Thursday, October 2, 2008

Cyril Robinson: Students on Trial, Part II: Legal Counsel Needed

MODERATOR: In the post "Students on Trial: Conduct Code Revisited," I asked Cyril Robinson to elaborate on the role lawyers and/or other legal counselors might play. Mr. Robinson kindly replied with the following:

[The Student Conduct Code reads:]
"3) . . . The responsibility for selecting an advisor is placed on the charged student. The advisor may be any individual except a principal or witness in the hearing. The advisor shall be limited to advising the student and shall not participate directly in the hearing except by permission of the hearing agent and then only when the hearing agent finds special circumstances such as a party’s inability or difficulty communicating;"

Jonathan—this is a response to your questions about my thoughts on the above provision of the Student Conduct Code stating that “the advisor shall be limited to advising the student and shall not participate directly in the hearing except by permission of the hearing agent.” I can only guess what harm the drafters were concerned with but that guess is that they were concerned that attorneys [who are not mentioned in the provision]would interfere in the proceedings by raising frequent and irrelevant objections and numerous technical legal points. If this was the fear it reveals an astonishing ignorance of legal reality. Few students could afford to pay attorneys. Several years ago, I heard that attorneys in this area charged $150 an hour and it is doubtless more now. Moreover, the vast number of cases considered under the Student Conduct Code (SCC) do not require and probably would not benefit from an attorney’s skills and the potential penalties are not severe enough for a student to ask for an attorney’s assistance.

But some cases do. I will recite the facts involving a case I handled that illustrate these problems. I was called on by the faculty members of the Chinese-American Friendship Association, a campus organization, to represent two married Chinese students who were engaged in marital dispute while living in Evergreen terrace. The facts were simple. During an argument, the husband reached for a necklace the wife wore, and after a struggle that involved no physical injury, the wife called the campus police, who arrested and charged both husband and wife. This act resulted in criminal charges in the Jackson County Criminal Court and charges under the SCC.

It so happened that Sheila Simon was the state’s attorney assigned to the case. I explained the facts to her and that there were no injuries. She agreed to dismiss the case against both.

Turning to the SCC case, I explained to my clients that because there were cross claims I could not represent both of them and ended up representing the husband. The wife did not choose to have an attorney. I asked that the case be dismissed but the hearing officer refused. We had a full trial in which witnesses testified and at the end,the hearing officer dismissed the charges against both parties.

As I indicated earlier, one of the most frustrating features of this proceeding was that there were then no copying facilities available, and documents could not be taken from the hearing room, and so it was necessary for me to hand copy all documents.

Returning to the question of the need for a political advisor: in this case, my clients were foreigners, spoke poor English and were unfamiliar with American court procedures and so at least in cases of foreign students, of which there are many on the SIUC campus, adequate legal counsel is necessary.

Unfortunately, a fairly large number of American students are ignorant of such procedure. I taught courses of criminal justice and criminal procedure for years to undergraduate students and I can testify that on entering these courses their knowledge of the fundamentals of the American legal system was minimal.

As far as I know, the University makes no effort to teach these fundamentals to all students unless they take these special courses. Therefore, one can suppose that the vast number of students accused of a violation of the SCC will have only the vaguest idea of how to mount a defense to a charge.

I think that if the university is serious about wanting to provide procedural due process to students, it should:

1) provide a sort of pre-trial hearing in which some legally trained person, perhaps a third-year law student, would review the charge against the student to determine if there are “special circumstances such as a party’s inability or difficulty communicating;” or where the case is of such complexity that the student needs legal assistance;

2) In such a case, a law student would be assigned to aid the student, with full ability to call and cross-examine witnesses and to argue the case in favor of the accused;

3) This assistant or another should also be allowed to continue the case on to appeal.

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