Michael Deutsch, People’s Law Office
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 re-subpoenaed 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.