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Since the time of the Star Chamber, the proper role of the grand jury has been a constant topic of debate. Traditionally, it has been said that the grand jury serves the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” United States v. Sells Eng’g Inc. 463 U.S. 418, 423 (1983) (quoting Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972)). Yet this description of the grand jury’s function leaves at least one very important question unanswered: If probable cause exists, yet the grand jury still does not want to indict the individual, is it free to engage in “grand jury nullification” of the law? Recently, the 9th U.S. Circuit Court of Appeals addressed this issue in United States v. Navarro-Vargas, 2004 U.S. App. Lexis 8725 (9th Cir. May 4, 2004). In that case, Steve Navarro-Vargas unsuccessfully appealed his conviction, contending that the district court should have dismissed his indictment because the jury was incorrectly instructed that it should indict the defendant if it found probable cause, regardless of whether it agreed with the wisdom of the criminal laws or its punishments. Navarro-Vargas argued that the jurors should have unfettered discretion to refuse to indict a case, regardless of whether there is probable cause. Navarro-Vargas further stated that the history of the grand jury supports his claim that its proper role goes beyond just determining whether there is probable cause for a charge. Rather, as a protector of people’s rights, the grand jury should also have the right to refuse to indict a person if it disagrees with the law that the government is seeking to enforce. An issue that very few courts have addressed Few courts had previously addressed this issue. In 2002, the 9th Circuit became the first circuit to examine whether the standard jury charge given to grand jurors is constitutional. United States v. Marcucci, 299 F.3d 1156, 1158 (9th Cir. 2002), cert. denied, 538 U.S. 934 (2003). That model charge, recommended by the Administrative Office of the United States Courts, instructs grand jurors as follows: “You cannot judge the wisdom of the criminal laws enacted by Congress, that is, whether or not there should or should not be a federal law designating certain activity as criminal. That is determined by Congress and not by you. Furthermore, when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction. Judges alone determine punishment.” Marcucci, 299 F.3d at 1159. The Marcucci court held that the charge was not unconstitutional. This decision was recently reaffirmed by the same court in a favorable notation in United States v. Adams, 343 F.3d 1024, 1027 n.1 (9th Cir. 2003). Yet not all judges agree with this ruling. Both Judge Michael Hawkins in his dissent in Marcucci, and Judge Alex Kozinski in a dissent in Navarro-Vargas, discussed why an instruction telling jurors that they should or must indict whenever they find probable cause invades the traditional powers of grand jurors to serve as a check on prosecutorial discretion. See Marcucci, 299 F.3d at 1166 (Hawkins, J., dissenting); Navarro-Vargas, 2004 U.S. App. Lexis 8725, at 7 (Kozinski, J., dissenting in part). Under our Constitution, the executive branch has the discretion to decide what charges to seek. Unless prosecutors use unconstitutional factors to make a charging decision, such as race or gender, or engage in other forms of impermissible selective prosecution, they are free to decide which laws to seek to enforce and when. The courts do not have the power to second-guess those decisions as long as the criminal laws support the charges. However, there was an institution that traditionally served as a check on the prosecutor: the grand jury. In his dissent in Marcucci, Hawkins explained that grand jurors are traditionally viewed as the ” ‘conscience of the community.’ ” Marcucci, 299 F.3d at 1168 (quoting Gaither v. United States, 413 F.2d 1061, 1066 n.6 (D.C. Cir. 1969)). A recent Boston University Law Review article notes that grand jurors take that role seriously. See Ric Simmons, “Re-Examining the Grand Jury: Is There Room for Democracy in the Criminal Justice System?,” 82 B.U. L. Rev. 1, 39-44 (2002) (examining reasons grand jurors refuse to indict). Even in cases where there is overwhelming evidence, grand jurors may refuse to indict because of their nonlegal judgments about whether a case should be prosecuted. As Simmons notes, the grand jury, “as the first (and usually only) means of community input into the criminal justice system . . . exercises its own political, moral, and social judgment in reviewing the prosecutor’s decision to bring the case.” Id. at 46. Furthermore, Kozinski correctly notes in his dissent in Navarro-Vargas that there are compelling reasons why grand jury nullification (i.e., the decision not to bring charges notwithstanding the existence of probable cause) is important to our criminal justice system. Navarro-Vargas, 2004 U.S. App. Lexis 8725, at 15-18. Federal prosecutors are not directly accountable to the community in which they serve. Rather, their appointments are made in Washington, and line prosecutors are increasingly receiving direction from Department of Justice officials who set national policies. Whether it is the “war on drugs,” the “war on white-collar crime” or the “war on terrorism,” the national agenda may not adequately consider the needs of a particular community. A grand jury can perform this role. There are other reasons for giving grand jurors the leeway to refuse to charge a defendant even if there is probable cause that a crime has been committed. First, this important check on government power is not available to any other lay representatives of the community during the criminal process. The courts have generally refused to allow jury instructions that would inform juries of a power to nullify the laws. See United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. 1972); Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 57 & n.13 (2d Cir. 1948); United States v. Moylan, 417 F.2d 1002, 1006-07 (4th Cir. 1969); United States v. Perez, 86 F.3d 735 (7th Cir. 1996); United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992). Thus, the only remaining venue for community members to express their attitudes toward prosecutorial priorities is in the grand jury. Additionally, prosecutors ordinarily do not need to worry about being railroaded by the grand jury process. The reality is that prosecutors control the grand jury process from beginning to end. Only the prosecutor is allowed in with the grand jury; the defense counsel is not. Ordinarily, the prosecutor also decides which witnesses to call and how to frame the case. Finally, prosecutors literally write the indictments and present them to the grand jury for their approval. Given those realities, “runaway grand juries” are extremely rare. The grand jury process, unlike trial jury deliberations, lends itself to a more thoughtful evaluation of community priorities and an evaluation of whether prosecutors are using the law for improper reasons, such as political grandstanding or witch-hunting of opponents. See Navarro-Vargas, Kozinski, J. dissent, at 12-13 (noting recent alleged crusades by prosecutors to make their names by bringing high-profile cases). The role of grand juries, before ‘ham sandwich’ era If grand juries have the discretion to reject charges that they think are improperly motivated or unwise, prosecutors will actually benefit in the long run because there will be greater moral authority behind the charges that grand jurors do bring. For years, it has been said that a grand jury will indict a ham sandwich. See, e.g., United States v. Reyes, 167 F. Supp. 2d 579, 593 (S.D.N.Y. 2001) (paraphrasing former Judge Sol Wachtler). Yet a grand jury traditionally had a much more important role than serving as a rubber stamp. Its job was to protect against governmental abuse in deciding which individuals to charge. The fact that prosecutors are increasingly seeking to rein in grand jurors with instructions limiting their discretion should give us pause. Why is such an instruction needed? Grand jurors should not be expected to be completely passive in their functions. Finally, there is no need to be alarmed at the prospect of grand jurors engaging in nullification by refusing to indict even when there is probable cause. Prosecutors have a number of easy ways around this dilemma. First, if they cannot persuade one grand jury why a prosecution is important, prosecutors have the option of presenting their case to another grand jury. There is no double jeopardy limitation on the number of times prosecutors may present a case to a grand jury. United States v. Williams, 504 U.S. 36, 49 (1992). Second, prosecutors don’t even need a grand jury initially to arrest and hold a defendant. Rather, prosecutors may file a criminal complaint and even hold a preliminary hearing if additional time is needed to present a case satisfactorily to the grand jury. Fed. R. Crim. P. 4, 5.1(d). We live in an age when people are concerned about the aggressiveness with which federal prosecutors seek to use their powers. Certainly, the recent fiasco involving the arrest of Brandon Mayfield, an Oregon defense attorney held as a material witness to the March 11 Madrid, Spain, railway bombings, demonstrates why citizens are apprehensive about the executive branch’s exercise of prosecutorial discretion. It is precisely when society is scared and inclined to deprive people of their liberty in the name of security that there should be additional checks on the system. Allowing grand jury nullification is one way to provide that check. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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