Dozens of thoughts cycled through my mind today as I anticipated and then heard the Orange County jury’s verdict for the Irvine 11 (although only 10 were tried).  The Orange County District Attorney charged the 10 students, for those unfamiliar with the case, with a misdemeanor violation of California Penal Code Section 403 which states in part, “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character… is guilty of a misdemeanor.”  The prosecution also charged the students with a violation of California Penal Code Section 182, commonly known as conspiracy, which states in part, “If two or more people… conspire to commit any crime… they are punishable…”  The students were alleged to have “conspired” to disturb an assembly or meeting. The charges arose from an incident where the students disrupted a speech by Israeli Ambassador Michael Oren on the UC Irvine campus. Today, the jury found all 10 students guilty of both misdemeanor charges.

Charge

The Orange County District Attorney’s decision to charge these students with misdemeanors shocked and startled me; a true injustice and ill-advised use (and abuse) of authority.  Although the charged code sections do exist on the books, they are obscure.  In fact, in my nearly 4 years as a public defender in the state of California, I have never seen anyone charged with violating Penal Code Section 403.  More telling, I didn’t even know it existed until these 10 students were charged.  In as much, it was as if the Orange County District Attorney went out of their way to find a charge that would fit the students’ behavior.  The prosecution apparently had the students in the crosshairs, singled them out, and utilized an obscure statute to get their pound of flesh. UC Irvine authorities had, through their own processes, administered punishment on the students and their affiliated campus group.  Charging the students with misdemeanors served no rational purpose and essentially piled on further scrutiny, attention and resources on an event that had been dealt with and adjudicated.  

The students, as far as I know, had no criminal history or prior history of school disciplinary issues.  They deserved to serve any punishment levied by the school and move on with their lives without being subjected to a criminal prosecution for their nonviolent behavior.  Such was the opportunity afforded to me and my schoolmates when I was a freshman at UC Berkeley in 2000.  That year, the university selected United States Secretary of State Madeline Albright to deliver the commencement address.  Dozens of students (and non-students), including myself, stood up during her speech at the Greek Theater and repeatedly interrupted her words, protesting against the United States sanctions against Iraq and her attempts to justify the deaths of thousands of Iraqi civilians and children. Security authorities removed me and my comrades from the event, took down our information and let us on our separate ways.  No school disciplinary proceedings, let alone criminal charges.   On the contrary, the Irvine 11 not only received the wrath and discipline of campus authorities, they were also accused of crimes by the state. Unfair and unjust.

Pretrial 

After anyone is charged with a crime, misdemeanor or felony, several stages of pretrial negotiations and discussions occur where alternatives to trial are discussed.  In fact, as most know, most charged crimes don’t end in trials; instead they end in some sort of plea bargain.  In the case of the Irvine 11, my assumption is that similar negotiations took place.  

As a public defender representing one of the charged Irvine 11, my goal would have been to secure a deal of community service for dismissal of all charges. If such a deal were offered to my hypothetical client, I would advise them to take it; do the service hours and move on.  Surely, it was offensive that charges were levied and a trial would provide an opportunity to prove a point and be exonerated.  But fighting the case at trial, with risk of misdemeanor convictions, jail time and fines, would not be worth it relative to the chance for a dismissal.  The ultimate goal in a criminal case is a dismissal or not guilty verdict.  If it takes doing some community service hours, suck it up, finish the hours and walk out a free man/woman.  On the other hand, if the students’ goal was less about a dismissal and more about putting their plight on display for the world to see, then only trial would serve that purpose.  

One of the charged Irvine 11 received and accepted an offer of community service for a dismissal of all charges against him.  One would assume that the other 10 were offered the same deal. The students should have been given the opportunity to earn a dismissal given their lack of criminal history and the minor nature of the charges. If they weren’t given such an offer by the District Attorney, that would be injustice #2.    Absent an offer to earn a dismissal, the students had no choice but to fight the case at trial to have a chance at exoneration.

However, if the DA presented the same offer as given to defendant number 11, the Irvine 10’s decision to reject it and fight the case at trial was unwise; the case should have never gone this far.  

Trial

Jury trials are ridden with inherent risks.  Juries are not lawyers or constitutional scholars.  They can and will do wacky, unexpected things.  No matter how defensible a case might be or how unjust some charges may appear, when the jury retires to deliberate after a trial, anything, including resounding guilty verdicts, can happen.  In as much, the unpredictability of juries would be another reason to avoid trial altogether, especially if a path to a dismissal were offered to the Irvine 11.

Although the charges against the Irvine 11 screamed of selective and discriminatory prosecution, the crime alleged, on the surface at least, fit the the conduct exhibited by the students.  I was not privy to what specific evidence was presented at trial, but it appeared that the students, as the law stated, did in fact willfully disturb an assembly or meeting and did conspire, or agree, to do so.  By the letter of the law, from my view from hundreds of miles away, it appears that the jury got it right by finding the students guilty.  As Erwin Chemerinsky, dean of the UC Irvine School of Law, noted, the students had, indeed, broken the law.  Any expectation to the contrary would have relied on some form of jury nullification; for the jury to find the students not guilty, they essentially would have had to disregard the charged crime and the law surrounding it and find that the code section charged was unjust and should not apply to the Irvine 11. Surely, I hoped and prayed that the jury would utilize such logic and find the students not guilty.  

However, as much as people are condemning the jury verdict as unjust and a blow to free speech rights, it merely was the jury doing their job: applying the law, as stated, to the facts of the case. Professor Chemerinksy stated it succinctly:  “There’s no free speech right to disrupt an event.”  The jury didn’t attack or diminish our free speech rights; the California legislature did when it enacted Penal Code Section 403 and the Orange County District Attorney did when they charged the students with crimes.