Thursday, March 19, 2009
I have Michael Sinanian's response to Nathan Shaffer's motions.
On severence of parties, he makes the argument that Dina Omar is not actually a defendant, since the case is against "Proponents of the Recall." This is pretty silly, since his charge sheet also identified Omar as one of the people who should be contacted as a defendant in the case. If his argument is that every proponent should be seen as a defendant, he has a much longer list of names he needs to add to his contact list.
He then argues that she's a proponent because she contributed to the website which was essentially the petition. This makes her a petition circulator, and thus a proponent. Both sides have interesting arguments on the question of whether or not Omar is a proponent, but I still think it isn't relevant to the question of whether she's a defendant in this case.
He also reprises my sorrow in the RSF fee increase case:
Ms. Omar could have just as easily filed the petition and launched the No2Hate website herself, but this did not occur. Instead, another party was brought in (Mr. Shaffer), to apparently act as a 'buffer' between Ms. Omar and the recall effort. It would seem apparent to any reasonable observer that the proponents of the recall were engaged in an effort to deliberately conceal the identity of the person who actually initiated the recall. There is a deliberate attempt to conceal the fact that the progenitors of the recall were not one or two people, or simply Mr. Shaffer and his colleagues from the UC Berkeley Boalt School of Law, or the individuals on the balcony on the evening of November 13, 2008 (hereinafter "the Incident"); rather, it was all of these parties acting in concert. It would be a dire mistake to assume there is somehow no "face" to the recall. There certainly is a face; there certainly is representation on the part of the proponents, and that is Mr. Shaffer along with Ms. Omar. Thankfully, the by-laws provide clear definitions unpacked above that expose said "face."There are a lot of factual claims about who did what, some of which are implausible, some of which I know are not true. It nevertheless reminds me of when the ASUC couldn't hold the RSF responsible for its campaigning because they were working independently of the ASUC officials who proposed the fee on the RSF's say-so. It will be a bit frustrating if the Judicial Council decides that this time, this argument works.
On the idea that there is no evidence that Shaffer intentionally falsified information, Sinanian argues that Shaffer didn't show enough skepticism. It also includes the argument that the reason the petition text didn't include the fight was because Shaffer doubted the "integrity" of the accounts, which is one (and only one) possibility. It's hardly conclusive, as there are other explanations. The less specific the petition was, the more people could project their own greivances onto it, and it could succeed Obama-style. Only when they had to compete for votes did the fight need to become central.
Let's put two passages side-by-side:
The primary proponent of the recall (especially being a law student) should have approached the situation with a far greater degree of skepticism. The allegations made by the Palestinian students were quite serious, and given that the statements made by others at the event contradicted them, it would have prompted any reasonable person to rigorously examine and investigate the claims made. Based on the video evidence, not even the most haphazard investigation seems to have been conducted.Well shit, Mr. Attorney General, shouldn't the seriousness of the accusations have prompted you to rigorously examine and investigate the claims made? I guess you didn't even make a haphazard investigation. Given that the plaintiff didn't have any more luck discovering "The Truth" than the defendant, it seems like it'll be tough for him to argue that Shaffer intentionally falsified things.
Additionally, the proponents' statement in the Voter's Guide was verified and unchallenged by the plaintiff (as Attorney General) because he was operating under the premise that Ms. Omar's statements were not falsified.
He then argues that, because the Judicial Council can issue the "corresponding sanction," it can issue the sanction he asks for. Why his request is what corresponds isn't really mentioned.
He also argues that, since the case was already accepted, challenging its acceptance is moot because the Judicial Council already ruled on those issues. This probably correct in practice, but I would think due process (and the right to appeal) should give the defendant an opportunity to argue against acceptance at some point, and there's no opportunity to do so before the charge sheet is accepted.
Sinanian kicks the nonsensical claim preclusion argument to the curb, not that he even had to try in order to do so.
On the suppression topic, Sinanian argues that the case is about the disparity between the Voters Guide statement and the original petition. I guess his argument is that the disparity is illegal (though what that has to do with this charge is unknown), but that the fight was the impetus for the petition and so the video is relevant. Given that falsifying the Voters Guide is a violation on its own, it's not clear why this disparity needs to be considered, though I suppose he may be trying to convince the Judicial Council that overstepping the By-Laws is warranted. In a way, he's still fighting the specificity case. I suppose the argument is that, since the recall was motivated by the fight, then Shaffer's claim that the Voters Guide statement was only meant to give people information, not tell them what happened, is incorrect. While we all know Shaffer put the accusation in because he wanted people to think it was true, I wonder if it can be proven.
Apparently, Moghtader is going to allow the defense to see the video, which eliminates that suppression argument, but doesn't want it released publicly.
He is taking such measures with the video evidence because he is under the strictest compulsion not to release the video from higher authorities such as his attorneys, who are trying to build libel cases using the video as the seminal piece of evidence.In Soviet Russia, lawyer hires you! I guess I don't see legal advice from your lawyer as "the strictest compulsion."
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