3 Judges Bow Out of Campus Protest Case

Three Berkeley judges have disqualified themselves from hearing cases involving 158 anti-apartheid demonstrators arrested at UC Berkeley this week, saying their “feelings about the genocidal racism of South Africa are so strong” they doubt they could be impartial during the proceedings.

Judge Carol Brosnahan, presiding judge of the Berkeley Municipal Court, where the protesters will face several misdemeanor charges May 2, has written the state Judicial Council asking that outside judges be assigned to hear the cases.

Brosnahan’s letter disqualified herself, Julie Conger and George Brunn, who handled bail hearings for 29 demonstrators last Wednesday.

‘An Unsound Exercise’

In a public statement released Friday explaining their move, the judges called the arrests “an unsound exercise of prosecutorial discretion.”

“Our feelings about the genocidal racism of South Africa are so strong that we have doubts that we can impartially judge matters in which the practices and policies of that government are an underlying concern,” the statement continued.

The only remaining Berkeley Municipal Court judge, Ron Greenberg, is out of town and will not return until after the demonstrators’ scheduled court date.

“I’m not a great fan of murder, and I sit on murder cases--but this is different,” Brosnahan said in an interview. “I feel very strongly about the apartheid issue, and I really disagree with the police and prosecutor’s actions in these cases. You have to stick by your oath as a judge to be fair.”

Under state law, a judge must not hear a case when “there is substantial doubt as to his or her capacity to be impartial.”

Decision ‘an Outrage’

An attorney for the demonstrators called the judges’ decision “an outrage.”

“As an attorney, it puts me in a strange position because I don’t know who the judge will be,” fumed Anna de Leon, one of 10 lawyers representing the arrested demonstrators. “The purpose of a Municipal Court is that it should reflect local concerns, controls and consciousness.”

De Leon said Conger had already presided over hearings for 38 anti-apartheid demonstrators arrested on the UC campus last December. De Leon said Conger had given three-day jail terms to some of those demonstrators, charged with blocking access to a public building and resisting arrest.

“The Berkeley community was reeling from those sentences, and I’m assuming that’s why the judges are withdrawing from these cases,” De Leon said.

Community Service Option

But Conger said she offered the protesters the option of three days of community service, but many demanded the jail terms.

“After that I did much soul-searching and I decided that I could not in good conscience sit on these cases,” Conger said, adding that she was arrested for civil disobedience two decades ago during civil rights demonstrations in Mississippi.

“I identify with and feel sympathy for the protesters, and I don’t feel that they should be prosecuted,” Conger said.

Meanwhile, anti-apartheid protesters, who are asking that the university system withdraw the $1.7 billion invested in firms doing business in South Africa, will have an open forum on the divestment issue on campus next Wednesday. At least nine UC regents have agreed to attend.