files in a folder called the personal that has family photos and my tax returns. And so it was just painful and shocking to hear him say consistently, I don't remember. And again, this is the research integrity officer. He didn't remember, except he did remember the critical fact, which would negate the strongest charge against the business school committee, which was that they gagged you and forbid you from hiring a forensic firm when they themselves had hired a forensics firm. Yeah, that must have been hard to watch. Okay, so after the hearing, three weeks later, you guys have to submit another post-document filing, some 20 pages. And then seven weeks after that, on January 24th, the hearing committee issued its findings and recommendations. And those findings were against you. And the hearing committee recommended that your tenure be revoked. Now, let's talk a bit about this document that they released. I'm going to post it on the website and on the substack. We know from the header data that it was drafted by the lawyers working for the committee. It might not be surprising, I don't know, but you've got a 2,500-page record, 2,300-page record. I don't know whether you count the exhibits, but whatever. How many pages long was this findings and conclusion? It was 11 pages. Okay. And in those 11 pages, how many citations are there to the record that had been developed? There was none. It was actually quite shocking not to see any. Yeah. I mean, you know, even the United States Supreme Court feels obligated to point to the evidence that supports its findings or its claims. This document reads like edicts from Zeus, but as we'll see in the episodes that follow, that this was not the work of Zeus or at least an omniscient Zeus because we'll see the obvious mistakes and flat-out falsities that are within this report. We'll see it does nothing to explain how it could conclude by clear and convincing evidence that what it did established your guilt. But the point I want to emphasize here, again, is just the failure of this process. They had airdropped new charges three months before the hearing. Well, considering the rebuttal, you could say it's one and a half months before the hearing, but with no real meaningful opportunity to respond. The record was already complex, extremely long, and these were already part-time fact finders. We'll work through, not with you, but with others, what their mistakes were. But at some point, it should have been obvious that there was something deeply flawed about this whole enterprise. Harvard had spent many more times than you could afford to buttress the conclusions of an HBS faculty committee, conclusions based on a report that HBS itself abandoned. But rather than rerunning that process after they had abandoned that report, rather than a new HBS committee being given a chance to evaluate the charges against you, grounded in Frieze's report and give a real chance to respond to Frieze's report, Harvard used the hearing committee essentially as this primary fact finder and that fact finding had gone against you. And so at this point, when I read this, I volunteered to try to carry the burden of the next step in this case. I mean, I thought your lawyers had been great, But I was eager to help because as I unpacked what had happened, it struck me that this case was not really just about you. It was, of course, first about you, the extraordinary injustice that you had suffered. But it was also about this astonishingly bad process by Harvard, not just the business school process that had gagged you when you needed to actually mount a defense. But this whole bait and switch process with the third statute proceeding. Yes, spend a year and $3 million building a defense against this complaint. And then, oops, sorry, you need to race in the next month to build a new defense against a new complaint with multiple new charges and new theories and falsification scenarios added in like icing on a cake. And so when I thought about that, it just felt like insult added to injury when I read this extraordinary line from the hearing committee's report, and I'm going to quote it in its full. Quote, much of Professor Gino's presentation at the hearing focused on her criticisms of the HBS inquiry and investigation. Although we do not find her criticisms compelling, they are ultimately irrelevant to our determination because we did not defer to or rely on the outcome of the HBS inquiry or investigation, nor did we limit this proceeding to arguments or evidence presented in that forum. End quote. Now, I don't know, maybe I'm too naive, too idealistic in my understanding of what fair process would be, but anyone who would look at this process from the gagging of the defendant during the most critical time to gather evidence, to the fact that the report that was the basis of the finding of guilt was essentially withdrawn, to the bait and switch on the charges being made against her to a forensic report filled with charges and evidence never reviewed by anyone, anyone who would look at that process and say that the criticisms were not compelling, obviously, in my view, this is a technical legal term, does not know jack shit about process. This process was an embarrassment. No one accused of academic misconduct should be restricted in developing a defense before a committee concludes that she is guilty. In developing that defense, the target must be free to hire whatever experts may help her make her case to the initial fact finder. She must be free to interview anyone who would have had relevant knowledge to demonstrate her innocence. She must be given adequate time to develop her defense before a committee determines her guilt. And should an allegation be made as far, make it as far as a third statute proceeding, the allegation must be fixed at the start of such a proceeding, not subject to changing claims and new experts arriving midway through. And most obviously, if it does change, the hearing committee just should return the process to the school raising the complaint. Do your own hearing. Bring those results to the hearing committee. The idea that the hearing committee could be a primary fact finder, as they say, we did not defer to or rely on the outcome of the HBS inquiry or investigation, is flat out bonkers. And anyone who doesn't see its embarrassment is simply not looking. Okay, so am I overreacting here, Francesca, or is that how it felt to you? It felt that way, for sure. It felt as if the target kept moving. Yeah, and that's a problem with process, with fair process. And there was no fair process here. It felt very unjust. which brings us finally to one more extraordinary error of process so as will be clearer when we get to the four allegations three of those allegations were about papers written a long time ago when were the allegations related to um two through four written Allegation four was about a paper now 13 years old. Allegation three was about a paper now 11 years old. And allegation two was about a paper that is now 10 years old. Okay. So you've had – you're not terribly old. You've had a significant career. So how many years have you been in this business? Over 20. Okay. 25. And in those 25 years, you've written how many papers? 140. So we're now talking about four papers over those 25 years. And the allegations in this case are about four papers, three of which are at least 10 years old. Now, anyone with any sense of fair process would ask a pretty obvious question here. Isn't there the equivalent of a statute of limitations about such charges? Is it really the case that an academic can be forced to defend a 13-year-old paper, forced to show how the data for that paper was collected, by whom and when? For example, as you're here in the next episode, Allegation Was 4 was about a study conducted in 2010 while you were at the University of North Carolina, right? Yeah. And so tell us about that study. That was a study where Mike Walshra and I were looking at whether signing a pledge of honesty would affect the honesty in the reporting by the person who signed. And so we had different conditions, three conditions, one in which there was no pledge of honesty, one in which there was first the pledge of honesty, and then the reporting of what participants did. And then there was a condition where first participants reported their performance, and then they signed a pledge of honesty. And the idea was that people would be more honest if they signed the pledge of honesty first. Okay. So how was the data collected for that study way back in 2010? It was collected on paper, which was very common at the time. Okay. And so as it just turns out, and amazingly, it makes you seem a little bit like a pack rat, but amazingly, you discover that you still had the paper receipts for this, right? That's right. And it's not so surprising because when the study was conducted, we're back in July of 2010, I was in between jobs. So I was moving from UNC to the job at Harvard that would officially start on August 1st. So I likely brought the receipts with me. Okay, so you packed them in a box and they put it in the moving van and it was moved up here and thrown into your garage or something like that So it turned out to be hidden in your garage And so you know you might ask well what if you didn happen to have the receipts Because these receipts as we hear when we go through this episode are really important in establishing your innocence with respect to the charge that was made here But what if you hadn't had the receipts? The question, the fair process question is, can it really be fair, right, that somebody is forced to defend something a decade ago that they would have no reason to continue to have the evidence to be able to defend yourself? Now, some people might hear that and say, why not? You know, fraud is fraud. Why should we allow somebody to get out, get away with fraud? But the reason we have statutes of limitations is not to allow somebody to get away with something. It's instead because we understand that evidence grows stale and it doesn't grow stale in an even way. It might grow more stale for the defense, as it were, than the prosecution. Either way, it becomes incomplete. And any effort to understand what happened a decade ago will be skewed by the incompleteness of the evidence. No one keeps email forever. Harvard, by default, flushes email after a certain number of years. Its own data retention policy, say, for research materials, they're not to be kept for more than seven years. But maybe one party in a dispute is obsessive and archives everything from his own email. Then the facts will be framed about what he saved, even if what he saved is a skewed or biased view of what actually happened. And this is why, in fact, there is a statute of limitations for charges of academic misconduct at Harvard. And as that rule provides, quote, allegation about research that is more than six years old cannot be investigated unless the scholar has continued or renewed an incident of alleged research misconduct through the citation, republication, or other use for the benefit, for the potential benefit of the respondent of the research record in question. Okay. Obviously, the unless clause here is pretty complicated. Let's do it again. Unless the scholar has continued or renewed an incident of alleged research misconduct through the citation, republication, or other use for the potential benefit of the respondent of the research record in question. Okay, let's do a little bit more to unpack this mess. It's clear that the unless clause is basically saying that the staleness is not an excuse if you have, quote, continued or renewed an incident of alleged research misconduct. And I think that much makes sense. If you've got a data set that you fabricated in 2000, and you use that same data set in 2025 to write another paper consistent with its fabrication, the mere fact that you first use it in 2000 can't block you from being charged with that fraud in 2025. But the ambiguity comes from the specification of how one, quote, continues or renews an incidence of alleged research misconduct. The language after that clause says, quote, through the citation, republication, or other use for the potential benefit of the respondent of the research record in question. So that complicated clause has three parts. One is, quote, through their citation, republication, or other use. Second part is for the potential benefit of the respondent. Third part is of the research record in question. So that too is a mess. It's a simpler way to say that is to say through the citation, republication, or other use of the research record in question for the potential benefit of the respondent. Okay, now, even so clarified, this raises an obvious question. What if I just simply cite an article I wrote 20 years ago? If I just cite it, like I say, as I wrote about this 20 years ago, blah. Is that my, quote, continuing or renewing an incident of alleged research misconduct through the citation, republication, or other use of the research record in question for the potential benefit of the respondent? In a literal sense, it seems the answer to that question must be yes, because why am I citing the article unless it's to benefit myself? And the rule expressly mentions, quote, citation. But the problem with literal interpretations is that they are often literally absurd. Because what this interpretation would mean is that if an academic keeps a list of his citations on his website or cites them in a string site in a paper, he is persistently liable for a charge of academic misconduct for everything he's written for as long as he's been writing, or put it another way, the only way an academic gets the benefit of the statute of limitations, if this is the way it is interpreted, is to stop citing articles of his that are more than six years old. Now, the drafters of the rule, it turns out, recognized that this ambiguity was a problem. So in September 2024, late in your prosecution, they clarified the rule, specifying that, quote, the subsequent use exception applies to the citation to the portions of the research record alleged to have been fabricated for the potential benefit of the respondent. Now, in my view, this is a completely sensible interpretation. It's a little bit opaque. You can unpack it like this. What it's saying is that the subsequent use exception, the exception that allows them to prosecute a 13-year-old paper, for example, depends on showing that the academic has cited to the portion of the research record alleged to have been fabricated. So if you cite a paper that pulls together a bunch of research but not point to the portion of the research record alleged to have been fabricated, that would not be subject to this exception. But if you pull the alleged fabrication out and write a new paper based on it, or maybe if you point to this section, this particular study that was the fabrication, then maybe it would be subject to this objection. Okay, so that complicated rule, but again, it's their job to interpret the rule that they're supposed to be implying, a complicated rule. How do you see that complicated rule applying to the four allegations in this case? When I use the clarification to the rule, then what you see is that I did not cite the portion of the research record that was said to have been fabricated within the last six years. Yeah. So what you did and what we're going to do is we're going to post all of the examples of your citing so people can look at how you cited them and you can see that how you cited them is basically the way that you would cite just a string site of things that you had worked on before. You would not cited to the portion of the research record said to be fabricated. And so if that's true, you would not be within the exception, which means that if that's true, you should not have been prosecuted for all four of these papers. At most, you should have been prosecuted for just one. Okay. Now, astonishingly, the HBS committee didn't even bother to explain why it was allowed to investigate, because remember, the rule says you cannot investigate the charge if it's more than six years old. They didn't even explain why they were allowed to investigate these three papers despite the rules. The third statute proceeding did explain why they were allowed to investigate and prosecute for these despite the rule. But it held that the mere citation of the article, not the citation or use of the allegedly fabricated data, was enough to triggered the exception. And my view is that is just a plain misreading of this rule. And again, you listeners can verify, you can look at the citations as we post them on the website, you decide whether it fits this exception, which we'll also post with a little bracket that shows you exactly how it has changed. But as I read this reinterpreted rule, what this means is that three quarters of this case should never have been in the case. Three quarters just disappear, which means that 75% of the over $3 million that you have spent and 75% of the who knows how much Harvard has spent, obviously much more than you because they had five times the number of lawyers you had working on this case, would never have been spent. Now, again, the argument doesn't wipe away all four. One claim would remain, and we'll see in the next episodes as we address the evidence for each of them. We'll see that the evidence for this one is also embarrassingly weak. But we'll call this, I'm going to call this fundamental mistake number three and recognize just how astonishing is the waste that this process has spread, given the narrowness of the only legitimate case that could have been brought here. Data Collada was free to raise questions about whatever it wanted. It wasn't bound by a rule that said that the allegations older than six years, quote, cannot be investigated. But Harvard was bound by that rule. Despite being forbidden under its own rules from investigating three of the four allegations against you, it has forced you to defend all four. Now, somebody might say Harvard wasn't forbidden. It was free, someone might say, to interpret the rule in this absurd way, in a way that means that no one is ever free from an allegation of misconduct. And that's true. But then at the very least, Harvard should be honest about that fact and not pretend, either to the public and certainly not to its faculty, that it gives anyone the benefits of a limitations rule. Under its interpretation, it does not. Under its interpretation, citing work you have done in the past is enough to expose you to the burden of defending yourself against a charge of fraud from that work, however old. And that burden, as we've seen in Francesca's case, is an extraordinary burden. Okay, so let's bring this episode to ground. You submitted your appeal of the hearing committee's determination on March 14th. When was the next you heard from the administration? It was May 20th in 2025. And how did you hear from them? Through a one-paragraph email. So we've got the email here. I want to give it to you and ask you to read it. Can you read the email? The subject is Message from President and Fellows, and I'm going to read the text. At the request of the President and Fellows of Harvard College, I write to inform you of the President and Fellows' decision to accept the findings and recommendations of the hearing committee and panel to consider the matter concerning Professor Francesco Gino of Harvard Business School, pursuant to the third statue of the university, and to remove Professor Gino from her appointment as a tenure professor at Harvard University. University. And then there is the signature. Okay. So when the dean of the business school informed you of the business school's decision, they had the character, at least, to call you into the office and confront you face-to-face. Here's Harvard dismissing you effectively in a one-paragraph email. Is there something you noticed about that email? They misspelled my name. It's Francesco instead of Francesca. So they send you an email that misspells your name to tell you you've been dismissed. They haven't responded to your appeal. They've given you no explanation beyond that. And so when you read that, notice this. How did that make you feel? It felt cruel. It lacked humanity. I had spent 15 years giving my heart and mind to the institution. I taught, I did research, I mentored and advised. I thought of myself as a good citizen. I am certainly from perfect. And if I were to go back, I would spend time thinking about how to improve the practices in the field. but I did not commit academic misconduct. And that email was such a hard reality. I had spent almost two years on unpaid leave navigating through a process that was truly an insane emotional roller coaster. And here we are about three weeks before the end of my leave. And I got fired this way. And I kept thinking about what this university stands for, which is Veritas. And with this modern mind, I just still, I didn't understand what I went through. And to this day, I don't get it. It was not a search for truth. It was just a really painful process that I don't wish on anyone. There will be some who hear this and think to themselves, okay, fine. But if you committed academic fraud, you got what you deserved. And I think it's a fair thought. In the next episodes, we're going to work through whether anybody could fairly believe that the evidence shows that you committed academic fraud. And so from my perspective, it's both because I think there's no sufficient evidence that you committed academic fraud and that I think that this process was an embarrassment to a great university that I thought it important that we find a way to tell this story. So I'm grateful you've put yourself through these two interviews. These will probably be the last times we talk, although depending on how the next episodes unpack, we might find it helpful to bring you back at the end. But I'm grateful you would suffer this for us too, Francesco. I really appreciate you talking to me, Larry. And I appreciate the courage that you're showing in making sure that people know more about my story, my side of the story, but also I hope that it causes people to pause and reflect on the type of processes that were used here and that that changes. That ends the third episode of this season of the podcast, The Law Such As It Is. In the next episodes, we will turn to the actual papers and the claims of academic misconduct made against each of them. I will be joined in that conversation with a friend who has studied this case as carefully as anyone. And as I said at the start, I have invited Data Collada to participate in these conversations, but I've not yet received any reply to my request. Now, some might think it weird to ask Data Collada to participate. They, after all, began all this. But as I've said from the very beginning, I don't fault them for raising questions. I praise them for raising questions. Once they had raised those questions, it was for Harvard to fairly and accurately evaluate whether the anomalies that Data Collada had identified could fairly be tied to Francesca's intentional actions. They didn't conduct that investigation, Data Collada. They're not responsible for whether Harvard got it right or not. So I was hopeful, I remain hopeful, that they could participate in the postmortem of what Harvard did and what Harvard concluded to see whether they agree with the decisions that Harvard has made based on the evidence that was adduced beyond the anomalies they had identified. We'll see. Stay tuned. This podcast, The Law Such As It Is, is my production. The actual producing of it is done by Josh Elstro of Elstro Productions. This episode marks the end of the conversation with Francesca, and the next two or three conversations will then cover the substance of the charges, as I've just said. And then at the end, we will have a reflection on what we might learn from the whole of this extraordinary process. I've been inspired or condemned, you can decide which, to try to tell this story through a podcast, in part because there are so many different parts to think through, and to think through them slowly is, I think, the best way to think through this issue. But it's hard for some to keep up with the pace or to slow down to the pace in the classic picture. Perhaps this is the best image of the moment we are in, in our time as a culture. Someone tweeted about this new podcast. Here's what they said, remembering, of course, that from the very beginning, I've described how each step of this podcast will introduce more of the case and that the final proof that there is no evidence to convict Francesca will come at the end. After the second episode was released, this is what this tweeter said, quote, a new passionate defense of Francesca Gino, this time a podcast series by Lawrence Lessig. I'm tired of reading Whataboutism on this case, so I fed the released transcripts to Claude to check if there was finally an explanation for the data anomalies. Lol, you know the answer. Yes, we know the answer to whether there's finally an explanation for the data anomalies in podcasts that have said we are not yet getting to the explanation for the data anomalies, but stay tuned. We will get there. And then we'll see if Claude will agree with the conclusion that I've drawn that this prosecution was based on a mistake. Thanks for listening. I hope we can get to the next episode soon. This is Larry Lesson. FATALLA Enigma FATALLA FATALLA Enigma FATALLA