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U.S. judge frees anarchist jailed for refusal to testify in bomb probe

By Nick Brown

NEW YORK (Reuters) - A federal judge on Tuesday freed a self-described anarchist jailed for refusing to testify before a grand jury over a 2008 bombing, saying jail time was not going to induce him to cooperate.

Gerald Koch, about eight months into an 18-month jail sentence, was granted a request for release by Judge John Keenan in Manhattan Federal Court under a legal precedent that calls for the release of grand jury resisters who appear beyond any hope of cooperation.

Koch, 24, of Brooklyn, was jailed in May after being found in civil contempt for refusing to testify before a grand jury. At the time, he cited his First Amendment rights, saying he was being unfairly targeted by an oppressive government.

The same opposition that got Koch locked up last year, earned him his freedom on Tuesday, when Keenan said he saw "no indication that Koch's doctrinaire fever will break in the foreseeable future."

His lawyer, Susan Tipograph, could not be reached for comment.

Last May, Tipograph said the jury was thought to be probing a small bomb detonation outside a U.S. armed forces recruiting station in March 2008, which caused no injuries. While Koch was not a suspect, he was thought to have information on potential suspects.

Despite releasing him, Judge Keenan was critical of the legal precedent that required Koch's release.

The judge explained that the authority to jail grand jury resisters was designed to coerce them into cooperating, but not to punish them for committing a crime. As such, if the coercion tactic is shown to be failing, resisters should be freed.

In a 20-page opinion, Keenan criticized a legal framework that eventually releases people for the same thing that got them detained. "The refusal to testify is somehow transmogrified from a lock to a key," the judge said.

A spokeswoman for U.S. Attorney Preet Bharara declined to comment on Tuesday.

Keenan is one of several judges and academics to criticize the practice. Judge Robert Sweet, also a New York federal judge, in 1985 said the tactic "emasculate the civil contempt sanction" by creating a "more lenient standard for that class of contemnor most committed to defying the court's order."

But Keenan concluded that he was bound by the practice. In finding that cooperation from Koch was a lost cause, the judge cited letters from friends and family describing Koch as "entrenched," "defiant" and "stubborn."

He pointed to Koch's role as a folk hero of sorts among radicals. A self-proclaimed anarchist and affiliate of the Occupy Wall Street movement, Koch on his website calls grand juries "secretive tools" aimed at intimidating and punishing "those who refuse to collaborate" with the state.

While Koch has said in court papers that his health has suffered in jail, he views his reputation in the eyes of followers and comrades as "more valuable than his health," Keenan said.

"Regardless of how breathtakingly misinformed many of these people are about both the law and the facts at hand, it seems clear that Koch would lose their admiration and fellowship should he abandon his obstinacy and testify before the grand jury," the judge wrote.

(Reporting by Nick Brown)

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