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Tuesday, December 06, 2005 | Part two of a two-part series.
On a warm night in August 2003, a huge fire ripped through a University City condo project under construction. The fire sent flames hundreds of feet into the air, threatening nearby buildings and residents. When the charred remains of the project were inspected the next day, a banner was found, proclaiming “If you build it, we will burn it. The E.L.F are mad.”
On the same night, across town, San Diego activists David Agranoff and Danae Kelley stood in a crowded room in Hillcrest listening to a speech by Rod Coronado, an infamous animal rights activist, convicted arsonist and one time spokesman for the Earth Liberation Front. The FBI has labeled the F.B.I. as a terrorist group. At one stage in the speech, Coronado was allegedly asked to demonstrate the assembly and deployment of an incendiary device.
Soon after the fire, federal investigators began to search for information about the arson. With searches for members of the mysterious E.L.F. coming up fruitless, investigators turned their attention to local activists. They started with those who had attended the Hillcrest meeting. Agranoff and Kelley were quickly subpoenaed to appear before a federal grand jury.
They both refused, saying the overtly secretive nature of the grand jury system was a violation of their First Amendment rights. Soon after, they were jailed for their refusal to cooperate. After several weeks in jail, both activists were recently freed. Only Kelley remains under investigation.
The Voice of San Diego invited the two activists to air their grievances during a round-table discussion of the grand jury system. Also invited to the forum were the activist’s lawyers and two former federal prosecutors.
“This is the third grand jury I’ve fought, in the third state, in different ways,” Agranoff said. “I have very deep concerns about the way the grand jury is set up.”
Agranoff said federal agencies use grand juries as a means to intimidate unpopular political organizations.
He claimed that supporters of legitimate political organizations are being intimidated by the FBI and others who use the grand jury process to instill fear in the supporters of such groups. The grand jury has morphed from a process designed to protect a defendant to an investigative tool that often takes its orders directly from the FBI and others, Agranoff said.
“What the grand jury was originally designed to do is a good thing, but what it’s turned into after all these years, is that we see organizations that the government doesn’t like what they’re doing, being targeted by these grand juries,” he said.
He claimed that FBI agents, for example, have made presentations at conferences for bio-tech companies wherein they expressed their desire to “disrupt and dismantle” the entire animal-rights movement.
Agranoff claimed that the net result of this is a “chilling effect” on certain political groups. He said that just because one element of the animal-rights movement is militant doesn’t mean all animal-rights campaigners are burning down buildings. But when prosecutors begin to subpoena people for attending a speech held by an animal-rights activist, Agranoff claimed they are abusing the grand jury system.
“If these organizations, that the prosecution’s investigation is connected to, want to disrupt and dismantle our movement why would I want to go in and say a single word that would be used to disrupt and dismantle our movement?” Agranoff said.
Tom McNamara, who worked as a federal prosecutor for 11 years and now practices criminal defense, said that it was reasonable for the prosecutors to call the two activists as witnesses given the seriousness of the crime committed – a $50 million arson – and the suspicious timing of the speech.
“The fact that the arson occurred the same night as you brought in this Coronado guy, I don’t think it takes too many leaps to say ‘Hey, this guy may have some information about this arson,’” McNamara said to Agranoff.
McNamara and his colleague, John Kirby, also a former federal prosecutor, argued that federal prosecutors never have political objectives.
Prosecutors “want to get to the criminal activity, and, unfortunately, in this particular case, that does have a chilling effect, but that’s not the intent of the prosecutor,” said Kirby.
Kirby and McNamara admitted that in the past the grand jury system was possibly used as an extra arm of the FBI, but said that is not the case in the present day. They also said left-wing activists aren’t the only groups being targeted by federal agencies.
“It’s not about the politics, it’s about the criminal activity,” Kirby said. “You can hate abortion and think it’s like killing people, or you think killing animals is the same as killing people. The prosecutor doesn’t care, the prosecutor cares about places burning down, whether its abortion clinics or a laboratory where they experiment on animals.”
Agranoff, who has been on trial before on trespassing charges linked to a protest he attended, also complained that unlike in a trial, a witness before a grand jury has no idea of the identity of the jurors.
“For all you know, if they’re investigating an activist group, you could have people who are members of People for Eating Tasty Animals investigating an animal rights group,” Agranoff said. “They could have a vendetta like all tomorrow.”
However, McNamara argued that many witnesses called to testify before a grand jury will have been given immunity to testify. No matter what they say, therefore, they will not be incriminating themselves. As a result, McNamara said, the makeup of the grand jury should, in a practical sense, be of little concern to the witness.
Agranoff and Kelley also worried about the secret nature of a grand jury.
“It should mean something that if you don’t want to go and stand in front of a secret tribunal, where you have no idea what they’re talking about, what they’re doing or who’s standing beside you,” Agranoff said. “You should have the ability to say ‘You know what, no, that makes me a little nervous and I don’t want to do that.’ “
That’s exactly what landed Agranoff and Kelley in jail for several weeks. A prosecutor has the power to imprison a witness who refuses to testify. That imprisonment can last as long as the judge feels that it is being used as coercion and not punishment for the witness.
Kirby and McNamara argued that the threat of imprisonment is a vital part of the process. Kirby said he has managed to get many witnesses to testify by posing the threat of jail time. The witnesses were crucial to solving many serious crimes, he said.
The former federal prosecutors argued that secrecy is imperative to protect the reputation of the subject of an investigation, especially if no charges come from the probe. This secrecy also protects the jurors and to protect witnesses who may want to give incriminating evidence, they said.
McNamara said that while witnesses like Agranoff may not be allowed to have their attorneys present during the grand jury investigation, they can, at any time, ask to leave the room to consult their attorney.
However, Kelley said when she attempted to write notes to consult her lawyer, prosecutors told her she was not allowed to write anything down. She claims they threatened to take away her pen if she tried to do so.
Agranoff and Kelley see themselves as victims of a system that is unfair and that deliberately targets people on the fringes of society. They see their stand against the grand jury system as something that may inspire future activists.
By contrast, McNamara and Kirby consider the grand jury to be as fair and as effective as it has ever been. Someone with nothing to hide should not be fearful of investigation by a grand jury, they said. Further, cooperating with a grand jury is a legal obligation, and rightfully so, they said.
Please contact Will Carless directly at