Hearing Finds Wheeler Student Protester Not Responsible for Charges

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More than 14 months after the Nov. 20, 2009 occupation of Wheeler Hall, a student conduct hearing panel ruled that a UC Berkeley student facing five counts of student conduct violations for his involvement in the event was found not responsible for all charges at a hearing that ended early Tuesday morning.

At the second part of senior Julian Martinez's conduct hearing - which started Monday evening and lasted over seven hours, pushing into the early hours of the next day - a panel consisting of two campus professors, a campus staff member and an undergraduate student determined that Martinez was not responsible for all five conduct violations after hours of statements, witness testimonial and cross-examination and consideration of evidence.

After the ruling was stated by panel chair and professor of electrical engineering and computer sciences Ronald Fearing, students and other audience members who were assembled at the hearing broke out into applause and cheers.

"I think tonight shows that when students are given a fair hearing with minimal procedural protections, the university hearing panel is not going to find them guilty of the allegations we have seen from student conduct," said Thomas Frampton, a student at the UC Berkeley School of Law and member of the Campus Rights Project who has been advising Martinez, after the hearing.

The five sections of the campus Code of Student Conduct that Martinez was charged with violating included unauthorized entry and use of university equipment, conduct threatening people's health and safety, disruption of university activities, participation in a disturbance of the peace or unlawful assembly and obstructing university officials in the performance of their duties.

At the start of the hearing, Frampton raised an objection regarding an appearance of bias in the undergraduate member of the hearing panel, Dawn Ling.

According to Frampton, a previous grievance was filed against Ling when she served on a three-person hearing panel for another student. A 17-page ruling accepted by Vice Chancellor for Student Affairs Harry Le Grande after the hearing stated that Ling had denied the student the presumption of innocence.

Ling also allegedly made a statement online that put her impartiality in question, Frampton said.

"Four days after Mr. Martinez's pre-hearing conference, Ms. Ling went online and wrote, 'Never pass up an opportunity to castrate a man,'" he said.

After a recess by the panel, Fearing dismissed the claim, asserting that the panel had ruled that all members were impartial.

The hearing proceeded with opening statements by Frampton and Laura Bennett, assistant director for the Center for Student Conduct and Community Standards.

In Bennett's presentation, she said Martinez violated the code of conduct in November by "more likely than not" aiding protesters in barricading Wheeler Hall with a vending machine in addition to entering the building in an unauthorized way and disrupting campus activities.

According to the campus Code of Student Conduct, the standard for proof in conduct hearings is a "preponderance of evidence," which is defined as "more likely than not."

The panel then took a recess to watch a video from UCPD depicting the events of the morning, including barricades being placed around Wheeler Hall and Martinez being detained by officers. After watching the video, the panel asked Bennett questions about her presentation.

The Center for Student Conduct and Community Standards then called two UCPD witnesses, Lt. Adan Tejada and Cpl. Timothy Zuniga, who described their experience with the occupation that morning. Tejada said Martinez was already handcuffed when he entered Wheeler after receiving a call on his radio that the building had been occupied, and he did not see Martinez pushing the vending machine.

UCPD Officer Ken Torres, who arrested Martinez, was not available to give evidence at the hearing. Zuniga said he entered Wheeler through an open window in Room 24 with Torres but was distracted by another protester coming toward him with his arms raised and thus also did not see Martinez pushing the vending machine.

Frampton said various sentences in the police reports written by Zuniga and Torres were identical, alleging that Zuniga copied his police report from his partner. Additionally, Frampton said that both reports seemed to show the same typo: While listing events in chronological order, both officers stated that one event happened at 6:55 a.m. and that a subsequent event happened at 6:35 a.m.

However, Zuniga maintained that he wrote his own report with incorrect times.

"Depending on how one defines verbatim, they describe similar events," Zuniga said. "As strange as Berkeley is, time does not move backwards."

Frampton then presented his testimony along with a brief statement from Martinez, who said Wheeler was already open when he entered the building and that he complied with all officer requests.

Frampton then read an e-mail from Idris Grey-Robinson - who was arrested along with Martinez but could not be present at the hearing because he lives in New York City - and Amanda Armstrong, a graduate student in the rhetoric department who was involved with the occupation but did not see Martinez during the day.

After closing statements from both parties, the panel deliberated for one hour and 45 minutes before reconvening at 1:06 a.m. to find Martinez not responsible for all charges.

Frampton said he hopes that the results of this hearing will have an impact on future hearings for other protesters.

"I would hope the university, after tonight, does what they should have done 14 months ago and drops the remaining pending charges (against other student protesters)," he said after the hearing."


Contact Alisha Azevedo and Aaida Samad at [email protected]

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