“Forever.”
That’s how long it could take to reach a resolution in the case of 33 pro-Palestinian U.C. Berkeley students charged with disrupting classes during an April 9 — Holocaust Remembrance Day — seizure of Wheeler Hall, according to one student’s lawyer.
The university already took the highly unusual step of canceling the October student conduct hearing of Students for Justice in Palestine member Roberto Hernandez after it was already well under way, and has yet to settle upon the date for his re-hearing.
Hernandez faces five counts of violating the student code of conduct, including the alleged biting of a U.C. police officer. He was the first of the 33 students to face a hearing.
The hearing was curtailed after his lawyers took the university to court over what they saw as inadmissible evidence. Hernandez and the other protesters were granted a “factual finding of innocence” by District Attorney Stuart Hing in June, which entailed a sealing of their arrest records. While the university felt it was abiding by this ruling in presenting texts with the word “arrested” blacked out, Hernandez’s lawyers felt otherwise.
Dan Siegel, an attorney for Hernandez, said not only is the arrest record inadmissible, but one could argue that video recordings of the protests and even testimony from Officer Billy Brashear that Hernandez bit his hand and “it hurt real bad” — as he claimed in the October proceedings — should be ruled out.
While Hing testified in the October hearing that he never intended for the factual finding of innocence to affect the student conduct hearings, Siegel noted that “it is an established principle in law that the actor’s intents are not relevant when dealing with a statute.”
Legal precedents, Siegel claims, rule out evidence or testimony relating to the factors leading to an arrest, not just the physical act of being arrested.
“My position is they should simply drop this thing. I think it’s gone far enough, particularly in the case of Roberto Hernandez, who’s wound up with a one-semester suspension just in the virtue of the delays. That’s a heavier penalty than they wanted imposed on any of these kids,” said Siegel, one of several National Lawyers Guild attorneys providing free counsel to the students.
“This thing could be going on forever for what is essentially a relatively trivial matter. It seems ridiculous.”
Mike Smith, the university’s assistant chancellor for legal affairs, conceded the university had abandoned Hernandez’s original hearing because evidence mentioning the arrests had already been presented. He felt Siegel’s definition of what evidence is acceptable is way off, however.
“It is our position that the statute simply calls for us to expunge all references to the fact of arrest…In my opinion, nothing in the court order precludes a police officer testifying about being assaulted by a student and the surrounding circumstances in which that occurred,” said Smith.
“The only exception is the officer is precluded from saying ‘I arrested the student’ or ‘the student was arrested.'”
Hernandez, who had been accepted into U.C. Berkeley’s graduate ethnic studies program, has had his undergraduate degree suspended during the delay. Unable to receive his financial aid, he is “in limbo,” according to Siegel.
In addition to questioning the admissibility of the evidence against him, Hernandez also complained about the lack of a graduate student on the original adjudicating panel and because the hearing was not open to the public. Smith would not disclose whether Hernandez’s future hearing would be open to the public — or to the media — and what the panel would look like.
The university had hoped to resume Hernandez’s trial on Dec. 6, threatening to hold the hearing even if he and his counsel did not show up. Siegel, however, claimed not all of Hernandez’s lawyers would be able to attend, and chided the university for unilaterally setting a date.
“I’ve been a lawyer now for over 30 years, and this is the only venue I’ve ever practiced in where hearings and trials are set without consulting the parties involved,” he said.
One thing Smith and Siegel do agree upon is the high probability Hernandez’s lawyers will take the university to court if the panel does not rule in the student’s favor.
“The lawyers for the student in this case have been quite litigious,” said Smith. “I won’t be surprised if they take us to court to seek satisfaction.