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Friday, February 22, 2013

Grand Jury Refusers: Attorneys Ask the Court to Let Them Go

Posted by on Fri, Feb 22, 2013 at 2:20 PM

Item one: Matthew Duran, Katherine Olejnik, and Maddie Pfeiffer are still in solitary confinement at the SeaTac FDC. And Kim Gordon and Jenn Kaplan, the attorneys for Duran and Olejnik, say they still haven't gotten a satisfactory answer about why. (In response to a request from The Stranger about the three, a spokesperson for the FDC replied: "Where inmates are housed within the confines of our facility is not public information.")

So Gordon and Kaplan have filed motions for their clients' release. Their full statement is below the jump, but their argument has two parts (prepare for legal wonkery!):

(a) They are being held for civil contempt, not criminal contempt. That means they (supposedly) aren't being punished for refusing to answer some questions. The government hopes that prison coerce them into talking. (That's also why they're in prison with no charges filed—they haven't been accused of anything, they're just being "convinced.")

Past courts have found that when it becomes clear a person isn't being successfully coerced, that person should be released.

The attorneys argue that Duran and Olejnik have shown they will not be coerced—the length of their stay, being in prison for the holidays, the months in solitary confinement—so should be released. (Side note: Earlier this week, George Will wrote about the torture of solitary confinement.)

(b) Public documents show that the government has all the information it needs to identify the vandals, so holding Duran and Olejnik for coercion is not only unproductive, but unnecessary.

The lawyers don't say this openly, but they imply that if the court wants to punish Duran and Olejnik , it should release them from civil contempt and charge them with criminal contempt—in other words, if the court is going to be punitive, it should be honest about it. (And perhaps go to trial.)

Item two: Yesterday, posted a short letter from Pfeiffer written on Feb 1: "My main frustration thus far has been that, despite my many requests, I have still not been able to call my lawyer. It has been more than a month and I have not even seen so much as a response to my requests. Regardless of that, I am generally in good spirits and I am looking forward to the day when I can thank everyone, in person, for their support."

Item three: Last week, the Seattle Human Rights Commission sent a letter to Judge Richard Jones (that link is another pdf) about the grand jury refusers and "urge their immediate release" from solitary, citing studies by Harvard Medical School and the United Nations: "While even the critics of solitary confinement recognize that its use may be justified in an exceptional case where a strict monitoring protocol is followed, that is not the case here. There is no evidence that Katherine Olejnik, Matthew Duran, and Maddy Pfeiffer are the 'worst of the worst.'"

* * *

And here is Gordon and Kaplan's full statement about the reasons for and timing of their motions to terminate confinement. And here is the search-warrant affidavit that The Stranger, with the help of attorney Neil Fox, managed to get unsealed. (It's a pdf.)

As you know, Matt and Kteeo are in custody because they have been found in civil contempt. Generally, the idea is that they are not being punished for not testifying, but they are being held in an effort to coerce them into testifying. But the courts have held that if, in an individual case, it becomes clear that the confinement is not going to serve any coercive purpose and actually cause that person to testify, then it becomes "punitive." We believe that the confinement has now become "punitive" for two reasons.

First, our clients have suffered the worst conditions of confinement that the Federal Detention Center can lawfully impose upon inmates, and perhaps some that are not so lawful. Our clients have suffered under those conditions for a meaningful period of time. Our clients have also had very real personal losses—homes, jobs, just to name a few. But we can say without hesitation that our clients' resolve not to testify is stronger than ever. In fact, every day that our clients suffer under these conditions makes them more confident that their suffering should not be in vain.

Second, we have brought our motion now because we have obtained further, publicly available documents (the search warrant affidavit and supporting materials that The Stranger successfully fought to unseal) that show that the government has already identified, compellingly, who was responsible for the vandalism.

This suggests that the government does not need whatever tangential information our clients might have. The search-warrant affidavit also strongly suggests that the government still has other alternatives to investigation and do not need to rely on our clients. We believe that the law governing civil contempt compels a court to consider both of these things when making a decision about whether confinement has lost its coercive value.


Comments (12) RSS

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Kinison 1
Grand Jury, good enough to go after religious pedophiles but for political activists who seek the overthrow of the federal government .. OMG POLICE STATE!

I hope they spend years behind bars, then decide to rat out their friends.
Posted by Kinison on February 22, 2013 at 2:30 PM · Report this
nicholaus 2
Thank you for continuing to follow up on this, I think it is very important to be aware of the lengths our government will go to in an attempt to get what they want.
Posted by nicholaus on February 22, 2013 at 2:35 PM · Report this
Sandiai 3
Thanks, Brendan. Hopefully, the Judge/government is aware that many people are following this story.
Posted by Sandiai on February 22, 2013 at 2:45 PM · Report this
Some Old Nobodaddy Logged In 4
1, I think most of the judiciary involved in this case are in alignment w/ your thoughts: they're not interested in justice, they simply want to gloat in sadistic pleasure.
Posted by Some Old Nobodaddy Logged In on February 22, 2013 at 2:50 PM · Report this
Pope Peabrain 5
Coercive? What is that but a polite way of saying torture.
Posted by Pope Peabrain on February 22, 2013 at 2:59 PM · Report this
The treatment of these prisoners is deplorable. Not only have they been in solitary confinement for months, but Maddie isn't even allowed to speak with an attorney. The hypocrisy and brutality of the prison system is just astounding, and makes any pretenses of "justice" or democratic procedure absolutely meaningless.
Posted by blackflags on February 22, 2013 at 4:00 PM · Report this
ScienceNerd 7
When they get out, do they have any protections against the loss of their homes and jobs? If not, it might be a nice idea to start a fund for them. If there already is one, can you post info?
Posted by ScienceNerd on February 22, 2013 at 4:41 PM · Report this
lostboy 8
The link to the letter from the Seattle Human Rights Commission is broken. It points to…, which returns a 404 Not Found page.
Posted by lostboy on February 22, 2013 at 4:46 PM · Report this
CC-Rob 9
To contrast former Blackwater Executives were charged with an assortment of crimes:

"The charges were for illegally possessing machine guns; making false statements about weapons; knowingly receiving and possessing unregistered firearms; “corruptly” persuading another person and engaging in “misleading conduct toward another person with intent to alter and conceal an object with the intent to impair the object’s availability for use in an official proceeding”; knowingly falsifying and making “a false entry in a record, document and tangible object with the intent to impede, obstruct and influence” an investigation. The conspiracy was furthered through the purchase of short barrel rifles, machine guns and shipping firearms to the King of Jordan or his entourage."…

They received probation and 4 months house arrest.

And of course there's the recent case of HSBC Bank laundering money for drug lords and terrorists. They got fined.

I guess vandalism is a more serious crime in the eyes of the Feds.
Posted by CC-Rob on February 22, 2013 at 5:34 PM · Report this
I really don't understand your Grand Jury system. It seems to violate a number of basic human rights. Get rid of it.
Posted by David Thomas on February 22, 2013 at 10:35 PM · Report this
Eric Arrr 13
Reading the search warrant affadavit, I'm struck by the frequent references to "recovered text messages." Investigators normally recover text messages when they have physical possession of a phone and a search warrant (or consent) allowing them to review its contents.

I don't think that's the case here. I suspect these text messages were recovered primarily through the use of administrative subpoenas, where an FBI agent only has to demonstrate "reasonable relevance" to force the carrier to turn messages over.

Taking my suspicion a step further, I speculate that the primary reason the FBI has been calling witnesses to appear before the grand jury is to force them to furnish evidence to be used in future administrative subpoenas. A witness testifies that a given individual considers themselves an anarchist and associates with known anarchists, and boom, the FBI has its "reasonably relevant" basis to fire off administrative subpoenas to get all their text messages from the phone carrier.

But no evidence, no subpoena, no recovered texts. No wonder the FBI is pissed off at these witnesses.
Posted by Eric Arrr on February 24, 2013 at 10:48 AM · Report this
@ 8. Sorry about that. Should be fixed now.
Posted by Brendan Kiley on February 25, 2013 at 4:20 PM · Report this

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