Judge Opens Door to Rare Strategy by Attorney for Campus Protesters

The facts of the case are not in dispute. Both the defense and prosecution agree that the 35 students currently on trial here were trespassing when they occupied the chancellor’s office in a protest over the teaching appointment of a CIA officer.

But Richard Frishman, attorney for the UC Santa Barbara students, using a defense rarely allowed in criminal trials, is arguing that their actions “were necessary to prevent a greater harm.”

“Yes, the students were in the building. They were told to leave and they didn’t,” Frishman said. “The question is whether this was justified or not. We are saying it was.”

Source of Danger?

Frishman said in the trial, which began last week, that the CIA officer’s appointment could endanger UC Santa Barbara students and faculty working abroad and violates the university’s guidelines on academic freedom. And, Frishman said, the appointment could damage the reputation of the campus by having a teacher who represents an organization that uses methods offensive to many Americans.

And students contended that their protest was necessary because UC Santa Barbara Chancellor Barbara Uehling refused several invitations to discuss the issue at student government meetings.

But Uehling, who testified in the trial Friday in Municipal Court, said she had met with the students a week before the protest.

“The question is: Did the students have the opportunity to express themselves and did I listen to them?” Uehling said. “I did meet with a number of students and we discussed it. To say it’s necessary to break the law because they weren’t being heard doesn’t follow.”

Protesters’ Demands

The students, arrested Nov. 5, 1987, demanded that the university rescind the two-year appointment of George Chritton Jr., a 30-year veteran CIA officer, as visiting lecturer in political science.

Most of the students are charged with misdemeanor trespassing and face up to six months in jail and a fine of $500. Nine of them are also charged with resisting arrest and face up to a year in jail and a fine of $1,000.

The use of the necessity defense is rarely allowed by judges, legal experts say. But Municipal Judge Frank Ochoa ruled last week to permit the defense in this case.

“Most courts take the position that the broader question of political theory is simply beside the point,” said Robert Garcia, a professor of criminal law at UCLA. “And they take the position that you can’t leave it the individual to choose what laws to abide by and what laws to violate.

When allowed, Garcia said, the defense usually is unsuccessful. To succeed, he said, the defendants need a jury “who shares their political perspective.”

“It’s often tried after demonstrations because there is no other defense,” he said. “You can’t argue: ‘You caught the wrong person trespassing.’ ”

“And it’s a way to question the legitimacy of whatever activity you’re challenging, to raise people’s consciousness about broader political issues.”

Legal Viewpoint

Sanford Kadish, a professor of criminal law at UC Berkeley’s law school, said in every political demonstration case he has studied, the appellate court has rejected the necessity defense.

He gave a classic law school example of the kind of case the defense was intended for:

“A plane crashes in the woods. You and your party are starving and freezing. . . . You come to a locked cabin with a large sign: ‘No Trespassing.’ But you break in and use the food, water and firewood to save lives. Yes, you’ve committed burglary, but it was the lesser evil.

“But say you’re protesting nuclear war and arrested for trespassing. Well, you’re not going to stop war by trespassing. So most courts don’t buy it.”

However, the defense was employed successfully by attorneys for Amy Carter, Abbie Hoffman and 13 other protesters tried last year on charges of trespassing and disorderly conduct in connection with a demonstration against CIA recruiters at the University of Massachusetts. They argued that the protesters broke minor laws in an effort to put a stop to graver lawbreaking by the spy agency.

Found Innocent

A six-member jury pronounced the protesters innocent.

But a San Francisco peace activist was convicted in January after she told a federal jury that she demolished a sophisticated military computer in deference to a “higher law” than the one she was breaking. Susan (Katya) Komisaruk, who had broken into Vandenberg Air Force Base and later turned herself in, was sentenced to five years in prison and ordered to pay $500,000 restitution.

The UC Santa Barbara political science department is currently reviewing Chritton’s appointment and is expected to make a recommendation to the chancellor within a month.

While teaching at UC Santa Barbara, Chritton remains on the CIA payroll. As a result, Frishman said, he does not speak objectively, but uses the campus “as a forum for propaganda.”

“Giving him a faculty position discredits the University of California,” said Jaimie Acton, one of the students on trial. “A faculty member should be objective. But someone in the CIA, being paid by the CIA, is unable to give both sides of the issue. He should not be in the classroom.”

Professors’ Concerns

Professors in the anthropology and history department, Frishman said, have expressed concern about the CIA affiliation with UC Santa Barbara.

“The CIA is not popular overseas,” Frishman said. “If professors doing research are suspected of being affiliated with them, they could be in danger. Same with students studying in education abroad programs.”

Deputy Dist. Atty. Gerald Alonzo, who is prosecuting the case, said he argued against allowing the defense to be used, but declined further comment.

Chritton’s attorneys had previously argued that Ochoa should not be assigned to the case because he might be biased against the CIA. They noted that the judge recently spoke at a rally protesting U.S. military involvement in Central America and harshly criticized the Contras, who have been aided by the CIA.