3 judges refuse to hear anti-apartheid cases. In Berkeley, Calif., refusal sparks questions about role of the judiciary

The growing American opposition to South Africa's racial policy has taken an unusual twist in Berkeley, Calif., surprising both the protesters and their prosecutors. Three Berkeley judges have refused to hear the cases of more than 150 protesters arrested on the University of California campus during the past week, saying their own anti-apartheid sentiments have compromised their judicial impartiality.

The judges are being criticized on one hand for bringing politics to the courts and, ironically, on the other hand for failing to represent the constituency that elected them.

Judicial code places a strong emphasis on the mental rigor a judge must exercise to remove personal feelings from legal issues. Thus, some people here have questioned just how much mental wrestling the judges did before admitting to a bias.

But the community uproar over the judges' decisions also points to another issue -- public misconceptions about the ideals designed to keep politics out of the American legal system, legal authorities say. The criticism from the community, including from the mayor and vice-mayor, implies that the voting constituency expects the judges to use their political biases in court rulings -- rather than as reasons to disqualify themselves from cases.

Protesters in the week-long demonstration oppose the University of California system's investments, totaling $1.7 billion, in companies doing business in South Africa. Many were arrested on criminal misdemeanor charges of trespassing and resisting arrest.

When the Alameda County district attorney decided to prosecute the Berkeley protesters, rather than to release them after they posted bail, the judges decided not to hear the cases.

Citing their anti-apartheid feelings and noting that otherjurisdictions (such as Washington) are not prosecuting peaceful protesters, the judges concluded they had a ``predisposition'' against the district attorney's cases in Berkeley. They point to the judicial code of ethics, which requires them to disqualify themselves from trying a case if they have any doubts about their impartiality.

``If it were just a question of being sympathetic to the anti-apartheid movement it would be one thing. . . . But for our jurisdiction to be the only court in the country to prosecute, I couldn't give him [the district attorney] a fair trial,'' says Municipal Court Judge Julie Conger.

``If these were cases where there was violence, I think I could have put aside my views on the underlying causes,'' says presiding Judge Carol Brosnahan.

``Four generations of my family were killed in the Nazi death camps. . . . The South African race hatred is similar and emotionally close to me. I was afraid my feelings would wash over into the rulings I made,'' says Judge George Brunn. He adds that he did not support the Vietnam war, but he says he had no difficulty setting aside those feelings and handling the prosecution of anti-war protesters during the peace movement here in the early 1970s.

``The issues for the judges will never be whether they agree or disagree with the protesters [but whether the law was broken],'' says Dan Siegel, one of several lawyers collectively defending the Berkeley protesters. ``This kind of decision puts other judges on the spot,'' Mr. Siegel continues. ``What judge isn't going to agree that apartheid is wrong? Will they risk being thought of as pro-apartheid [if they take these cases]?''

``We have been attacked more by the lawyers from the left . . . saying we should have stayed on and [by implication] been unfair,'' Judge Brosnahan says. ``It's an argument that somehow the judge is supposed to reflect the attitudes of the community, the electorate. That is terribly dangerous -- our credibility rises and falls on the perceived impartiality of the bench.''

But there's the rub. Before a judge removes himself or herself from a case, this credibility and the underlying assumptions of a judge's role must be considered, legal experts say. Further, though judges in California are elected, the public often is unaware that they are not mandated to serve in office like politicians.

``Even if you take this as sincere and that they aren't adopting a political posture, this is highly unusual,'' says Charles Kelso, a professor of law at University of Pacific's McGeorge Law School. He says the ``intensity'' of forces in the politically active Berkeley community may have had something to do with three separate judges coming to the same conclusion. He says lawyers are not privileged to turn down criminal-defense cases, even if they believe the defendant to be guilty. Similarly, he adds, judges come from that same tradition of separating the law from emotion.

``If judges ran away with their passions, it'd be difficult for the judge to sit in many cases,'' says Los Angeles County Superior Court Judge David Rothman. Judge Rothman is a member of the California Judges Association ethics committee, but he says his comments speak only for himself, not the committee. In addition, they are not directed specifically to the Berkeley judges but are intended to amplify questions raised by their decisions, he says.

``We have to be strong and grit our teeth because we're constantly required to sit in cases that are highly emotional, and we're touched very deeply,'' Rothman says. ``But we're expected in this special place to say, `I'm going to set them [emotions] aside for the duration of the trial and not decide on feelings but on the fact and the law, even if I disagree with the law.' This in a sense is a heroic effort, and it is at the heart of our judicial process,'' he explains. Rothman speaks of the mental ``fortitude'' a good judge must cultivate to maintain this objectivity.

Further, he says the community discontent over the judges' disqualifications goes beyond Berkeley. It is a hint that ``the public has lost touch with what it is we want of our judges. . . . They think the judges are representatives of public will. But with that power [to vote] comes the responsibility to see that the judge is a different animal governed by different rules [from the ones that govern politicians].''