Grand Jury resistance: Not if, but how
CLDC has a commitment to developing strong mentor relationships with students and aspiring movement attorneys through our intern and law clerk programs. Our interns and clerks receive a very hands-on experience in activist legal and communications support, working under the supervision of our knowledgeable staff.
Our Spring 2022 intern, Maya Ward, is a University of Oregon student. Interns are invited to select a self-directed project during their time with CLDC. Ward chose to focus their research on Grand Juries and had the opportunity to sit down with two former grand jury resisters to learn more about their experiences of resistance.
James is an anti-repression and movement defense activist and former grand jury resister from Texas. Katie is an anarchist legal worker in the U.S. South and a former grand jury resister. Eli, the attorney who represented Katie, worked for a non-profit representing people in prison and provided pro bono legal representation.
Critical moments in that conversation have been highlighted in the article below.
If you are interested in learning more about grand juries, we recommend our extensive Activist Webinar Library, where we have several recordings that cover the topic. These webinars must be requested through the form on the linked page, but are available for free.
Two Stories of Resistance:
For James, his subpoena to attend a Grand Jury did not come necessarily as a surprise, but it was not what he was expecting. Three weeks after his protest activity, he said he had begun to let his guard down. When two men showed up at his door, he assumed they were the construction workers from the house next door, asking if he wanted a new roof. It turns out James should have followed the gut feeling he had when he heard the knock, “I felt it in my stomach, that, oh this is the FBI. When James opened the door, he did not find his X-files expectations of attractive agents in black suits and ties; James says “they didn’t look like the FBI, I didn’t see any badges or anything. Instead, they wore jeans, khakis, polos, and striped shirts. The FBI agents tried to ask him about his location at certain times, and James’ know your rights training quickly kicked in, so he remained silent. As soon as the FBI left, he was seeking legal counsel.
For Katie, she isn’t quite sure what specific activity or relationship led to her being subpoenaed. That confusion is often the nature of, and a part of the game of, the FBI using these subpoenas in relationship to activist circles. It is hard to talk about the opaque system without speculation, but speculation is often what is so insidious about grand juries, so trying to get the facts as accurate as possible is key.
When the FBI showed up at Katie’s house, she wasn’t home. Her roommate told her about their visit and she decided that her next step was getting a lawyer. Unfortunately, obtaining a lawyer meant that the lawyer was the one who was served the subpoena. While this wasn’t able to delay the inevitable, as Katie says, “that steered them away from visiting me over and over again, which is something they continued to do with other people” and this effectively “directed [the FBI] to only contact [the lawyer] from that point forward.”
By the time Katie had her subpoena, she only had 21 days to decide what to do. As Katie says, the few days’ notice is often a tactic “used to disorganize you” and give you little time to prepare, often further creating a sense of panic. As soon as you receive a subpoena, if you decide to not show up you could be held liable for a criminal offense. And while avoiding a subpoena entirely is possible, it is unlikely and could result in isolation from much needed community support. The best option for most people is to know your rights, lawyer up, and get community support. Subpoenas don’t have to result in giving up your values and cooperating, and that is where resistance comes in.
For Katie, she says, “that wasn’t a choice [about resisting]– it wasn’t something that I can imagine having made a different choice about, but the reason for that is because when I was served a subpoena, I think I was 30 or 31, and I had been doing legal support.” Katie knew a lot of people who had resisted in the past, she knew what resistance was, and she knew the consequences; her decision was an educated one. Because of this, Katie decided to make her resistance public, seeing this as an opportunity to educate her community on the injustices of grand juries and the possibility of resisting.
This conviction to fight was vital, as Katie says, “I do think that the question of what motivates or what strengthens your resistance is fundamental.” For Katie, this resistance was personal, political, and community-oriented. But the conviction to bring this resistance into such a public light comes with great responsibility. Since “it wasn’t a question of whether I was going to resist, the question became how” what was integral for Katie was figuring out “how to be responsible and accountable to everyone else but doing it in a way that made it so public that it could bring other people in.” Not only was Katie trying to educate others, but she was trying hard to maintain the mutual trust between herself and her comrades that the government was trying to disrupt.
Katie went about this in the best way she could think of, through “transparency with my community.” When she entered the courtroom, she answered each question with a written statement invoking her constitutional rights to not answer and writing down the questions asked so she could share them back, disrupting the veil of secrecy grand juries rely so heavily upon. When Katie left the courtroom, the prosecutor recommended she be held in contempt of court, but she never heard from them again. The radio silence was not the end of it, though, the issue continued to be investigated, so “the open-ended nature of the legal process for the large community in North Carolina, I think, kind of remains.”
While Katie had the support of her community, for James, much of the heavy lifting was on the backend of the process. For James, resistance “just seemed like the thing to do.” Reasoning that the “the more [the FBI] wanted it, the less you should tell them.”
In many ways, the judicial system is designed to be confusing, and especially in a grand jury room, where the prosecutor is in charge and hearsay is admissible, James feared that talking would result in more charges against him or his friends. In addition, James was aware that there was a confirmed informant within his group who had caused these issues, which only left him feeling “we could talk ourselves into more trouble,” and that “things could get worse if we cooperated.”
The group James operated with was not initially all on board. Resistance is a fear-inducing unknown, which should not be downplayed. But often, the best person to look for support in is a fellow resister. In James’ group, there was an older member who was justifiably scared of the consequences of resistance and being held in contempt of court. Another younger member was more prone to following others’ lead and didn’t see the complete picture of the danger of cooperation. James sat them down and “convinced them cooperating was risky and not cooperating could be successful if we all stuck together.” For James, “that was crucial in keeping a coherent, cohesive strategy of noncooperation.”
Community Support:
Resisting isn’t a one-person process, though; it requires the community’s support and knowledgeable legal counsel. Obtaining that is easier said than done. The question I posed to the interviewees is, was it up to the community to be ready and prepared to support the resistance, or was it up to the resister to educate the community on how to support them? With all the complicated factors, the answer wasn’t a clear one.
Often, James says, communities don’t like talking about complicated, often mundane legal processes such as grand juries, and there tends to be, as with much of American culture “a do-it-yourself self-reliance, go it alone attitude.” The solution then to this issue of support is not a clear one, but likely a combination of both pieces. The problem is, “there is a lack of one because there is not enough of the other, people don’t know what support looks like or what’s available, so they don’t ask for support. And nobody’s asked for support, so people don’t know how to initiate and offer and ask for support,” James explained. Creating a culture where both operate with one another helps to bridge that gap.
Katie sees the solution as an integration of resistance and support built into everyday life. “When we think about moments of repression and how we care for people, there are so many things going on that make it more complicated. And it informs the way I work with people thinking about how many things are going on, people are just dealing with a lot, how do we work to support in a way that’s suitable and keeps people tied to the people that makes them stronger without creating ideas for our community that are not realistic.”
Support tends to come in episodic waves, as Katie says, “support is going to fray no matter what, no matter how good and well-intentioned.” She went on to reflect that “one of the things that was hard for me and hard for people in my life to understand is that people had a great fundraiser and people did supportive stuff, and then they went away, but I was still doing this thing.”
Integrating support, resistance, and building up the community when things hit the fan is more complicated than building it into daily life. Especially when thinking about how many political movements aren’t static, as Katie says, “when we see movements like the George Floyd protest, where people don’t have preexisting relationships, they may or may not have any relationship coming out of that. It is a very different way of relating, so there is not the same conversation about long-term solidarity. So how do we resource somebody to get through something right now? And how the people in their life fit in or don’t.” Integrating this support is not always easily done. As Katie says, “[it is] really hard to distill into a workshop,” but continuing the conversation around it is an essential consideration in the future.
Lawyering Up:
One of the most important things I learned from these interviews is that grand jury resistance is similar to any legal process: the first step is lawyer up, lawyer up, lawyer up! But this is not as simple as it may seem. James says, the perfect lawyer would be “one that is experienced, in general, and in this area, is politically sympathetic, and has the time, energy, and resources to do the work for you for free, and that just doesn’t always exist.” For him, the issue becomes a balancing trade-off of lawyers, but his advice is to “ask a lot of questions, be honest from the beginning about what you’re looking for, and see who you feel the best about and figure out what you need to do to afford them.” Connecting with an organization like the Civil Liberties Defense Center or the National Lawyers Guild is a great way to find a referral.
For Katie, that similar all-hands-on-deck approach to community support is good for thinking about an attorney. Katie got lucky; her attorney was a long-time friend who knew “what my resolve was and how much I was willing to learn and how much I was willing to sacrifice.” They had a much more horizontal relationship than most people think of in attorney-client dynamics. But Katie doesn’t believe you have to have a good friend with a law degree just to get a good lawyer. For Katie, finding a good lawyer is about finding an attorney that is not afraid to learn something. For her, her lawyer was excellent not necessarily because of their relationship, but because “they were willing to talk to anybody, they consulted with so many good people and used our resources well” and for Katie, if felt like, “we learned how to do it together.”
Of course, no lawyer is perfect, and even those with all these qualities still need a community of peers who are well attuned to the topic to confer with. But, as Katie says, “there are a lot of attorneys who are willing to learn things outside of their scope if there are people who know better [about the subject] who promise they will be there and walk them through it so they can do it to the best of their ability.” It is critical to find a lawyer who is willing to learn with you as well as other attorneys, comrades, or organizations that are willing to help you and your attorney learn what resistance looks like in action.
I was also able to sit down and speak with Katies attorney at the time, Eli. Eli gave invaluable advice for both those seeking legal representation and lawyers considering taking on cases. Eli told me that one of the most helpful things someone who is looking for a lawyer can do is try to get community support or fundraising going. The grand jury resistance process was significantly longer than Eli had anticipated, and doing this work pro bono, detracted from their full time job. While Eli was more than willing to help Katie in this process, considering the fiscal impact this work has is critical when asking lawyers to provide free legal representation. If you have a list of other lawyers who work within grand jury resistance or you can get sample motions or media statements, that is valuable information for your lawyer to have moving forward.
As James highlights, it is essential to sort out your networks, contacting organizations like CLDC, the NLG, or calling the NLG federal repression hotline at (212) 679-2811.