For many Americans, the day after Christmas is spent recovering from over-indulgent holiday feasts, returning ill-fitting sweaters or relaxing with family. But for local activist Matthew “Maddy” Pfeiffer that day was anything but festive: on December 26, 2012 they were taken into custody at the SeaTac Federal Detention Center for refusing to testify before grand jury.
Maddy is the latest in a string of activists imprisoned on charges of civil contempt for not complying with the grand jury. Matt Duran and Katherine “Kteeo” Olejnik have been in prison since September on the same charges. All three have stated publicly that they won’t comply with a grand jury that they argue is targeting them for their political beliefs. (See side bottom of the page for more background information on the grand jury).
Under civil contempt charges, all three activists can only be held in custody for the life of the grand jury (typically 18 months with a possibility of an extension). That means that without actually being charged with a crime, they could be in prison until March 2014. And once it becomes clear that the sheer passing of time won’t wither their resolve, their jail time could be extended even further if the court makes moves to change their charges from civil to criminal contempt.
“We’re getting word that they’re going after criminal contempt,” Lauren Regan of the Civil Liberties Defense Center said at a panel discussion on political witch hunts held in Seattle at the Black Coffee Co-op in November. “Criminal contempt is a crime, and the only thing they have to prove is that you refused to testify,” she pointed out, noting that there have been other activists charged with criminal contempt for refusing to comply with grand juries in recent years. (More on this later).
What is the difference between criminal and civil contempt?
In legal jargon, civil contempt is “coercive” rather than “punitive” because the court is attempting to “coerce” the witnesses into testifying. To repeat an oft-cited phrase, all three witnesses “hold the keys to their own freedom” since they could end their imprisonment simply by testifying. On the other hand, criminal contempt is intended to punish a person for violating a court order (in this case refusing to testify).
The legal distinction between “coercive” and “punitive” may not make much of a difference when you’re lying in a jail cell, but it does serve important purposes: first, it allows the government to claim they aren’t punishing witnesses by holding them in custody, and second, when it becomes clear that witnesses won’t testify before the grand jury, it creates an opening for the witnesses’ attorneys to argue that being held in custody is crossing the line from coercion to punishment.
“With some cases, it becomes clear as time goes on that confinement has no coercive effect, that this person isn’t going to testify regardless of how long you hold them. Under those circumstances it really becomes punishment,” argued Matt Duran’s attorney Kim Gordon. She continued, “So I think a real question is, will there be a point during Matt’s confinement where the court decides that’s the case? I can’t tell you if, or even when they’ll ask.”
Although criminal contempt charges could lengthen their jail time, the potential penalty is still unclear. Since criminal contempt has no maximum sentence, people indicted of this crime could theoretically face life in prison. This is unlikely however since US attorneys are still required to follow sentencing guidelines which direct them to use a penalty most analogous to the crime in question.
Gordon elaborated, “My understanding is that the penalty for Matt could also depend upon the length of the potential sentence for the crime(s) that are being investigated.The more severe the penalty for the crime he is refusing to help them investigate, the more severe the penalty for criminal contempt.”
The sentencing time for criminal contempt can vary widely based on these guidelines: In 2010, animal-rights activists Jordan Halliday was sentenced for 10 months in prison with 3 years probation for refusing to testify before a grand jury investigating the release of mink from farms by the Animal Liberation Front. But in another instance in 2007, Palestinan activist Abdelhaleem Ashqar was sentenced for 11 years and 3 months for not complying with a grand jury. Ashqar’s penalty was magnified because the government argued that his refusal to supply information aided terrorism by inhibiting a federal investigation into the activities of Hamas. On the other hand, Halliday was indicted with less severe charges of obstruction of justice and “substantial interference with the function of the
What’s next for the Pacific Northwest grand-jury resisters?
Although criminal contempt charges are a possibility for the Pacific Northwest grand-jury resisters, the likelihood that this will occur is still unclear.
“I can’t read the tea leaves about whether the government will pursue criminal contempt charges,” Jenn Kaplan, attorney for Kteeo wrote in an email. Although the judge warned Kteeo of the prospect of criminal contempt, Kaplan says the government “hasn’t overtly threatened it.”
Emily Langlie, a spokesperson for the US Attorney’s Office in Seattle, refused to comment about the potential of criminal contempt charges.
“I would not be in a position to comment on what’s happening in that case,” Langlie said with a twinge of annoyance, and directed me to official statements about how the US Attorney’s Office cannot comment on grand jury proceedings since they are by law, secret.
Adding to the uncertainty, the three witnesses are being held in custody despite the fact that someone has already pled guilty to the crime allegedly being investigated.
In June, Cody Ingram, a 23-year old homeless man, was sentenced with time served and $500 in restitution after pleading guilty to damaging the federal courthouse at the May Day protest. He was imprisoned for six weeks; by now, both Kteeo and Matt have served double that time. If charged with criminal contempt, that prison time would not necessarily count towards their final penalty. (Case in point: animal-rights activist Jordan Halliday was sentenced time for criminal contempt after he already had been in custody for four months for civil contempt.)
Meanwhile, Larry Hildes, attorney for another grand-jury resister Dennison Williams, worried that his client could be the target of the grand-jury investigation. Williams is another Portland activist who served with a subpoena that was later withdrawn for unknown reasons. “Either they’ve decided there is no reason to have him appear, because they don’t think he’s got anything that’s useful to them…or he’s the target of the investigation. We know that Kteeo was asked about him.”
Given the secrecy of grand juries, the government isn’t obliged to provide Hildes or any of the attorneys with information about why their client was subpoenaed or how long they could be held in custody.
“It’s hard to tell what [the grand jury] is up to. I mean it’s never good,” Hildes laughed sarcastically, “but it’s hard to tell what it is.” Hildes, along with several supporters I spoke with, are worried that there will be a new round of subpoenas.
Whatever happens next in the grand jury cases, supporters say they’ll continue to stand in solidarity with the grand-jury resisters. And despite the palpable sense of fear within the local activist community, there’s a parallel current of defiance and solidarity.
“Our movements are just growing stronger,” Matt’s partner Max Fernandez argued when I asked them how the grand jury was affecting the activist community.* “When political repression is heightened, that’s a sign that we’re doing something right…their goal is to get us to stop organizing, to stop resisting, and we don’t intend on doing that.”
Correction: An earlier version of this story incorrectly used the pronoun “she/her” when referring to Max Fernandez who actually prefers the pronoun “they/them.”
Marissa Luck is an independent journalist and regular contributor to Works in Progress. When not reporting on local issues, she works as a content director at a web-design firm. Marissa graduated from Evergreen with an emphasis in political economy and international studies. Contact her via Twitter @marissaluck7 or email firstname.lastname@example.org.
Photos of Maddy Pfeiffer courtesy of No Political Repression.
A little background on the grand jury:
Since grand juries are secret by law, the government cannot disclose information about their proceedings. According to statements from the US Attorney’s Office however, this grand jury is investigating damage of the William Kenzo Nakamura U.S. Courthouse that occurred at the May Day protests in Seattle earlier this year by a group of “black bloc” protesters. But temporarily unsealed documents obtained by The Seattle Times have revealed that the FBI and Joint Terrorism Task Force were monitoring a group of activists prior to the May Day rally. And when Portland activists were subpoenaed to appear before the grand jury, the search warrant included instructions to look for “anti-government and anarchist literature or material.” This has led many observers to argue that the grand-jury investigation is politically motivated with the intent to gather information and intimidate local leftist groups rather than charge someone with a specific crime. Subpoenaed activists Matt Duran and Katherine “Kteeo” Olejnik have refused to cooperate with the grand jury based on these arguments.
“For me choosing to resist a grand jury is about freedom of speech and association—I cannot and will not be a party to a McCarthyist policy that is asking individuals to condemn each other based on political beliefs,” Kteeo wrote in a statement published on the website of a support group called the Committee Against Political Repression.
The government rejects characterizations that the grand jury is politically motivated. “We do not investigate or seek to silence lawful free speech, or dissent,” reads a statement from the US Attorney’s Office. “We do, however, investigate and enforce the law where speech crosses the line and becomes threats or acts of violence. In other words, no one is investigated for what they believe; investigations focus on actions that constitute a crime.” (It’s important to note that neither Kteeo nor Matt were present at the May Day rally when the alleged crime occurred.)
Although Kteeo and Matt have continued to resist the grand jury, another activist from Portland, Leah Plante was released from custody in October, although it’s unclear whether or to what extent she may have complied with the grand jury.