Why 1 Anarchist Is Choosing Jail Over Grand-Jury Testimony

Why 1 Anarchist Is Choosing Jail Over Grand-Jury Testimony

Why 1 Anarchist Is Choosing Jail Over Grand-Jury Testimony

For decades, grand juries have been used to investigate and intimidate activist communities.


Katie Yow remembers watching her hands begin to shake after the July 10 phone call. It had been her lawyer with news of a subpoena. Yow had been called to appear in front of a federal grand jury. At the time, neither Yow nor her lawyer knew what the grand jury even related to. But the North Carolina anarchist and social worker knew one thing for certain: She would meet the demand with silence. And with this knowledge unshakable, she knew that—without facing a criminal charge or conviction—she could be going to jail.

“Things are going to be different for a while,” Yow told me she recalled thinking to herself.

It was not until some days later that her lawyer gleaned that the grand jury was purportedly investigating the October 2016 firebombing of the local Republican Party headquarters in Hillsborough, North Carolina. On the side of the building, someone had spray-painted a swastika alongside the phrase “Nazi Republicans leave town or else.” No one was injured, and no suspects have been named. Yow’s subpoena does not indicate suspicion that she was in any way involved. The 31-year-old longtime activist insists she knows nothing about the event, but her resistance to testifying is about much more than this: Yow is refusing to testify because she knows what federal grand juries can do.

“I didn’t have to think at all about whether or not I would testify,” Yow told me via e-mail, “that part is obvious and what I’m doing is the only thing one can do in this situation.”

On July 31—the date that Yow was called to appear before the grand jury—she stood on the steps of the Greensboro, North Carolina, courthouse in a bright blue dress and addressed nearly 100 gathered supporters. “Whatever happens today or in the future, I will continue to resist this grand-jury subpoena,” she said, before entering the building and informing the convened grand jury that she would not be complying. Following her refusal, the assistant US attorney informed her and her attorney that the government will ask the court to hold her in civil contempt, which is not a crime but could land her in jail for up to a year and a half.

Federal grand juries are some of the blackest boxes in the judicial system. Blocked to press, public, and even attorneys for the subpoenaed, the process is ripe for nefarious state use. For decades federal grand juries have been used to investigate and intimidate activist communities—from the late-19th-century labor movements, to the Puerto Rican Independence Movement and black liberationists of the last century, to environmentalists, anarchists, and indigenous-rights fighters more recently. Grand juries are used by prosecutors and federal agencies to map out political affiliations while sowing paranoia and discord. As the Trump administration and conservative statehouses are proving eager to further criminalize dissent and demonize the far left, bad-faith investigative grand juries are another weapon in the state’s repressive arsenal.

Aside from Liberia, the United States is the only country under common law to continue to use grand juries in order to bring criminal indictments. With the sort of irony reserved for repressive state operations, the original purported purpose of grand juries was as a safeguard for accused citizens against improper government motivations. In a grand jury, a process led by the prosecutor, a group of 16 to 23 civilians determine whether there is sufficient probable cause to bring a criminal indictment against a person or group. During investigative grand juries, like the one Yow faces, the government does not present the grand jurors evidence against a person, but attempts to seek information from witnesses—hence the ease with which the secretive process can mission creep into a fishing expedition. The notion that the grand jury is a protection against the bringing of unfair charges gets lost.

“All those other countries [with common-law legal systems] abolished grand juries because they were such clearly abusive, repressive functions,” Jude Ortiz, a friend of Yow and national grand-jury resistance organizer, told me. “The prosecutor has full control of the proceedings, with no judge to curtail any abuses of power. People who are subpoenaed aren’t allowed to have an attorney in the room with them. For all these reasons, anyone involved in radical-left social movements should be aware of the risks of being subpoenaed to a grand jury.”

Prosecutors’ intentions are kept opaque, and a witness can never be sure whether a line of questioning may lead to the incrimination of other activists or the empowering of the state’s ability to target communities.

The consequences to resistance like Yow’s are serious. Individuals who refuse to cooperate with grand juries can be held in civil contempt by a judge and imprisoned for up to 18 months (the length of the grand jury). It’s the sort of incarceration, like lengthy pretrial detentions, that give lie to the notion that our justice system runs on due process and just punishment.

Facing no criminal charges, Yow cannot, by law, be punitively imprisoned. Grand-jury resisters are jailed for contempt on the explicit grounds of coercion: If they agree to talk, they’re released; or—and here is the key to silent resistance—if it can be evidenced that they will never talk and the coercive grounds for imprisonment are undermined, the jailing is shown to be purely punitive, and a judge can be compelled to order their release.

Silence is constitutionally protected only as the right against self-incrimination. In cases like Yow’s, prosecutors often confer immunity on the witness so that self-incrimination is no risk, and a judge can compel her to testify or be held in contempt.

Such was the case for Jerry Koch, a New York–based anarchist (and my close personal friend) who resisted a grand-jury subpoena in 2013 and was held in federal custody for 241 days before a judge grudgingly agreed with motions illustrating Koch’s immovability. That year, two other grand-jury resisters in the Pacific Northwest were jailed and then released for the same reason: their silence.

Earlier this year, 42-year-old Steve Martinez refused to testify in front of a federal grand jury in North Dakota, which was allegedly investigating an incident during the Standing Rock standoff in which a 21-year-old protester, Sophia Wilansky, was hit in the arm by an explosive. The protester nearly lost her arm. Witnesses and Wilansky’s father insist that she was hit by an exploding concussion grenade launched by police; law enforcement blamed protesters for firing the explosive, but failed to name suspects or produce evidence. The subpoena against Martinez was withdrawn without comment, but he had admitted willingness to face jail time for his non-cooperation.

“The price of grand-jury resistance is high, but as an anarchist, refusing to cooperate with the state was actually an incredibly easy decision, and one I would make again in a heartbeat,” Koch, who is now training to be a criminal-defense lawyer, told me. “Refusing to cooperate when I was subpoenaed in 2013 led to my subsequent incarceration for eight months and seven days, at which point the government finally gave up and cut me loose, being so kind as to dump me in the middle of a blizzard in downtown Manhattan in a pair of prison sweats and nothing else.”

Koch, who flew to North Carolina to show support for Yow, sees in her the same resolve and commitment to resistance: “There is absolutely nothing that the Trumpian bullies, who are seeking to incarcerate her, can do to make her play along with this draconian system of power.”

Yow’s subpoena relating to the firebombing of the GOP headquarters raised swift and broad concerns among anarchist communities and activist lawyers. “I just have a hard time believing that federal investigators are so ignorant of anarchist culture that they truly think that anarchists—a group that is not notably concerned with electoral or party politics—would go after the Republican headquarters in some tiny town in the weeks leading up to an election,” said Moira Meltzer-Cohen, a New York–based attorney who has worked with grand-jury resisters around the county.

Meltzer-Cohen said she believes we’re in a political moment that demands a particular awareness of grand juries and their repressive function. “It’s a time when I think law enforcement is feeling very emboldened and has been given more than tacit approval to use any means necessary to quash resistance, and there is so much resistance to quash,” she noted.

In March, UN human-rights investigators issued a statement noting an “alarming and undemocratic” trend since Trump’s election in the introduction of anti-protest law-enforcement activity and legislation. In Indiana, Republicans proposed legislation to allow police to use “any means necessary” to remove protesters from a roadway; in Virginia, lawmakers were considering a bill that would make “unlawful assembly” after the police have ordered a crowd to disperse punishable with a year’s jail time; in North Dakota, Republicans introduced legislation to legalize running over protesters if they are blocking roadways (it failed, thankfully, but casts a chilling shadow in the wake of the Charlottesville neo-Nazi attack).

Meanwhile, over 200 protesters caught in a mass arrest on Inauguration Day face felony charges carrying up to 75 years in prison, because, in the context of a black-bloc march, a number of windows were broken. And earlier this month, the Department of Justice ordered website hosting service DreamHost to hand over data relating to the DisruptJ20.org site, which helped organize the Inauguration Day counter-protests. The original warrant was vague and asked for the 1.3 million IP addresses of visitors to the site. The request has since been narrowed, and granted by a judge, but DreamHost’s legal counsel still states that there are “extremely valid concerns when it comes to First and Fourth Amendment issues” regarding the scope of information that the government demanded.

Meanwhile, the president continues to set the rhetorical stage for an intensified crackdown on leftist activists with his “many sides” false equivalencies—a pernicious narrative that can also be blamed on centrist liberals’ auguring the rise of a conjured “alt-left” terror, while citing only low-level property damage and a handful of punched neo-Nazis. As Meltzer-Cohen told me, we now face a “brand of state power [that] is encouraging and escalating violence on the right, and the completely foreseeable responses to that escalation [namely, vigorous counter-protest] are likely to be investigated and criminalized and politicized in a way that the original violence coming from the right is not.”

This threat of judicial and legislative repression is sure to defang any so-called resistance that finds its ultimate expression in no more than a hashtag or a Change.org petition. But resistance like Yow’s sets an example of a political and ethical commitment that does not bend to state coercion. “Politically it’s important to me to keep my case in the perspective of what the state does every day with police and prisons, and being in community around work for abolition helps me stay focused,” said Yow, who works with young people whose lives have been affected by incarceration.

Yow told me that the grand-jury resistance—and the current state of waiting—has been frightening and draining, but also edifying for herself and her community. As she told her supporters on the courthouse steps last month, “Resisting this grand jury is one way I can show you I mean what I say, and that we, as anarchists, mean what we say.”

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