US: Subpoenaed by a Grand Jury? Some advice

from email, 29 September 2008:

By Stu Sugarman
[earthfirstjournal.org]

Dear EF! Lawyer,

I got subpoenaed by a grand jury. I don’t want to tell them anything. What should I expect to go through?
—Witness Against the Machine

Dear WAM,

You should expect to go through a lot of hassle, stress and possibly prison. You should also expect to earn the respect of your friends, foes and many more you’ve never met, while learning about yourself, and just how strong, brave and good a friend you can be.

Books—long books—have been written in answer to your question, so I’ll just review a few basics. Hopefully, the seven items I discuss will provide you with an idea of what you’ll go through. You can defeat the government if you are smart, stubborn and perhaps a bit lucky.

1. Get a Lawyer:

It is insanely dangerous for you to face a grand jury and prosecutor without a lawyer experienced with grand juries. To get a free, experienced lawyer, call the federal defender’s office in the city you are subpoenaed to appear in. If you are able, you may also want to hire a lawyer.

2. Develop a Plan:

You and your lawyer will discuss a specific plan for the grand jury process. For example, you might decide to set traps for the prosecutor and subtly invite her or him to make mistakes that could force the government to free you from your subpoena. You must, at all costs, stick to the plan.

3. Handwriting Samples and Other Evidence:

The prosecution can force you to provide handwriting samples. However, you can force them to give you written material to copy, rather than them reading material to you—the government cannot require you to reveal your spelling abilities. They may be able to force you to turn over documents such as notes of meetings or to provide a tissue sample for DNA purposes, but you may be able to stop them cold (although this is beyond the scope of this article). You can also force them to reveal any and all wiretaps they are conducting, if you have some evidence they’re conducting a wiretap.

4. Finally Meeting the Grand Jury:

On the day of the grand jury, you must stick with your plan. Do not give them anything, no matter how much the prosecutor threatens you, yells at you or offers not to harass you if you’d only answer his or her questions. The prosecutor will try to throw you off your plan. You and your lawyer will try to throw the prosecutor off her or his plan.

When you arrive at the courthouse with your lawyer, you will head to the grand jury room with the prosecutor. Your lawyer will wait in a nearby room or outside the grand jury room. The grand jury rooms I’ve seen are small—meant to hold 23 grand jurors, the prosecutor, a stenographer and you.

You, of course, will be in the witness chair. The 23 grand jurors are in their chairs and will all be focused on you. The prosecutor will be in your face asking, or even yelling out, questions in rapid succession. The stenographer will create a transcript of the proceedings and will be sitting practically in your lap, the room is so small. The grand jurors will already have been turned against you by testifying FBI agents, so don’t count on any allies there. There will be no audio or video recording.

When the prosecutor asks questions, write down every question on a pad. Be sure to take your time writing down each question to ensure you answer accurately. When you have written each question down, ask to see your attorney. If the prosecutor does not let you see your lawyer, do not be shy about insisting to see your lawyer. Tell the prosecutor that s/he may continue asking questions, but you will not answer any of them until you have spoken with your lawyer.

When you visit your lawyer, you two must go over each question carefully but quickly. When you have discussed each question, go back in the grand jury room and read your answers. They should be something like, “I take the Fifth,” or, “I invoke my right to remain silent.” You should also claim the First, Sixth and Ninth Amendments (rights to freedom of speech, to a lawyer and to political expression). While each of these amendments is weaker in this situation than the Fifth Amendment (against self-incrimination), they can provide you some protection—and protection is good!

5. After Immunity Is Imposed:

The second round, in my experience, will take place another day, after the prosecutor continues your subpoena, and you either agree to or s/he commands you to return on that other day. The prosecutor will give your lawyer the documents imposing immunity on you, and you will start the second round of questioning. This immunity probably does protect you from any prosecution based upon anything you say during this round, but that is not a guarantee. The government could prosecute you if it could prove to a judge that even though you told the grand jury all about it, the investigators found out about this or that crime you did from sources completely unrelated to your grand jury appearance. That is why I call this “useless” immunity.

During the second round, you will be asked many more questions than in the first round, and the government will show you, through its questions, what it has been investigating. Here’s where they can start getting nasty if you’re stubborn and smart. Remember to stick with the game plan and give them nothing. After writing all the questions down, discussing them with your lawyer, and giving the prosecution nothing but invocations of constitutional rights, they’ll give up and take you to see the judge for the immunity hearing.

During the immunity hearing, the judge will review the immunity-imposing documents the prosecutor provided, the specific questions the prosecutor asked of you and your nonresponses. The judge will then threaten you with prison for the remainder of the grand jury’s term if you don’t start answering. Of course, you’re scared, but your will is strong and you’ve tied up loose ends. Your best friends will stand by you, care for your cat and be your spokespeople to the outside world if you are taken into custody. You will return once more to the grand jury room for the third and final round.

6. After the Judge Threatens You With Contempt:

The prosecutor and you will be alone again with the grand jury. The prosecutor again will read you the questions the judge has already ordered you to answer, and you’ll refuse to answer the questions. You return to go before the judge, and the judge will hear the arguments of your attorney and the prosecutor. At this point, without hesitation, the judge might order you into prison for the remainder of the grand jury’s term. I have to note here that I’ve represented many high-profile Earth and Animal Liberation Front activists in grand jury situations, and so far no one has been held in contempt, but it does happen.

7. Winning Your Freedom and Immunity From Future Grand Juries:

If you are unlucky enough to spend some time in prison (every case is different—it could be the remainder of the grand jury’s 18-month term or just a matter of weeks), your lawyer can move to have you released well before the end of the grand jury’s term. Your lawyer could argue that the coercive effect of imprisonment does not work on you, so it is silly to continue holding you. If the judge were to agree, you would go free, and your grand jury ordeal would be over (probably for life, because your strength this time will be proof to a future grand jury that prison can’t make you squeal). Last but not least, your community and all your friends will be in awe of you because you’ve proven your dedication and shown such courage.

Do you have a legal question? Contact Stu Sugarman at quixote516@yahoo.com. Please write “Dear EF! Lawyer” in the subject line.

[original article]

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