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Saturday, August 13, 2005 | Exactly two weeks to the day Danae Kelley and David Agranoff were set free on bail awaiting an appeal decision, Judge Irma Gonzalez ordered the pair back into custody Friday morning after their appeal was denied and the animal rights activists yet again refused to testify in front of a federal grand jury.
In a memo dated Aug. 9, 2005, a three-judge panel of the Ninth Circuit Court of Appeals affirmed Judge Gonzalez’s ruling that the government was conducting a legitimate investigation into a 2003 arson fire in University City, and that Agranoff and Kelley should be sent back to jail.
“I think what they wanted to do was give us a glimpse of freedom, give us two weeks to suck it up so we can remember how great it is to be free, and then lock us up in the hope to make us talk,” Kelley, 21, said.
She and Agranoff have cited First Amendment rights and the secretive nature of the proceedings in their refusal to testify in front of a grand jury investigating the $50 million arson of a condominium construction project in University City.
As part of its investigation, the FBI is looking into a lecture given in Hillcrest about 12 hours after the blaze, at which Rod Coronado, a former spokesman for ELF and a known militant activist, allegedly demonstrated techniques he says he used to set fire to a building some years earlier. Agranoff, who helped organize the event, and Kelley, who attended, have said that the purpose of the grand jury subpoenas is to gather information on others in the activist community who went to the lecture and that testifying would violate their right to free assembly.
“You can’t have a lawyer present, you can’t have a judge, you can’t have your rights. Why do they think I would want to contribute to something like that?” she said.
The activists’ appeal argued that “as a result of their involvement in groups that are outspoken in their concern for animal rights, [they] have been subject to a pattern of harassment and intimidation by local and federal law enforcement officers, culminating in the grand jury subpoenas.”
It is unclear at this time whether or not Coronado, whose plane had not left Arizona at the time of the blaze, is being targeted in the investigation. Steve Cook, prosecutor in the case, said due to the confidential nature of the grand jury proceedings he could not comment.
Following Friday’s court proceedings, Kelley’s husband Justin Hand, 22, was also subpoenaed in the investigation. He could not be reached for comment at press time.
How long the activists spend in jail depends on when Judge Gonzalez decides that they have demonstrated that they will not testify under any circumstances. Witnesses can be jailed for refusing to testify as long as the imprisonment is coercive, rather than punitive – a distinction determined by the judge.
Gerald Singleton, representing Agranoff in court on Friday, argued that because the pair has been publicly resolute in their determination not to talk, their imprisonment is already punitive.
Gonzalez disagreed, saying the 16 days Agranoff and Kelley had served so far was not enough to determine that they would never testify, but acknowledged, “there may come a time.”
Julie Blair, Kelley’s attorney, said that the pair could be held in custody up to six months after the grand jury expires in December, but said she’ll try again “in a couple of weeks” to get them out, hoping the punitive argument will carry more weight then.
Outside of court on Friday, even prosecutors for the case said this wouldn’t go on forever.
“At some point, they’re going to have to say, ‘Look, it’s been long enough,” said Assistant U.S. Attorney John Parmley.
For now, Blair said she will seek what is known as an “En Banc” appeal, which would send the case to all 27 justices on the Ninth Circuit for review but require a majority to find that the case should be reconsidered before an 11-judge panel would rehear it.
Two justices on the Ninth Circuit court thought there were enough questions in the case to grant the activists bail in July, according to Blair.
“You never know,” she said.
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