Though there are a number of wonderful radical essays and pamphlets about the U.S. Grand Jury system floating around online, most of them are (justifiably) lengthy, full of inaccessible legal jargon, or buried in larger guides on fighting state repression. As a result, even as anarchists celebrate the exciting release of the Pacific Northwest Grand Jury Resisters, widespread confusion about what a grand jury actually is persists. What I’m presenting here is intended only as a cursory introduction to Grand Juries for anarchists who, like me, want to spend as little time as possible talking about the legal system.
The Basics:
The kind of jury that most people are familiar with is merely one of many varieties that a prosecutor (a lawyer responsible for presenting a case against people accused of crimes, or ‘defendants’) can choose to assemble, called a ‘petit jury’ or ‘trial jury’ – think To Kill a Mockingbird. The purpose is a familiar one: to decide whether or not someone who has been indicted (formally accused of a crime) is actually guilty, and if so, to determine the punishment. Scenarios in which a trial jury is assembled typically include a defendant who has been charged with a crime, a defense lawyer who represents them, the eponymous jury of twelve or fewer people who lawyers from both legal teams deem representative of the general population (naturally, they rarely represent much more than the lawyers’ worldview), and a judge who presides over the case, supposedly to make it fair to all parties or whatever. A federal grand jury court, however, does not include any of these people: it only includes a prosecutor, their hand-picked assemblage of sixteen to twenty-three jurors, and a few witnesses who have been given a subpoena (an order to appear before the jury).
Since the ‘witnesses’ hauled before a grand jury haven’t been charged with a crime, prosecutors are able to elude the constitutional provisions that apply in criminal court. Whereas the sixth amendment of the constitution gives a defendant in a criminal trial the right to the presence of their lawyer not only during their trial, but also during police interrogation, a Grand Jury victim is prohibited from having a lawyer present during the prosecutor’s interrogation. The 5th Amendment specifically ensures that nobody shall be compelled to be “a witness against himself”… except in front of a grand jury. The ‘exclusionary rule’ in the fourth amendment holds that evidence collected in a manner that violates the constitution – by conducting an illegal search, for example – doesn’t apply to grand juries. While trial jurors are expected to be screened for bias, grand jurors are not. Since grand juries last for eighteen months at a time, and can easily be extended for another six months, assembling one more or less amounts to an extended suspension of constitutional law in a region.
The original intention of this practice, which dates as far back as a 1166 promulgation from King Henry II of England, was allegedly to curb state power: the American Bar Association (an organization that sets academic standards for lawyers) states that it, “act[ed] as a buffer between the king (and his prosecutors) and the citizens,” so a community jury could pre-screen people before a prosecutor charged any of them with a crime and brought them to trial. Even in colonial American courts, citizens could still submit allegations against other people that a grand jury would consider before deciding to prosecute. In practice, this often gave citizens some sway over powerful politicians: in one famous case, a grand jury refused to charge the anti-royalist newspaper publisher John Peter Zenger with a crime three times in a row, rebuffing the Royal Governor of New York’s attempts to try him for libel, which I guess is kind of cool. Nowadays, however, only a prosecutor can bring a case to a grand jury.
The Reality:
Of course, anyone who has been arrested and charged with a crime knows that prosecutors and cops rarely care about jury bias or the constitutional rights that defendants are given (not even in goddamn To Kill A Mockingbird!), and any anarchist who has read the constitution knows that public juries and constitutional rights are a lousy substitute for smashing capitalism anyway. But it’s easy to see how the ease with which grand juries avoid constitutional encumbrances would make them especially attractive tools for federal lawyers intent on making your life miserable.
Recently, federal grand juries have been established in the Pacific Northwest, Minnesota, and Santa Cruz, and given the Department of Justice’s recent obsession with beleaguering anarchists, it’s extremely likely that this legal tactic will continue to spring up in other famously radical regions such as the SF Bay Area or New Orleans. Law enforcement agencies and federal prosecutors use grand juries to intimidate radicals, threatening to force them to testify against their allies and loved ones to destroy bonds of trust and community, especially in urban areas rich with anarchist activity. Well-organized resistances to the tactic have emerged, however, and if efforts are successful the new popularity of using grand juries to harass radicals will wane.
Your Options:
I’m not your lawyer, so none of this should be interpreted as professional legal advice. If a cop, federal agent, or any other kind of jerk approaches you with a subpoena, you may treat them how you would in any other situation: don’t give them any information beyond what is legally required in your state (this usually just means giving your name, but you should check your local laws to be sure). You are not legally required to let them search you or your home, or even to open the door for them (if they have a warrant, the situation may be a little more complicated). You are required to accept their paperwork and nothing else. If you don’t want to open the door for them, they are allowed to leave it near you (e.g. on your doorstep or next to you) to pick up later.
Afterward, you should contact a lawyer immediately, and assume that everything the cops tell you about grand juries is a lie until you confirm it with your new legal buddy. Warn your friends and family that a grand jury is in town: it is very possible that they will receive similar harassment soon. If you simply don’t show up in court, you will likely be charged with contempt of court (disobeying court orders), appear before a trial jury, and possibly even serve some jail time, though it’s possible that your court date will be postponed indefinitely. Either way, make sure to ask your lawyer about the possibility of requesting your judge to quash (nullify) your subpoena,.
If you do show up for your court date, you still have an important decision to make: will you cooperate with the prosecutor? You’ll be hard pressed to find many American anarchists who think it’s a good idea to do so under any circumstances and it’s not hard to understand why: it puts everyone you know (and many people who you don’t) at risk. You should expect that any answers that you give to a prosecutor’s questions, even the seemingly benign or trivial ones (“Do you know Jackie? Do you live alone? Have you ever gone downtown before?”), will be twisted beyond anything you could have foreseen, instantly turning you into an unwitting snitch, even if you didn’t intend to screw anyone over. You will have no idea what questions they will be asking you ahead of time, but many of the questions may be traps set up to catch you in the act of perjury (lying as a witness), so even seemingly innocuous answers like “I don’t know” can get you thrown in prison down the line. The prosecutor will try and convince you that grand jury cooperation is your get-out-of-trouble-free card, but you have absolutely no reason to believe anything they say; you may still be charged with a felony when a new lawyer takes over their job, or you may be summoned for additional interrogation in the future because prosecutors have you pegged as a talker. Ultimately, it’s entirely possible for a prosecutor to simply lie, locking up cooperators despite any prior promises.
Not everyone cooperates. Last November, one grand jury witness dealt with their summons by only giving the prosecutor their name and birth date. When given any other question, they simply responded with “I am exercising my state and federal constitutional rights including the 1st, 4th and 5th amendments,” until the exasperated prosecutor gave up. They were held in solitary confinement in federal prison for several months before their release, but it’s difficult to tell how many people (including themselves) they saved from long prison sentences.
Resisters may also be considering the irreparable social alienation their testimony would cause. It can’t be emphasized enough: cooperating with the prosecution team puts their friends, their neighbors, their family, and even complete strangers at risk of being thrown in jail, whether or not they have done anything illegal. So even if you think a grand jury resister believes that they’ve somehow cooked up a foolproof plan to spill the beans and get out of trouble, they can’t necessarily expect the people they love to be waiting for them when they get home, because whether or not they’ve “done the right thing” or behaved like “a good anarchist,” they are likely to be considered untrustworthy and dangerous for the rest of their lives. Some cooperators have left town altogether because they no longer felt welcome there. This pattern of social ostracization of cooperators doesn’t always end in tragedy, however: a judge recently released two Pacific Northwest grand jury resisters in part because he considered it unreasonable to imprison non-cooperators indefinitely when they would face serious social consequences for testifying.
It’s clear, then, that there are major downsides to snitching beyond the obvious moral or political issues that are more commonly raised. But people considering noncooperation with Grand Juries shouldn’t need to rely on super secret-agent anti-snitching stamina to be a member in a radical network: there are countless radical allies (and even a few liberal ones), including dedicated friends and strangers (and lawyers!) who will guide and support you through grand jury resistance if you choose to challenge the legitimacy of the twisted grand jury system. These are the people who deserve your trust, not the federal lawyers hunting for an easy snitch.
In the meantime, take the advice of some folks from the Oakland Commune in the article “Stay Calm: Tips to Keeping Safe in Times of State Repression”: nurture healthy relationships in your personal community and deescalate whatever personal conflicts you have, as people are more likely to break down and snitch if they feel isolated, afraid, or contemptuous of their comrades. It will be easier to keep your wits about you in a time of crisis if you think of this an opportunity to build solidarity and strong social bonds in radical scenes often famous for fractious interpersonal drama and political infighting. You can start by reading some of the resources listed below and asking your friends / housemates / family / neighbors / coworkers / partners / etc how they feel about them. If we manage to get everyone on the same page, then when the Grand Slam comes, we’ll be ready.
Resources and Further Reading
“If An Agent Knocks…” is a classic and accessible guide to dealing with grand juries and assholes from the FBI. ccrjustice.org/ifanagentknocks
For true legal wonks, Susan Brenner and Lori Shaw of the University of Dayton created a bulky website dedicated to grand jury info. campus.udayton.edu/~grandjur/
The absolutely wonderful Bay of Rage article mentioned above is available at bayofrage.com/featured-articles/stay-calm-some-tips-for-keeping-safe-in-times-of-state-repression/