The Inquisition
Is our antiquated grand jury system being used as a political tool of oppression?
by Orna Izakson

Herbalism student and medical activist Carla Martinez must face a federal grand jury in February.
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Carla Martinez doesn't look dangerous. At 102 pounds, with close-cropped dark hair, the waifish 26 year old looks about 17 -- and like she might blow away in a strong wind. Martinez has worked publicly on environmental and anti-corporate issues, and now uses her herbal and medical training to support activists at anti-globalization protests and other events. She has the personality of a hummingbird: small, delicate and in perpetual motion. She is quick to laugh, even under great stress.

And for the past half year, she has been under great stress.


Last fall, the Bureau of Alcohol, Tobacco and Firearms subpoenaed Martinez to appear before a federal grand jury in Eugene. Proceedings before the centuries-old institution are secret. But Martinez and area attorneys believe that she and four others with activist affiliations were called as part of an investigation into the arsons at Romania Chevrolet that reduced high-dollar, highly polluting SUVs to charred ruins. Before prosecutors can pursue federal felony charges against anyone for those events, they must get an indictment; to get an indictment they have to convince a grand jury they have enough evidence to support their case.

Martinez says the prosecutor she expects to face in the grand jury chambers told her lawyer that she's nothing more than a witness. They don't think she did the crime, and, Martinez says, they don't think she knows much that will be of use to them.

Nevertheless, Martinez is facing an intimidating body that has the power to strip her of her constitutional rights and jail her for months without bail -- even though she faces no charges and says she has done nothing illegal.

It's enough to subdue even the most determined hummingbird.


Quashing rights
Early in its history, the grand jury process was supposedly a buffer between the people and the agents of the state -- originally, the king or queen of England, now the prosecuting arm of the U.S. government.

To get an indictment under current U.S. law, prosecutors can present any evidence they want to make their case -- and leave out evidence or testimony that undermines it. One New York judge reportedly quipped that "the grand jury would indict a ham sandwich."

Eugene activist Henry Hutto.
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"Grand juries have increasingly been used as an investigative tool over the last 30 or 40 years because they have powers that the police and law-enforcement agencies don't have," explains Bryan Lessley, an assistant federal public defender in Eugene. "Specifically, they have the power to subpoena witnesses and documents or other objects, too, without any preliminary showing of probable cause. For instance, if the FBI thinks you have something in your house that's incriminating, they can't go into your house to get it without a search warrant or your consent. But a grand jury can subpoena it without showing anything."

The grand jury also can compel testimony. If a prosecutor wants someone's testimony badly enough, the courts may override the Fifth Amendment right against self-incrimination by granting a form of "immunity" under which prosecutors aren't supposed to use a person's testimony against her. Not answering questions before a grand jury puts a person at risk of jail without bail for contempt of court. Jailing can last until the grand jury's term expires -- 18 to 24 months. A subsequent grand jury can subpoena a witness again, who would then face another contempt charge and more time behind bars.

"When you're called as a witness before a grand jury, you haven't done anything and generally you haven't been accused of doing anything," says Larry Weiss, a California attorney who has represented several West Coast activists subpoenaed to grand juries. "And ironically, even though you haven't been accused of doing anything, you have less rights that a person who is accused of a crime" would have in a regular court.

Grand jury proceedings are strictly secret, ostensibly to protect both witnesses and targets of an investigation from harm to their reputations -- even a witness's attorney is not allowed into the grand jury room. The only people allowed to speak publicly about grand jury testimony are the people who give that testimony.


Tribunals for U.S. citizens
It may seem hard in these post-Sept. 11 days to worry about an entity that is constitutionally empowered to compel testimony as a way to get arsonists -- sometimes labeled "domestic terrorists" -- into jail. And what Martinez faces may seem less intrusive than the secret military tribunals that are expected to haul in immigrants and non-citizens.

But attorneys, activists and academics say what's at stake with the grand jury is nothing less than the most cherished of American rights: freedom of speech, freedom of association, freedom to dissent and freedom not to speak when it involves self-incrimination.

Rik Scarce, an assistant professor of science and technology studies at Michigan State University, spent more than five months in jail in 1993 when he told a Spokane grand jury he would not violate confidentiality agreements with people he'd interviewed for his dissertation on the radical environmental movement (see accompanying story).

"(Grand juries) are strictly and completely a prosecutorial tool," Scarce says. "They do not serve the purpose for which they were created, which was to protect the innocent. Instead they are used to persecute and jail the innocent.

In the United States of America, the land where freedom springs from every pore, you can be jailed for saying nothing. And you can be jailed without being read your rights. And you can be jailed indefinitely. That's the grand jury system. It is the most unconstitutional thing in the Constitution."

Like tribunals, grand juries work against activists through intimidation, critics say. Eugene resident Henry Hutto, who spent 45 days in jail for not talking to a 1990 grand jury in Sacramento, says activists need to stick together and stay strong.

"The only thing they have over you to coerce you to cooperate is fear: fear of jail, fear of fines, legal repercussions or whatever it might be," he says. "But if you've overcome that fear and aren't really intimidated by it, they've got nothing left. They've fired all the bullets in their gun."

Doing the Time
Academic's research, ethics led to jail

It was just before Martin Luther King, Jr. Day in 1993 when Rik Scarce had to tell his 10-year-old son, Alex, that his daddy was going to jail.

"I said, 'You know what Martin Luther King stood for, right? He stood for justice and making things right. And you know that he went to jail in his life.' And Alex was sort of puzzled by all this, but he was nodding his head, yeah, yeah, yeah.

"And I said 'It looks like I'm probably going to have to go to jail.' And he looked at me with tears in his eyes. And it was one of only a couple of times that I cried throughout all this process. And I just held him real tight and we both kind of calmed down and I explained to him a little bit about what was going on."

What was going on was a grand jury investigation of an Animal Liberation Front raid at Washington State University, where Scarce was at work on his dissertation about the radical environmental movement. The FBI and federal prosecutors believed Scarce had information that could help them nab the culprits and lead them to ALF and Earth First! activist Rod Coronado, who had gone into hiding.

Eight months earlier, when the FBI served Scarce with a subpoena ordering him to testify before a federal grand jury in Spokane, Scarce said he was scared to death.

"I was scared because I knew that they were probably going to ask me questions that I could not answer without violating promises of confidentiality, and I knew I would not violate those promises of confidentiality," he explains. "So I knew I was going to go to jail."

Over the next year and three days, Scarce and his attorney played the game.

When he came before the grand jury  alone, since attorneys aren't allowed into the chambers with their clients  he answered a few personal questions and then took the Fifth Amendment even though he had done nothing wrong.

The prosecutor brought him before a judge who signed a faxed document giving Scarce immunity from self-incrimination, and back to court Scarce went.

He argued in court that he had a right as a scholar to protect his sources. He argued that his code of professional ethics, that of the American Sociological Association, prevented him from complying. The code stated that "confidential information provided by research participants must be treated as such by sociologists, even when this information enjoys no legal protection or privilege and legal force is applied."

Ultimately, the 9th U.S. Circuit Court of Appeals disagreed, setting a precedent for the West Coast that applies to researchers, scholars and journalists. The American Sociological Association watered down its code of ethics, which Scarce suspects was affected by his case.

In the end, he spent more than seven hours testifying before the grand jury. He told the jury where he was at certain days and times. He confirmed that certain people had housesat for him. He didn't answer roughly 30 questions about who was involved in the ALF raid or where Coronado was.

On May 14, 1993, he went to jail.

Jail, he says, "was horrendous. It was boring. It was monotonous. It was angering. I had Ph.D. research to be doing. I had classes to be taking  I had classes to be teaching. And worst of all, I had a wife and son who, for the five months I was inside, I never held, I never kissed, I never touched, because I could only see them once a week and could only do that through Plexiglas."

People jailed for not talking with grand juries are said to "hold the keys" to their own jail cell.

"Literally, all I had to do was pick up the phone, call my attorney and tell him I was willing to talk. He would call the judge and the judge would have me freed immediately, (even) if it was weeks before the grand jury met again & On any day I woke up there, I could have been home by that evening."

His principled stance won him the respect of fellow inmates, many of whom had been offered time off their sentences if they gave prosecutors information. Scarce hadn't even been charged with a crime.

"They looked at me with a huge amount of respect, and respect was the sole currency inside jail," he says. "So in that setting I was a millionaire."

Scarce's attorney appealed to the judge three times, arguing that jail hadn't worked to get the academic's testimony and was unlikely to do so. On the third attempt, the judge agreed. Scarce was released after 159 days, just before his son turned 11.

Scarce, now an associate professor of science and technology studies at Michigan State University, says it was and remains critical to take such principled stands.

"When persons give newspaper reporters and scholars information under the guise of confidentiality, they do so in the belief that they can trust those reporters and those scholars. If we can't be trusted, people aren't going to cooperate with us anymore and the public's fact finders  reporters and scholars  won't be able to do their jobs."

 Orna Izakson

Weiss says the secrecy of grand juries makes them like tribunals. But unlike the military tribunals they can be used against U.S. citizens, deterring people from protesting current government policies.

"All Americans should be interested, in my opinion, in preserving the right of peaceful dissent," Weiss says. "It's vital to our freedom."


Used against activists
Most cases a grand jury considers are basic criminal ones. But they also have been used as a tool against anti-government activists since their inception. England's King Charles II used a 1681 grand jury to indict (and eventually execute) two Protestant nobles who opposed his efforts to return that country to Catholicism.

In the U.S., grand juries were used to attack Reconstruction in the South after the Civil War: Southern grand juries brought in and charged many Reconstructionist leaders and hamstrung the government. They have been used against many major progressive movements, including labor, anti-war activists, the black nationalist and women's movements, student activists, the academic community and Puerto Rican independentistas.

Under the Nixon administration, 23 leaders of Vietnam Veterans Against the War were called to a grand jury in Talahassee, Fla. on short notice on the same day they planned to attend a demonstration at the Democratic National Convention in Miami. The grand jury asked many of the anti-war veterans for nothing more than their name and address before releasing them; others were jailed for contempt.

More recently, grand juries have been used to investigate the animal rights and environmental movements. In the early 1990s, grand juries convened around the country to investigate attacks on animal experiment labs and to look for Animal Liberation Front (ALF) and Earth First! activist Rod Coronado, a Native American who had gone into hiding. Five people went to jail rather than comply.

England, whose kings began the grand jury, ended the practice 70 years ago. Many activists say it's long past time the U.S. did the same.


Ammunition to destroy a movement
Weiss says he's "not an obstruction-of-justice kind of guy" and wouldn't advise people to resist grand juries. That said, he's represented several clients who have done just that. Why?

Grand jury secrecy isn't absolute, he says, and even association with one can be damning among employers, nonprofit funders, colleagues, friends and fellow activists. Complying means giving the grand jury names, which gives the prosecutor more people to bring before the jury, spreading fear in a wave -- as did the witch hunts to which grand juries are often compared. There's the way rights -- to have an attorney present, to avoid self-incrimination, to free speech and assembly and association -- are obliterated. There's the issue of complying with a government and institution many activists work against.

But one of the biggest reasons, he says, is that the juries have been used as a tool to dismantle movements for social change, harassing and jailing activists and making people reluctant to assert their Constitutional rights.

"Knowing what people know about the history of the grand jury-- do you even want to cooperate with them when there's a good chance that what is happening is a political fishing expedition?" Weiss asks. "This is very possibly providing information to the government to destroy a movement."

Lessley, the federal public defender, says that officially people shouldn't be concerned about complying. But activists who oppose government may have legitimate concerns about the government using grand juries to get information about them that it couldn't get any other way.

"The NAACP, during their organizational efforts in the South in the '30s and '40s, would have been very leery of prosecutors using grand juries to summon them in and ask them what they're doing in private," he explains. "It's one thing to be investigating who committed a crime. It is another thing to be bringing in members of a group -- and remember, you don't have to show probable cause here, you can just summon them in and ask them about their associations and their friends and their activities."

But Lessley says he believes the current grand jury in Eugene is operating within the rules. "I have no information about any kind of grand jury abuse there," he says. "In fact, it appears to me that they're being pretty select about the people they're calling in. And it appears they're being pretty sensitive to the suggestion that they're trying to target a certain group. So they seem to be doing it right."


Life Interrupted
Eugene activists disagree with Lessley's assessment.

"Carla is a healer within the activist community and is obviously not involved with any alleged illegal activity," says Phil Weaver of Eugene Peaceworks. "This grand jury process is being used as an inquisition designed to intimidate and stop those that work for social and environmental justice. And it will fail."

Martinez says she didn't burn Romania's SUVs, she doesn't know who did, and she doesn't believe the arsonist or arsonists are among her friends. She doesn't know what the prosecutor thinks she knows, but says they subpoenaed her "probably just because I have a history of activism -- According to the prosecuting attorney I'm not a very important witness."

"I think that they often choose people to intimidate and get information out of that aren't necessarily involved, oftentimes, people that may be on the fringe of the community." That's intimidation, she says, not investigation.

She also believes that the grand jury is investigating more than just the Romania case because officers from several different states have been involved. They talked to her father in Denver. They talked to her former landlords in Eugene.

She hopes that people won't focus on her rather than the larger issue at stake.

"I'd rather people just focus more on the fact that grand juries are really unconstitutional and need to be revoked, and that innocent people can face jail time," she says. "I think there's a big problem if innocent people are facing jail time for practicing their Fifth Amendment rights, and I think that it's not justice if you're not allowed to have any sort of defense -- you're sort of being thrown to the sharks before the jury and the prosecutor."

She won't discuss her legal strategy, on the advice of her attorney.

Martinez has spent months waiting for something to happen, feeling intimidated and uncomfortable. For months after receiving her grand jury subpoena last fall she says she put her life on hold.

"I kept thinking I was going in front of the grand jury and didn't know how long it was going to last," she says. "So it made it hard to make plans or decide on taking classes because I didn't want it to affect those things."

But in early January, Martinez signed up for a popular phlebotomy class at LCC. Learning to take blood will bring her closer to her goal of working in women's clinics, the next phase of her activism. She's also planning to teach a course in setting up street clinics at the February anti-patriarchy conference in Eugene.

"If something happens (with the grand jury), something happens," she says. "But I'm not going to wait around for them to subpoena me to decide what I'm doing with my life."

Martinez' support committee hosts a presentation on the impact of grand juries on local communities from 6-8pm Thursday, Feb. 7 in 100 Willamette Hall. For more information call 683-1645.

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