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."

The judge also suggested that continued confinement would only perpetuate Koch's "doctrinaire fever," bolster his conviction that the government is corrupt and encourage rather than discourage the protest.

"Koch will only derive increasingly grim self-satisfaction from his position," Keenan wrote. "The more unstable he gets, the more he will be presented as a martyr and perceive himself as such…He has…become fully inculcated with the partisan zeal of one who is often in error but never in doubt."

Keenan also took a shot at "Koch and his ilk" who adhere to an anarchist ideology that "prizes conformity over independent thought."

"He has condemned the crime in question, but if he takes the logical step of assisting in the investigation of that crime, he will be excommunicated by the anarchist community he cherishes," Keenan wrote. "Ironically, far from articulating any genuine dissent, these 'anarchists' have accomplished little more than substituting one flavor of authoritarianism for another."

The decision did not reveal the nature of grand jury investigation for which Koch was subpoenaed. But one of his attorneys, Moira Meltzer-Cohen of Manhattan, confirmed that the probe centers on an explosion outside a Times Square military recruitment center more than five years ago.

According to the website jerryresists.net, Koch is a 24-year-old environmental and political activist and Eugene Lang College student who allegedly was at a bar where two other patrons discussed a plot to bomb the recruiting office.

"The only legitimate purpose for civil contempt is to coerce testimony," Meltzer-Cohen said. "If it becomes apparent that confinement is not bringing any pressure to bear to coerce testimony, it becomes punishment without the benefit of due process."

Koch was also represented by Susan Tipograph, Grainne O'Neill and David Rankin, all of Manhattan. Southern District Assistant U.S. Attorneys John Cronan and Michael Lockard appeared for the government.

Tipograph said she is "heartened" that Keenan released Koch when he plainly did not want to do so.

"I understand that the judge and the court and the government disagree with Jerry's decision not to testify," Tipograph said. "The goal was not to convince the court or the government to agree with Jerry's position of why he wasn't going to testify or that there is a history of abuse by law enforcement officials of political movements. The goal was an application of the law and Judge Keenan correctly applied the law and released him."

There was no immediate reaction from the prosecution.

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