When journalist Quinn Norton was presented with a subpoena in 2011 to appear in front of a federal grand jury, she "had to Google grand jury to find out what it was." She did not know that in a small, closed hearing, federal prosecutors would push her to inadvertently help incriminate her dearest friend and then-lover -- Aaron Swartz.
I have written at some length about how federal grand juries have been used as fishing expeditions to indict activists, breeding distrust and despair around those investigated or called as witnesses. Norton's essay published in the Atlantic Monday on being a "reluctant witness" in the federal prosecution against Swartz bears out this point with a painful and important personal account.
Norton details the mind-set that had her agree to cooperate with the government's questioning ("the mechanics of snitching") with little understanding of what her testimony might mean for Swartz's case:
I didn't know anything the prosecution cared about, and I thought that maybe I could talk Steve [Heymann, the lead prosecutor] out of the prosecution, or at least into not being so harsh. This was so obviously a ridiculous application of justice, I thought. If I just had the chance to explain, maybe this would all go away. My lawyers told me this was possible. They nursed this idea. They told me Steve wanted to meet me, and they wanted me to meet him. They wanted to set up something called a proffer -- a kind of chat with the prosecution.
Norton recounts how the more she learned about this proffer, the more she regretted agreeing to it. As I have written before, non-cooperation with a grand jury is possible but carries great risk. Despite the fact that witnesses are offered immunity from criminal prosecution -- and thus self-indictment -- if they refuse to talk they can be held in federal custody for 18 months or more for contempt. Two anarchists in the Pacific Northwest on Friday were released from federal detention having refused to talk to a grand jury when subpoenaed -- they had been imprisoned for five months for their silence, kept for long periods in solitary confinement. For Norton, the mother of a 7-year-old girl, the risk loomed large.
The journalist explains how she at first cooperated with the prosecutors, convinced that she knew nothing that could be used against Swartz. But, as she learned, prosecutors are pro fishermen -- they cast wide nets. In a moment Norton describes as "profoundly foolish" she told the grand jury that Swartz had co-authored a blog post advocating for open data. As we now know, his Guerrilla Open Access Manifesto was used by prosecutors as evidence that the technologist had “malicious intent in downloading documents on a massive scale.”
Norton recalls how "it had not sunk in that I'd accidentally betrayed someone I loved. It was so mind-numbingly stupid on the part of these powerful men, these elites of law enforcement, that I couldn't conceive that I'd actually harmed Aaron."
And indeed, Norton could not have foreseen the prosecution's use of a two-year-old, co-authored manifesto, which made no specific claims about intent to breach copyright laws. But the very nature of grand juries is such that there is no knowing what prosecutors will latch onto and use. As Norton writes, "it is important the people know that the prosecutors manipulated me and used my love against Aaron without me understanding what they were doing. This is their normal. They would do this to anyone. We should understand that any alleged crime can become life-ruining if it catches their eyes."
The anarchist dictum when it comes to grand juries is a simple one: "No one talks, everyone walks." Faced with jail time, harassment and manipulation, it's an easier axiom to utter than follow -- as Norton's story illustrates. Norton writes that now she "would not be such an easy target. But I am trapped in the future, not able to help that previous me, stuck in the shape these events gave my life." Swartz will not be the last victim of prosecutorial overreach, Norton will not be the last person subpoenaed to give evidence against a loved one -- her documented experience is full of lessons.