Eight months ago, Gerald “Jerry” Koch, a 24-year-old activist, was called to testify before a New York grand jury. The subject of the grand jury hearing was believed to be a 2008 incident in Times Square, in which a homemade explosive device was detonated in Times Square, damaging a military recruiting office there. It wasn’t his first time being called; in 2009, when he was 19, he was asked to testify before a grand jury and declined, saying he knew nothing about what happened.
When he was called again last year, Koch refused again, this time in stronger terms. He released a statement that read, in part, “I will once again refuse to testify to the federal grand jury in ethical resistance to participation in a fruitless exercise of fear-mongering and government intimidation.” Like many anarchist activists, he believed that the grand jury was more like a fishing expedition, designed to get information about activist circles.
Federal District Court Judge John F. Keenan was unhappy with Koch’s decision to stay mum. He held Koch in contempt of court and ordered him to be jailed at Brooklyn’s Metropolitan Correctional Center for “an indefinite period of time.”
That constitutionally dubious sentence ended yesterday, when Koch was finally released. According to a website kept by his supporters, his attorneys filed what’s known as a “Grumbles motion.” A Grumbles argues that confining a grand jury resister to jail isn’t supposed to punitive, merely “coercive”; that is, it should persuade you to testify. Since Koch never did, his attorneys argued, the sentence had become punitive and should be ended.
The New York Anarchist Black Cross obtained the full order stemming from yesterday’s hearing, in which Keenan grudgingly accepts that argument. (We’ve embedded the full order below.)
“Koch has chosen to remain in contempt — indeed, he promises continued and endless contempt — but petitions the Court to be released so that he might be spared the remaining consequences of his choices,” Keenan wrote. He called Koch’s theory that the government subpoena was based upon his political beliefs a “delusion of grandeur,” adding, with noticeable sarcasm, “There is simply no evidence that the government, threatened by Koch’s subversive prowess, seeks to bring him before a grand jury on a pretext, either to gain access to the treasure trove that is his circle of friends or to send an ominous message to political dissidents.”
Nonetheless, Keenan added, he would release Koch, despite the “fanciful” allegations made about government misconduct in many of his legal filings, including a claim that he was being illegally electronically surveilled (a claim the state denied). More important, he said, were Koch’s statements that he was physically and mentally suffering in prison: losing weight, developing joint problems, and becoming depressed. Although Keenan said he was “sympathetic” to Koch’s suffering, the real issue, he said, “is how Koch’s health or happiness at MCC will affect his reluctance to testify.”
Ultimately, Keenan ruled, “[T]he Court finds it more likely that Koch will only derive increasing grim self-satisfaction from his position. The more unstable he gets, the more he will be presented as a martyr and perceive himself as such. Koch has already decided that this type of notoriety is more valuable than his health and freedom in the short run and the Court sees no basis to conclude that he will reverse that calculus.” Koch’s “reflexive ideology that forbids his cooperation with the serious investigation at hand,” the judge added, would not be moved.
Koch had been anticipating his possible release for some time. On Christmas Eve, he released a statement through Jerry Resists, a site set up by his supporters; it reads, in part:
Very soon, Judge Keenan will decide whether to order my release or to continue my incarceration. He will make this decision based in large part on my claim that what began as coercive confinement has clearly become punitive — meaning that there never was any chance that incarceration would intimidate me into cooperating with this Grand Jury, and that after serving 7 months in this place, my resolve has only grown stronger.
This is not to say that I haven’t suffered — I’ve lost more during my incarceration that I ever thought possible. I grieve for every goodbye, and I doubt that some of these scars will ever heal. It is during truly difficult times that reveal what lives in the core of people, and that knowledge can sometimes be incredibly painful. But so too can that knowledge make us stronger; I take comfort from those of my fellows who have also refused to be made into subjects of this place. My own resistance is far from unique. It is found in those who have always said NO to those in power. My refusal to cooperate is my contribution to this tradition of defiance to arbitrary and repressive power. I will not cooperate. I will not be institutionalized. No compromise in this. I will not sacrifice my dignity in order to leave this place, and that’s not nothing.
The full ruling from Judge Keenan granting Koch’s release is on the following page.