Law and Disorder Radio

Transcript of Margaret Ratner-Kunstler Interview – Grand Juries

Heidi Boghosian: You are our resident expert in grand juries and you’ve been doing this kind of work for decades so you’ve seen the historical impact especially in the wake of 9-11. Can you talk generally — and we’ll be talking a little bit about the raids that happened to activists — but can you talk generally how grand juries have been misused historically to target activists?

Margaret Ratner-Kunstler: Well the threat of a grand jury subpoena, just the mere threat of a subpoena, has been used since 1968 when the immunity law changed — and I’ll explain that a little bit later — to threaten activists with incarceration. The grand jury functions in a very insidious way. Before 1968, if you were subpoenaed before a grand jury and you asserted your Fifth Amendment right then that really was the end of your participation in the grand jury because you asserted immunity and if you were given immunity, you couldn’t be indicted so —

Michael Ratner: Now by immunity you mean we have a Fifth Amendment right not to incriminate ourselves and you’re asked to speak before a grand jury or answer questions, you say ‘I have a Fifth Amendment right not to say anything and I’m not going to say anything’ and that would be the end of the matter. Now why was that the end of the matter?

Margaret Ratner-Kunstler: Why was it the end of the matter? Because if you were given immunity than that was the end of the potential for indictment.

Michael Ratner: Because immunity meant that you no longer?

Margaret Ratner-Kunstler: That nothing you say not only could not be used against you, but anything you testified about could not be the subject of a criminal indictment against you.
Michael Ratner: So they really couldn’t indict you anymore.

Margaret Ratner-Kunstler: They really couldn’t indict you anymore. What happened subsequent to that, it didn’t prove to be a good tool obviously for getting or testimony for people so immunity was changed. And the immunity that was once a full immunity became a transactional immunity. And your testimony then was only if you asserted your Fifth Amendment right before the grand jury, then you were given immunity. But the immunity was so tiny, it only covered what you said. Your very words could not be held against you or the fruits of those words. But it was so easy to get around that just by a prosecutor saying, ‘Well this didn’t come from that, it came from something else.’ If you then refused to testify once you were given this kind-of minor immunity, you could be subject to imprisonment.

Michael Ratner: So let me give you an example. I’m sitting at home one day — and maybe something like the activists who were given subpoenas for a grand jury in Minneapolis or Chicago. And I’m given a piece of paper served by an FBI agent but it comes from a United States Attorney and it says, ‘Michael Ratner, you have to go down to wherever the courthouse is and you have to go into a room with 23 jurors or something — grand jurors, all in secret, and I don’t have my attorney in there, my attorney — let’s say it’s you, Margie, — can stand outside but I have to go in the room. And I’m there with the US Attorney and these 23 grand jurors and they ask me questions. And they say, “Michael Ratner, what’s your name?” I say, “My name is Michael Ratner.” They say, “Were you in Chicago on such-and-such a date?” And I say, “Well I’m not going to testify because that might incriminate me if I testify.” Then they say, “Okay, don’t answer. We’ll get you immunity.” Then they get me immunity, they drag me in again, and then they say, “What’s your name — were you In Chicago on such-and-such date?” And I say, “I take the Fifth Amendment.” And they say, “Well you can’t anymore because you’ve been given immunity.” And I mess around and say something about the First Amendment right of association but, at that point, they can haul me before a judge and do what with me?

Margaret Ratner-Kunstler: This is assuming that you didn’t use certain procedures that are available to you before that. But at that point, they haul you before a judge and you have a contempt hearing. The judge says, “What are your reasons for refusing to testify?” And listens to them. Generally, people assert the First Amendment claims which are not deemed sufficient to overcome the immunity issues so the judge then orders you to testify. You go back into the grand jury room if you testify, that’s one thing. If you refuse to testify, your brought back before the judge and the judge then holds you in what is known as civil contempt. That means that whatever length of the grand jury — Normal grand juries are 18 months. The grand jury that we’re concerned about today is a grand jury that’s a federal grand jury in Chicago that was impaneled in August and it’s a special grand jury which means that it’s twice as long — it’s a thirty-six month grand jury — and can be extended because it’s called “special.” Now that’s significant because the time you can — If you are held in civil contempt, it’s so-called, the keys to the jail are in your pocket. You’re in jail for as long as you refuse to testify. It used to be that we would stal and stall and stall so that if a person refused to testify, there was only three months left for the life of a grand jury and the person would only have to do three months. But since grand jury lives are longer and since this is the beginning of a grand jury, people who refuse to testify and are held in contempt can easily face thirty-six months in jail, something near that.
Michael Ratner: They don’t get a fixed sentence, they go to jail and the judge says, as you said Margie —

Margaret Ratner-Kunstler: Until you — until you agree.

Michael Ratner: — you have the keys to the jail. If you agree to talk, you can get out.

Margaret Ratner-Kunstler: Right.

Michael Ratner: They ask you, name all of your friends. That’s the kind of thing they’ll ask you.

Heidi Boghosian: But this is called coercion. The point of incarceration is to coerce the person to change their mind.

Margaret Ratner-Kunstler: Right. And that’s why it’s civil.

Michael S. Smith: But isn’t it punative?

Michael Ratner: Yeah.

Margaret Ratner-Kunstler: Of course it’s punative. It’s punative because if a person is going in saying “I know I am not going to testify,” then there’s no coercion and it’s all 100% punative.

Michael Ratner: You’re not allowed to torture people anymore now, you just go to jail.

Margaret Ratner-Kunstler: But that’s all you do, you go to jail.

Michael Ratner: Right, it’s not like —

Heidi Boghosian: But they say theoretically it’s not supposed to be punative.

Margaret Ratner-Kunstler: But you know at that point, after you have served your civil contempt time, you are still, you are still potentially subject to criminal contempt and that has happened.

Michael Ratner: To some of your clients. Puerto Rican clients, right?

Margaret Ratner-Kunstler: Yes. After they were held in civil contempt and did their civil contempt time, they were indicted for criminal contempt. And a criminal contempt trial is a joke because you’ve already been held civilly, you’ve been in a court room refusing to testify so the evidence against you is quite simple so there is very little you can do in terms of adjustification.

Heidi Boghosian: Now I remember I went to a training that you did a couple of years ago that you did with Bob Boyle and I remember the advice, “Do not say anything.” Even sometimes admitting your address or your name —

Michael Ratner: This is in the grand jury, Heidi?

Heidi Boghosian: This is in the grand jury. Is it true that somehow that could be manipulated? That one really shouldn’t say anything?

Margaret Ratner-Kunstler: Well there is the potential of waiving. If you say something, you could waive your Fifth Amendment right by already participating in the conversation. So if you talk, then you might lose the ability to assert your Fifth Amendment and go through the immunity process.

Michael S. Smith: So, Margaret, what’s at stake now with these various people in Chicago and Minneapolis being subpoenaed to the grand jury, the FBI going into their homes and taking their computers and their records and everything. What’s goin on?

Margaret Ratner-Kunstler: Well I think it’s really interesting what’s going on. I mean it really represents the tremendous sea change we have in this country in terms of the ability of people to actively oppose this government’s policy. This is a situation that, if it happened in 1983, for example, with the groups that were opposing the US intervention in Central America and the propping up of various dictators, there were many groups in this country who were joining forces with the progressive groups in Central America and aiding them in various ways. You had the Committee of Solidarity with the People of El Salvador, you had the people working with the Nicaraguans, you had a whole host of people supporting the progressive movements in Central America. Now if that happened today, these people would be subject to — as the people who have been subpoenaed to these grand juries — would be subject to very serious criminal actions against them based on the Patriot Act that now is in existence.

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