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.
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