Wheeler Protesters Have Their Day in Court

Monica Lam contributed to this report.





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OAKLAND-An Alameda court judge heard statements from attorneys representing UC and the Wheeler Hall protesters yesterday, although he did not issue a ruling.

The nearly three dozen students charged with violating the student conduct code during an April pro-Palestinian protest at Wheeler Hall filed a lawsuit against UC Regents and Chancellor Robert Berdahl Oct. 7. They alleged that university officials illegally used arrest records in the hearing and violated rules in the Code of Student Conduct. University judicial proceedings are postponed until the judge makes a final decision.

Despite the students' attorney's attempt to prohibit the university from hearing a case that has already been litigated in court, Alameda Superior Court Judge James Richman indicated he would not likely rule on stopping university hearings completely.

Richman also said the politics of the protest would not affect his ruling.

UC attorney Jeff Blair strongly argued that the university hearings should continue. He added that if university officials did use problematic evidence, the Alameda Superior Court should, upon completion of the hearings, review whether the university used the evidence appropriately.

Blair cited an internal UC doctrine which requires the parties to fully utilize their "administrative remedy" before following a court order.

In presenting the case to eliminate the use of arrest records in university hearings, the students' attorney Dan Siegel pointed to state penal code 851.8, which requires that law enforcement officials must "seal their records of the arrest" and, after three years, "destroy their records of arrest," after a judge grants a factual finding of innocence.

Richman, however, questioned the idea of completely wiping out the students' arrest records from his courtroom, saying he could not erase the facts.

In the case of Roberto Hernandez, the protester charged with allegedly biting a police officer, Director of Student Judicial Affairs Neal Rajmaira earlier this month redacted all evidence with reference to the word "arrest," following advice from campus attorney Michael Smith.

Siegel presented an example of the redacted evidence in court yesterday, which consisted of UC police reports with the words "arrest" marked out. Siegel argued that crossing out the word "arrest" did not sufficiently comply with the penal code.

The protesters' lawyers later joked that a child would be able to identify the crossed-out words.

"At (2 p.m.), the group occupying the foyer area of Wheeler Hall began discussing among themselves whether or not they would voluntarily exit the building, or face ----. The group unanimously decided to be ----," the police report stated. "Lt. West advised all present they would be subject to ---- ... A total of 79 persons were ----."

Siegel challenged the makeup of the three-member committee that is hearing Hernandez's disciplinary proceedings.

According to the Code of Student Conduct, "the committee shall consist of five members: two students, one staff member, one faculty member and a faculty chair ... Alternate students, faculty and staff shall be appointed in numbers sufficient to ensure that a standing committee, operating with a quorum of at least three members, can always be convened."

Siegel said a three-member committee should only serve in the event that Student Judicial Affairs officials are unable to obtain five members, but Blair insisted the code does not explicitly "stick a needle in your eye" state that the university must try its hardest to have a five-member committee.

"You have to be pretty Draconian and pretty strict to intervene here," Blair responded when Richman pointed out the word "shall" in the code.

Siegel also said the university should only close the hearing if demonstrators disrupt the hearing, later adding that open hearings help ensure fairness.

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