[Ppnews] Grand Jury Resistance Post 9/11

[Political Prisoner News]

GRAND JURY RESISTANCE POST 9/11

In the past, the likely scenario for a grand jury resister was a 
citation for civil
contempt which could be a long as the remaining life of the grand 
jury - up to18 months -
and the possibility of early release through a "Grumbles" motion, 
which alleges that
further incarceration would not force the contemnor to cooperate. It 
was also possible to
re-subpoenaed to a second grand jury after the life of the first one 
has expired. In a few
cases, the MLN 5 being one of them, the government obtained an 
indictment for criminal
contempt after the civil contempt was unsuccessful. Criminal contempt 
does not have a
maximum sentence. Theoretically one can be sentenced up to life for 
criminal contempt.
In the MLN 5 case the government asked for 15 years and the judge 
sentenced the 5 to
three years each. This sentence occurred before the sentencing 
guidelines was enacted,
allowing the district judge to have broad discretion is fashioning a sentence.

Post 9/11, with the Justice Department in full propaganda mode in its 
fight against
terrorism, the stakes for the grand jury resister has increased. 
While I have not seen an
analysis of post 9/11 use of criminal contempt, in one recent case a 
Palestinian activist,
Abdelhaleen Ashqar, was charged with criminal contempt and the 
obstruction of the due
administration of justice for two refusals to testify, one in New 
York and one in Chicago.
After Ashqar, following a long hunger strike, was released from civil 
contempt in 1998 in
New York under the Grumbles theory that he could not be coerced, he 
was resubpoenaed
four years later to a grand jury in Chicago. convened post 9/11 and
investigating the same issue of Palestinian support for Hamas.

The government knew full well based on his position in New York he would not
testify. After he refused in Chicago he was imprisoned for civil 
contempt and after
several months he was indicted for criminal contempt and then 
subsequently charged
with criminal contempt and obstruction of justice for his refusals in 
New York and
Chicago, and a RICO conspiracy.

He was acquitted of the RICO charge, but convicted of both criminal contempt
and obstruction. Despite a clearly sympathetic jury, there is really 
no defense to a
criminal contempt charge other than jury nullification. Ashqar now 
faced a maximum of
10 years on the obstruction charge and up to life (no max sentence) 
for criminal
contempt. Both the probation department and the prosecutors argued 
that Ashqar's
sentence should be increased by a "terrorism enhancement", which 
specifically allows a
grand jury resister to be charged with having obstructed a terrorism 
investigation by
refusing to testify before a grand jury that is alleged in 
investigating terrorism and
terrorist groups. Despite the fact that Ashqar was acquitted of the 
Rico conspiracy based
on allegations of support for and membership in the "terrorist" 
Hamas, the court readily
applied the" terrorist enhancement," sky-rocketing his potential 
sentence up to 30 years.

The court did reject the government's argument that he could also be 
sentenced based on
a claim that his refusal to testify was the equivalent of aiding and 
abetting terrorism.
However the terrorism enhancement allowed for the same type of 
draconian sentence.

A non-violent act of politically motivated civil disobedience could now be
considered an act of aiding terrorism and/or obstructing an 
investigation into terrorism.

Ashqar received a sentence of 135 months, an unprecedented, obscene 
sentence. I might
add that the judge was generally not as reactionary as many others, 
and a higher sentence
could have been easily imposed by a different judge. I would also add 
that after his
sentence, the Supreme Court affirmed that judges are not necessarily 
bound by the
sentencing guidelines, and, while they can be used as a measure, the 
judges have
discretion to fashion a fair sentence. However, I believe that 
despite this ruling by the
Supreme Court, most judges will look quite harshly on refusals to 
testify before grand
juries looking into terrorism.

One other point. While I know of no case at this point, there have been
insinuations that lawyers and others who try to influence those 
subpoenaed to not testify
could be prosecuted for obstruction or even conspiracy to obstruct. 
While people have
First Amendment rights to speak out and organize, the government 
would likely argue
that no one has the right to counsel and organize people to violate the law.


Michael Deutsch
People's Law Office
January 10, 2008




Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org  
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