Revolution #215, October 31, 2010



"A grand jury is a panel of citizens brought together to investigate crimes and issue indictments.... Today all cases are brought to a grand jury by a prosecutor. The prosecutor picks the witnesses and asks the questions. Witnesses are not allowed to have a lawyer present. There is no judge present. The prosecutor drafts the charges and reads them to the grand jury. There is no requirement that the grand jury members be instructed on the law at issue. And, unlike in other juries, grand jury members are not screened for bias."*

"Since the prosecutor solely orchestrates the proceedings, it is no surprise that grand juries almost always serve as a rubber stamp for the prosecution. A former chief judge of New York once famously noted that 'any prosecutor that wanted to could indict a ham sandwich.'"*

"In political cases, grand juries have been used to execute witch hunts against activists. Prosecutors will bring in activist witnesses and attempt to get them to snitch on other activists with threats of jail time if they refuse to cooperate with the grand jury...."*

"...Grand jury witnesses have no right to be represented by an attorney and no right to a jury trial if they are threatened with jail. Grand jury witnesses do retain the right against self-incrimination but can nonetheless be forced to snitch on themselves and others in exchange for limited immunity from prosecution and punishment."*

Currently, if a person brought before the grand jury is given limited immunity by a judge and that person refuses to testify, they can be jailed. Margaret Ratner Kunstler, on the radio show Law and Disorder, explained it this way: "The immunity was so tiny it only covered what you said—your very words could not be held against you or the fruits of those words. But it was so easy to get around that just by a prosecutor saying, 'well this didn't come from this, it came from something else.' If you then refuse to testify, once you were given this kind of minor immunity, you could be subject to imprisonment." (transcription by Revolution)

The person who has refused to testify can be brought back before the judge and held in what is known as "civil contempt" of the court. Without a trial, the judge can imprison the person for whatever is the length of the grand jury. Grand juries are normally 18 months, but there are special federal grand juries that are empanelled for 36 months, and this can be extended because it is "special."

Historically, the Justice Department and the FBI have used the subpoena power of the federal grand jury, coupled with compulsory immunity, to jail activists who refuse to cooperate with government investigations. In the 1960s and well into the '80s, there were many instances of courageous people who refused to testify before grand juries.

In recent times, Josh Wolf refused to turn over video footage to a San Francisco federal grand jury investigating a June 2005 anti-globalization demonstration. He was imprisoned for 7 1/2 months, longer than any other journalist accused of withholding information, for this refusal. Environmental rights and animal liberation activists have been subject to grand jury investigations in a number of states and jailed for non-cooperation. In 2005 five former Black Panther Party members were jailed for non-cooperation and later were arrested and charged based on evidence gained by police torture in 1973.

According to attorney Michael Deutsch in The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists (1984), "...many subpoenaed witnesses agreed that the only way to respond to the grand jury was to refuse to answer its questions and to persist in such refusal in the face of immunity and contempt. Once a witness began to answer questions, the door was open, leaving no effective way to pick and choose which questions to answer."

Deutsch continues in discussing that history: "The position of 'non-collaboration' with the political grand jury was thereby established. The theory behind non-collaboration was that witnesses could deprive the grand jury witch hunts of the information they sought, thereby subverting their mission only by a unified position of refusal. Numerous witnesses followed the principle of non-collaboration. Some escaped civil contempt citations and jail, but many others spent months in jail without charge, until the life of the grand jury ended."

Deutsch goes on to point out, "A fair reading of the origins and purposes of the fifth amendment, coupled with the rights of political freedom contained in the first amendment, should create a right to 'political silence,' barring any compelled testimony before a grand jury touching a witness' political activity and associations. Political activists should not be forced to choose between providing the government with political intelligence about their movement or going to prison."

* quotes taken from Center for Constitutional Rights pamphlet If an Agent Knocks.

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