New York activist Gerald Koch has been subpoenaed for the second time to testify before a US grand Jury - a form of legal double jeopardy that has been used by the US government to coerce, intimidate and punish activists.
Being charged for the same crime twice, or "double jeopardy," is well known as a legal no-no, even among laymen. But as 24-year-old Gerald Koch of Brooklyn learned earlier last month, the principle does not apply to those subpoenaed for a grand jury.
The concept of a grand jury is to gather sufficient evidence to indict a suspect. In the process, people like Koch can be compelled to testify by being granted immunity; thus nullifying their right to "plead the Fifth" (and the First and Fourth for that matter). When Koch refuses to testify on May 16, as he did in 2009, he could be imprisoned for the remaining length of the grand jury - up to 18 months. It is a feeling, one might imagine, as terrifying as being struck by lightning for a second time.
Little to no information is available about either grand jury, but if Koch’s attorneys are to be believed, both seek evidence to indict the "Bicycle Bomber," who planted an explosive device at the Times Square military recruitment station early one morning in March, 2008, causing damage to the building but no injuries. Koch is not now, nor has he ever been a suspect in the crime, but his subpoena indicates that prosecutors think he may know something that will lead to a suspect.
He explains in a statement released Thursday, April 25th: "During the first grand jury, the government informed my lawyers that it was believed that I was at a bar in 2008 or 2009 where a patron indicated knowledge of who had committed the bombing. When I was first subpoenaed to the grand jury in 2009, I had no recollection of any such incident - a fact that I expressed publically.
"Now, almost 4 years later," he continues, "I still do not recall the alleged situation."
So, why Koch?
For any radical in New York City prone to arrest at protests, the name "Skinny Little Hero" might have a familiar ring to it. That's what some privately call Gerald Koch - or Jerry, to friends. He earned the title for his refusal to testify, along with his tireless efforts as an amateur volunteer legal aide for activists and Occupy Wall Street protesters who get arrested for political activity - that, and his small frame.
Fellow frequent jail supporter from Occupy Wall Street, José Martín, knows Jerry well. "Late nights at central booking, when activists are still awaiting court before it closes at 1AM, one of the people I often find myself waiting alongside is Jerry. He has a great sense of jail support and leaving no one behind."
A representative from Jerry's support committee, David Silverberg, said Koch supported "activists, OWS protesters and all kinds of political dissidents. He did this not just for his friends, but also for strangers. He spent hundreds of hours waiting in court and gathering bail money to get people out of jail, even those he did not ideologically agree with."
One of the correction officers at Manhattan central booking even mistook Jerry for an attorney because he was there so much, often dressed in a suit and carrying a briefcase full of paperwork and bail money, Silverberg recalled.
It is this prominence, his support committee argues, that lead to the State's interest in him. At the grand jury, he can be asked about his political affiliations and the nature of their political beliefs. Even if he were to talk, he risks federal perjury charges if he withholds the truth or makes some other misstep. Essentially, all the information gained in Jerry's nearly half-decade of legal support in New York will become an open book for prosecutors.
"If you don't say anything, it's civil contempt, and they can imprison you if they think it will make you talk," Silverberg said. "It's meant to be coercive, not punitive."
Koch's support web site calls the proceedings a "witch hunt," a common hyperbolic charge by any group that feels unfairly victimized by prosecution. But the antiquated grand jury model comes pretty close to the puritanical damned-if-you-do, damned-if-you-don't methods of pre-Constitutional trials.
And there is evidence to suggest that the hunt is nationwide. Last year, four anarchists from the Pacific Northwest were imprisoned for refusing to testify at a grand jury in Seattle investigating a May Day black bloc that damaged the federal courthouse. As reported by Brendan Kiley at the Stranger, the arrestees were held for months in solitary confinement for their refusal to cooperate. Search warrants associated with the case revealed that black clothing and "antigovernment literature" were potential reasons for the State's suspicion.
Attorney Martin Stolar has worked on several grand jury-related cases and has noticed a trend in the past 40 years of their increasing use as a tool of political repression. "[Grand juries] are a means of punishing those who are engaged in political support networks, putting them in a position of collaborating with the government."
Familiar with the case, he added, "[Koch is being] targeted because of his prominence as a political activist and an active anarchist. He is clear about what he stands for." Stolar says he's even seen others subpoenaed twice for a grand jury before, and these cases are always political in nature.
The federal grand jury has a long track record of being used to target dissidents. It was used in the McCarthyist 1950s against the Black Panthers, in the '60s against environmentalists, in the "green scare" of the 2000s and now against loose-knit networks of contemporary radicals in what Kiley calls a "black scare." The Grand Jury Resistance Project has a list of the most recent cases of political grand juries.
As both an assertion of his rights and protest against the secretive model, Koch promises he will not testify - and he is well aware of the repercussions. "My decision to stay silent in defense of individual agency will most likely result in incarceration for a period up to 18 months. I accept this recompense, understanding that in doing so I will reinforce a tradition of defending individual rights in the face of State repression."
Activists in New York are familiar with the feds and police visiting the same prominent radicals repeatedly. Before May Day of last year, for instance, police raided several homes to question radicals about what would happen at the massive protests the next day. All of the targeted individuals had been in the news in the previous weeks for their participation in radicalism or Occupy-related events.
While many, the FBI included, still believe the stereotype of anarchists as trench-coat wearing bomb-throwers, most anarchists today focus on "disrupting the flows" of capitalism and oppression via largely non-violent means, including school building occupations, picketing to support striking workers, actions against right-wingers such as white supremacist and homophobic religious intuitions, and of course, occasionally smashing a bank window. There is no known evidence to support the claim that the bicycle bomber is an anarchist. Their skin color, gender, and age are unknown, much less their political affiliations.
Koch is represented by Susan Tippograph. JerryResists.net is calling for supporters to "pack the courthouse," 10 AM, May 16, 500 Pearl Street, New York.