Sunday, October 16, 2011

Prosecutorial Indiscretion

On February 8, 2010, Israel's ambassador to the US, Michael Oren, rose to speak before a crowd of students and local residents gathered at the University of California, Irvine. But not everybody in attendance was there to hear what he had to say.

As is well known by now, a group of students from UCI's Muslim Student Union (along with some of their peers from UC Riverside) stood up one at a time to shout down Ambassador Oren, in accordance with a plan the group had prepared in advance. They were successful: Oren was unable to continue with his remarks until the last of the eleven "activists" had been led from the hall in handcuffs.

The University, having long remained silent despite numerous instances of hostile behavior on the part of the MSU, finally took action. The administration banned the MSU from campus for one year (later shortening the already minimal suspension to a single academic quarter). Faced with overwhelming outrage from the Jewish community, Orange County DA Tony Rackauckas filed charges against the eleven participants for "disrupting a public meeting" and for conspiring to do so. The students (save one who had earlier agreed to a plea bargain) were recently convicted and sentenced to 56 hours of community service, probation, and a token fine.

Victory? Maybe. But I tend to agree with noted Constitutional scholar and dean of UCI's law school Erwin Chemerinsky, who wrote:
Unless there is harm to persons or property–or a serious threat of this–district attorneys are almost always content to leave discipline to school authorities. This is exactly what Rackauckas should have done. No one was hurt, and no property was damaged. After the disruptive students were escorted away, Ambassador Oren finished his speech. The students acted wrongly, and they were punished by the campus; there was no need for anything more.
Dr. Chemerinsky goes on to conclude that the DA "failed... to do justice". Here we part ways: there is no question that justice was done. The students broke the law and were arrested, tried by a jury, and properly convicted. But in his main argument, that Rackauckas should have exercised his discretion to avoid filing charges in the first place, Chemerinsky is correct.

The dean's primary interest may be the intrusion of law enforcement into internal University matters. But I'm more concerned with the megaphone that the prosecution has put into the hands of MSU and their supporters. Thanks to the trial, the self-described "Irvine 11" have become the darlings of the far left, anti-Israel, pro-Hamas mobs. Coverage of the trial and verdict has gone global, from the Jerusalem Post to the New York Times to al Jazeera. Most of this coverage inclines favorably towards the students, who have engaged in a relentless publicity campaign, making hay while the sun shines.

It's hard to blame those who view the "Irvine 11" sympathetically. Yes, the kids are bullies, and anti-Semitic bullies at that. But my own kids will be in college very soon, and it seems to me that if they were to get arrested and tried for shouting at a lecture, I would be outraged. It would matter little what agenda they were promoting—such questions would be eclipsed by the seemingly greater injustice of the prosecutors' abuse of discretion. It shouldn't surprise us then when the MSU kids' families and community respond in the same way.

This didn't have to happen. Without a trial, there are no op-eds in national and international journals, no speaking engagements before crowded mosques, no fundraising letters hinting darkly at the justice-perverting power of "the Israel lobby". Without a trial, there are no new martyrs inspiring the enemies of Israel and America. Without a trial, the event is local, the consequences local, and the media coverage local.

We have only ourselves to blame. The Orange County Jewish community, in its appropriate but overwrought outrage at the MSU's frequent thuggish behavior, has played right into the hands of our opponents. In exchange for the dim comfort offered by the convictions, we have handed our enemies two invaluable assets: a cause célèbre and a set of attractive young icons. If this is victory, it is a Pyrrhic one at best.

When will we learn? Some anti-Israel or anti-Semitic incidents, galling though they may be, simply do not merit a sustained, pugnacious response. Nuance, too, has its place. Discretion has its place. And, frankly, simple good judgment has its place as well.

There are times when a quiet conversation will accomplish far more than a public prosecution. Irritating and offensive though it was, the UCI incident was one of those occasions.


  1. This comment has been removed by the author.

  2. The Irvine 11 was not an isolated incident. The MSU was responsible for some reprehensible antisemitic incidents on campus. The reason that the DA eventually brought the criminal suit was because the University did nothing to protect the Jewish students. This was in reality the last straw.Sometimes it is important to not be a "shashtil Jew" and actually stand up against those wishing to do you harm. By the way, Alan Dershowitz has written a very good editorial about how this act by the MSU was illegal in every sense of the word.

    Alternatively, even if it were bullying...there is no such thing as ONLY bullying or has your child never faced attack at school? Bullying is a form of assault and should never be condoned.The college you speak of only punished the students becasue of the law suit and then only minimally reinstating their "club" after a few months.

    Furthermore, it was a conspiracy to deprive another person their constitutional rights of freedom of speech,as proven by their own emails. It was not just a student heckling a speaker.It was a civil rights case.

    If your children are heading off to college perhaps you had best rethink your position about what a college student is allowed to do or shoudl be punished for. Remember every college has a code of conduct. Unfortunately US Irvine did not impose the code of conduct on the MSU.

    Antisemtism on college campuses in the US is epidemic and noone, the US government included does anything about it.In fact according to OCR antisemitic incidents are not prosecuted since the Jews do not constitute a "race." Even though historically courts have considered "race" to include "ethnicity" or "religion." You may want to have a body of law that actually protects your child from harassment and attack simply because they like being Jewish.

    I suggest you go visit a college near you during that wonderful antisemitic hate fest called Israel apartheid week. Thentell everyone whether you think Jewish students need laws that protect their right to walk around campus without fear of attack.

  3. Thanks for your comments. You point out that there have been previous incidents, and that the University took no action in those cases: I agree, and said so in my post. You point out that the students broke the law, and conspired to do so: I agree, and said so in my post. You point out that bullying is unacceptable: I agree. I was bullied as a child. I would have been happy--thrilled--if the school had taken action, as it did in this case (but sadly, not in mine).

    You suggest I visit a campus during hate week. Well, actually, I worked at UCI for nearly five years, about three of which featured the MSU's hate week. Their behavior and rhetoric was reprehensible, though in general not criminal. However, in 2009, the MSU did clearly violate the law (and campus policy) by raising money on campus for a fundraising affiliate of Hamas. Had the participants been tried for that crime, the prosecution would have enjoyed my full support.

    The bottom line is that we have given our enemies a gift here, a gift they do not deserve but are taking full advantage of. Next time I hope we'll eschew the instant gratification of our need for justice in favor of thoughtful pursuit of our long-term goals.

    Thanks for visiting Writer of Wrongs!

  4. not one jew was on the jury

    the da is not jewish

    the jewish community had little to do with either uci's punishment of the 11 or the oc da choosing to prosecute

    prof chermirinsky is wrong. when one group decides that another has no right to free is a crime (the cali statute is clear)

    and what victory have they gained?

    there was a solidarity event held at uc berkely....raised a whole 200 bux for their defense

    except for the very far left and other muslim one cares about these thugs

  5. Thanks for your comment. Your criticism is well taken in that I didn't draw a strong connection between the Jewish community and the prosecution. I took it for granted that my readers would be familiar with the outrage in the community and the efforts, both individual and organized, to see the students punished. That's all true, but in my short piece I did not spell it out.

    Dr. Chemerinsky did not argue that the students had not committed any crime, and neither did I. To the contrary. But not every crime needs to be punished--that's the essence of prosecutorial discretion.

    We appear to agree that the students are now being trotted out to raise funds for our enemies. To paraphrase Churchill, now that we know what they are, the only question is the price. In my mind, the price is high, regardless of how many dollars are raised at one specific event or another. Their newly bestowed ability to persuade and incite will cost us in the ongoing battle for our campuses.

    Thanks for visiting Writer of Wrongs!

  6. A few more comments:

    I'm having a discussion on Twitter with tweep @BuberZionist on this topic. He points out that, according to this guy, there has been an escalation in arrests on UC campuses for protesting. @BuberZionist's point is that these are just 11 more such arrests, nothing special or unusual.

    But recall that my contention is not that the students didn't break the law, but rather, that we as a community did ourselves a disservice by clamoring to see them prosecuted. None of us would be discussing this now if there'd been no trial. The ongoing chatter and debate serves their ends, not ours.

    According to radio station KPCC (hat tip again to @BuberZionist), the "Irvine 11" will be filing an appeal. If you scroll down a bit you can read my response to that idea. Put simply, it is this: as the proposed appeal has no merit on its face, it can be nothing but a publicity stunt. And it is precisely publicity that this group has been seeking all along.