The Right to Remain Silent

The Legal Logic Behind the Case of a Man Jailed for (and Released for) his Political Silence

Jerry Koch went from socializing in the courtyard on West 12th Street to spending the next two-hundred and forty-one days of his life in prison.

After eight months of detention for his refusal to testify to a grand jury, a court order on January 28 released Koch from civil contempt in Manhattan’s Metropolitan Correctional Center.

Koch, who identifies as an Anarchist, political dissident, legal activist in New York City, and is a student at Lang, was subpœnaed in September 2009 to testify in a grand jury investigation of a March 2008 incident, in which a homemade explosive damaged windows at a US Armed Forces Recruitment Center in Manhattan. While federal prosecutors maintained that Koch was not a suspect in their investigation, they alleged that he was present in a bar between 2008-2009 where two other patrons may have been discussing plans for the incident, according to court documents.

Koch insisted from the outset that he knew nothing about the alleged conversation in the bar, and refused to testify to the grand jury for the first time after he was subpœnaed in 2009.

“My politics, principles and ethics stand in direct opposition with this legal tool that is used to further enable the government in its assault on anarchists, and I will not lend it any legitimacy, nor will I comply in any way,” Koch said in a statement written from prison in August 2013.

Koch was not jailed upon his first refusal to comply with the grand jury investigating the homemade explosive incident. But when subpœnaed again in May 2013, the judge gave him immunity from prosecution. According to Margaret Ratner-Kunstler, a civil rights attorney and former head of the New York Chapter National Lawyers Guild, this nullified the Fifth Amendment right against self-incrimination and enabled the court to order Koch to talk, or be held in civil contempt for noncompliance.

Unlike the incarceration that follows a guilty verdict on criminal charges, confinement for civil contempt is a penalty meant only to compel cooperation with the grand jury’s procedure, and is not intended as a punishment. The United States Attorney’s Manual Ch. 9 § 39 states that, “Civil contempt sanctions are coercive and avoidable through obedience. Neither a jury trial nor proof beyond a reasonable doubt is required.”

The Grumbles Motion, which was filed by Koch’s attorneys to release him from civil contempt,  argued that, because Koch had repeatedly claimed that he was never going to testify to the grand jury, his ongoing confinement was punitive, and therefore unlawful.

“It’s punitive because if a person is going in saying ‘I know I’m not going to testify,’ then there’s no coercion,” said Ratner-Kunstler.

Alongside the order for Koch’s release, Judge John Keenan composed a 20 page opinion on the case and grand jury process.

“What matters is how Koch’s health or happiness at the MCC will affect his reluctance to testify,” Judge Keenan wrote of Koch’s mental and physical condition in prison. “Indeed, one could argue that his deterioration provides him with an added incentive to testify and thereby secure his own release.”

Judge Keenan’s opinion said that Koch’s imprisonment failed to rouse his eagerness to cooperate with the state, but rather “has caused his views about government repression to congeal even further,” the document read.

After eight months of refusing to testify, Koch returned home to Brooklyn.

“Jerry is out, and his dominant concern right now remains his awareness of all the others who are so cruelly incarcerated,” Koch’s lawyer, Moira Meltzer-Cohen told the Free Press. “The best way for us to celebrate is to carry on our struggle for abolition. The healing is in the work. Power to the people.”