Responding to a recent op-ed in the Orange County Register by District Attorney Tony Rauckauckas — whose office led the prosecution against the Irvine 11 students — that further berated the non-violent protesters, calling their action “organized thuggery,” two of the 6-member legal defense team say that “Rackauckas’s office desperately seeks to repaint itself in a sympathetic light following the tremendous outcry in Orange County and across the nation against the aggressive and unprecedented prosecution.”
Attorneys Reem Salahi and Dan Stormer represented members of the Irvine 11, the group of Muslim students who protested during a speech by an Israeli official in February 2010 and who were subsequently arrested and charged with criminal conspiracy counts — leading to a month-long trial that ended last week in convictions. Supporters and solidarity activists around the country and around the world were shocked at the jury’s verdicts, and the defense team and the students are filing an immediate appeal.
In their responding op-ed (also in the Orange County Register), published on Thursday, Salahi and Stormer continue, in part:
In Rackauckas’s self-righteous rant, he conveniently ignores the time and hefty monetary resources expended in this vendetta prosecution. Similarly, Rackauckas is notably silent about the serious misconduct of his top attorneys and investigator who acquired and maintained privileged communications and used at least one attorney-client communication to bring charges against a student. As a consequence, three top district attorneys and the lead investigator were removed from the case weeks before trial. While Rackauckas espouses illogical claims about the First Amendment, he never mentions that his office undermined the students’ Fifth Amendment rights to due process and against self-incrimination during its prosecution.
Rackauckas ends his column by stating that “this case needed prosecution.” It is thus appropriate to highlight how this case was prosecuted. Rackauckas claims that this case is about the violation of the First Amendment, alleging that “The First Amendment rights of the 700-member audience were violated.” Yet, even a first-year law student could tell us that only the government can violate one’s First Amendment rights. Derivations of nonexistent rights and violations were made throughout this prosecution like one’s right to emotional stability.
Following the 11 students’ arrests on Feb. 8, 2010, the students and the Muslim Student Union underwent protracted university administrative proceedings at both UC Irvine and UC Riverside which lasted up to eight months. Ultimately, the universities imposed sanctions against the students and the Muslim Student Union and UC Irvine publicly expressed satisfaction with its internal discipline.
Yet during that time, Rackauckas’s office sent two investigators from the Special Prosecutions Unit who tried to intimidate students to testify against their peers. One student informed us that the investigator banged on his windows and door at 7 a.m. on Sunday yelling “Police, open up!”
Another student told us that the investigator went to her grandmother’s house and accused her grandmother of hiding the student. That same investigator was subsequently seen talking to neighbors. These are but two of many accounts of students and community members who were bullied by Rackauckas’s office. In fact, during this investigation, community members and interfaith leaders sent letters to the Orange County DA expressing concern over the investigation and the intimidation tactics being used. The response was essentially “butt out.”
Between September 2010 and January 2011, the Orange County District Attorney’s office issued five search warrants to obtain the private emails of the 11 defendants as well as other UC Irvine students. The warrants falsely indicated a felony investigation. At no point were the students or their attorneys informed about the search warrants prior to the filing of charges against the 11 students. In fact, after receiving the tens of thousands of emails obtained by the OCDA, defense attorney Reem Salahi discovered privileged communications between her and her clients. Subsequently, the court ruled that the OCDA had improperly possessed 20,000 pages of attorney-client and work product privileged communications. As a result of this misconduct, the court disqualified three top district attorneys and their lead investigator from the case. The OCDA immediately entered into an agreement to drop the charges against the 11th student in exchange for community service because they could no longer rely on the privileged communication which they had used in bringing charges against the student.
Then in January 2011, the district attorney issued eight grand jury subpoenas. Six students and two UC Irvine administrators were compelled to testify about the protest and the university administrative proceedings under threat of criminal contempt. Grand juries are almost exclusively empanelled in felony investigations, yet Rackauckas’s office, again unprecedentedly, used the grand jury in this misdemeanor investigation. During the grand jury, one of the district attorneys admitted to a defense attorney that they resorted to use of the grand jury because some of the witnesses would not voluntarily testify. In other words, the DA used the grand jury in a misdemeanor investigation to intimidate witnesses and acquire information they would have otherwise been precluded from obtaining.
On Day 362 out of 365, the OCDA filed two charges against each of the 11 students, including the 11th student who was arrested as he was leaving the hall with dozens of other protestors. Rackauckas’s office assigned the head of their homicide unit, Assistant District Attorney Dan Wagner, to try this misdemeanor case.
During the prosecution, Rackauckas’s office, and specifically his chief of staff, Susan Schroeder analogized these students to the Ku Klux Klan and intimated that they were anti-Semitic. Rackauckas’s office issued a press release about the charges and published court documents as one of only six links on the OCDA website’s homepage. In reviewing the OCDA’s website, the authors were unable to locate other press releases or documents related to any other misdemeanor prosecution.
… If anyone has acted like organized thuggery, it is Rackauckas and his office. They preyed on the weakest and most vulnerable elements of society: youth, students and religious and ethnic minorities. They employed the mighty power of the state to obtain the private emails of the defendants and other students from Google, AOL and Hotmail and then compelled university administrators and students to testify before a grand jury. They maintained and relied upon privileged communications in violation of the law. In their aggressive prosecution, Rackauckas and his office acted in complete juxtaposition to the will of the universities and the local and national communities, as seen by the countless petitions, emails, editorials and columns. They have criminalized dissent based on its content and engaged in a racist and selective prosecution of students that chills our collective First Amendment protected activities. This prosecution has been an affront to the constitution and our concept of justice.