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Nap Time!!!

Wednesday, June 14, 2006
Nitty, Gritty, and other ttys

I'll just run straight down the decision. If you want a copy, go here.

It's unanimous with the four Judicial Council members at the hearing: Sonya Banerjee, Amaris White, Stephanie Lam, Carmel Levitan.

Suken Vakil's affidavit was eventually suppressed so that he wouldn't testify against himself (a constitutional right). This has the consequence of limiting the ability to claim perjury in this case, as was possible.

The shakiest part of the decision, I think, was the ruling that Vakil, in answering questions from the Judicial Council, was acting as a witness. The reasonable argument made in the decision was that, because he was answering questions about facts, rather than presenting arguments or asking questions, he was acting as a witness rather than a spokesperson, and therefore was subject to being guilty of perjury which is specific to witnesses. This was important because charges that he was misleading the Judicial Council as a spokesperson were dismissed, and would have had to be dealt with at a later time had the Judicial Council not ruled this way. While I think the argument presented in the decision made sense, I'm a pretty strict proceduralist, and the language is noted in the decision: "Article 4 Section 12.1 of the Judicial Rules of Procedure explicitly defines a 'witness' as 'any individual other than a spokesperson who provides testimony before the Council in a hearing.'" Under the ruling of the Judicial Council interpreted this to mean that individuals act in either the capacity of "spokesperson" or "witness," and are considered differently depending on which capacity they are acting in. However, individuals can flow between these two capacities in the course of a Judicial Council hearing.

The concern I have with this reasoning is that it apparently leaves one side of the case without a spokesperson when the Judicial Council starts questioning spokespeople as witnesses. Note that these people can raise objections as "spokespeople" in the process of being questioned as "witnesses." There are other concerns as well, which arise through the rest of the decision, and I'll highlight them as they come up.

The decision mentions "the fact that after the Judicial Council asked Vakil questions on matters of fact, the opposing counsel, Attorney General Nathan Royer, was allowed to ask him follow-up questions to his responses, thereby effectively engaging in cross examination of a witness" as part of this reasoning. I was at this hearing, and I don't recall this being the case. Now, it's possible that my memory is mistaken, but this is something that I think I would've remembered. Royer was allowed to respond through further questions from the Judicial Council, but I don't recall him being allowed to directly cross-examine Vakil. Note that this would be vital in a determination that Vakil was acting as a witness.

The next few pages discuss the pretty damning evidence that Vakil was full of shit when he was making his comments. I don't think there was any doubt about this, so I'll just note that it was present, and overwhelming. The decision explicitly recognized them as witness testimony, rather than part of Vakil's argument.

One thing notable is that hairspray was used, but no receipts were filed for it. If anyone wanted more censures, perhaps for Senate candidates... (not condoned)

My biggest issue is with the conclusion drawn from this:

When Vakil offered witness testimony to the Council that he knew to be misleading, or guiding towards a false impression of reality, he was knowingly providing untruthful testimony. Hence, Mr. Vakil should be found guilty of "perjury" and held in contempt of Council for the ASUC v. Student Action Executive Slate hearing.

Note that he is being found guilty of perjury as a "witness." This led to the finding of contempt. This, in turn, led to the default judgement:

Individuals found in contempt may be asked to leave the proceedings, may be forcibly removed from proceedings, may be disallowed from appearing again before the Council, and a default judgment issued against the party the participant sought to benefit.

This is from the JRPs, under "behavior of litigants." Clearly, if one of the "spokespeople" for a party is held in contempt, that side could be on the losing end of the default judgement. Here, however, it was his behavior as a "witness" that led to this result. As a witness in a case where he wasn't the defendent, he had no right to refuse to answer questions that would incriminate him, and in any case, he need not have been answering in a manner that "sought to benefit" the defense. On the other hand, "individuals" are held in contempt, not "roles," so the remedy may have been appropriate. Still, with the earlier part of the decision, the term "individuals" was read to mean "individuals at a particular time in a particular role," which is why someone who was a spokesperson could also be a witness at some other time in some other role, despite the definition including the word "individual." Of course, contempt is connected with individual behavior, while testimony is not, which could explain the differences.

The next part of the ruling has to do with the responsibility of the defendants for Vakil's behavior, which seems pretty straightforward, except for the self-incrimination thing I mentioned above.

The decision also notes that the defense crew was evasive and uncooperative, often, helping each other when they had not "requested legal counsel."

The events of both hearings point to an organized effort on the part of Student Action to conceal the truth and obstruct the judicial process, which directly threatens the democratic institution of the Associated Students of the University of California.

I think this is a claim above and beyond what could be reasonably proved, and I think the Judicial Council overstepped itself in claiming this. Had such behavior indeed been such an effort, and had the Judicial Council felt that way, it should have thrown the offenders out of the court for contempt, not incorporated it into a decision, as there appears to be no real legal rationale for the incorporation. The point of this incorporation was that the actions were severe enough to warrant the default judgement that Andy Ratto sought. I also disagree that the default judgement is "mandated in the JRPs," as the passage I quoted earlier is filled with the word "may." I think the Judicial Council has far more of flexibility in determining how to respond to contempt than the decision suggests, though the decision does explain why the violation was severe enough, anyway.

The other campaign violations Andy raised were deemed irrelevant, and no ruling was made on them. If, on appeal, this is overturned, those charges can, I believe, be reintroduced.

posted by Beetle Aurora Drake 6/14/2006 10:50:00 PM #
Comments (6)
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I think folks are getting a little too nit picky about the witness/spokesperson dichotomy. When a spokesperson offers testimony they behave as a witness and are bound by the obligations of a witness, but are still bound by all the obligations a spokesperson is. When I defined "witness" in the JRPs I described them as one of two participants that offer testimony, the other being a spokesperson. The spokesperson never stops being a spokesperson even when they are behaving as a witness, or what we would commonly consider a witness.

This is why its never a good idea (from a strategy persepctive) for a spokesperson to offer testimony, they can be doubly nailed. It's always never a good idea to have your signatory do anything official aside from their narrowest obligations, the rules are strict and harsh when broken, which isn't so bad if you're a peon, but if you're the signatory the ENTIRE party gets nailed. I personally think the whole of SA should be punished for Suken's perjury, but that's just me.

All this said, folks need to remember that I, literally me with no training or real expertise, wrote the rules and they shouldn't be taken passed on stone tablets from the hand of God. I did the best I think I could do at the time to incorporate and account for anything that might come up, but major things like perjury should not be ignored on grounds that even I would consider ultra-hyper-mega technicalities. Allow for some blur and the microscopic gaps fill in nicely. When you offer testimony you have to tell the truth, doesn't matter if you're a spokesperson or a witness.
Some thoughts:

Since spokesfolk weren't listed as witnesses in this case, could they refuse to answer Judicial Council questions about fact, since the Judicial Council doesn't appear to be able to call witnesses? (Especially since I'm pretty sure the decision is mistaken about Nathan's ability to cross-examine)

I agree that Vakil should've been nailed for bullshitting the Council, but I think it would have been more appropriate to nail him as a spokesperson. The result would've been the same, I think, since Andy would've refiled those charges, and it would only cost us a couple weeks, so the result was "good" in terms of impact, but still...

And I disagree that your stuff shouldn't be taken as "from God." I believe this is true in the sense that folks shouldn't be able to change the JRPs for the better, but as the JRPs currently stand, I think they should be followed to the letter. Otherwise, it isn't fair to the litigants to anticipate how microscopic gaps get filled by the Judicial Council, and sometimes, things which seem microscopic aren't as microscopic as we think.

I'm not sure the decision was wrong, though. My criticism is pretty negative, but that's just because I have nothing to say about most of it, which I think is well-written and detailed.
Although contempt of Council is outlined under "Behavior of Litigants" (and it can be argued that a witness is not a litigant), the clause within the list of contemptible offenses that says "knowingly providing false or misleading testimony before the Council" is inclusive of the witness rule for truthfulness. Moreover, the default judgment thing says "individuals found in contempt ...", rather than "litigants" or "spokespersons", so there's no reason why this shouldn't apply to violations of witness rules for truthfulness.

I think you are trying to separate the witness rules for truthfulness from the spokesperson rules for truthfulness, but the JRPs don't do this. Instead, there are general, encompassing rules established for all participants, and specific rules established for witnesses -- the violation being called "perjury."
My understanding from Andy was that the charge concerning the particular JRP you're referring to (providing false/misleading testimony) was dismissed on a technicality, and only his status as a lying witness was being considered. As a witness, he has different rights and responsibilities, and it's not clear that the default judgement "against the side he sought to benefit" is appropriate for when a witness lies. Here I'm abstracting from the particular case, and considering: If a witness, but not a spokesperson, lies, does this warrant a default judgement? Witnesses do not necessarily participate in the hearing to benefit a particular side.

In this particular case, we have collusion or something between the spokesdude and the witness (since it's the same person), so... meh.
Yeah, I understand that. I am saying that the witness rule for truthfulness is just a specification of the general rules for truthfulness. Therefore, a violation of the witness rule results in the same punishment as a violation of the general rule. The Council certainly dismissed the charges of violating the Behavior of Litigants section, but that doesn't stop them from considering an appropriate remedy from that section if the witness rule for truthfulness is linked to it.
On balance, for the most part, for all intents and purposes, I agree with you about adhering to the letter of the law. I was, probably still am, famous for being the hardest of the hardasses in Council lore. But on things like this, it isn't terribly important to me what form someone takes as they tesify, they have to tell the truth, which is why I see little value in parsing the difference between witness and spokesperson.

I'm having a tough time thinking how spokespersons could ever be forced to testify since they could always plead the analogous fifth. They should be seen as the physical representation of the metaphysical party they're representing, and that can't be made to testify against itself. That said if they testify to something I see no problem with their statements being examined by opposing counsel, and the hearing procedure gives them express time to offer evidence and arguments, and time for those evidences and arguments to be cross-examined. In that sense testimony is the same as evidence, which is presented by spokespersons.
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