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No Right to Remain Silent

A Third Northwest Activist Who Hasn’t Been Accused of a Crime Is Sent to Federal Prison

No Right to Remain Silent

LEAH-LYNN PLANTE Imprisoned for not “exercising a right.”

Last week, Portland resident Leah-Lynn Plante spent the first of what could be more than 500 nights in prison for refusing to testify before a federal grand jury about people she might know who might have been involved with the political vandalism in Seattle on May Day.

That's a lot of nights for a couple of mights.

Plante has not been charged with a crime. In fact, the court granted her immunity, meaning she could not invoke her Fifth Amendment right against self-incrimination. Lawyers for two other grand-jury resisters—Matt Duran and Katherine Olejnik—have argued that the jury's questions about their acquaintances and housemates violate the First and Fourth Amendments. The court has decided that their silence is not protected by the First, Fourth, or Fifth Amendments.

But if Plante, Duran, and Olejnik continue to remain silent, they could be imprisoned until the expiration of this grand jury. Grand jury hearings are secret, but during Plante's open contempt-of-court hearing, Judge Richard A. Jones said they could be incarcerated until March of 2014.

At Plante's hearing, around 40 supporters and activists—mostly dressed in black—sat in the federal courtroom while extra security, from the US Marshals and the Department of Homeland Security, stood by. As federal marshals prepared to take her away, Judge Jones reminded Plante that "you hold the keys to your freedom" and that she could be released at any time if she chose to "exercise your right to provide testimony."

It was an odd turn of phrase—the same judge who, that morning, legally blocked her from exercising her right to remain silent was sending her to federal detention for not exercising a "right." The 40 or so supporters in the courtroom stood solemnly as she was led away. "I love you," Plante said to the crowd as marshals escorted her through a back door. "We love you!" some people in the crowd said. The lawmen looked tense for a moment, their eyes bright and their jaws clenched, ready for action. Then everyone walked out quietly, without incident.

The only federal defendant to be sentenced for a May Day–related crime so far—damaging a door of a federal courthouse during the smashup—was arrested in early May and sentenced, in mid-June, to time served.

Which brings up a pointed question: Why was the only federally identified May Day vandal sentenced to time served (about a month), while people granted immunity from prosecution—Plante says government attorneys don't dispute that she wasn't even in Seattle on May Day—are looking down the barrel of 18 months in federal custody? Why is a person who might know something about a crime, but who steadfastly insists she has her right to remain silent, facing more severe punishment (about 18 times more severe) than the person who was sentenced for actually committing that crime?

Minutes before Plante's hearing, her attorney, Peter Mair sat, brow furrowed, in the courthouse lobby. Mair worked for years as a federal prosecutor—he's indicted the Speaker of the House of Representatives, has prosecuted mobsters, and is familiar with how grand juries work.

But given the way government attorneys are using grand juries now, he said, "you could indict a ham sandwich. Defense attorneys are not allowed in, other witnesses are not allowed in... They're going to send this poor girl off to prison for a year and a half. And the great irony is that the one guy who pleaded guilty to the crime served—what? Forty days?"

He reiterated what many other lawyers in the course of this story have argued—that the grand jury system was originally included in the Bill of Rights to avoid frivolous government indictments. But, he said, federal prosecutors have been using that system as a tool for investigation and intimidation since the Nixon administration: "They used it to chase dissidents."

Jenn Kaplan, an attorney who represented Olejnik, also showed up at Plante's hearing because she was "curious" to see how it would pan out. "Theoretically, the grand jury serves an important function as a jury of peers to find probable cause," she said, "instead of the US Attorney using it to indict anyone at will without having to publicly demonstrate why to anybody."

The system has become, she said, "a constitutional bypass around the Fourth and Fifth Amendments, allowing the government access to evidence they wouldn't otherwise have." It is also a useful tool to intimidate people, she said, creating a chilling effect on political activism. If simply knowing someone who might be suspected of political vandalism puts you at risk of a subpoena and 18 months in jail, it gives you a strong disincentive to associate with such people. She also cited an article in a Northwestern University law journal about the history of grand juries that states:

The fundamental principles of free association and political freedom under the First Amendment, coupled with the historic right against self-incrimination codified in the Fifth Amendment, establish a "political right of silence." This right should bar the government from compelling cooperation with the grand jury under threat of imprisonment in an investigation involving political beliefs, activities, and associations.

In the end, Kaplan said, it is "far too drastic to bring someone before a grand jury" just because that someone might know someone who might have committed an act of vandalism.

Once Plante had been led away, her supporters walked out of the courtroom. A few looked a little teary. Then they milled around the elevators and on the front lawn of the courthouse, talking about going somewhere to get some food and maybe a drink. One mentioned an FBI special agent who, before the final hearing started, had spoken with her and some of her friends while they waited in the antechamber. I saw him at the end of their conversation, crouching on the carpet while the rest sat on a bench. As I approached, she was quietly asking him: "How do you feel about the way the warrants were executed? People hog-tied in their underwear?" Perhaps sensing new ears listening to the conversation, the agent stood up, walked away, and leaned against a wall until the courtroom opened.

In the end, the quietly tense saga between activists, lawyers, judges, and cops was a symphony of incongruity. Nearly everyone involved seemed to believe they were doing the right thing and executing their duty to their larger community. It was a collision course of ideals: Nobody was there for fun, or for greed, or for anything so simple as selfishness.

The guards at the security check to the courthouse—which activists and I shuffled through several times, emptying our pockets, taking off our shoes, putting our bags through the scanner—said that day didn't seem particularly busy. "You should see Thursdays," one said. "Bankruptcy hearings." Those days, he said, were jammed with people.

"How long have those bankruptcy days been so busy?" I asked.

"Oh, you know," he said. "For three or four years—since the big crash. Lot of people hurting from that. Lot of people hurting."

The day after Plante was sent to prison, activists in Portland organized a "grand jury resisters solidarity march," during which they smashed out the windows of four banks: Chase, Umpqua, US Bank, and Wells Fargo. recommended

 

Comments (27) RSS

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1
why doesn't she just testify that her memory is a little foggy? maybe she was hit in the head by a cop's baton and lost her memory from the event? divert, subvert.
Posted by Chaarlie Faarlie on October 17, 2012 at 9:30 AM · Report this
2
"The day after Plante was sent to prison, activists in Portland organized a 'grand jury resisters solidarity march,' during which they smashed out the windows of four banks: Chase, Umpqua, US Bank, and Wells Fargo"

Way to go, activists... Put more of your friends & family in line to be subpoenaed and/or jailed for your actions.

Hearts & minds won't be won this way... it just makes the movement look more & more like selfish, tantrum-throwing children without the vocabulary to articulate their angst in any meaningful way.
Posted by PenguinMagik on October 17, 2012 at 12:16 PM · Report this
3
With this sort of villiany, public awareness isn't enough. Too many people just don't care. If Martin Luther King didn't March as well as make speeches, no civil rights bill back in the 1970's. I think they need to do more...ALOT MORE!
Posted by martin the j on October 17, 2012 at 2:31 PM · Report this
4
if the cause is compelling perhaps it is better to ask what you yourself should do instead of always passing the buck to the theoretical 'they'. they are doing what they can, what will you do? check out grand jury resistance dot org
Posted by resist on October 17, 2012 at 3:49 PM · Report this
5
Way to go, Stranger. This article and the smear piece on domestic violence in our judicial system shows you know nothing about the law and how our system works.
Posted by Jesus_Jones on October 17, 2012 at 5:48 PM · Report this
Slam1263 6
AHAHAHAHA!!!

What, can't blame this on Bush?

Call Mr. Holder, maybe he'll help you out as much as he has Pvt. Manning.
Posted by Slam1263 on October 17, 2012 at 8:39 PM · Report this
7
The people who commit these acts of vandalism aren't protestors, they are... well vandals. That said, the government is going overboard with this. This is not justice.

She should have the right to refuse immunity, if she'd rather plead the fifth. If she is later found to have protected a criminal, she should do time.
Posted by Uncle Joe on October 17, 2012 at 10:04 PM · Report this
8
The "right to remain silent", as defined by Miranda, is followed by "anything that you say can be used against you in a court of law". Absent the threat of self-recrimination, there is no "right to remain silent". Not in the bill of rights, not in Miranda. Witnesses to crimes, or persons having knowledge of such can be compelled to testify or held in contempt of court. Get your facts straight.
Posted by Buck Stodgers on October 18, 2012 at 12:15 PM · Report this
9
Slam, voting for Nader wouldn't have made this situation any better. The legal system is never reformed by supporting doomed third-party candidates that only let the most right-wing ticket possible get in.

The current situation could only have been worse for everyone, INCLUDING BRADLEY MANNING(who is a political prisoner and should be released immediately)if Ralph had taken 15% and McCain had been elected with the 46% he did get-the best possible showing Ralph could have made.

SO give it a freaking rest. Yes, Obama hasn't been as good as he could have been...but nothing would be better now if the left had left McCain in(and probably left us with President Palin by now, since McCain would never have survived his entire first term)in the name of "the long term".

Posted by AlaskanbutnotSeanParnell on October 18, 2012 at 6:03 PM · Report this
10
If you vandalize or know someone who has committed a crime, you're a subject to the law. The Courts have spoken. She will sweat it out in jail until she realizes that her accomplices are criminals and should be tried for their crimes against Seattle. Why do these idiotic vandals think that by breaking windows and destroying property will bring down the world economy of trade? You are only hurting your own community and putting fear into your neighbors. But this woman Plante will confess her crimes and those of her other criminal friends. Otherwise she is going to get very strong lifting those weights in jail..
Posted by Chris84 on October 19, 2012 at 10:16 AM · Report this
11
I found myself in a similar situation once when a federal prosecutor wanted access to my sources for an article I wrote about a shooting. Luckily, I was able to get pro bono counsel and they negotiated a deal - I testified but did not reveal any sources who had not already agreed to come forward.

What I wonder is this: in my case, the shooting I wrote about involved a felon, and therefore the case was a felony case. My attorneys told me that, should I resist a motion to compel in a felony case, I would not just be thrown in jail, I would also become a felon. No trial, no conviction, do not collect $200, go straight to being a felon. I would lose the right to vote in some places, lose the ability to live in many apartments, lose the ability to get a security clearance and probably many jobs (outside of journalism, anyway), and much more. That was scarier to me than jail.

So, I wonder: does the same thing apply here? On top of being thrown in jail for resisting a motion to compel, will Plante and the others now also be felons? (I'm assuming it's felony-level because federal prosecutors are involved, but please correct me if I'm wrong.) If so, the damage here goes well beyond simple imprisonment for up to 18 months. This will follow them for the rest of their lives.
Posted by meanderer on October 19, 2012 at 10:52 AM · Report this
12
I found myself in a similar situation once when a federal prosecutor wanted access to my sources for an article I wrote about a shooting. Luckily, I was able to get pro bono counsel and they negotiated a deal - I testified but did not reveal any sources who had not already agreed to come forward.

What I wonder is this: in my case, the shooting I wrote about involved a felon, and therefore the case was a felony case. My attorneys told me that, should I resist a motion to compel in a felony case, I would not just be thrown in jail, I would also become a felon. No trial, no conviction, do not collect $200, go straight to being a felon. I would lose the right to vote in some places, lose the ability to live in many apartments, lose the ability to get a security clearance and probably many jobs (outside of journalism, anyway), and much more. That was scarier to me than jail.

So, I wonder: does the same thing apply here? On top of being thrown in jail for resisting a motion to compel, will Plante and the others now also be felons? (I'm assuming it's felony-level because federal prosecutors are involved, but please correct me if I'm wrong.) If so, the damage here goes well beyond simple imprisonment for up to 18 months. This will follow them for the rest of their lives.
Posted by meanderer on October 19, 2012 at 10:55 AM · Report this
13
Gah sorry about the double post!
Posted by meanderer on October 19, 2012 at 10:56 AM · Report this
14
The Stranger really needs a legal reporing staff. Mr. Kiley just doesn't seem to understand the Grand Jury process or the 5th Amdt. This piece isn't nearly as confused as the Stranger's reportage on SCOTUS / appeals cases, which are generally just a swampy morass of ingnorance. Misreporting is worse than not reporting at all.
Posted by boomshaka on October 19, 2012 at 12:45 PM · Report this
15
http://leahxvx.tumblr.com/post/338964733…

She's free.
Posted by thufir on October 19, 2012 at 1:27 PM · Report this
16
Good for her. Sticking to your beliefs has become an uncommon occurrence. We should all support her and arrange time to visit her to provide words of encouragement.
Posted by GoinFishin on October 19, 2012 at 1:59 PM · Report this
17
#16, I don't think she was sprung because she stuck to her beliefs. The other two remain in jail. I suspect the one was sprung because she's a lunatic.
Posted by Mister G on October 19, 2012 at 4:52 PM · Report this
18
#17, How did you come up to 'suspect' her with the psychological diagnosis of lunatic? I can't remember reading anything, that drew me to that conclusion. Can you direct me the the article(s) that help you to 'suspect she's a lunatic'?
Posted by FactsOnlyPlease on October 19, 2012 at 6:12 PM · Report this
19
I am a fan of the stranger, but this article sets a very poor standard. No quotes from anyone this article vilifies. No indication that they would not talk to you. There aren't even any quotes from anyone with a different point of view.

I sure many legal experts would tell you the is a legal right against *self* incrimination. You don't have the right to shield the crimes of others because you believe those crimes are just. You have an obligation to tell the truth.
Posted by Matt B on October 21, 2012 at 8:30 PM · Report this
20
#19, the Stranger doesn't "do" journalism. It's a parody pyublication, similar to The Onion.
Posted by Mister G on October 22, 2012 at 11:53 AM · Report this
Texas10R 21
Check out all the Unregistered Comments in this thread ––Clearly the actions by federal prosecutors and the rest of the Department of Justice (with their associates) have had the desired effect: scare the shit out of people. Smashing federal property doesn't advance public discourse, but an overarching Constitutional principle calls for greater scrutiny from Attorney General Eric Holder and former Constitutional Law Professor Barack Obama. In the balance are the further erosion of the credibility of the justice system in general and the current administration's commitment in particular. Oh yeah, and a bunch of people in jail that should never have spent a single night in jail, at least not for refusing to sign the proverbial confessions under coercion.
Posted by Texas10R on October 22, 2012 at 2:58 PM · Report this
Madge 22
The issue here is not whether this young woman has information that would lead to the indictment of a brave group of stick-wielding, attention-starved chumps. The issue is the bastardization of the Grand Jury system and the need to either fix it or jettison the entire mess. The Grand Jury was wisely introduced to U.S. courts with the intent of protecting citizens against unfair prosecution, but they have morphed into a modern-day version of the Spanish Inquisition - exactly the opposite of the founding fathers intent. The U.S. is the only nation remaining that maintains the Grand Jury system and its continued use is an embarrassment.
Posted by Madge on October 22, 2012 at 3:28 PM · Report this
23
Leah has been released. Can we keep coverage of the other two circulating?
Posted by suddenlyorcas on October 22, 2012 at 4:48 PM · Report this
24
@17: Or because she's a skinny, white, cis-gendered person who greatly appealed to the masses.

There are still two people in jail for absolutely no good reason.
Posted by suddenlyorcas on October 22, 2012 at 4:50 PM · Report this
25
Turns out there are consequences for breaking other people's shit.

Posted by sonder on October 22, 2012 at 7:41 PM · Report this
Texas10R 26
@25
How lucky for you, the penalties are not as harsh for improper use of an apostrophe.
Posted by Texas10R on October 23, 2012 at 4:54 AM · Report this
27
@22 has it right.
Posted by Ye Doth Protest Too Much on October 23, 2012 at 11:04 PM · Report this

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