Judge Frees Witness Jailed Eight Months for Contempt

, New York Law Journal

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Bound by a 1983 decision he clearly finds farcical, Southern District Judge John Keenan (See Profile) released a man jailed eight months for refusing to appear before a grand jury on the ground that the man would continue to resist no matter how long he is incarcerated.

Keenan said the recalcitrant witness, Gerald Koch, "promised continued and endless contempt."

"Counterintuitive though it may seem … a grand jury resister can be confined because of his contumacy and then released for that very same contumacy," Keenan wrote in In Re: Grand Jury Proceedings, Gerald Koch, 13.Misc.153, dated Jan. 28. "By this reasoning, the refusal to testify is somehow transmogrified from a lock to a key."

Keenan's said his decision was dictated by Simkin v. United States, 715 F.2d 34 (1983), a ruling by the U.S. Court of Appeals for the Second Circuit.

In Simkin, the circuit said a contemnor must be released when there is "no realistic possibility" that continued confinement will persuade the resister to comply and testify. Simkin has been criticized by at least three district judges and in legal scholarship over the past 30 years, yet remains "dubious but settled principle," Keenan said.

Koch was subpoenaed to testify before a federal grand jury that is apparently investigating a 2008 bombing outside a military recruitment office in Manhattan. The self-described anarchist refused to cooperate, initially on Fifth Amendment self-incrimination grounds, and continued to resist even after the prosecution gave him immunity.

Earlier this year, Keenan held Koch in civil contempt and sent him to the Metropolitan Correction Center, where he remained for eight months.

Under federal law, a grand jury resister held in contempt can only be incarcerated for the term of the grand jury or a maximum of 18 months. Koch argued that since continued confinement will not induce him to change his mind, the court had to, under Simkin, release him.

Keenan said all the evidence suggests that Koch has dug in his heels, opposes government and grand juries and will not testify even if held for the statutory 18 months.

The judge said Koch's circle of "breathtakingly misinformed" admirers have persuaded him that the man they describe as "entrenched," "defiant," "reactive," "uncompromising" and "stubborn" is not going to give in, partially because if he did he "would lose [his supporters'] admiration and fellowship should he abandon his obstinacy and testify before the grand jury."

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