An SJP representative wrote to The DTH that UNC students who were arrested on April 30 also went through the University's disciplinary process. They said the remaining suspensions were lifted around the same time that Nieman dismissed the last charges.
Of the arrested protesters, 25 accepted plea deals before their cases would have gone to trial, agreeing to complete either 24 or 36 hours of community service and bear court costs to have their charges dismissed.
Defense attorneys Gina Balamucki and Jaelyn Miller, who worked on the defense team for all 39 defendants, said those who accepted plea deals did so to alleviate court proceedings, not out of guilt.
Miller said many of her and Balamucki's clients — consisting of UNC, Duke University and N.C. State University community members — accepted the deals due to personal stressors and obligations.
“My belief is that all of these cases would have had to be dismissed, because the state had no evidence, no constitutional justification for the arrests,” Balamucki said.
The SJP representative wrote that the organization feels Nieman's initial decision to prosecute the protesters was fundamentally political, saying that he was aiming to avoid backlash from UNC, the state, conservative groups and “Zionist interest groups.”
“We believe the district attorney knew he did not have a case against the defendants and was hoping that all the defendants would agree to entering into plea deals,” the representative wrote.
Dismissal of remaining charges
On Dec. 12, the day before the first related case went to trial, Nieman dismissed five of the 14 remaining cases due to an inability to get in contact with the arresting officers.
Multiple law enforcement agencies were present on April 30, including UNC Police, N.C. State's police, UNC Wilmington's police, Appalachian State University's police, state patrol officers and sheriff deputies.
In an email to The DTH, UNC Media Relations said the police presence was part of the UNC System's longstanding protocol of providing mutual assistance.
“UNC System Police Departments routinely assist each other as needed,” Media Relations wrote.
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Balamucki said the University lacks jurisdiction to handle the criminal charges.
“Once the University decided to send in police to arrest people and charge them with crimes, it had to be handled by the Orange County Court System,” she said.
When the first associated case went to trial on Dec. 13, Balamucki filed a motion to dismiss the defendant's second-degree trespassing charge. Her motion was upheld by Chief District Court Judge Samantha Cabe.
Cabe's written dismissal dictates that the state did not present sufficient evidence of the defendant's guilt beyond reasonable doubt. Miller said that Cabe also orally acknowledged in the courtroom that since Polk Place is a public forum, the defendant was engaged in a First Amendment-protected activity.
Miller said that the state failed to present evidence that the defendant trespassed because of Polk Place's classification as a public forum. She said that the classification meant a place where people are allowed to assemble and express ideas. UNC is a public institution with certain exterior spaces designated as Major Open Spaces, according to section II of Facilities Use Standard.
Subsection A states that the University permits assemblies and gatherings of University-sponsored, University-affiliated and non-affiliated groups without prior approval in locations including Major Open Spaces, featuring Polk Place as noted in Exhibit A of the standard. Subsection B states that prior approval is not required for Major Open Spaces, subject to restrictions in other areas of the section.
Miller said to prove trespassing, there had to have been a reasonable time, place or manner restriction in place. This would have to come from a specific, pre-existing University policy that doesn't regulate speech unnecessarily. UNC would have also needed to provide an alternate channel for that speech, she said.
A week after the first case, Nieman dismissed the remaining eight cases set to be tried in the following weeks, which he said Cabe would have also presided over.
Reflecting on cases
Balamucki said that no University representatives attended the trial to present reasoning as to what qualified the protest as trespassing.
“UNC had an opportunity to tell the court why what it did was constitutionally justified, and UNC administrators chose not to take that opportunity, which I think is very telling,” she said.
In the email to UNC Media Relations, The DTH also asked about the University's involvement in organizing law enforcement efforts and the ensuing legal proceedings. The email response consisted of information surrounding where to find up-to-date information about charges, where to direct questions about upcoming court hearings and the UNC System police's mutual assistance protocol.
The SJP representative wrote that SJP does not know why the University was uninvolved in the prosecution. They said they wonder if UNC was deterred by the possibility of the constitutionality of their policies being brought into question.
Miller said that Nieman should have initially recognized that there was no case against the protesters for exercising their First Amendment freedoms.
“He just chose to ignore it, tried to get around it and lost,” she said.
When the UNC School of Law hosted Nieman in October to speak about his DA role, the school's coverage wrote that Nieman emphasized that a district attorney's primary duty is to seek justice, not simply to secure convictions.
The SJP representative wrote that despite the University's and state's actions against the group, they will continue to exercise their right to free speech.
@reganxbutler
@dailytarheel | university@dailytarheel.com
