Wheeler Protesters Sue Regents, Chancellor





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Attorneys for the Wheeler Hall protesters filed a lawsuit late Monday demanding the elimination of key university evidence from the students' judicial hearings.

The evidence in question is police reports collected after UC police arrested then-UC Berkeley senior Roberto Hernandez during the April 9 sit-in at Wheeler Hall.

In the reports, police allege Hernandez bit a police officer and attempted to bite another officer during the sit-in.

"Without that evidence, there really is no evidence at all (against Hernandez)," said Dan Siegel, one of Hernandez's lawyers.

Forty-one students were arrested by UC police during a protest calling for university divestment from Israel.

The arrested protesters were found "factually innocent" of all criminal charges in June by the Alameda County District Attorney's Office, which included disturbing the peace and resisting arrest.

The university later charged the student protesters with violating the Code of Student Conduct.

When a county court finds someone "factually innocent," California penal code 851.8 requires law enforcement officials to seal arrest records and destroy the records after three years. The university, therefore, is legally required to eliminate Hernandez's arrest record, the lawsuit stated.

But the legal interpretation offered in the lawsuit is disputable, said Jeff Blair, a UC attorney involved in the case.

"The penal code does not require you to light a match and burn up every piece of evidence you have in your possession, which is what they basically are asking," he said.

The lawsuit also stated Hernandez has a right to an open hearing, which the university has denied upon request.

The university has also violated several of its own policies during Hernandez's hearing, according to the lawsuit.

The committee hearing Hernandez's case should be comprised of five members-as stipulated in the Code of Student Conduct-to include two students, one staff member, one faculty member, and a faculty chair-instead of the current three, the lawsuit stated.

The university should form a new committee with five new members because the current members have already seen Hernandez's police reports, Siegel said.

The university must also release audio tapes of the hearing to Hernandez's lawyers, he added.

According to the Code of Student Conduct, "the Office of Student Conduct will make an official audiotape recording of the hearing, a copy of which must be made available to the accused student or student organization upon request."

But Director of Student Judicial Affairs Neal Rajmaira, who objected to Hernandez's lawyer Anne Weills' request for the tapes at Friday's hearing, said allowing potential defense witnesses to hear other witnesses' testimonies would taint their testimonies. He pointed to the committee's order to prohibit Dean of Students Karen Kenney from attending the hearing because she served as a witness for the university.

Hernandez's lawyers "at the very least" should have filed the lawsuit before the hearings began or waited until all the hearings are over to pursue legal actions, Blair said.

"You can't go part way through the procedure (of the hearing) and quit in the middle," he said.

Although only Hernandez's hearing has begun, the other students charged with conduct violations also signed on to the lawsuit.

Hernandez's hearing-the first of at least 32 hearings-began Sept. 30 and has not yet concluded.

At least 32 of the 41 students who originally faced university hearings agreed to work together with Siegel prior to the hearings.

The lawsuit stated that the students charged with conduct violations believe the university will use their arrest records against them in a way "banned by (the state) penal code."

Siegel, who graduated from Boalt Hall School of Law in 1970, said he has been involved with UC Berkeley politics since he served as the ASUC Student Advocate.

"The university is being as harsh as I've ever seen with these students," he said. "They're treating them like the enemy."

Hernandez graduated in May and was accepted into a UC Berkeley doctorate program. The university has withheld his bachelor's degree pending the outcome of his hearing.

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