For the last eight months, a Brooklyn man had been held in jail because of his refusal to testify before a grand jury that was believed to be examining a 2008 explosion in Times Square.
But last week, the continued refusal of the man, Gerald Koch, won him his release.
Mr. Koch’s unusual path — held in civil contempt after his initial refusal, then released thanks to the same recalcitrance that landed him behind bars — illustrates a process that the judge in the case labeled seemingly “counterintuitive.”
In a written opinion, the judge, John F. Keenan of Federal District Court in Manhattan, explored the logic in how “the refusal to testify is somehow transmogrified from a lock to a key.”
Federal law holds that people who refuse to provide grand jury testimony may be jailed for the panel’s duration, usually up to 18 months. But the law also states that the detention may end if it crosses from coercive to punitive.
The grand jury for which Mr. Koch was subpoenaed appeared to be examining events from 2008, when a bicyclist approached the armed forces recruiting center in Times Square, then pedaled away before a homemade bomb exploded, damaging the center but harming nobody. Mr. Koch, who has identified himself as an anarchist, said that investigators believed that he had heard a conversation in a bar about who was behind the episode but that he remembered no such event.
Prosecutors have declined to discuss his assertion and did not respond to a request for comment on Mr. Koch’s release; by law grand jury proceedings are secret. Moira Meltzer-Cohen, a lawyer for Mr. Koch, who was considered a witness rather than a suspect, said that her client regarded the grand jury process as unfair and believed his testimony would lead only to a widening circle of similar subpoenas.
“Jerry was not trying to protect criminals,” Ms. Meltzer-Cohen said. “He was protecting other innocent people from what he was subjected to.”
Reached by telephone after his release, Mr. Koch, 24, said that his detention had been arduous. He had been buoyed by letters of support, he said, but his mail had been withheld or delayed on several occasions. At one point, he said, he was placed for five days in 24-hour solitary lockdown without a shower or contact with the outside world.
“I lost much more and suffered much more than I expected,” he said, adding, “I certainly have no regrets about the decision I made.”
Ultimately, few of those involved in Mr. Koch’s grand jury narrative, which stretches over more than four years, would appear to be gratified by the results. Mr. Koch, a former student at the New School, experienced conditions that he called “remarkably unpleasant.” Prosecutors failed to elicit his testimony. And Judge Keenan dedicated several pages of his opinion to a discussion of the “perverse results” of a 30-year-old ruling that provided the precedent to release him.
Mr. Koch was first called to testify in 2009 but was excused after citing his Fifth Amendment protection against self-incrimination, Judge Keenan wrote. Last year, prosecutors granted Mr. Koch immunity, but he still refused to testify. At the time he said that he knew nothing about the case and thought the authorities would embark on a “fishing expedition” while examining his political views and associations.
Judge Keenan wrote that he was skeptical of Mr. Koch’s assertion that he knew nothing. He also disagreed with Mr. Koch’s belief that he had been singled out because of his views, writing, “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.”
But the only relevant issue in deciding whether Mr. Koch should be released, Judge Keenan also wrote, hinged on whether continued incarceration could persuade him to testify. Although Mr. Koch told the court that he had suffered weight loss, joint problems and depression in custody, Judge Keenan wrote, submissions from family and friends made a persuasive case that he would not change his mind about the grand jury.
“There will thus never come a time for Koch where his only remaining option is to testify,” the judge wrote. “The court concludes that continued confinement will not move Koch from the reflexive ideology that forbids his cooperation with the serious investigation at hand.”
Source: NY Times
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