Repressive grand juries land three activists in jailThursday, October 18, 2012 at 1:47 pm by Nadia Kayyali
Update: Leah Lynn Plante was released. Matt Duran and Kteeo Olejnik remain in custody.
Last week, on October 11, grand jury resister Leah Lynn Plante of Portland, OR, was jailed for refusing to testify in front of a grand jury. She is the third individual who has been jailed in connection with a grand jury convened in Seattle early last month, purportedly to investigate May Day protests in Seattle. Kteeo Olejnik of Olympia, WA, was jailed on September 28, 2012 and Matt Duran, also of Olympia, was jailed several weeks earlier. They are the targets of a profoundly troubling tool for political repression, the secretive grand jury system.
In the federal legal system, grand juries are used to determine whether someone should be indicted for (charged with) a crime. A United States Attorney presents evidence to 16-23 jurors, and can subpoena witnesses, as well as documents and physical evidence. What most people do not know about grand juries, however, is the lack of almost all the constitutional protections provided in a regular trial. As Kimberly Gordon, attorney for Matt Duran, states, what stands out about grand juries is:
…how powerless you are as a subpoenaed party. As a defendant, there are tools that you have to be able to defend yourself. ..none of those tools exist in this circumstance. You are far more vulnerable than someone charged with a crime. There is very little that you can do.
Unlike a normal criminal trial, grand juries are not subject to the rule that unconstitutionally obtained evidence be excluded. Grand juries are not screened for bias. Witnesses who have been subpoenaed to appear in front of a grand jury do not have the right to counsel. Jenn Kaplan, attorney for Kteeo, explains:
If a person refuses, or is expected to refuse to testify on the basis of Fifth Amendment privilege, the United States Attorney can seek a compulsion order granting the witness immunity and requiring them to testify.
Finally, and perhaps most importantly, anyone called before a grand jury who is given immunity can be jailed for contempt for the court if they still refuse to testify, without being charged of any other crime. Even worse, they can then be charged with criminal contempt, thus effectively providing a court and prosecutor with a tool to institute “double jeopardy.”
In addition to the lack of tools, grand juries are also deeply secretive. Ms. Gordon noted that:
In the criminal system due process provides so many ways of figuring out what the government wants and why they want it so that you can make informed decisions. In the grand jury, no attorneys are allowed- they have to wait outside. The client taken in alone. Sometimes, they can take notes- this is up to each individual judge. The client does not know what they are going to be asked about until they walk in.
Grand juries are clearly another weapon in the government’s ever growing arsenal of political repression. For years, they have been used, in concert with surveillance and infiltration, in exactly this way. In one of the most well known uses in recent years, FBI agents simultaneously raided homes and served subpoenas to fourteen peace and justice and Palestinian activists across the Midwest, for a grand jury in Chicago that has not resulted in any criminal charges- indicating that it was merely being used to intimidate activists. The history goes even further back, however- in a paper detailing the history of grand juries civil rights attorney Michael Deutsche describes repressive use of grand juries going back to the founding of the United States. In particular, he describes how:
…grand juries indicted outspoken opponents of slavery for sedition or inciting slaves.
Ms. Kaplan explains how subpoenas in particular are problematic:
Subpoenas can be used to repress social justice movements. They put subpoenaed parties in the position of testifying about their political associates or being found in contempt. Grand juries create suspicion among social justice movements because if a witness does not end up in contempt, people will infer that it is because they provided information about other people, even if it is not the case. They’re also used as a method of punishing people for whom the government can’t build probable cause, by locking up their friends and associates.
Ms. Gordon has a very sensible piece of advice for anyone who thinks they may ever be served with a grand jury subpoena:
For people involved in social justice organizations, it sounds romanticized but …people need to understand what situation they are getting themselves into.
There is little doubt that grand juries will continue to be used. Check out the Grand Jury Resistance Project, the Committee Against Political Repression, and the Committee to Stop FBI Repression, for more information on how activists and those who support them are responding.