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Solitary Confinement Emboldens Recalcitrant Witnesses, Breaks Court's Resolve

A Washington federal court ordered the release of two recalcitrant federal grand jury witnesses, after five months of confinement.

In September 2012, Katherine Olejnik and Matthew Duran refused to testify before a Federal Grand Jury. As a result, a Washington federal court granted the Government's motion to hold them in civil contempt and confine them until they agreed to testify or until the grand jury's term expired. After five months, both witnesses moved to terminate their confinement.

The purpose of civil contempt is to coerce the testimony of the witness rather than to punish them. Shillitani v. United States, 384 U.S. 364, 371 (1966). Therefore, due process demands "that the court end confinement where it is substantially likely that the witness's confinement is no longer coercive." Lambert v. Montana, 545 F2d 87, 91 (9th Cir. 1976). This determination requires "an individualized assessment of whether the contemnor is likely to testify." See e.g., SEC v. Elmas Trading Corp., 824 F2d 732, 733 (9th Cir. 1987); Simkin v. United States, 715 F2d 34, 37 (2d Cir. 1983); and In re Crededio, 759 F2d 589, 592 (7th Cir. 1985).

"Both Ms. Olejnik and Mr. Duran have provided extensive declarations explaining that although they wish to end their confinement, they will never end their confinement by testifying," the court found. The government did not rebut any of their declarations and the court found them persuasive.

Both witnesses spent most of the five months in solitary confinement with limited contact with guards and the outside world. "Their physical health has deteriorated sharply and their mental health has also suffered from the effects of solitary confinement," the court found. "Their confinement has cost them; they have suffered the loss of jobs, income, and important personal relationships."

While the witnesses could be held for another 13 months and "there is always the chance that additional confinement will break the resolve of any contemnor," the court recognized that the resolve of these witnesses "appears to increase as their confinement continues."

Concluding "that there is no substantial likelihood that continued confinement would coerce Ms. Olejnik or Mr. Duran to testify," the court found "no basis for their continued confinement" and ordered their immediate release. See: In re Olejnik, USDC No. 12-GJ-145 (WD Wa 2013); and In re Duran, USDC No. 12-GJ-149 (WD Wa 2013).

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Related legal case

In re Olejnik