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Grand Jury Independence

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Read 9th Circuit Judge Alex Kozinski's recent dissent in US v. Navarro-Vargas, No. 02-50663 (9th Cir. May 4, 2004), a case involving the constitutionality, under the Indictment Clause, of a standard grand jury instruction directing the grand jurors not to consider "the wisdom of laws enacted by Congress." Arguing that such local community review of the wisdom and utility of criminal legislation is a core function of the grand jury, Judge Kozinski goes on to assert:

This kind of community judgment strikes me as particularly important in federal prosecutions, and not merely because Washington is usually much farther away geographically than the state capital. State prosecutors are elected locally and must stand for re-election on a regular basis. They will, of necessity, take the local community’s values into account. United States Attorneys, by contrast, are appointed by the President and never have to stand for election. In their daily operations, they are supervised by the Department of Justice, whose prosecutorial policies they implement. Except for the tradition of senatorial courtesy, which gives the state’s senators some say in who will be the United States Attorney in a particular district, there is very little state control, and almost no local control, over federal prosecutors.

An independent grand jury—one that interposes the local community’s values on prosecutorial decisions that are controlled by policies set in Washington as to the enforcement of laws passed in Washington—seems like an important safeguard that is entirely consistent with the grand jury’s traditional function. Yet the challenged grand jury instruction seeks to neutralize this aspect of the grand jury’s discretion. [cites at bottom]

The text of the opinion is here.

Cites:

See John Gleeson, Supervising Federal Capital Punishment: Why the Attorney General Should Defer when U.S. Attorneys Recommend Against the Death Penalty, 89 Va. L. Rev. 1697, 1716 (2003) (“In a federal system that rightly accords great deference to states’ prerogatives, the federalization of the death penalty should be limited to cases in which there is a heightened and demonstrable federal interest, one that justifies the imposition of a capital prosecution on communities that refuse to permit them in their own courts.”).

[hat tip to Kellol]

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