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A closely divided en banc panel of the 9th U.S. Circuit Court of Appeals rejected a constitutional challenge to federal grand jury instructions Monday, saying there’s no need to tell jurors they’re free to ignore the law. Writing for the 6-5 majority, Judge Jay Bybee said grand juries already have enough freedom and independence without a nullification instruction. “We observe that the weight of U.S. history favors instructing the grand jury to follow the law without judging its wisdom,” Bybee wrote in U.S. v. Navarro-Vargas, 05 C.D.O.S. 4311. “The prospect of a grand jury here and there deciding for itself that a law lacked ‘wisdom’ is an invitation to lawlessness and something less than the equal protection of the laws,” Bybee warned. He was joined by Chief Judge Mary Schroeder and Judges Barry Silverman, Johnnie Rawlinson, Richard Clifton and Carlos Bea. But a dissent by Judge Michael Daly Hawkins argued that grand juries need to be the conscience of a community. “The majority tells us that a constitutionally created institution, designed precisely to filter prosecutorial desire through citizen judgment, must give way to the unbridled exercise of prosecutorial discretion,” Hawkins wrote. Four judges — Harry Pregerson, Kim Wardlaw, William Fletcher and Marsha Berzon — joined Hawkins. The decision has wide implications because the instructions at issue are part of the model instructions promulgated by the U.S. Judicial Conference and used across the United States. Courts have used the text since 1978. Of course, grand juries date even further back — more than 800 years — as Bybee points out in a lengthy history included in the 61-page opinion. Defense attorneys have been complaining almost as long. They say grand juries just rubber stamp cases brought in by prosecutors and still decry the fact that jurors cannot consider exculpatory evidence. The appellate panel was considering two federal drug cases from Southern California. Besides arguing in favor of nullification language, attorneys with Federal Defenders of San Diego Inc. also challenged a section that bolsters the stature of federal prosecutors. Grand jurors are told to expect “candor, honesty and good faith in matters presented by the government attorneys,” according to the instructions. Steven Hubachek, who represented the appellant, first challenged grand jury instructions in 2001 in what became United States v. Marcucci, 299 F.3d 1156. Hawkins also dissented in Marcucci. Hubachek said he plans to appeal Monday’s decision to the U.S. Supreme Court. Although the majority recognized criticism of grand juries, the judges weren’t convinced that things need to change. They cited grand juries’ independence as key, as well as the fact that they can simply choose not to indict if they don’t like a case. “The grand jury has no accountability at the ballot box, before Congress, the president or the courts. The grand jury’s duty to follow the Constitution is no less than the president’s duty to take care that the laws are faithfully executed. It is the grand jury’s position in the constitutional scheme that gives it its independence, not any instructions that a court might offer,” Bybee wrote.

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