Friday, July 29, 2005 | Hidden from view under her olive green prison uniform, Danae Kelley’s arm bears a tattoo. It’s of an avocado.
That Kelley would choose to tattoo the image of a vegetable on her skin is not surprising to those who know her. The young San Diegan has been an obsessive – some would say militant – vegan since the age of 15. It’s a lifestyle choice that has often landed her in controversy, and which, if somewhat circumspectly, recently landed her in jail.
Yesterday, Kelley and a fellow vegan activist were refused an appeal to a federal court judge to release them after they were jailed for refusing to testify to a federal grand jury.
The story of the young activists goes back almost exactly two years, to Aug. 1, 2003, when a condominium construction project in University City burned to the ground after an arson attack. A group called the Earth Liberation Front, which the FBI’s Web site describes as an “extremist environmental movement,” claimed responsibility for the attack, which caused an estimated $50 million of damage.
The same night, Rod Coronado, a notoriously militant environmental activist, made a speech at a venue in Hillcrest. According to witnesses present at the speech, Coronado, a convicted arsonist and one-time spokesman for the Earth Liberation Front, described how he had used an incendiary device to set fire to a building a few years before. Coincidence? The federal government doesn’t think so, and Coronado is now under investigation by the FBI in connection with the University City fire.
As part of that ongoing investigation, Kelley, who was present at Coronado’s speech, and David Agranoff, another San Diego activist, who had helped organize the event, were subpoenaed to appear before a federal grand jury. They refused. Citing the secretive nature of the proceedings, and claiming that they have a First Amendment right not to appear, Agranoff and Kelley said that they were keeping mum.
As a result, on July 12, 2005, U.S. District Chief Judge Irma Gonzalez ordered the two environmental activists jailed for contempt of court. They have been incarcerated ever since.
Former San Diego Federal Prosecutor John Kirby said jailing witnesses for failing to comply with a subpoena is fairly rare, but certainly not unprecedented. He clarified the reasoning behind such an action, and explained its limits.
“The thought behind it is that incarcerating someone for contempt of court isn’t really a punishment for them not testifying, it’s an incentive to get them to testify,” he said. “… If at some point it becomes apparent that that person is never going to testify, no matter how long they are in jail, then a judge is going to be hard pressed to keep them there forever.”
The acid test in a case like this is whether the incarceration of a witness can be classified as coercion or as punishment. Essentially, therefore, if a witness can prove that he or she is never likely to talk, no matter how long they are kept locked up, the legal argument follows that they are no longer being coerced to appear, but punished for not appearing.
It was in an attempt to exhibit such resolve on behalf of their clients that the activists’ defense attorneys appeared in court again before Gonzalez on Thursday. They sought to convince the judge that the two young vegans are not going to talk. Ever.
After just 16 days in jail, however, even the defense attorneys admitted they were being somewhat hopeful. Similar cases have often led to defendants spending months in jail. The maximum time a witness can be incarcerated is 18 months, or until the grand jury for which they were subpoenaed expires. Jeremy Warren, the attorney for Agranoff, said that no matter what, his client is never going to talk, and that as a result he should be let out sooner rather than later.
“I understand the court has to look at things differently than I do,” he said. “But, if [Gonzalez] follows the law, it says the minute, the very second that it’s not coercive any more, it’s just punishment, she has to let them out, then I believe she would let them out.”
The prosecution claimed that letting the defendants out after only two weeks would send a message to other witnesses who have been subpoenaed that they face a choice of testifying against their friends and acquaintances or going to jail for a comparatively short period of time.
“The bottom line is that 16 days is not enough,” said prosecutor Stephen Cook, “especially with appeals pending.”
In making her judgment, Gonzales pointed out that previous cases on this matter have never resulted in a witness being released so early. She also cited the fact that the defendants have appealed their incarceration, and said that the “full weight” of their imprisonment would not be apparent to them until that appeal has been settled.
“I am not convinced at this point in time that they are not going to testify,” said Gonzalez.
Outside the courtroom, friends and acquaintances of the two activists banged on makeshift drums and held placards up to passing cars reading “Stop the bloody slaughter of innocent activists,” and “The FBI lies, lies, lies.”
Meanwhile, Kelley, and her avocado tattoo, were making their way back to jail.
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