The 77-page appellate brief filed this week by the defense seeking to overturn the misdemeanor convictions of 10 of the so-called "Irvine 11" boils down to the same question that was before Orange County Superior Court in 2011: Did the free speech rights of Muslim students who loudly and systematically interrupted Israel's invited ambassador to the U.S. addressing a UC Irvine crowd trump Michael Oren's free speech rights to deliver that speech?
The defense filed notice in October 2011 they would appeal the convictions on counts of misdemeanor conspiracy to disrupt a meeting. This week's brief alleges trial errors, unconstitutionality and failure by prosecutors to make their case.
But the three-judge Superior Court panel expected to deal with the appeal in the coming months is being asked, just like Superior Court Judge Peter Wilson was in 2011, to rule on whether a California statute regarding free speech that was cited by prosecutors in the case is unconstitutionally vague.
Dan Wagner, the Orange County District Attorney's office (OCDA) lead prosecutor in the Superior Court trial, notes for the Weekly, as he did in court and will in his appeal response due within the next three months, that the California Supreme Court has repeatedly upheld the constitutionality of that statute.
Meanwhile, Wagner said, it was "literally the intent" of the students "to shut down the event, to not grant [Oren's] right to free expression." He'd presented the jury evidence of emails between the students before the diplomat's speech to make the case for a conspiracy.
If the state statute was ruled unconstitutional, the right to free speech would go to whomever has the loudest voice, contended Wagner, who expressed confidence in the prosecution surviving the appeal.
But another allegation raised in the appellate brief filed this week should also be near and dear to Wagner's heart: it accuses prosecutors of relying on hearsay evidence at trial, an argument the jury did not buy.
Judge Wilson botching jury instructions regarding the constitutionality of a university rule on disrupting speakers is a third issue raised in the defense brief.
Oren was heckled the evening of Feb. 8, 2010, because the Muslim students from UCI and UC Riverside believe he was complicit in deadly strikes against Palestinians who live on the Gaza Strip. One by one, students rose, lashed out at Oren and were promptly escorted out of the campus auditorium, where school police cited them.
The university disciplined the students and the Muslim Student Union they belonged to. But in a controversial decision the OCDA, on the final day before the statute of limitations expired, also filed misdemeanor criminal counts against Mohamed Mohy-Eldeen Abdelgany, Khalid Gahgat Akari, Aslam Abbasi Akhtar, Joseph Tamim Haider, Taher Mutaz Herzallah, Shaheen Waleed Nassar, Mohammad Uns Qureashi, Ali Mohammad Sayeed, Osama Ahmen Shabaik, Asaad Mohamedidris Traina and Hakim Nasreddine Kebir.
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Kebir later settled and completed community service before the trial ended. The jury found the others guilty in September 2011, and Wilson sentenced each to three years probation and $270 in fines, although the judge was willing to knock the probation down to a year if each finished 56 hours of community service.
Despite the students' lawyers filing the notice to appeal on free-speech grounds a month later, the Irvine 11 members were still required to abide by their sentences.