Katie Yow has been called to testify before a grand jury investigating a case she has no information about. Nevertheless, she is refusing to cooperate. For this she could be imprisoned without trial for 18 months. Former grand jury resister Carrie Feldman spoke to Yow about how this works, and what it’s like to live with the process.
Why Katie Yow Is Refusing A Grand Jury Order
“You have the right to remain silent.”
Anyone who’s ever seen a cop drama has heard these words. They have made their way into the mainstream narrative of what our ‘rights’ and ‘freedoms’ are in the good old US of A. However, this is a misrepresentation – while you aren’t obligated to speak to police officers or the court in most situations, remaining silent is not actually a right in the American legal system. On the contrary, if the government subpoenas you to a secretive proceeding known as a grand jury, saying nothing is punishable by incarceration. When I was faced with a grand jury subpoena in 2009, I was already a radical and wasn’t shocked that the American justice system could be patently unjust. As my case unfolded, I was struck by how many people across the political spectrum were appalled that this could happen in America. And yet, grand jury investigations continue to operate largely outside of public awareness, slipping under the radar and forcing people to choose between compliance and a cold cell.
Katie Yow, a social worker and anarchist from Durham, North Carolina, is facing that dilemma today. Subpoenaed to give testimony about an attack on republican headquarters that she asserts she has no information about, she nevertheless has vowed not to cooperate with the government’s investigation into radical activity. Her refusal means she could be imprisoned without trial for the term of the grand jury that she has been called to, or up to 18 months.
So, what is a grand jury? Unlike the trial jury, which is the one usually represented in movies and TV shows, a grand jury doesn’t decide whether someone is guilty or innocent, but only decides whether someone should be indicted and go to trial for committing a serious crime. In theory, a panel of your peers will protect you from prosecutorial overreach by hearing the available evidence and deciding whether it warrants charging you. However, they are notoriously ineffective at this protection. Grand juries are said to be “prosecutor friendly” – so much so that a former New York state chief judge once said that a grand jury would be willing to “indict a ham sandwich” if a prosecutor asked them to. In the few cases where they don’t indict, it often concerns a police officer being investigated for brutality or murder.
Because of their broad powers of subpoena, grand juries are often used instead as a tool for expanding investigations and in some cases conducting political persecution. If you were seen at a demonstration where vandalism occurred but the police don’t have concrete evidence that you committed it, the prosecutor could subpoena your friends – even any family members other than your spouse – and ask them about your political beliefs and associations. Have you ever advocated property destruction for political causes? Who do you spend time with, organize with? Do you consider yourself an anarchist, socialist, communist or anti-fascist? In this case, the grand jury isn’t reviewing the case to see if it is solid enough to charge you. Instead, they’re building a case against you with the power to mandate that other people testify against you, and even that you yourself testify.
It doesn’t help that a grand jury is convened and conducted in secret. You can be subpoenaed with no justification given, and without even being notified of what crime is being investigated. The transcripts are not made publicly available and there is no official way for the public to discover who has been subpoenaed or what is being investigated. Unlike a trial, there is no judge or defense attorney allowed in the room to contradict what the prosecutor is saying or ensure that they follow the law.
But why and how is the government able to sidestep the Fifth amendment to allow forced testimony in this way? If you plead the fif, as it were, the prosecutor simply asks the attorney general to grant you immunity from prosecution, thus overriding your right against self-incrimination. This sly move was established in 1954 by the Communist Control Act, with president Eisenhower stating this about the new law:
“... I signed a bill granting immunity from prosecution to certain suspected persons in order to aid in obtaining the conviction of subversives. Investigation and prosecution of crimes involving national security have been seriously hampered by witnesses who have invoked the Constitutional privilege against self-incrimination embodied in the Fifth Amendment. This Act provides a new means of breaking through the secrecy which is characteristic of traitors, spies and saboteurs.”
In the 1970s, the Nixon administration scaled back the constitutional protection even further under the pretext of fighting organized crime. Now when you are granted immunity, the government doesn’t guarantee that you won’t be prosecuted if you testify – only that they won’t use your words from that testimony against you in court. They are, of course, free to use other people’s testimony against you – testimony which they also demanded via a grant of immunity. This new law was quickly put to work targeting anti-Vietnam War activists, black liberationists, and Puerto Rican Independentistas (as well as pretty much every other radical left wing movement in the 70s). It has been used most recently to target radical environmental and animal rights activists, and anarchists. Because of the secrecy surrounding the process and the very limited protections you have if you testify, completely refusing to speak to the grand jury seemed to many of those subpoenaed to be the safest and clearest way to ensure that they would not accidentally incriminate others or themselves. Members of these movements have largely adopted total non-cooperation as the strategy for resistance – despite its consequences.
So where does this leave a dedicated anti-statist like Yow? Via her support website, Katie makes clear that testifying runs contrary to her principles:
“I am a social worker and an artist who works in mental health and advocacy with young folks whose lives are impacted by courts and incarceration. I spent years before this as an elementary school teacher, a high school librarian, and running a bookstore and community center. I have been an anarchist for nearly half my life. My convictions as an anarchist inform every part of my life, and being part of the anarchist movement gives me all the strength I need to resist this subpoena.”
For the moment she has not yet been held in contempt of court, though it seems all but inevitable. I caught up with her to see what she’s thinking during this period of waiting.
Where are you at currently in this process?
I received a subpoena on July 10th. On July 31st, I appeared before the grand jury and refused to testify. After I was taken out of the grand jury room, the Assistant US Attorney informed me and my lawyer that they would be requesting that the court hold me in contempt and that I was not released from the subpoena. Since that time, we’ve had no further updates. At this point in these processes, what generally happens next is that the government will “grant” immunity to the subpoenaed witness and then, if the witness still refuses to testify, request a contempt hearing. If a witness is found in civil contempt, then the next step is detention in jail for an indefinite period of time, which could be until the grand jury session ends.
Were you familiar with the idea of a grand jury before you were subpoenaed?
I was actually quite familiar with grand juries – and more importantly, with the mechanics and history of grand jury resistance. I am enormously grateful that this was the case. Being educated about this kind of state repression and aware of how powerfully individuals and communities have resisted grand juries in the past has made it so much easier to go through this process. I hope that my case can serve as an opportunity for others to learn about grand juries and how they’re used, and to see how we organize against them and support our people when someone is in this position.
What options are available to someone facing a grand jury subpoena?
There are different options for refusing to cooperate with a grand jury. Knowing yourself and your situation and what will work best for you and your community is key. There are great resources on different cases and ways to resist, such as the Grand Jury Resistance Project. Whichever method you choose, the important thing is to know that the only option in a situation like this is to refuse to testify entirely. There is no neutral or harmless way to testify before a grand jury. This is partially because we can never know what the state wants or believes is useful, but it is also hugely important to be clear that we can never be ambiguous about cooperation when the state is coming for our movements.
How does one prepare for the possibility of indefinite detention?
Sometimes it feels like I’m planning for multiple lives at once. It’s hard to know how to make decisions, it’s hard on relationships and health. It’s also the kind of uncertainty and toxic stress that so many people dealing with the courts and life under state control face every day. I haven’t had to go through something quite like this for myself before, but I’m mindful of friends and people in my community who have and are right now. I was talking to a friend recently about his probation orders. He just got violated on his probation by his PO and now he’s going to have to do 90 days, but he doesn’t know when and they aren’t telling him anything. It makes me furious how mundane and normal that is, and I think a lot about the strength other folks show handling this kind of thing. With folks who aren’t living in communities where the state operates like this normally, especially white folks who – rightfully – think that what I’m going through is awful, I’m trying to talk about it in ways that keep it in context and can mobilize even more support for folks dealing with this stuff daily, including our movements who have such a long history of state repression.
Sometimes I feel like the most bummer friend, because I’m having a rough time emotionally, and I’m running everything through this lens now. I’m trying to stay present and normal, and also trying to be gentle with myself when I’m experiencing so much anxiety or sadness that I can’t. I’m also drawing a lot of strength from the ways I’ve watched and heard about other folks handling state repression, and remembering not to let the state tear me up inside or make me feel like I’m already doing time when I’m still out here in my community.
When I was going through this, people often asked me, “But if you weren’t involved, why don’t you just go in and tell them you don’t know anything?” Do you also get this question?
Especially for friends of mine who are not anarchists, this question really does come up a lot. I guess it’s based on the idea that there’s such a thing as a safe or defensible way to testify before a grand jury. There isn’t. Any cooperation, however neutral it might seem, can harm other people and our movements at large, and is a betrayal of ourselves and our communities. We have to hold a hard line about how we keep each other safe and what we expect of each other.
What books do you absolutely want sent to you if you are thrown in jail?
This is a really funny question, because I was a librarian and ran a bookstore for many years, but I’ve had the hardest time deciding what to put on a book list. I’d like to read Rebellious Mourning when it comes out in September and have other people read it with me so they can write with me about it. I mostly like to read history and books about trauma and mental health. I’m not a big fiction reader, but I feel like I’ll want things like that to read instead of my usual diet of dense nonfiction about serious things, so I’m looking for recommendations. I’ve been re-reading lots of writings from our political prisoners this last month, and I’d like to get things like that if I can. I’d also love for folks to spend time reading things like that together, and to use this opportunity to increase support for all our folks who are in prison.
Looking at a grand jury subpoena from a legal perspective is pretty bleak. I fully expected to sit in jail for eleven months or more. Instead, I was released without explanation after four months. I’ll probably never know exactly what happened, but I feel strongly that the support I got and the publicity around my case put pressure on the government to drop the subpoena. To put an end to shadowy government intimidation, it is critical to shine a light on their actions and stand in solidarity with those who are targeted. And if one day you find yourself the target of repression, remember this: the state may take away some of our freedom and time, but that will pass and in the end we are left only with the decisions that we have made.
I said it once and I’ll say it again: Stay safe, stay strong, and fuck grand juries.