MEMORANDUM AND ORDER
GOETTEL, District Judge.
On May 19, 1982, this Court found Bernardine Dohrn
The grand jury investigation that underlies this motion resulted from a violent armed robbery of a Brinks armored truck in Nanuet, New York on October 20, 1981. (The perpetrators stole $1.6 million, murdered a Brinks guard, and during their escape, which was aided by several confederates, murdered two more policemen.) Thus far, the investigation has uncovered a widespread criminal conspiracy to commit armed
One of the crimes under investigation by the grand jury is a one-half million dollar armored car robbery that occurred in Inwood, New York in April, 1980. According to the Government, "the evidence before the grand jury suggests that Dohrn, then employed as a salesperson at a Manhattan store, obtained for the conspirators driver's license information that was used fraudulently to obtain a duplicate driver's license which, in turn, was used to rent a station wagon [that was used in the robbery]." Affidavit of Robert Litt ¶ 3.
Dohrn moved to quash the subpoena on May 17, 1982. The Court, however, denied her motion and ordered her to comply. When she refused, the Court held her in contempt.
Dohrn has now been confined at the Metropolitan Correctional Center (MCC) for seven months.
At the outset, two points should be made. First, a contemnor's self-serving statement that he or she will not cooperate should not, by itself, be considered by courts in determining whether to impose or continue to enforce an order of civil contempt. If it were, very few persons could ever be compelled to testify or cooperate. See United States v. Dien, 598 F.2d 743, 745 (2d Cir.1979). Second, except in unusual circumstances, courts should not conclude "that, as a matter cognizable under due process, confinement for civil contempt that has not yet reached the eighteen-month limit [of 28 U.S.C. § 1826] has nonetheless lost its coercive impact and become punitive." In re Grand Jury Investigation (Braun), 600 F.2d 420, 427 (3d Cir.1979) (footnote omitted).
This is a case in which the Court is inclined to exercise its power to release a recalcitrant witness. First, it has become increasingly clear to this Court that Dohrn's recalcitrance will continue and that further incarceration will not compel her to cooperate. Second, the importance of Dohrn's handwriting exemplars has diminished over time. Despite Dohrn's recalcitrance, the grand jury investigation has proceeded apace, and, as noted above, a number of indictments have been returned. (Dohrn, however, has not been indicted and has not even been named as a coconspirator in the existing indictments.) Moreover, according to a newspaper article in late November 1982, one of the major participants in the Inwood robbery has agreed to cooperate with the Government in its investigation. Third, to the extent that the Government needs samples of Dohrn's handwriting, it already has such samples at its disposal. The Court has recently learned that the FBI has had, for a number of years, enough of Dohrn's handwriting to make a comparison with a questioned document and did so at an earlier time. In addition, Dohrn has written letters to the Court and has filed petitions with the Warden of the MCC concerning prison conditions.
Nevertheless, the Government does not concede that the handwriting samples at its disposal are adequate. Although it acknowledges that, by comparing the current writings with the earlier documents in its possession, it can conclude that Dohrn signed these documents, it does not acknowledge that it can establish that the body of each document was written by Dohrn. This position is tenuous, however, because one need not be a handwriting analyst to observe that the handwriting in the letters is very similar to the signatures.
The Government also argues that neither the known exemplars nor the current specimens are sufficiently comparable to the questioned specimens to permit a judgment as to whether Dohrn wrote the questioned specimens. What it wants is for her to write the identical words or names that are on the questioned documents. This argument is also questionable. While a practicing lawyer, I had substantial experience with questioned documents. It is reasonably easy to determine whether a signature is a forgery if adequate specimens are presented. On the other hand, if all that is involved is a signature, it is extremely difficult to determine who wrote the forged signature. Indeed, if the person writing the signature attempted to imitate the handwriting of the person whose signature is being forged, it becomes impossible. Moreover, if a person who forged a signature is requested to write a few words, particularly a name, in a certain manner and if that person recalls the manner in which he previously wrote the signature, he can very easily change significantly the manner in which the exemplar is delivered.
The Court does not believe that Judge Edelstein's recent opinion concerning Eve Rosahn, In re Eve Rosahn, 551 F.Supp. 505 (S.D.N.Y.1982), compels a conclusion different from the one reached here. Rosahn is another person held in contempt because she failed to comply with a court order directing her to provide the same grand jury with photographs, fingerprints, handwriting exemplars, and hair samples. After nine months in jail, she moved to vacate the contempt order, arguing that she was being persecuted as a political activist and that there was no purpose in confining her because her continued refusal to cooperate after nine months in jail substantiated her prior assertions that she would never cooperate with the grand jury.
Judge Edelstein granted the motion in part and denied it in part. He vacated that part of the order requiring Rosahn to submit to fingerprinting because the Government already had in its possession major case fingerprints of Rosahn. Id., at 508-509. He noted that "[a]s the grounds for contempt narrow, this court becomes concerned. To hold a contemnor, who is currently not charged with any crime, in jail for eighteen months for her refusal to supply items already in the government's possession would be a travesty of justice." Id., at 509 (footnotes omitted).
Id., at 508 (footnote omitted).
This Court agrees completely with the result reached by Judge Edelstein. Any difference in the conclusion reached by this Court results solely from factual differences between the cases. For example, in Rosahn's case, her direct connection with the criminal activity was more clearly established, the importance of the evidence to the grand jury appeared greater, and the Government did not have the hair and handwriting samples in its possession. Moreover, the Court believes that the reasons for reaching the result in this case are virtually identical to the reasons Judge Edelstein vacated that part of his order requiring Rosahn to submit to fingerprinting. As noted above, the Government now possesses a number of spontaneous exemplars of Dohrn's handwriting. The need for the additional exemplars has not been demonstrated, and the value of the additional exemplars is extremely questionable. In light of the contemnor's attitude, this Court runs the risk of imprisoning her for eighteen months for no discernible purpose, other than to justify her desire to be a martyr
In sum, factors such as the likely failure of further incarceration to compel Dohrn's cooperation, the diminished importance of Dohrn's handwriting exemplars, and the availability of spontaneous exemplars of Dohrn's handwriting, when taken together, lead this Court to the conclusion that its order of contempt should be modified. Thus, the order of contempt is modified to direct Dohrn's release from jail at this time.
It should also be noted that, immediately following Dohrn's imprisonment, a letter writing campaign on her behalf was apparently launched, and this Court received scores of letters from people who share Dohrn's political beliefs, condemning her incarceration and claiming that it was for purposes of political persecution. (The pattern of all the letters indicated that the contents had been suggested by a form letter.) This Court notes, however, that it sees no indication whatever that Dohrn is being held as a political prisoner or persecuted in any way.
More recently, the Court has received many letters from attorneys, predominantly those associated with liberal causes, who have proclaimed that Dohrn will never cooperate with the grand jury and, consequently, her incarceration is serving no compulsive purpose and has become punitive in nature. These attorneys have concluded, without having heard the other side of the case, that Dohrn has no meaningful information and that her refusal to give the handwriting exemplars is simply a matter of principle. It has been this Court's experience that most of those who claim that their refusal to comply with grand jury demands is a "matter of principle" are usually co-conspirators attempting to conceal their own criminal involvement.
Id., at 509. Consequently, he also ordered the Government to search their files for the other subpoenaed items. Id., at 509.