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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARTIN C. SMITH,
Court of Appeals No. A-11759
Appellant, Trial Court No. 4FA-10-00357 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2775 — April 26, 2024
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Robert B. Downes, Judge.
Appearances: Robert John, Law Office of Robert John,
Fairbanks, for the Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Douglas O. Moody, Assistant Public Defender, and Beth
Goldstein, Acting Public Defender, Anchorage, for the Alaska
Public Defender Agency, as amicus curiae.
Before: Allard, Chief Judge, Wollenberg, Judge, and
*
Mannheimer, Senior Judge.
Judge WOLLENBERG, writing for the Court.
Judge MANNHEIMER, concurring.
*
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
----------------------- Page 2-----------------------
Under Article I, Section 8 of the Alaska Constitution, a felony prosecution
must proceed by grand jury indictment unless the accused waives indictment. The grand
jury functions as “both a shield and sword of justice” — on the one hand, tasked with
bringing criminal charges against the accused when this is warranted, and on the other
hand, playing a vital protective function by “operat[ing] to control abuses by the
1
government and protect[ing] the interests of the accused.” Alaska has strong procedural
2
protections to ensure that the grand jury serves this vital protective function.
History shows that grand juries have, at times, declined to return an
indictment even when the evidence clearly supported the felony charges. But Alaska
courts have not yet decided the question raised in this case: whether, under Alaska law,
the superior court is required to instruct grand jurors that they have discretion to refuse
to return an indictment even when they conclude that the evidence supports the proposed
3
charges.
The defendant in this appeal, Martin C. Smith, was indicted on charges of
4
second- and fourth-degree misconduct involving a controlled substance. Smith argues
1 Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007) (alterations in original) (citing
and quoting Preston v. State, 615 P.2d 594, 602 (Alaska 1980)); see also Zurlo v. State, 506
P.3d 777, 782 (Alaska App. 2022).
2 Cameron, 171 P.3d at 1156-57.
3 See Wassillie v. State, 411 P.3d 595, 608 & n.87 (Alaska 2018); State v. Leighton, 336
P.3d 713, 715-16 (Alaska App. 2014).
4 We affirmed Smith’s convictions in a prior opinion. Smith v. State, 2018
WL 1779322 (Alaska App. Apr. 11, 2018) (unpublished), aff’d on reh’g, 2018 WL 3387387
(Alaska App. July 3, 2018) (unpublished). Smith filed a petition for hearing in the Alaska
Supreme Court, challenging, inter alia, our conclusion that he had failed to preserve or
adequately brief his claim that the grand jury was improperly instructed. The supreme court
granted Smith’s petition as to this claim and directed this Court to consider it on the merits.
(continued...)
– 2 – 2775
----------------------- Page 3-----------------------
that the grand jury proceedings in his case were fatally flawed because, when the
presiding judge convened the grand jury and initially instructed the grand jury panel, the
judge did not affirmatively instruct the grand jurors that they had discretion to refuse to
indict, even if they concluded that the evidence supported the charges. Indeed, Smith
argues that the presiding judge’s instructions to the grand jury actively misled the grand
jurors by suggesting that they did not have this discretion.
For the reasons explained in this opinion, we reject Smith’s contention that
Alaska courts are constitutionally required to affirmatively instruct grand juries that they
have discretion to decline to enforce the law in a particular case. We recognize that,
throughout history, grand juries have exercised a type of prosecutorial discretion — the
discretion to decline to indict even when they conclude that the evidence establishes that
the defendant committed one or more criminal offenses. Grand juries have also acted as
a check on vindictive prosecutions — that is, prosecutions which, although supported by
the evidence, are being brought for improper purposes.
But we have not found any support for the notion that the constitution
requires the superior court to affirmatively instruct the grand jurors that they have this
power — particularly where the grand jury instructions do not expressly foreclose the
exercise of this kind of discretion.
We have reviewed the grand jury instructions in Smith’s case, and we
conclude that those instructions adequately apprised the grand jurors of the grand jury’s
dual function as “a shield and sword of justice,” and that those instructions did not
4 (...continued)
(The supreme court rejected review of Smith’s other challenges.) We subsequently ordered
supplemental briefing by the parties, and invited the Public Defender Agency to participate
as amicus curiae, and we now address Smith’s claim of improper grand jury instruction on
the merits.
– 3 – 2775
----------------------- Page 4-----------------------
foreclose the grand jurors from exercising discretion (within the confines of the grand
jury oath) to decline to indict for reasons other than the insufficiency of the evidence.
Accordingly, we affirm Smith’s convictions.
Overview of the grand jury in Alaska and the instructions in this case
Under the Alaska Constitution, felony charges must proceed by grand jury
5
indictment unless the defendant waives indictment. This constitutional right to a grand
jury indictment “ensures that a group of citizens will make an independent determination
about the probability of the accused’s guilt ‘before the accused suffers any of the grave
6
inconveniences which are apt to ensue upon the return of a felony indictment.’”
The Alaska Supreme Court has repeatedly emphasized the central role of
the grand jury in the criminal justice process. In Cameron v. State, the supreme court
explained that the grand jury acts “as both a shield and sword of justice” — on the one
hand, tasked with bringing criminal charges against the accused if charges are warranted,
and on the other hand, playing a vital protective function by “operat[ing] to control
abuses by the government and protect[ing] the interests of the accused.”7
5 Alaska Const. art. I, § 8 (“No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury, except in cases
arising in the armed forces in time of war or public danger. Indictment may be waived by
the accused.”).
6 Cameron, 171 P.3d at 1156 (quoting State v. Gieffels, 554 P.2d 460, 465 (Alaska
1976)); see also Wassillie, 411 P.3d at 605 (emphasizing “the grand jury’s importance as a
preliminary step in felony prosecutions” and as a “critical part of Alaska’s constitutional
framework”).
7 Cameron, 171 P.3d at 1156 (alterations in original) (quoting Preston v. State, 615 P.2d
594, 602 (Alaska 1980)); see also Zurlo v. State, 506 P.3d 777, 782 (Alaska App. 2022).
– 4 – 2775
----------------------- Page 5-----------------------
Later, in Wassillie v. State, the supreme court reaffirmed the dual nature of
8
the grand jury’s role. As explained in Wassillie, the grand jury not only ensures that a
felony charge is founded upon probable cause, but it also serves “the invaluable function
in our society of standing between the accuser and the accused . . . to determine whether
a charge is founded upon reason or dictated by an intimidating power or by malice and
9
personal ill will.” The grand jury’s protective function is reflected in the strong
procedural protections which, under Alaska law, govern the grand jury’s deliberative
process: Alaska law restricts the admissibility of hearsay evidence at grand jury
proceedings, requires the prosecutor to present exculpatory evidence to the grand jury,
and authorizes the grand jury to call for the production of additional evidence.10
In Smith’s case, at the outset of the grand jury’s session, the presiding judge
of the Fourth Judicial District instructed the grand jury on its powers and duties.11 Here
are the relevant portions of that instruction:
As grand jurors, you will perform an extremely
important function. Under Alaska’s Constitution, the grand
jury is to determine whether there is sufficient evidence to
bring a person to trial. This provision imposes a two-fold
duty upon you. First, grand jurors have an obligation to the
people of the State of Alaska to compel persons charged with
serious criminal conduct to answer for that conduct if there
8 Wassillie, 411 P.3d at 607-08.
9 Id. at 608 (omission in original) (quoting United States v. Mechanik, 475 U.S. 66, 74
(1986) (O’Connor, J., concurring in the judgment)).
10 Cameron, 171 P.3d at 1157, 1159 (discussing Alaska Criminal Rule 6 and Frink v.
State, 597 P.2d 154, 164-65 (Alaska 1979), and holding that the prosecutor must inform the
grand jury whenever the accused clearly and unconditionally informs the State of a desire to
testify before the grand jury).
11 See Alaska R. Crim. P. 6(a), (e)(2).
– 5 – 2775
----------------------- Page 6-----------------------
are just grounds for the charge. At the same time, however,
grand jurors have an obligation to every individual to ensure
that no one is subjected to criminal prosecution without good
cause.
. . . . Once you have heard the State’s evidence, along
with any additional evidence presented at the request of the
grand jury, you must decide whether that evidence, if
unexplained or uncontradicted, would warrant conviction of
the defendant. If at least ten of you believe the evidence has
met that standard, the indictment should be endorsed “a true
bill” and signed by your foreperson. If not, the proposed
indictment should be endorsed “not a true bill” and signed by
your foreperson.
The grand jury was also instructed that the “[g]rand jury proceedings are secret” and
“[n]o information about grand jury proceedings or deliberations can be disclosed except
in response to a valid court order.”
In addition, the grand jurors took the oath set out in Alaska Criminal
Rule 6(e)(1). Under this oath, the grand jurors swear to “present no one through envy,
hatred or malice,” nor to “leave any one unpresented through fear, affection, gain,
reward, or hope thereof,” but rather to “present all things truly and impartially as they
shall come to your knowledge according to the best of your understanding.”
Smith’s argument that the court was required to affirmatively instruct the
grand jurors of their discretion to decline to indict
Smith argues that the grand jury charge was deficient because the Alaska
Constitution requires the superior court to affirmatively instruct grand jurors that they
have discretion to decline to indict, even if they conclude that the evidence supports the
charges.
As an initial matter, we note that an instruction that grand jurors have
unbounded discretion to decline to indict would conflict with the requirements in the
– 6 – 2775
----------------------- Page 7-----------------------
grand jury oath that grand jurors not “leave any one unpresented through fear, affection,
gain, reward, or hope thereof” and that they act “impartially.”12 As Judge Mannheimer
recounts in his concurrence, there are notable examples throughout history of the grand
jury declining to indict that would seem to violate this oath 13 — an oath that, as Judge
Mannheimer also explains, has been part of Alaska law since the Carter Code and whose
origins date back hundreds of years. Smith contends that the need for the grand jury to
serve as the conscience of the community is particularly important in jurisdictions, like
Alaska’s, where the prosecutors are appointed rather than elected. But prosecutors are
subject to a similar limitation on their exercise of discretion.14
Smith is correct, however, that the grand jury has historically exercised a
form of prosecutorial discretion.15 Numerous courts have recognized that grand juries
12 Alaska R. Crim. P. 6(e)(1).
13 As the Ninth Circuit recounts, there have also been historical examples of the exercise
of grand jury discretion that have been lauded — reflecting the fact that grand jury
nullification has been viewed as serving both positive and negative ends, depending on the
circumstances. See United States v. Navarro-Vargas, 408 F.3d 1184, 1199 (9th Cir. 2005)
(en banc) (“While we celebrate grand jury independence in defense of the First Amendment
in the case of Peter Zenger and those accused of violating the Alien and Sedition Acts, and
we praise grand jury resistance to the morally-obnoxious fugitive slave laws, we must
acknowledge as well that grand juries have also refused to enforce lawful and wise
legislation, including some of the most important legislation in American history: the
Reconstruction laws implementing the Thirteenth, Fourteenth, and Fifteenth Amendments.
Grand jury independence, evidently, has historically served causes both good and ill.”).
14 For example, the American Bar Association provides that, “[i]n exercising discretion
to file and maintain charges,” prosecuting attorneys should not consider “partisan or other
improper political or personal considerations” or “hostility or personal animus towards a
potential subject, or any other improper motive of the prosecutor.” ABA Criminal Justice
Standards for the Prosecution Function § 3-4.4(b) (4th ed. 2017).
15 See 4 Wayne R. LaFave et al., Criminal Procedure § 15.2(g), at 533 (4th ed. 2015)
(continued...)
– 7 – 2775
----------------------- Page 8-----------------------
have this discretion. For example, in Vasquez v. Hillery, the United States Supreme
Court stated:
The grand jury does not determine only that probable cause
exists to believe that a defendant committed a crime, or that
it does not. In the hands of the grand jury lies the power to
charge a greater offense or a lesser offense; numerous counts
or a single count; and perhaps most significant of all, a capital
offense or a noncapital offense — all on the basis of the same
facts. Moreover, “[t]he grand jury is not bound to indict in
every case where a conviction can be obtained.”[16]
Relying on Vasquez, two former Alaska Supreme Court justices have echoed this
principle: “The grand jury is not bound to indict an accused for a particular crime merely
15 (...continued)
(“The grand jury retains its complete independence in refusing to indict. That includes the
authority to refuse to indict even where the evidence presented clearly met the quantum of
proof needed for indictment. This authority of the grand jury to ‘nullify’ the law arguably
was the most important attribute of grand jury review from the perspective of those who
insisted that a grand jury clause be included in the Bill of Rights.”).
Prosecutorial discretion is the prosecutor’s prerogative to refrain from pursuing a
charge even if the evidence supports it. See State v. District Court, 53 P.3d 629, 631 (Alaska
App. 2002) (recognizing that “the executive branch has broad discretion to decide whether
to initiate criminal charges and, if so, what charges to bring”); ABA Criminal Justice
Standards for the Prosecution Function § 3-4.4(a) (4th ed. 2017) (“In order to fully
implement the prosecutor’s functions and duties, including the obligation to enforce the law
while exercising sound discretion, the prosecutor is not obliged to file or maintain all
criminal charges which the evidence might support.”).
16 Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (alteration in original) (quoting United
States v. Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979) (Friendly, J., dissenting)); see also
Gaither v. United States, 413 F.2d 1061, 1066 (D.C. Cir. 1969) (“The content of the charge,
as well as the decision to charge at all, is entirely up to the grand jury — subject to its
popular veto, as it were. The grand jury’s decision not to indict at all, or not to charge the
facts alleged by the prosecutorial officials, is not subject to review by any other body.”
(footnote omitted)).
– 8 – 2775
----------------------- Page 9-----------------------
because there is probable cause. The grand jury may, in the exercise of its discretion,
choose a lesser-included offense, or choose not to indict at all.”17
But even if we assume that Alaska grand juries are entitled to exercise a
form of prosecutorial discretion — i.e., the right, like the government, to decline to
pursue otherwise valid charges when, for example, doing so would be unjust, or
“excessively technical”18 — Smith has pointed to no historical grounding for the notion
that the Alaska Constitution requires courts to affirmatively instruct grand jurors that
they have this discretion. As Smith himself recognizes, there are very few jurisdictions
that expressly advise grand jurors of their discretion to decline to indict. Indeed, some
jurisdictions instruct grand jurors that they have a duty to indict if they conclude that
there is probable cause — language that goes well beyond the instruction given to the
19
grand jurors in Smith’s case.
17 State v. Markgraf, 913 P.2d 487, 487 (Alaska 1996) (Matthews, J., with whom
Eastaugh, J., joined, dissenting from the dismissal of a petition for hearing as improvidently
granted); see also Commonwealth v. Lee, 312 A.2d 391, 393 (Pa. 1973) (“It is for the grand
jury to determine under which statutes to indict. The grand jury has ‘the power to refuse to
indict even where a clear violation of law is shown . . . . [It] can reflect the conscience of the
community in providing relief where strict application of the law would prove unduly
harsh.’” (omission and alteration in original) (quoting 8 J. Moore, Federal Practice § 6.02[1]
(Cipes ed. 1968))).
18 See People v. Sullivan, 503 N.E.2d 74, 77 (N.Y. 1986) (providing that “[c]onsistent
with centuries of history,” a New York grand jury may “decide that an excessively technical
application of the law upon a particular defendant would work an unfairness that would be
contrary to the conscience of the community”); see also 24 Daniel R. Coquilette et al.,
Moore’s Federal Practice § 606.02[1], at 606-12 (3d ed. 2022) (“[T]he grand jury can reflect
the conscience of the community in providing relief when strict application of the law would
prove unduly harsh.”).
19 See, e.g., Alabama Jury Instructions I.1.I.A (“[W]henever the legal evidence received
by a Grand Jury establishes probable cause to believe that a felony has been committed and
(continued...)
– 9 – 2775
----------------------- Page 10-----------------------
Indeed, the charge that federal grand juries receive has language that
appears to limit the grand jury’s discretion to decline to indict — and this federal grand
jury charge has been upheld against challenges similar to Smith’s.20 The federal grand
jury charge does not inform grand jurors of a “two-fold” duty, but rather instructs grand
jurors that their purpose is to “determine whether there is sufficient evidence to justify
a formal accusation against a person” — defined solely as “probable cause to believe that
the accused is guilty of the offense charged.”21 And the instruction later continues,
19 (...continued)
that a particular person has committed that offense, then the Grand Jury must return a true
bill of indictment.”), https://judicial.alabama.gov/docs/library/docs/
General_Jury_Instructions.pdf (last visited Apr. 22, 2024); In re Standard Grand Jury
Instructions — Criminal Report No. 90-2 , 575 So.2d 1276, 1277 (Fla. 1991) (mem.) (“Your
duty is only to ascertain whether there is ‘probable cause’ to believe that a crime has been
committed by the person so accused. If the evidence is sufficient to constitute ‘probable
cause,’ then it is your duty to find what is known as a ‘true bill.’”); see also United States v.
Navarro-Vargas, 408 F.3d 1184, 1197-98 (9th Cir. 2005) (en banc) (discussing state grand
jury instructions and noting that a majority of the states to have addressed this issue have
adopted instructions that imply a duty). But see John Raymond Fletcher, Associate Judge,
Seventh Judicial Circuit Court of Md., Charge to a Grand Jury, 18 F.R.D. 211, 214 (1955)
(“The grand jury may even refuse to indict although its attention is called to a clear violation
of law. Presumably this would occur only when prosecution without mercy would result in
a miscarriage of justice; but the grand jury has that power.”); New York Model Grand Jury
Impanelment Instruction, at 3-5 (providing that “the grand jury may indict a person for an
offense”), https://www.nycourts.gov/JUDGES/CJI/5-SampleCharges/CJI2D.Grand-
Jury_Rev.pdf (last visited Apr. 22, 2024).
20 Among the federal grand jury instructions upheld against challenge is a provision
informing grand jurors that they “cannot judge the wisdom of the criminal laws enacted by
Congress,” and another provision informing grand jurors that they “should vote to indict”
when they conclude that “there is probable cause to believe that the accused is guilty of the
offense charged.” See Navarro-Vargas, 408 F.3d at 1187-88, 1202, 1204; see also United
States v. Knight, 490 F.3d 1268, 1272 (11th Cir. 2007).
21 Navarro-Vargas, 408 F.3d at 1187. The grand jurors in Navarro-Vargas received the
(continued...)
– 10 – 2775
----------------------- Page 11-----------------------
“[Y]ou should vote to indict where the evidence presented to you is sufficiently strong
to warrant a reasonable person’s believing that the accused is probably guilty of the
offense with which the accused is charged.”22
In United States v. Marcucci and in United States v. Navarro-Vargas, the
Ninth Circuit upheld these grand jury instructions against the kind of challenge that
Smith presents here. The Ninth Circuit concluded that these instructions sufficiently
preserve the grand jury’s independent discretion to decline to indict even when the grand
jurors conclude that a given charge is supported by probable cause.23 The Ninth Circuit
found that the word “should” did not eliminate the grand jury’s discretion to decline to
indict.24 And although the Ninth Circuit recognized the importance of the grand jury’s
independent screening function, it rejected the assertion that the federal constitution
21 (...continued)
model grand jury charge recommended by the Judicial Conference of the United States. Id.
at 1186.
22 Id. at 1187.
23 United States v. Marcucci, 299 F.3d 1156, 1164 (9th Cir. 2002) (“The charge, by
telling the jury that it ‘should’ rather than ‘shall’ or ‘must’ indict if it finds probable cause,
leaves room — albeit limited room — for a grand jury to reject an indictment that, although
supported by probable cause, is based on governmental passion, prejudice, or injustice.”);
Navarro-Vargas, 408 F.3d at 1205 (“Even assuming that the grand jury should exercise
something akin to prosecutorial discretion, the instruction does not infringe upon that
discretion.”).
24 See Marcucci , 299 F.3d at 1164; Navarro-Vargas, 408 F.3d at 1204 (holding that
instructing the grand jurors that they “should” indict if they find probable cause did not
violate the grand jury’s independence because “[a]s a matter of pure semantics,” this wording
“does not ‘eliminate discretion on the part of the grand jurors’” and it “leav[es] room for the
grand jury to dismiss even if it finds probable cause” (quoting Marcucci , 299 F.3d at 1159)).
– 11 – 2775
----------------------- Page 12-----------------------
requires courts to affirmatively instruct grand jurors that they have the authority to
“nullify” the enforcement of the criminal law in a given case.25
Smith urges us to adopt the view of the dissenting opinions in Marcucci and
Navarro-Vargas ; he argues that these dissents are persuasive and that the views they
espouse should be adopted as a matter of Alaska constitutional law. But the primary
concern of the dissenters in Marcucci and Navarro-Vargas was that, in their view, the
federal grand jury instruction was actively misleading.26 Although the dissenters would
have endorsed an affirmative instruction on a grand jury’s discretion to decline to indict,
the dissenters never suggested that the absence of such an affirmative instruction would
constitute constitutional error, so long as the grand jury charge otherwise left room for
the exercise of grand jury discretion.27
Finally, in Leighton v. State, this Court implicitly rejected the notion that
Alaska law requires an affirmative instruction explicitly endorsing the grand jury’s
discretion to refuse to indict.28 We concluded that, in the context of a grand jury charge
worded like the one in Smith’s case, the word “should” does not set out an inflexible
25 Marcucci , 299 F.3d at 1161; Navarro-Vargas, 408 F.3d at 1199-1202.
26 Marcucci , 299 F.3d at 1170-71 (Hawkins, J., dissenting) (“A grand jury could be
instructed using the language of Vasquez, which does not suggest nullification. Or, it could
be told either that a showing of probable cause is a necessary requirement for indictment
without saying more, or that probable cause is a necessary consideration, but not the only
one. . . . Regardless of how new instructions might turn out, as they stand now they are
constitutionally unsound because they actively mislead grand jurors into thinking they lack
powers which, as articulated by Vasquez, are clearly vested in them.”); Navarro-Vargas, 408
F.3d at 1216 (Hawkins, J., joined by Pregerson, Wardlow, W. Fletcher, and Berzon, JJ.,
dissenting) (“These instructions are unconstitutional because they actively mislead grand
jurors into thinking their powers are more constrained than they are.”).
27 See, e.g., Marcucci , 299 F.3d at 1170-71 (Hawkins, J., dissenting).
28 State v. Leighton, 336 P.3d 713 (Alaska App. 2014).
– 12 – 2775
----------------------- Page 13-----------------------
command, but only an “expectation of what ought to be done” with “some inherent
flexibility . . . to depart from the expectation.”29 And with regard to the third sentence
of Article I, Section 8 of the Alaska Constitution — “[t]he grand jury shall consist of at
least twelve citizens, a majority of whom concurring may return an indictment” — we
concluded that this language did not establish a grand jury’s discretion not to indict even
after the grand jurors conclude that the evidence supports the charge. Rather, we held
that the phrase “may return an indictment” meant “is authorized to return an
indictment.”30
We also noted in Leighton that, to the extent grand juries in Alaska have a
discretionary screening function that derives from the history and role of the grand jury
within the structure of the criminal justice system, the language of the grand jury charge
in Leighton — the same grand jury charge at issue in this case — adequately conveyed
this concept.31
Smith argues that Leighton was wrongly decided, and he — along with the
amicus curiae — asks us to overrule our holding in that case. In particular, Smith argues
that we were wrong in Leighton when we concluded that neither the language of
Article I, Section 8 nor the debate regarding this provision at Alaska’s constitutional
29 Id. at 715-16 (omission in original).
30 Id. (emphasis added). We reached this same conclusion as to AS 12.40.050, which
provides, “The grand jury may indict or present a person for a crime upon sufficient
evidence, whether that person has been held to answer for the crime or not.” Id. at 716
(concluding that the word “may” in AS 12.40.050 is being used in the sense of “is authorized
to”); cf. Navarro-Vargas, 408 F.3d at 1188 (“The text of the Fifth Amendment simply
provides for the right to indictment by a grand jury and does not explain how the grand jury
is to fulfill this constitutional role. Either such details were assumed by the framers of the
Bill of Rights or they decided to leave such details to Congress, the Executive, and the
Judiciary.”).
31 Leighton , 336 P.3d at 715-16.
– 13 – 2775
----------------------- Page 14-----------------------
convention suggested that the framers intended to create or acknowledge a grand jury’s
discretion to refuse to indict even when the grand jurors conclude that the charge is
supported by the evidence.
But the minutes of Alaska’s constitutional convention do not support
Smith’s assertion that the delegates intended for grand jurors to be instructed that they
are authorized to refuse to return an indictment even when they conclude that the
evidence presented to them supports the criminal charge. Even though the proponents
of the grand jury clause argued vigorously in favor of keeping the grand jury as an
institution to protect individuals against criminal prosecution based on “flimsy” or
insufficient evidence, there is nothing in the record of the convention to suggest that
these delegates intended to add grand jury protections that did not exist under the federal
32
constitution — that is, under the federal law that governed Alaska at the time.
32 See Wassillie v. State, 411 P.3d 595, 605-07 (Alaska 2018) (recounting the debate on
the grand jury clause at the Alaska Constitutional Convention); see also 2 Proceedings of the
Alaska Constitutional Convention 1336 (Jan. 6, 1956) (remarks of Delegate Edward Davis,
sponsor of amendment to require indictment by grand jury in felony cases) (“I am interested
in the occasional person who is charged with crime and who is completely innocent of that
crime, and so far as I am concerned if even one person is charged with crime, who is
innocent, and who may have the matter disposed of without having to stand trial, it’s worth
the cost[.]”); id. at 1323-24 (remarks of Delegate Ralph Rivers) (“I think [grand juries] serve
a useful purpose. Sometimes . . . the grand jury will bring in a ‘no true bill’ meaning they
just refused to accuse anybody because the evidence is too flimsy.”); id. at 1331 (remarks of
Delegate Robert McNealy) (“[O]ccasionally, our appointed prosecutors become a little
overzealous and want to secure a number of convictions and in some of those instances a
grand jury will return a no true bill.”); id. at 1334 (remarks of Delegate Mildred Hermann)
(“I also have seen the misplaced zeal of some of our district attorneys[.]”).
Even though the Fifth Amendment guarantees a right of grand jury indictment in a
federal felony case, the Fourteenth Amendment’s due process clause does not incorporate
this right of grand jury indictment against the states. Hurtado v. California, 110 U.S. 516,
538 (1884). However, because the Alaska grand jury was derived from the federal model,
the historical and structural underpinnings of the federal grand jury right serve as persuasive
(continued...)
– 14 – 2775
----------------------- Page 15-----------------------
In short, Smith has not met his “heavy threshold burden” of demonstrating
compelling reasons for overruling Leighton .33
Why we conclude that the instructions in this case do not warrant reversal
Ultimately, Smith has pointed to no persuasive reason why the grand jury
charge in his case was so deficient or misleading as to require reversal of his convictions.
The grand jury instructions as a whole were consistent with the grand jury’s discretion
to decline to indict. These instructions explicitly advised the grand jurors that their
deliberations were secret and could not be disclosed absent a court order, that they had
“an obligation to every individual to ensure that no one is subjected to criminal
prosecution without good cause,” and that they should hold people accountable for
serious criminal misconduct, but only where there were “just grounds for the charge.”
Smith takes issue with the word “obligation,” arguing that it does not afford
the grand jurors any flexibility to decline to indict once they conclude that the evidence
supports the charges. We agree that the word “obligation,” standing alone, seemingly
precludes discretion.
But Smith overlooks the context in which this word appears. Echoing our
supreme court’s characterization of the grand jury “as both a shield and sword of
justice,” the presiding judge in this case instructed the grand jurors that the determination
32 (...continued)
authority for interpreting the Alaska grand jury right.
The concurrence interprets the delegates’ silence on nullification as an affirmative
indication that they rejected the notion that the grand jury was entitled to exercise this type
of discretion at all. But given that this discretion has traditionally been viewed as a function
of the federal grand jury, the silence was equally consistent with an assumption that the
discretion was inherent in the grand jury process.
33 Buntin v. Schlumberger Tech. Corp., 487 P.3d 595, 603 (Alaska 2021) (quoting
Thomas v. Anchorage Equal Rts. Comm’n, 102 P.3d 937, 943 (Alaska 2004)).
– 15 – 2775
----------------------- Page 16-----------------------
of whether there is “sufficient evidence to bring a person to trial” imposes a “two-fold
duty” on the grand jury: The first of these duties is “an obligation to the people of the
State of Alaska to compel persons charged with serious criminal conduct to answer for
that conduct if there are just grounds for the charge.” (Emphasis added.) The second
duty is “an obligation to every individual to ensure that no one is subjected to criminal
prosecution without good cause.” (Emphasis added.)
These concepts of “just grounds” and “good cause” invoke fundamental
concepts of justice and fairness that do not imply that the grand jury’s task is limited to
simply determining whether the evidence is sufficient to establish the defendant’s guilt
at trial.34 And nothing else in this grand jury instruction limited grand jurors from
considering what would be “just” in a given situation.
Additionally, the grand jurors were required to take the grand jury oath
specified in Criminal Rule 6(e)(1), in which the grand jurors swear to “present no one
through envy, hatred or malice,” nor to “leave any one unpresented through fear,
affection, gain, reward, or hope thereof,” but rather to “present all things truly and
impartially as they shall come to your knowledge according to the best of your
understanding.”
On the whole, these instructions informed the grand jurors of the grand
jury’s independence and did not foreclose the possibility of the grand jury’s refusing to
indict even if the grand jurors concluded that sufficient evidence supported the charges.
34 The concurrence suggests that this analysis takes the concepts of “just grounds” and
“good cause” out of context since the judge’s prefatory remark explained that under the
Alaska Constitution, the grand jury is to “determine whether there is sufficient evidence to
bring a person to trial.” But the judge then specifically defined this obligation, explaining
that this provision imposes upon the grand jury the “two-fold duty” discussed above. There
is no reason to think the grand jury would have understood its responsibilities to extend
beyond this two-fold task.
– 16 – 2775
----------------------- Page 17-----------------------
Ultimately, the question in this case, as in Leighton, is not whether it is
permissible to instruct a grand jury that it has this kind of discretion. Rather, the
question is whether it amounts to constitutional error not to expressly instruct a grand
35
jury that it has this discretion.
We conclude that the absence of such an express instruction does not
amount to constitutional error.36 And we further conclude that the grand jury charge in
this case did not contravene the notion that grand jurors have discretion to decline to
indict even when they conclude that the evidence supports the charges.37
35 Cf. Young v. State, 374 P.3d 395, 428 (Alaska 2016) (“[W]hether or not a requested
jury instruction should be given lies in the discretion of the trial court. [A]s long as the
instructions actually given by the trial court adequately set forth the applicable law, a more
elaborate explanation of the defendant’s theory of the case is not required unless it would
substantially aid the jury in arriving at a just verdict.” (second alteration in original) (internal
quotations omitted)); Navarro-Vargas, 408 F.3d at 1208 (“In upholding the model grand jury
instructions against Appellants’ constitutional challenge, we do not necessarily hold that the
current instructions could not or should not be improved. . . . However, we are not a drafting
committee for the grand jury instructions. We are not faced with the question of how to
reform the modern grand jury but whether its model instructions are constitutional. To
answer this question, we hold that the provisions of the model grand jury instructions
challenged here are constitutional.” (footnote omitted)).
36 We need not decide the precise boundaries of legitimate grand jury discretion because
we find no support for the position that an affirmative instruction on grand jury discretion
is constitutionally mandated.
37 For the first time in his supplemental reply brief, Smith argues that the prosecutor’s
statements during the grand jury orientation would have indicated to the grand jury that their
only role was to determine the existence of probable cause. But Smith made no such
argument in the trial court, in his initial briefing in this case, or in his opening supplemental
brief. Instead, he challenged only the court’s instructions to the grand jury. Indeed, a
transcript of the grand jury orientation was not even prepared until after the State filed its
supplemental brief, at the State’s request. Accordingly, any argument based on the
prosecutor’s statements is waived. See Berezyuk v. State, 282 P.3d 386, 398-400 (Alaska
(continued...)
– 17 – 2775
----------------------- Page 18-----------------------
Conclusion
The judgment of the superior court is AFFIRMED.
37 (...continued)
App. 2012). In any event, we read the prosecutor’s comments as simply explaining the
standard by which the grand jury was, in fact, to determine if the charges had sufficient
evidentiary support.
– 18 – 2775
----------------------- Page 19-----------------------
Judge MANNHEIMER, concurring.
The defendant in this case, Martin C. Smith, contends that the grand jury
proceedings in his case were fatally flawed because the presiding judge of the superior
court gave misleading instructions to the grand jury panel that issued the indictment
against Smith.
Specifically, Smith asserts that, under the Alaska Constitution, even when
the members of a grand jury panel conclude that the evidence supports a proposed
indictment, the grand jurors nevertheless have an absolute, unfettered discretion to
refuse to issue an indictment — for any reason they see fit. Smith contends that, in his
case, the superior court misled the grand jurors by telling them, or at least implying, that
grand jurors have a duty to issue an indictment if they conclude that the evidence
supports the proposed charge. Indeed, Smith contends that when the superior court
convenes a grand jury, the court must explicitly instruct grand jurors that they have an
unfettered discretion to refuse to issue an indictment for any reason they see fit.
If Smith is correct, two major provisions of Alaska Criminal Rule 6 (the
rule that governs grand jury proceedings) are unconstitutional.
The first of these provisions is Criminal Rule 6(r), which declares that
grand jurors “shall find an indictment” if they conclude that the evidence they have heard
would warrant a trial jury in finding the defendant guilty. If Smith is correct, it is
unconstitutional to tell grand jurors that there are any circumstances in which they are
required to return an indictment.
The second of these provisions is Criminal Rule 6(e)(1), which requires
grand jurors to take an oath that they will “diligently inquire and true presentment make”
of all the matters that come before them. This oath requires grand jurors to promise that
they will not “leave any one unpresented [i.e., unindicted] through fear, affection, gain,
– 19 – 2775
----------------------- Page 20-----------------------
reward, or hope thereof”, but that they will instead “present all things truly and
impartially as [these matters] shall come to [their] knowledge according to the best of
[their] understanding.”
These provisions of the grand juror oath are inconsistent with Smith’s
contention that grand jurors have an absolute, unfettered discretion to decline to issue an
indictment for any reason they see fit. The prescribed oath requires grand jurors to
promise that, when they consider exercising their authority to decline to indict someone,
they will not allow their decision to be influenced by deference to the defendant’s wealth,
power, or popularity; nor will they allow their decision to be influenced by a desire to
gratify community sentiment or expectations, or by a fear of angering the community.
Instead, the oath requires grand jurors to promise that they will render true and impartial
justice — that their decisions will not be improperly influenced by the identities of the
people involved, nor by such factors as the race, religion, or political views of the people
involved.
A summary of this Court’s decision, and my reasons for writing this
concurrence
In this Court’s lead opinion, my colleagues reject some of Smith’s
contentions, but they leave other portions of Smith’s argument unresolved.
In particular, my colleagues reject Smith’s contention that grand jurors have
an absolute, unfettered discretion to decline to issue an indictment for any reason they
see fit, even when the grand jurors conclude that the evidence supports the indictment.
Instead, my colleagues hold that grand jurors are bound by the oath prescribed in
Criminal Rule 6(e)(1) — an oath that forbids grand jurors from refusing or declining to
indict a defendant for any of the various improper reasons listed in the oath.
– 20 – 2775
----------------------- Page 21-----------------------
I agree with my colleagues that the drafters of Alaska’s constitution worked
under the premise that grand jurors are bound by the provisions of the oath that is now
codified in Criminal Rule 6(e)(1). The origins of this oath are more than a thousand
years old, and the oath has existed in Anglo-American law (in essentially its current
form) since the late 1200s. This oath was incorporated by reference in the Carter Code
of 1900 (the first codification of Alaska law), and this oath was enacted as an express
provision of the Alaska statutes by the territorial legislature in 1933. No delegate to our
constitutional convention expressed any disagreement with this oath or any doubt as to
whether Alaska grand jurors are bound by the provisions of this oath.
Thus, my colleagues and I agree that Alaska grand jurors do not have
unfettered discretion to ignore the evidence and refuse to issue an indictment for any
reason they see fit.
At the same time, however, my colleagues suggest that Smith may be
partially correct — that Alaska grand jurors may have some discretion to refuse to issue
an indictment even when they conclude that the indictment is supported by the evidence.
Specifically, my colleagues suggest that, so long as the grand jurors abide by the oath set
forth in Rule 6(e)(1), Alaska grand jurors may have the discretion to refuse to issue an
indictment whenever the grand jurors conclude that the charges are “unjust” or
“excessively technical”.
But having suggested this possibility, my colleagues then decline to
definitively resolve this issue of a grand jury’s potential discretion to decline to issue an
indictment for reasons apart from the sufficiency of the evidence to support the charges.
Instead of deciding whether Alaska grand jurors have a limited discretion
to reject even well-founded felony charges, my colleagues conclude that this issue is
moot. According to my colleagues, this mootness arises from the wording of the
superior court’s initial instructions to the grand jury panel in Smith’s case.
– 21 – 2775
----------------------- Page 22-----------------------
The presiding judge began by telling the grand jurors that they were about
to commence performing “an extremely important function” because, “under Alaska’s
Constitution, the grand jury is to determine whether there is sufficient evidence to bring
a person to trial.” But as my colleagues note in the lead opinion, the presiding judge then
proceeded to paraphrase the grand jury’s constitutional duty to “determine whether there
is sufficient evidence to bring a person to trial.” The judge told the grand jurors that
“this provision imposes a two-fold duty upon you”:
First, grand jurors have an obligation to the people of
the State of Alaska to compel persons charged with serious
criminal conduct to answer for that conduct if there are just
grounds for the charge. At the same time, however, grand
jurors have an obligation to every individual to ensure that
no one is subjected to criminal prosecution without good
cause.
Bear in mind that, when the presiding judge spoke these words, the judge
had just told the grand jurors that he was explaining their constitutional duty “to
determine whether there is sufficient evidence to bring a person to trial.” Thus, when the
judge referred to cases where there are “just grounds” for the charge, and when the judge
contrasted those cases with instances where an individual is subjected to criminal
prosecution “without good cause”, the grand jurors could reasonably interpret the judge
to be saying (1) that there are “just grounds” for requiring a person to answer a felony
charge if the evidence supports the charge, and (2) that a person would be subjected to
prosecution “without good cause” if the evidence did not support the charge.
But in this Court’s lead opinion, my colleagues suggest a broader reading
of these two phrases. My colleagues assert that the concepts of “just grounds” and “good
cause” imply that grand jurors are not limited to evaluating whether the evidence they
have heard is sufficient to support the proposed charges. Rather, according to my
– 22 – 2775
----------------------- Page 23-----------------------
colleagues, the phrases “just grounds” and “good cause” imply that grand jurors are
allowed to base their decisions on “fundamental concepts of justice and fairness” —
considerations which go beyond the task of “simply determining whether the evidence
is sufficient to establish a defendant’s guilt at trial.”
Having adopted this reading of the presiding judge’s instruction, my
colleagues assert that reasonable grand jurors would have understood the superior court
to be saying that grand jurors had the power to refuse to issue an indictment if, for
reasons apart from the sufficiency of the evidence, the grand jurors concluded that it
would be unjust or unfair for the State to prosecute the charge. Thus, for instance, the
grand jurors might refuse to issue an indictment if they personally disagreed with the law
that formed the basis of the charge, or if they thought that it was unfair to enforce that
law under the circumstances of the defendant’s case, or if they thought that the proposed
indictment violated “fundamental concepts of justice and fairness” for some other reason
— so long as this reason was not directly barred by the provisions of the grand juror oath
prescribed in Criminal Rule 6(e)(1).
Having interpreted the presiding judge’s instruction in this manner, my
colleagues then conclude that this Court need only decide one component of Smith’s
claims on appeal. This one component is Smith’s argument that the superior court is
required to affirmatively instruct grand jurors that they have a limited authority to engage
in nullification. My colleagues hold that the superior court is not required to
affirmatively instruct grand jurors that they can engage in nullification, so long as the
court’s instructions to the grand jurors do not expressly foreclose the possibility of
nullification.
In Smith’s case, the superior court’s instructions to the grand jurors do not
expressly say that grand jurors are prohibited from engaging in nullification. Indeed, as
I just explained, my colleagues interpret those instructions as actually suggesting that the
– 23 – 2775
----------------------- Page 24-----------------------
grand jurors could lawfully engage in nullification. Then, based on the assumption that
the grand jurors would have understood the presiding judge’s instruction in this manner,
my colleagues conclude that the presiding judge in Smith’s case was under no duty to
affirmatively instruct the grand jurors that they were entitled to refuse to issue an
indictment even when they concluded that the evidence supported the charge.
And having reached this conclusion, my colleagues declare that this Court
does not need to decide whether Alaska grand jurors actually have this limited right of
nullification.
My colleagues reason that if, on the one hand, Alaska law does give grand
jurors a limited right to engage in nullification (limited by the requirements of Alaska’s
grand juror oath), then the presiding judge’s instructions to the grand jury panel in
Smith’s case correctly suggested that grand jury nullification was allowed. If, on the
other hand, Alaska law does not give grand jurors a limited right to engage in
nullification, then there was no harm — because, even though the grand jurors may have
falsely believed that they had the discretion to refuse to indict Smith regardless of the
evidence supporting the indictment, the grand jurors nevertheless indicted Smith.
The problem here is that my colleagues cannot justify their conclusion of
mootness merely by asserting that one or more grand jurors might potentially have
interpreted the phrases “just grounds” and “good cause” as authorizing the grand jurors
to engage in nullification. Rather, my colleagues’ finding of mootness requires this
Court to declare that any reasonable person who heard the superior court’s instructions
would have concluded that, under Alaska law, grand jurors had this kind of discretion
to ignore the evidence and the law.
But this is not the sole reasonable interpretation of the superior court’s
instructions to the grand jurors. Rather, I believe that my colleagues’ interpretation of
– 24 – 2775
----------------------- Page 25-----------------------
the superior court’s instructions hinges on taking the phrases “just grounds” and “good
cause” out of context.
The superior court employed the phrases “just grounds” and “good cause”
as part of its explanation of the grand jurors’ duty under the Alaska Constitution “to
determine whether there is sufficient evidence to bring a person to trial.” After telling
the grand jurors that this was the grand jury’s constitutional function, the superior court
then elaborated by saying that the grand jurors had an obligation “to compel persons
charged with serious criminal conduct to answer for that conduct if there are just grounds
for the charge”, as well as a corresponding obligation “to ensure that no one is subjected
to criminal prosecution without good cause.”
Reasonable grand jurors, hearing these phrases in this context, would not
necessarily think that the superior court was describing a grand jury’s power of
nullification. Rather, reasonable grand jurors might well understand the superior court
to simply be elaborating on the grand jurors’ constitutional duty to evaluate whether the
evidence sufficiently supported a proposed indictment.
In other words, reading the superior court’s instruction as a whole (which
1
is what Alaska law requires ), grand jurors could reasonably understand the superior
court to be saying that when the grand jurors evaluated whether a proposed charge was
supported by the evidence, this was the same thing as evaluating whether the proposed
felony charge was supported by “just grounds” or whether (on the other hand) a
defendant was being subjected to prosecution “without good cause”.
If at least some reasonable grand jurors could understand the presiding
judge to be saying only this (and not to be suggesting that grand jurors have the right to
1 See, e.g., Kangas v. State, 463 P.3d 189, 194 (Alaska App. 2020).
– 25 – 2775
----------------------- Page 26-----------------------
engage in nullification), then the issue of whether Alaska grand jurors actually have a
right to engage in nullification is not moot.
For this reason, I think that this Court must address the question of whether,
aside from the restrictions of the grand juror oath set forth in Criminal Rule 6(e)(1),
Alaska grand jurors might have a limited discretion to refuse to issue an indictment even
though they conclude that the evidence supports the indictment.
The answer to this question ultimately hinges on the understanding and
intentions of the delegates who drafted the grand jury provision of Alaska’s constitution.
My colleagues are correct that various courts and various legal
commentators have declared that grand jurors have the discretion to decline to issue an
indictment for reasons apart from the sufficiency of the evidence. But while this Court
should of course examine the law of other jurisdictions and the views of respected legal
commentators, the question before this Court is one of Alaska law. Thus, the answer to
this question turns on how the delegates to our constitutional convention understood the
authority and functions of the grand jury when those delegates codified a right to grand
jury indictment in Article I, Section 8 of the Alaska Constitution.
As I explain more fully in this concurrence, the Alaska drafters’ debate over
our grand jury provision is completely silent regarding the question of grand jury
“nullification”. During this debate, no one mentioned the question of whether grand
jurors might have the discretion to refuse to issue an indictment even when the grand
jurors conclude that the evidence supports the proposed indictment.
The drafters’ silence is significant for two reasons, both having to do with
the context in which the delegates held their debate.
First, under the initial draft of our state constitution, Alaska was going to
abolish the requirement of grand jury indictments in felony cases. This meant that the
delegates who wanted to keep the requirement of a grand jury indictment had to ask the
– 26 – 2775
----------------------- Page 27-----------------------
convention to amend this initial draft — and, more importantly, those delegates had to
articulate affirmative reasons for keeping the requirement of grand jury indictments.
But in the ensuing debate, the delegates who wanted to keep the
requirement of a grand jury indictment were utterly silent regarding the possibility of
grand jury nullification. None of these delegates spoke about a grand jury’s potential
power to refuse to issue an indictment for reasons apart from the sufficiency of the
evidence to support the charges. More importantly, none of these delegates suggested
that grand juries ought to be engaging in nullification, or that nullification was a
beneficial function of the grand jury and a reason to require grand jury indictments.
Rather, during this debate, the various delegates who spoke in favor of
keeping the requirement of a grand jury indictment repeatedly presented a single
argument: that grand juries were needed to prevent overzealous prosecutors from
pursuing felony charges when those charges were not supported by the evidence.
The utter failure of any delegate to mention grand jury “nullification” is
particularly striking because, during the months leading up to and surrounding this
constitutional debate, newspapers and magazines across the United States were filled
with coverage of one of the most egregious modern examples of jury and grand jury
nullification: the failure of a Southern trial jury and, later, a Southern grand jury to take
any action against the men who openly admitted kidnapping and murdering a Black
teenager, Emmet Till (because he purportedly made a sexual remark to a White woman).
Even though the Emmett Till case filled the media (or perhaps because it
filled the media), the delegates who favored keeping the requirement of grand jury
indictments never once asserted that grand juries were needed, or were beneficial,
because of a grand jury’s power to ignore the evidence and refuse to issue an indictment
based on reasons of politics, social policy, or community sentiment.
– 27 – 2775
----------------------- Page 28-----------------------
At the same time, the delegates who wished to abolish the requirement of
grand jury indictments never argued that grand jury nullification posed a potential danger
to the rule of law — even though a prime instance of this danger was headline news at
the time.
Rather, the delegates on both sides of the debate apparently viewed
instances of grand jury nullification as aberrations — regrettable but unpreventable
departures from a grand jury’s proper function.
All of this brings me to my last point.
Throughout history, grand juries have, on occasion, refused to issue
indictments despite significant or even overwhelming evidence that the defendant was
guilty of the crime charged in the proposed indictment. The most famous (or infamous)
of these instances involved grand jurors who refused to enforce a particular unpopular
statute, or grand jurors who refused to enforce the criminal law against certain favored
political, racial, or social groups, or grand jurors who refused to enforce the law when
the victim of the crime was a member of a disfavored political, racial, or social group.
But as the Ninth Circuit pointed out in its en banc decision in United States
v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005), these instances of grand jury
nullification have occurred regardless of the instructions that the grand jurors received
— i.e., regardless of whether judges encouraged the grand jurors to flout the law (as
often happened in pre-Revolutionary War America), or whether judges instructed the
grand jurors that they were required to follow and enforce the law (instructions which
became the norm after the Revolution was successful and the new national and state
governments were formed).
This is because a grand jury’s power of nullification ultimately derives from
the very structure of the grand jury itself. Under our law, a grand jury’s deliberations are
secret, the grand jurors are insulated from civil or criminal sanctions for their decisions,
– 28 – 2775
----------------------- Page 29-----------------------
and no government entity can overturn a grand jury’s decision not to issue an indictment.
History shows us that the phenomenon of grand jury nullification arises from these
factors, rather than from anything that judges or prosecutors might tell grand jurors about
the law governing a grand jury’s decision-making. “In all of these cases, for better or for
worse, it is the structure of the grand jury process and its function in our system that
makes it independent.” Navarro-Vargas, 408 F.3d at 1202 (emphasis in the original).
Just as trial jury nullification has not disappeared despite the fact that
2
Alaska law expressly forbids trial jurors from engaging in nullification, instances of
grand jury nullification will occasionally occur even though the superior court does not
(and, in my view, should not) tell grand jurors that they can engage in nullification.
I
Why I agree with my colleagues that Alaska grand jurors are bound by the
provisions of the grand juror oath prescribed in Criminal Rule 6(e)(1)
Alaska Criminal Rule 6(e)(1) declares that grand jurors must take an oath
before they commence their duties. In this oath, the grand jurors promise that they will
“diligently inquire and true presentment make” of all the matters that come before them,
that they will not “leave anyone unpresented [i.e., unindicted] through fear, affection,
gain, reward, or hope thereof”, and that they will instead “present all things truly and
impartially as [these matters] shall come to [their] knowledge according to the best of
[their] understanding.”
2 Hartley v. State, 653 P.2d 1052, 1055 (Alaska App. 1982).
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----------------------- Page 30-----------------------
The origins of this oath are more than a thousand years old, and its major
3
provisions have been a fixture of Anglo-American law since the late 1200s.
This grand juror oath was incorporated by reference in the first codification
of Alaska territorial law, the Carter Code of 1900. Section 10 of Part Two of the Carter
Code (“Criminal Procedure”) declared that grand jury proceedings in Alaska were to be
“conducted in the manner prescribed by the laws of the United States”. At that time,
federal law prescribed the following grand jury oath:
You ... do swear that you will diligently inquire, and
true presentment make, of such articles, matters and things as
shall be given you in charge, or otherwise come to your
knowledge, touching the present service. ... [Y]ou shall
present no one for envy, hatred or malice; neither shall you
leave any one unpresented for fear, favor, affection, hope of
reward or gain, but shall present all things truly as they come
to your knowledge, according to the best of your
understanding. So help you God!
3 See George J. Edwards’s classic treatise, The Grand Jury (1906), pp. 98–100:
The grand juror’s oath is of great antiquity. When, in the time of Aethelred II
[978 to 1016 C.E.], the twelve Thanes went out, they “swore upon the [religious] relic
that was given them in hand that they would accuse no innocent man nor conceal any
guilty one.” In Bracton’s time [the mid-1200s] the oath and pledge bound the grand
jurors to similar action. ... [At] the conclusion of the reading of the capitula by the
justices [who convened the grand jury], they [ i.e., the grand jurors] pledged
themselves to do faithfully those things which the justices required of them, to
aggrieve no one through enmity, nor defer to any one through love, and to conceal
[from all persons] what they had heard [during the grand jury proceedings]. This
[grand juror oath] ... contains the elements of the oath of the present day.
[By] the time of Britton [i.e., about one generation later], but one oath was taken,
containing all the elements of ... and more generally conforming to the oath now
administered [at the turn of the 20th century].
– 30 – 2775
----------------------- Page 31-----------------------
See Charge to Grand Jury, 2 Sawyer 667, 30 Federal Cases 992 (D. California 1872).
In 1933, the Alaska territorial legislature made this oath an express
provision of Alaska’s statutory law, 4 and the oath was codified in 1933 Compiled Laws
of Alaska, Section 5167:
Sec. 5167. Oath of grand jury. Before the grand jury
enter upon the discharge of their duties, the following oath
shall be administered to them by the clerk of the court:
You and each of you as members of this grand jury,
for the United States of America and the Territory of Alaska,
... do solemnly swear that you will diligently inquire and true
presentment make of all such matters and things as shall be
given you in charge, or shall otherwise come to your
knowledge touching this present service. ... That you will
present no one through envy, hatred or malice, or leave
anyone unpresented through fear, affection, gain, reward, or
hope thereof; but that you will present all things truly and
indifferently [i.e., impartially] as they shall come to your
knowledge according to the best of your understanding. So
help you God.
Thus, at the time of Alaska’s constitutional convention, the grand juror oath
that is currently found in Criminal Rule 6(e)(1) had been part of Alaska law for over half
a century. No delegate to the convention expressed any disagreement with this oath, nor
any doubt as to whether Alaska grand jurors are bound by the provisions of this oath.
Following statehood, the Alaska Supreme Court re-codified this oath in
Alaska Criminal Rule 6, the rule governing grand jury proceedings.
4 See Laws 1933, ch. 24, § 3.
– 31 – 2775
----------------------- Page 32-----------------------
The history of this oath, and its existence as part of Alaska law for more
than 50 years before our state constitutional convention, is utterly inconsistent with
Smith’s claim that the framers of Alaska’s constitution gave grand jurors an unfettered
discretion to refuse to return an indictment for any reason they see fit. Rather, this
history demonstrates that the delegates to our state constitutional convention (and, later,
the members of our state supreme court) understood the law of Alaska as requiring grand
jurors to abide by the provisions of this oath — requiring grand jurors to “diligently
inquire and true presentment make” of all the matters brought before them, requiring
them to “present all things truly and impartially”, and requiring them to leave no one
unindicted “through fear, affection, gain, reward, or hope thereof”.
II
Does any provision of Alaska’s codified law give grand jurors a limited
discretion to refuse to issue an indictment even when the grand jurors
conclude that the evidence supports the proposed indictment?
In Smith’s briefs to this Court, he argues that two provisions of Alaska’s
codified law — Article I, Section 8 of our state constitution, and AS 12.40.050 —
expressly grant Alaska grand jurors the discretion to decline to issue an indictment for
any reason they see fit.
Smith’s contention is at least partially wrong — because Alaska grand
jurors are required to abide by the provisions of the oath prescribed in Criminal
Rule 6(e)(1). But this leaves the question of whether, so long as Alaska grand jurors
abide by the restrictions imposed by the grand juror oath, the grand jurors have a limited
discretion to decline to issue an indictment even when they conclude that the evidence
supports the proposed indictment.
– 32 – 2775
----------------------- Page 33-----------------------
For the reasons I am about to explain, I conclude that the provisions of
Alaska’s codified law do not give grand jurors the discretion to refuse to issue an
indictment for reasons apart from the sufficiency of the evidence.
(a) Smith’s suggested interpretation of the fourth sentence of Article I,
Section 8 of the Alaska Constitution
Smith contends that the wording of the fourth sentence of the grand jury
provision of our state constitution (Article I, Section 8) expressly grants Alaska grand
jurors the discretion to decline to issue an indictment for any reason they see fit. But
Smith’s argument hinges on a misinterpretation of the language of this sentence.
5
The complete text of Article I, Section 8 is found in this footnote, but
Smith’s argument is based on the fourth sentence of Section 8: “The grand jury shall
consist of at least twelve citizens, a majority of whom concurring may return an
indictment.”
Smith notes that this sentence says that a majority of the grand jurors
“may return an indictment”, rather than “shall return an indictment”. Based on the fact
that this sentence uses the word “may” instead of the word “shall”, Smith argues that the
framers of Alaska’s constitution must have intended for the grand jury’s power of
indictment to be discretionary — and that this fourth sentence of Article I, Section 8
5 Article I, Section 8 of the Alaska Constitution declares:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising in the
armed forces in time of war or public danger. Indictment may be waived by the
accused. In that case[,] the prosecution shall be by information. The grand jury shall
consist of at least twelve citizens, a majority of whom concurring may return an
indictment. The power of grand juries to investigate and make recommendations
concerning the public welfare or safety shall never be suspended.
– 33 – 2775
----------------------- Page 34-----------------------
codifies the principle that grand jurors in Alaska have no legal duty to return an
indictment even when they conclude that the evidence supports the charge against the
defendant.
In State v. Leighton, 336 P.3d 713, 715 (Alaska App. 2014), this Court
rejected this proposed reading of Article I, Section 8. However, Leighton ’s discussion
of this point is short and conclusory. Here is how I would now explain the result in
Leighton, and why I reject Smith’s proposed interpretation of Article I, Section 8.
Smith’s argument hinges on the ambiguity of the verb “may”.
In some contexts, the verb “may” can mean “might or might not” — for
example, “It may rain this afternoon.” or “We may get our work done by mid-afternoon.”
The verb “may” can also have a similar meaning — “might or might not” — when we
speak of people’s potential decisions. For example, the sentence “Constance may take
a coffee break before she begins work on her next project” can potentially mean that
Constance might choose to take a coffee break before beginning her next project, or she
might choose to begin her next project immediately.
But the verb “may” can also mean “is authorized to” or “is permitted to”.
When a parent tells a babysitter, “The children may have a cookie after they have
finished their soup and toast”, the parent is not describing the children’s potential future
decision about eating cookies after their meal. Rather, the parent is informing the
babysitter of a rule: The children are permitted to have a cookie only after they have
finished their soup and toast.
Similarly, when the managing partner of a law firm tells one of the firm’s
other lawyers, “You may select one of our junior associates to work full-time with you
on your case”, the managing partner is giving authorization to the other lawyer —
permission to select a junior associate to work on the lawyer’s case, to the exclusion of
all other potential demands on the associate’s time.
– 34 – 2775
----------------------- Page 35-----------------------
Indeed, it now can be seen that my earlier example — “Constance may take
a coffee break before she begins work on her next project” — is ambiguous. Its meaning
depends on who is uttering these words, and in what context. If this sentence is spoken
by a workplace supervisor, the sentence might mean that the supervisor is giving
permission for Constance to take a break before beginning her next project. On the other
hand, if these words are spoken by a friend, co-worker, or subordinate, the sentence can
simply mean that Constance might or might not decide (at her option) to take a break
before she commences her next project.
Thus, the meaning of the word “may” in a sentence often cannot be
understood until one has considered the context in which the word is used.
Smith concedes that the minutes of Alaska’s Constitutional Convention
do not contain any discussion of why the framers wrote “may return an indictment”
rather than “shall return an indictment” in Article I, Section 8. But the wording of this
fourth sentence, considered as a whole, shows that the word “may” is employed in the
sense of authorization: a grand jury is authorized to return an indictment if a majority
of the grand jurors concur.
This conclusion — that Article I, Section 8 uses the word “may” in the
sense of “is authorized to” — is bolstered by the pre-statehood provisions of Alaska law
dealing with the grand jury.
From Alaska’s earliest days under United States governance, Alaska law
(first federal, and then Alaska territorial law) contained many provisions governing the
procedures and actions of the grand jury. The earliest versions of these provisions are
6
found in the Carter Code of 1900.
6 Many provisions of the Carter Code are direct forerunners of provisions now found
in Alaska Criminal Rule 6: the power of the grand jury foreperson to administer oaths, the
(continued...)
– 35 – 2775
----------------------- Page 36-----------------------
For present purposes, the most relevant provision of the Carter Code was
Part Two, Section 29. This provision prescribed the minimum number of grand juror
votes required to support an indictment, and this provision was carried forward in all
7
subsequent codifications of Alaska law, up until statehood:
Sec. 29. The indictment must be found by twelve jurors
and indorsed by foreman. That an indictment can not be
found without the concurrence of at least twelve grand jurors;
and when so found it must be indorsed “a true bill,” and such
indorsement signed by the foreman of the jury.
The Carter Code itself did not contain any provision specifying the size of
the grand jury, but the Carter Code specified (in Section 10 of Part Two) that grand jury
proceedings in Alaska were to be “conducted in the manner prescribed by the laws of the
United States”. And at that time (1900), federal law specified that grand juries had to
6 (...continued)
secrecy of grand jury proceedings, the limitations on who may be present during the sessions
of the grand jury, the power of the grand jury to seek guidance from the superior court as to
whether particular facts constitute a crime, or whether there is some legal bar to the proposed
prosecution of the defendant, the power of the grand jury to call for the presentation of
potentially exculpatory evidence, and the legal effect of the grand jury’s decision that a
proposed indictment is “a true bill” or “not a true bill”.
Compare Criminal Rule 6(h) with Part Two, Section 17 of the Carter Code; Criminal
Rule 6(l) with Part Two, Sections 28 and 32 of the Carter Code; Criminal Rule 6(k) with Part
Two, Section 25 of the Carter Code; Criminal Rule 6(o) with Part Two, Sections 15 and 16
of the Carter Code; Criminal Rule 6(q) with Part Two, Section 18 of the Carter Code; and
Criminal Rule 6(n) with Part Two, Sections 31, 33, and 34 of the Carter Code.
7 See Section 2138 of CLA 1913, Section 5196 of CLA 1933, and Section 66-8-51 of
ACLA 1949.
– 36 – 2775
----------------------- Page 37-----------------------
8
consist of at least sixteen grand jurors and no more than twenty-three. Later, in 1933,
9
the Alaska territorial legislature codified this same requirement.
Thus, when the pre-statehood law of Alaska specified that at least twelve
grand jurors had to concur in any indictment, this meant that even if the grand jury was
at its maximum size of twenty-three members, an indictment required the concurrence
of a majority of the grand jurors.
This historical context explains the fourth sentence of Article I, Section 8
of our state constitution: “The grand jury shall consist of at least twelve citizens, a
majority of whom concurring may return an indictment.” This constitutional provision
was intended to cover the same two subjects as the pre-statehood law that I have just
discussed. These subjects were (1) the mandated size of grand jury panels, and (2) the
number of grand juror votes needed to support an indictment.
Article I, Section 8 significantly relaxed the pre-statehood requirements —
because, under this constitutional provision, grand juries can consist of as few as twelve
people, and indictments only need the concurrence of a majority of the grand jurors, even
when that majority is as small as seven grand jurors.
But more importantly, this history shows that Smith is wrong when he
argues that the phrase “a majority of whom concurring may return an indictment” was
intended to codify the notion that grand jurors had the discretion to refuse to indict
someone, no matter how much evidence supported the charge. Rather, the purpose of
8 See Revised Statutes of the United States (the predecessor to the United States Code),
Title XIII (“The Judiciary”), chapter 15, Section 808: “Every grand jury empaneled before
any district or circuit court shall consist of not less than sixteen nor more than twenty-three
persons.”
9 See Laws 1933, ch. 24, § 2. This provision was codified as Section 5166, CLA 1933,
and it was carried forward as Section 66-8-2 of ACLA 1949.
– 37 – 2775
----------------------- Page 38-----------------------
this fourth sentence of Article I, Section 8 is to prescribe the required size of grand jury
panels and the number of grand jurors needed to support an indictment.
None of Alaska’s pre-statehood grand jury statutes spoke of, or even
suggested, an unbounded grand jury discretion to refuse to issue an indictment regardless
of the strength of the evidence supporting that indictment. To the contrary: Alaska’s
pre-statehood statutes spoke of a grand jury’s duty to return an indictment when the
evidence warranted it.
Part Two, Section 19 of the Carter Code declared, “That the grand jury
ought to find an indictment when all the evidence before them, taken together, is such
as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the
trial jury.” This provision was carried forward in the codification of 1913 (Section
2128), and then in the codification of 1933 (Section 5183), and then again in the final
pre-statehood codification of 1949 (Section 66-8-27).
The framers of our state constitution were presumably aware that, ever
since the Carter Code of 1900, Alaska law had spoken in terms of a grand jury’s duty to
return an indictment if it was supported by the evidence — that grand jurors “ought to
find an indictment” if the grand jurors concluded that the evidence, if “taken together,
... would, if unexplained or uncontradicted, warrant a conviction by the trial jury.” And
no delegate voiced any objection to the precept codified in these pre-statehood statutes.
(I provide a more detailed analysis of the phrase “would warrant a
conviction” a little later in this section, when I discuss the language of Alaska Criminal
Rule 6(r).)
Because Article I, Section 8 of our state constitution was formulated and
adopted in this legal and historical context, I join my colleagues in rejecting Smith’s
contention that the fourth sentence of Article I, Section 8 was meant to confer unbounded
discretion on grand jurors to refuse to return an indictment for any reason.
– 38 – 2775
----------------------- Page 39-----------------------
(Smith also presents a separate argument concerning Article I, Section 8.
Smith contends that even if the text of Article I, Section 8 does not expressly confer
discretion on grand jurors to refuse to return an indictment for reasons apart from the
sufficiency of the evidence, Article I, Section 8 impliedly confers this kind of discretion
on grand jurors. I address this argument later in my concurrence — and I explain why
Smith’s argument is inconsistent with the content of the delegates’ debate regarding
Article I, Section 8.)
(b) Smith’s suggested interpretation of AS 12.40.050
Smith also argues that AS 12.40.050 (one of a series of statutes governing
Alaska grand juries) codifies the principle that grand jurors have unbridled discretion to
decline to issue an indictment even when the grand jurors conclude that the evidence
supports the proposed indictment. Smith bases his argument on the fact that AS 12.40.-
050 says, “The grand jury may indict or present a person for a crime upon sufficient
evidence ...”.
But Smith’s argument is based on a misquotation of AS 12.40.050. When
Smith quotes this statute in his brief, he puts a period after the word “evidence”, as if that
were the end of the sentence. But in the statute itself, there is a comma after the word
“evidence”, and the sentence continues with another clause. Here is the complete text
of AS 12.40.050:
Holding to answer as affecting indictment or
presentment. The grand jury may indict or present a person
for a crime upon sufficient evidence, whether that person has
been held to answer for the crime or not.
– 39 – 2775
----------------------- Page 40-----------------------
When AS 12.40.050 is read as a whole, it is clear that this statute uses the
word “may” in the sense of “is authorized to”. The statute authorizes a grand jury to
indict a defendant regardless of whether the defendant has previously been “held to
answer” — i.e., regardless of whether the grand jury’s indictment will be the first public
charge filed against the defendant or whether, instead, the defendant has already been
charged with the crime by complaint or by information, and the defendant has been
“held to answer” by the district court (i.e., either committed to jail or released on bail to
await the action of the grand jury).
This provision of Alaska law, authorizing a grand jury to indict a person
regardless of whether a court has already ordered that person to be “held to answer”, has
been part of Alaska law ever since the Carter Code of 1900. See Carter Code, Part Two,
Section 14. 10 This history removes any potential ambiguity in the wording of AS 12.40.-
050, and it shows that Smith’s suggested reading of this statute is mistaken.
(I note, with some chagrin, that this Court’s reading of AS 12.40.050 in
State v. Leighton, 336 P.3d 713 (Alaska App. 2014), is only partially correct. In
Leighton, 336 P.3d at 716, this Court declared that AS 12.40.050 authorizes a grand jury
“to return an indictment on charges that the State has not proposed, if the evidence
justifies the charges.” That characterization of the statute is correct, as far as it goes, but
it fails to describe the full scope of the statute.
AS 12.40.050 addresses a grand jury’s authority to issue an indictment
regardless of whether the defendant has already been held to answer. The category of
cases where a defendant has not previously been held to answer does, in fact, include
instances where the State has not proposed any felony charge against the defendant but
10 “Section 14. May indict whether defendant has been held to answer or not. That
the grand jury may indict or present a person for a crime, upon sufficient evidence, whether
such person has been held to answer for such crime or not.”
– 40 – 2775
----------------------- Page 41-----------------------
the grand jury concludes that one or more felony charges should be prosecuted.
However, this category of cases also covers instances where the State chooses to present
its proposed felony charges directly to the grand jury in the first instance, without first
filing an information or a complaint against the defendant.)
(c) The language of Alaska Criminal Rule 6(r): “would warrant a
conviction of the defendant”
As I have already discussed, Alaska’s pre-statehood statutes spoke of a
grand jury’s duty to return an indictment when the evidence warranted it. Part Two,
Section 19 of the Carter Code declared, “That the grand jury ought to find an indictment
when all the evidence before them, taken together, is such as in their judgment would,
if unexplained or uncontradicted, warrant a conviction by the trial jury.” This provision
was carried forward in the codification of 1913 (Section 2128), then in the codification
of 1933 (Section 5183), and then again in the final pre-statehood codification of 1949
(Section 66-8-27).
This duty is now codified in Alaska Criminal Rule 6(r). In fact, Rule 6(r)
words this duty even more emphatically: “The grand jury shall find an indictment when
all the evidence taken together, if unexplained or uncontradicted, would warrant a
conviction of the defendant.”
The phrase “would warrant a conviction of the defendant” might potentially
imply a broad standard that leaves room for grand jurors to exercise some discretion
even when they conclude that the evidence supports the proposed indictment. But this
phrase means something quite different in Criminal Rule 6(r).
As this Court recognized in Sheldon v. State, 796 P.2d 831, 836–37 (Alaska
App. 1990), the wording of Rule 6(r) was taken from Section 66-8-27, ACLA 1949 —
– 41 – 2775
----------------------- Page 42-----------------------
wording that has come down, essentially unchanged, from the Carter Code of 1900. This
pre-statehood statute read:
Sufficiency of evidence to warrant indictment. That
the grand jury ought to find an indictment when all the
evidence before them, taken together, is such as in their
judgment would, if unexplained or uncontradicted, warrant a
conviction by the trial jury.
As we discussed in Sheldon, the Alaska Supreme Court has frequently
quoted the sufficiency-of-the-evidence standard set forth in Criminal Rule 6(r), and the
supreme court has consistently indicated, under this test, grand jury proceedings are not
a “mini trial”. Rather, a grand jury should return an indictment when the grand jurors
11
are convinced of the probability of the defendant’s guilt.
The pre-statehood statute explicitly identified the trial jurors as the people
who would determine whether the defendant should be convicted — and there is no
indication that the language of Rule 6(r) was intended to mean anything different. In
fact, the Alaska Supreme Court has repeatedly held that Rule 6(r) embodies the same test
as the pre-statehood statute. See Lupro v. State, 603 P.2d 468, 473 (Alaska 1979),
Newsom v. State, 533 P.2d 904, 906 (Alaska 1975), and Taggard v. State, 500 P.2d 238,
242–43 (Alaska 1972) — all declaring that, under Rule 6(r), the test for determining
whether the evidence presented to the grand jury is sufficient to support an indictment
11 See, e.g., Preston v. State, 615 P.2d 594, 602 (Alaska 1980); State v. Gieffels, 554
P.2d 460, 465 (Alaska 1976); Coleman v. State, 553 P.2d 40, 48 (Alaska 1976); Taggard v.
State, 500 P.2d 238, 242 (Alaska 1972); Burkholder v. State, 491 P.2d 754, 758 (Alaska
1971).
In Adams v. State , 598 P.2d 503, 508 (Alaska 1979), the supreme court referred to the
test as requiring the State to present a “prima facie case” of the defendant’s guilt, but it does
not seem that the supreme court meant anything different from the “probability of guilt”
standard that the court had discussed in its other cases.
– 42 – 2775
----------------------- Page 43-----------------------
is whether that evidence, if unexplained or uncontradicted, “would warrant a conviction
of the person charged with an offense by the judge or jury trying the offense.” (Emphasis
added.)
Thus, under Criminal Rule 6(r), the grand jurors’ task is to decide whether
the evidence they have heard would “warrant” (i.e., justify) a finding of guilt by the trier
of fact at the defendant’s later criminal trial. (See Sheldon, 796 P.2d at 837, declaring
that Criminal Rule 6(r) uses the word “warrant” in the sense of “justify”.)
This point is crucial: Criminal Rule 6(r) does not direct grand jurors to
decide whether they personally think the defendant should be convicted of the charged
crime. Rather, Rule 6(r) requires grand jurors to decide whether, if the evidence they
have heard is later presented to an impartial trier of fact at trial, this evidence would
warrant the trial jury or trial judge in concluding that the defendant was guilty of the
charged crime.
Both trial juries and trial judges are required by law to be impartial, and
they are required to apply the law regardless of their personal views or preferences. 12
Thus, under Criminal Rule 6(r), grand jurors must decide whether the
evidence they have heard would justify a trier of fact in later finding the defendant guilty
at trial when that trier of fact is legally barred from exercising discretion based on
personal doubts about the wisdom of the applicable law or about whether (apart from
insufficiency of the evidence) the authorities acted in the best interest of society when
they decided to pursue the charge.
This Court emphasized this point in Hohman v. State, 669 P.2d 1316
(Alaska App. 1983). The defendant in Hohman challenged his indictment because the
grand jurors were instructed:
12 See Hartley v. State, 653 P.2d 1052, 1055 (Alaska App. 1982).
– 43 – 2775
----------------------- Page 44-----------------------
[Y]ou are admonished that you are not to undertake to
determine [the defendant’s] guilt or innocence. That is the
exclusive function of the trial jury. Your duty ... is to
determine whether there is probable cause to believe that an
accused person is guilty of the offense charged. Your duty in
each case is merely to determine whether the evidence is such
as would, if unexplained or uncontradicted, warrant a
conviction by the trial jury, and leave the determination of
guilt, or innocence, to that body.
Hohman, 669 P.2d at 1320. This Court held that the language of this instruction
accurately embodied the test and the mandate of Criminal Rule 6(r). Id.
To sum up this statutory history and case law: When Criminal Rule 6(r)
declares that grand jurors must decide whether the evidence they have heard “would
warrant a conviction of the defendant”, Rule 6(r) is not telling grand jurors to decide
whether they personally would convict the defendant. Nor is Rule 6(r) declaring (or
even implying) that grand jurors have a discretionary power to decline to issue an
indictment for reasons unrelated to the strength of the government’s evidence.
Instead, Alaska cases on this subject repeatedly (and uniformly) hold that,
under Rule 6(r), the grand jurors’ task is to decide whether the evidence is sufficient to
later justify someone else — i.e., a group of impartial trial jurors who are required to
follow the law — in finding the defendant guilty.
– 44 – 2775
----------------------- Page 45-----------------------
III
Do any of the Alaska Supreme Court’s past decisions recognize a limited
discretion on the part of grand jurors to refuse to issue an indictment even
when the grand jurors conclude that the evidence supports the proposed
indictment?
Beginning with its 1962 decision in State v. Shelton, 368 P.2d 817 (Alaska
1962), the Alaska Supreme Court has issued nine decisions in which the court declared
that a “vital function” of the grand jury is “the protection of the innocent against
oppression and unjust prosecution.” Shelton, 368 P.2d at 819. The supreme court has
quoted, cited, or otherwise relied on this language from Shelton in eight later cases. 13
Taken in isolation, the phrase “protection ... against oppression and unjust
prosecution” might suggest that grand jurors have the authority to refuse to issue an
indictment for reasons other than a lack of evidence. But in each instance where the
supreme court has used this language (beginning with the Shelton decision itself), the
court has invariably stated that the grand jury’s function is “the protection of the innocent
against oppression and unjust prosecution.”
Thus, Shelton and the eight later decisions that rely on Shelton do not stand
for the proposition that grand jurors in Alaska have the discretion to refuse to issue an
13 The supreme court directly cited or quoted this passage from Shelton in State v. Parks,
437 P.2d 642, 643 (Alaska 1968), Doe v. State, 487 P.2d 47, 54 (Alaska 1971), Burkholder
v. State, 491 P.2d 754, 757 (Alaska 1971), Coger v. State, 517 P.2d 1403, 1405 n. 4 (Alaska
1974), and Adams v. State , 598 P.2d 503, 510 n. 11 (Alaska 1979).
The supreme court repeated this language from Shelton, but without explicit citation,
in State v. Gieffels, 554 P.2d 460, 464 (Alaska 1976). The supreme court later cited this
portion of the Gieffels decision in Frink v. State , 597 P.2d 154, 165 (Alaska 1979). Still
later, in Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007), the supreme court cited this
portion of Frink, but without explaining that the language of Frink was based on what the
court had originally said forty-five years earlier in Shelton.
– 45 – 2775
----------------------- Page 46-----------------------
indictment whenever the grand jurors conclude that the proposed charges, although
supported by the evidence, are nevertheless “unjust” in some respect.
Rather, in Shelton and these eight later cases, the supreme court has
declared that a vital function of the grand jury is to protect innocent people from having
to face trial on unfounded accusations.
See Adams v. State , 598 P.2d 503, 510 n. 11 (Alaska 1979), where the
supreme court explained:
[T]he purpose served by grand jury indictment is to
give one accused of a serious offense the benefit of having
private citizens judge whether there is probable cause to hold
the accused for trial. The grand jury protects the innocent
from unjust prosecution by acting as a check on the
prosecutor. [Citing Doe v. State, 487 P.2d 47, 54 (Alaska
1971), and State v. Shelton, 368 P.2d 817, 819 (Alaska
1962).] (Emphasis added.)
Thus, according to Adams , the grand jury fulfills its function of protecting “the innocent
from unjust prosecution” when the grand jurors assess the sufficiency of the evidence to
support the proposed charges under the test set forth in Criminal Rule 6(r).
I now turn to one other case where our supreme court has discussed the
function of the grand jury.
In Wassillie v. State, 411 P.3d 595 (Alaska 2018), the supreme court stated
that the grand jury has two functions: it “protects against the danger that a defendant will
be required to defend against a charge for which there is no probable cause to believe
him guilty”, and it also “serves the invaluable function ... of standing between the accuser
and the accused to determine whether a charge is founded upon reason or [is] dictated
by an intimidating power or by malice and personal ill will.” Wassillie, 411 P.3d at
607–08.
– 46 – 2775
----------------------- Page 47-----------------------
As authority for the assertion that a grand jury has these separate functions,
our supreme court cited (and quoted from) just one source: Justice O’Connor’s
concurring opinion in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89
L.Ed.2d. 50 (1986). Here is the relevant passage from Justice O’Connor’s concurrence
in Mechanik :
The grand jury has two principal functions. First, it
bears the weighty responsibility of investigating crime and
determining whether there is probable cause to believe that a
crime has been committed. [citations omitted] The second,
and no less important, task of the grand jury is to “serv[e] the
invaluable function in our society of standing between the
accuser and the accused, whether the latter be an individual,
minority group, or other, to determine whether a charge is
founded upon reason or dictated by an intimidating power or
by malice and personal ill will.” Wood v. Georgia, 370 U.S.
375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962).
Mechanik, 475 U.S. at 73–74, 106 S.Ct. at 943.
The problem here is that, in her concurrence, Justice O’Connor is not
quoting a holding that the U.S. Supreme Court reached in Wood v. Georgia. Rather,
Justice O’Connor is quoting dictum from Wood v. Georgia — and Justice O’Connor is
mischaracterizing this dictum.
The Supreme Court in Wood did not assert, or even imply, that a grand jury
has the two separate functions that Justice O’Connor describes in her concurrence.
Rather, the Wood opinion says that a grand jury has one function: to assess whether a
proposed criminal charge is adequately supported by the evidence or is instead “dictated
by an intimidating power or by malice and personal ill will.” 14
14 Wood v. Georgia, 370 U.S. 375, 370; 82 S.Ct. 1364, 1373.
– 47 – 2775
----------------------- Page 48-----------------------
The meaning of this passage from Wood is clarified by examining the
context in which this passage originated — the facts and issues presented to the U.S.
Supreme Court in Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569,
8 L.Ed.2d 569 (1962).
The controversy in Wood arose out of the civil rights movement of the late
1950s and early 1960s, and from a group of superior court judges’ political opposition
to that movement.
As explained by the U.S. Supreme Court, one of the superior court judges
of Bibb County, Georgia (acting on behalf of all three superior court judges of that
county 15) convened the local grand jury and specially instructed the grand jurors to
conduct an investigation into a potentially criminal situation which (the judge asserted)
16
had arisen in their county.
The judge told the grand jurors that there appeared to be an “inexplicable
pattern of Negro bloc voting” in Bibb County — and that, according to “rumors and
accusations” which had come to the superior court’s attention, certain candidates for
public office had paid large sums of money to obtain the Black vote. The judge further
alleged that certain Black leaders, after having met and endorsed one candidate, later
switched their support to an opposing candidate who had put up a large sum of money
— and that this “create[d] an unhealthy, dangerous, and unlawful situation” which
“tend[ed] to corrupt public office holders and some candidates for public office.” 17
The judge listed various criminal statutes which he claimed would be
violated if the grand jurors concluded that these accusations were well-founded, and the
15 Wood, 370 U.S. at 381, n. 3; 82 S.Ct. at 1368, n. 3.
16 Id. , 370 U.S. at 376, 82 S.Ct. at 1365.
17 Id. , 370 U.S. at 376, 82 S.Ct. at 1365–66.
– 48 – 2775
----------------------- Page 49-----------------------
judge gave the grand jurors a list of specific questions which they should answer when
(as directed by the judge) they conducted their inquiry into these potential election law
violations. 18
The judge issued these instructions to the grand jury in the midst of a local
political campaign — and, to publicize the fact that he was ordering the grand jury to
commence this investigation, the judge requested reporters from all the local news media
to be present in court when the judge delivered his instructions to the grand jurors. 19
The following day (while the grand jury was in session investigating the
matters that the judge had directed them to investigate), the local sheriff, James Wood,
issued a statement to the press in which he criticized the three judges’ action.
Sheriff Wood urged the citizens of Bibb County to take notice that their
highest judicial officers were engaging in political intimidation and persecution of Black
voters under the guise of law enforcement. 20 The sheriff characterized the superior
court’s instructions to the grand jury as mirroring “the style and language of a race-
baiting candidate for political office”, and he called the judges’ action “one of the most
deplorable examples of race agitation to come out of Middle Georgia in recent years”.21
Sheriff Wood predicted that the Black community of Bibb County
“[would] find little difference in principle between [this] attempted intimidation of their
people by judicial summons and inquiry” and the kinds of violent intimidation practiced
18 Id. , 370 U.S. at 376–77, 82 S.Ct. at 1366.
19 Id. , 370 U.S. at 378–79, 82 S.Ct. at 1366–67.
20 Id. , 370 U.S. at 379–380, 82 S.Ct. at 1367.
21 Ibid.
– 49 – 2775
----------------------- Page 50-----------------------
by the Ku Klux Klan. 22 The sheriff declared that the three superior court judges were
“employing a practice [that was] far more dangerous to free elections than anything they
want investigated”, and the sheriff expressed his hope that the grand jury “[would] not
let [itself] be a party to any political attempt to intimidate the [Black people] in this
23
community.”
The following day, Sheriff Wood delivered an “Open Letter to the Bibb
County Grand Jury”. In this letter, the sheriff suggested that the superior court judges’
allegation of vote-buying was false — and that, in the sheriff’s opinion, the grand jury
should instead be investigating the Bibb County Democratic Party Executive Committee
for corruptly purchasing votes. 24
Based on the sheriff’s public statements, the Bibb County Superior Court
charged Sheriff Wood with criminal contempt. The court alleged that the language the
sheriff had used was calculated to be contemptuous of the court, to ridicule the grand
jury investigation ordered by the court, and “to hamper, hinder, ... and obstruct” the
grand jury in its investigation. 25
At the hearing on these charges, the Bibb County superior court found
Sheriff Wood guilty. The court made no findings to support its verdicts other than the
fact that the sheriff had made these public statements. 26
The U.S. Supreme Court granted Sheriff Wood’s petition for writ of
certiorari and reversed his convictions on the ground that the First Amendment protects
22 Ibid.
23 Ibid.
24 Id. , 370 U.S. at 380, 82 S.Ct. at 1367–68.
25 Id. , 370 U.S. at 380–81, 82 S.Ct. at 1367–68.
26 Id. , 370 U.S. at 382, 82 S.Ct. at 1369.
– 50 – 2775
----------------------- Page 51-----------------------
citizens from being held in contempt for out-of-court statements unless, given the
circumstances, the person’s statements created a clear and present danger of an imminent
and serious threat to the fair administration of the judicial process. 27
In reaching its conclusion that Sheriff Wood’s statements were protected
by the First Amendment (thus prohibiting the Bibb County superior court from punishing
the sheriff for these statements), the U.S. Supreme Court wrote — in obiter dictum —
about the role that the grand jury plays in the federal system, and why it is important that
citizens be able to make public statements about matters pending before the grand jury:
Historically, [the grand jury] has been regarded as a
primary security to the innocent against hasty, malicious and
oppressive persecution; it serves the invaluable function in
our society of standing between the accuser and the accused,
[no matter whom], to determine whether a charge is founded
upon reason or was dictated by an intimidating power or by
malice and personal ill will.
Wood, 370 U.S. at 390, 82 S.Ct. at 1373. (Emphasis added)
Given the wording of this passage, and given the factual context presented
in Wood, it is clear that the Wood opinion is describing a single grand jury function —
the grand jurors’ task of deciding whether a proposed criminal charge is sufficiently
supported by the evidence to warrant a trial. In performing this function, grand jurors
might conclude either that the charge “is founded upon reason” or that the charge has
been put forward “by an intimidating power” or out of “malice and personal ill will” —
in other words, the charge is not well-founded.
Moreover, this passage from Wood is dictum — because the Supreme Court
was describing the function of a state grand jury.
27 Id. , 370 U.S. at 383–84, 386–387, & 389; 82 S.Ct. at 1369–1372.
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----------------------- Page 52-----------------------
The Fifth Amendment’s guarantee of the right to grand jury indictment in
felony cases does not apply to the states. 28 This being so, the United States Supreme
Court has no authority to prescribe the functions of state grand juries such as the Georgia
grand jury involved in Wood. Rather, the Supreme Court was broadly characterizing the
traditional function of grand juries in general — not as a holding, but as dictum.
Thus, in Wassillie v. State, when the Alaska Supreme Court cited Justice
O’Connor’s concurring opinion in Mechanik, the Alaska Supreme Court was citing
a mischaracterization of dictum from Wood v. Georgia.
Justice O’Connor’s concurrence in Mechanik is the sole legal authority that
the Alaska Supreme Court cited in Wassillie when the supreme court made its own
assertion about a grand jury’s having two separate functions. As a result, the Wassillie
opinion does not contain any valid legal authority to support this assertion.
I add one final observation about Wassillie: Even if Justice O’Connor’s
concurrence had been a valid characterization of federal grand jury law, this would not
be binding authority on the question presented in this appeal — because the question
presented here is one of Alaska law.
Here, Smith asserts that Alaska grand jurors have the authority to refuse to
issue an indictment for any reason they see fit, even after the grand jurors have
concluded that the evidence supporting the proposed charge is sufficient, under the test
set forth in Alaska Criminal Rule 6(r), to require the defendant to stand trial.
This Court has already answered this question in part, by holding that grand
jurors are bound by the provisions of the grand juror oath prescribed in Criminal
Rule 6(e)(1). But this still leaves the question of whether, apart from the restrictions
imposed by the grand juror oath, Alaska grand jurors have a limited discretion to refuse
28 Hurtado v. California, 110 U.S. 516, 538; 4 S.Ct. 111, 122; 28 L.Ed. 232 (1884).
– 52 – 2775
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to issue an indictment even when they conclude that the proposed charge is supported
by the evidence.
Because the federal grand jury requirement does not apply to the states, the
answer to this question hinges on the intent of the drafters of Alaska’s constitution —
specifically, the role that these drafters envisioned for the grand jury under Article I,
Section 8 of our state constitution. Regardless of whatever authority federal grand jurors
might have, it is this Court’s duty to ascertain and follow Alaska law on this subject.
As I explain later in this concurrence, I conclude (from the record of the
proceedings at our state constitutional convention) that the drafters of Alaska’s
constitution did not envision that grand jurors would have the authority to refuse to issue
an indictment for any reason they pleased.
This same observation (that the question presented here is one of Alaska
law rather than federal law) applies to the dissenting opinion of Justices Matthews and
Eastaugh in State v. Markgraf, 913 P.2d 487, 487 (Alaska 1996). In that dissent, the two
justices rely on federal authority — the U.S. Supreme Court’s decision in Vasquez v.
Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) — for the proposition that
grand jurors have the discretion to return a lesser charge, or to refuse to issue any
indictment at all, even when they conclude that the evidence supports the proposed
charge. But Vasquez v. Hillery is not valid authority for this proposition.
Vasquez involved a murder prosecution under state law: the defendant,
Hillery, had been convicted of murder in California, and he alleged that the indictment
against him was constitutionally infirm because Black people had been systematically
excluded from the grand jury. 29 When Hillery’s case reached the Supreme Court, one
of the arguments made by the State of California was that, even if the selection of the
29 Vasquez v. Hillery, 474 U.S. at 255–56; 106 S.Ct. at 619.
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----------------------- Page 54-----------------------
grand jurors had been marred by racial discrimination, this would be harmless error —
because Hillery had received a fair trial, and because the evidence against him was
overwhelming. 30
The Supreme Court rejected the State of California’s argument. First, the
Court noted that it had already issued a series of decisions rejecting the notion that a
criminal conviction might be allowed to stand despite racial discrimination in the
selection of the grand jury. 31 But then the Supreme Court added that, even if the
defendant had received a fair trial, it was impossible to tell whether unlawful racial
discrimination might have affected the grand jury’s decision to indict the defendant in
the first place:
[We are not] persuaded that discrimination in the grand
jury has no effect on the fairness of the criminal trials that
result from that grand jury’s actions. The grand jury does not
determine only that probable cause exists to believe that a
defendant committed a crime, or that it does not. In the hands
of the grand jury lies the power to charge a greater offense or
a lesser offense; numerous counts or a single count; and
perhaps most significant of all, a capital offense or a
noncapital offense — all on the basis of the same facts.
Moreover, “[t]he grand jury is not bound to indict in every
case where a conviction can be obtained.” United States v.
Ciambrone, 601 F.2d 616, 629 ([2nd Cir.] 1979) (Friendly,
J., dissenting). Thus, even if a grand jury’s determination of
30 Vasquez, 474 U.S. at 260, 106 S.Ct. at 622.
31 Id. , 474 U.S. at 260–62, 106 S.Ct. at 622–23. See, in particular, Rose v. Mitchell, 443
U.S. 545, 556; 99 S.Ct. 2993, 3000; 61 L.Ed.2d 739 (1979), declaring that discrimination on
the basis of race in the selection of grand jurors “strikes at the fundamental values of our
judicial system and our society as a whole”, and that a criminal defendant’s right to equal
protection of the laws is denied when the defendant is indicted by a grand jury from which
members of a racial group have been purposefully excluded.
– 54 – 2775
----------------------- Page 55-----------------------
probable cause is confirmed in hindsight by a conviction on
the indicted offense, that confirmation in no way suggests
that the discrimination did not impermissibly infect the
framing of the indictment and, consequently, the nature or
very existence of the proceedings to come.
Vasquez, 474 U.S. at 263, 106 S.Ct. at 623.
It is important to note, when construing this passage from Vasquez, that the
Supreme Court does not cite any California law to support its description of a California
grand jury’s discretionary authority. The only law cited by the Supreme Court is the
dissenting opinion in a Second Circuit case, United States v. Ciambrone.
As I have already explained, the federal courts have no power to dictate the
functions or authority of state grand juries. Thus, in Vasquez, the Supreme Court is not
announcing or proclaiming the authority of a California grand jury. Rather, the Supreme
Court appears to have simply assumed that California grand juries had the discretionary
authority to refuse to issue an indictment, or to indict the defendant only on a lesser
charge, even when the grand jurors concluded that the evidence supported the proposed
charge.
Ironically, the Supreme Court made this assumption about a California
grand jury’s discretion so that the Court could then limit this assumed discretion — by
declaring that it is unconstitutional (under the federal constitution) for a state grand jury
to exercise this kind of discretion when the grand jury’s decision is motivated or
influenced by racial discrimination.
But in any event, this passage from Vasquez v. Hillery is not authority for
the proposition that grand jurors in Alaska have the discretion to refuse to issue an
indictment even when they have concluded that the evidence supports the proposed
charge.
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----------------------- Page 56-----------------------
IV
Smith’s alternative argument, based on the history of the grand jury in
America and on the debate at Alaska’s constitutional convention, that
Article I, Section 8 should be interpreted as endowing grand juries with a
right of nullification
Smith argues that grand juries in England and America have traditionally
exercised a power of nullification — the power to refuse to issue indictments for
political, social, or personal reasons, apart from whether the evidence is sufficient to
support the proposed charge. Smith further contends that grand juries have always been
encouraged and expected to exercise this power of nullification — to act as the
“conscience of the community” by refusing to return indictments if the grand jurors
disputed the wisdom of the criminal laws they were being asked to enforce, or if the
grand jurors disagreed with the application of those laws to particular defendants, or if
the grand jurors felt that the particular victims of the crime did not merit the protection
of the law.
Smith further argues that Article I, Section 8 of the Alaska Constitution
implicitly incorporates this view of the proper function of the grand jury. He contends
that when the delegates to Alaska’s constitutional convention drafted Article I,
Section 8 (the provision that guarantees felony defendants the right to grand jury
indictment), those delegates were working under the assumption that Alaska grand juries
had a right of nullification, and that this was an essential component of the grand jury’s
function.
Based on his interpretation of Article I, Section 8, Smith argues that it is
unconstitutional for a court to instruct grand jurors that they have any duty to return an
indictment, even when the grand jurors conclude that the evidence supports the charge.
In fact, Smith argues that our constitution requires courts to affirmatively instruct grand
– 56 – 2775
----------------------- Page 57-----------------------
jurors that they are under no duty to return an indictment, even when the evidence
supports the charge — and that, instead, grand jurors have a right to refuse to return an
indictment if they disagree with the law or with the law’s application to the case before
them.
Smith is correct that, over the past three centuries, American grand juries
have sometimes refused to return indictments even though the law and the evidence
apparently supported the charges. The most notable of these instances of nullification
occurred when grand jurors sympathized with the political or social aims of the persons
accused.
But the question here is not whether grand jurors have sometimes willfully
ignored the law or willfully refused to enforce it. Rather, the question is whether the
drafters of Article I, Section 8 of the Alaska Constitution considered this behavior to be
an essential component of what grand jurors should be doing.
For the reasons I explain in this section of my concurrence, I conclude that
the drafters of Article I, Section 8 did not intend to codify the right of nullification that
Smith proposes. The framers of our state constitution did not presume that grand jurors
had a right of nullification, nor did the framers view nullification as an essential
component of the grand jury’s function.
If any of the delegates had thought that grand juries should engage in
nullification, and that society was better off because of it, they never spoke up — and
they certainly had reason to speak up, given the fact that the initial draft of our state
constitution abolished the requirement of grand jury indictment. This meant that the
proponents of requiring a grand jury indictment in felony cases had to articulate
affirmative reasons for keeping this requirement in our state constitution. But when the
delegates engaged in their lengthy debate over whether the Alaska Constitution should
include a requirement of grand jury indictment, there was no mention of grand jury
– 57 – 2775
----------------------- Page 58-----------------------
nullification — even though an egregious example of trial jury and grand jury
nullification was making national news at the time.
This leads me to conclude that if any of the delegates gave thought to the
question of grand jury nullification, they did not view instances of nullification as a
positive reason for keeping the requirement of grand jury indictment in Article I, Sec-
tion 8. Rather, they viewed instances of nullification as a departure from a grand jury’s
proper function.
(a) The historical record fails to support Smith’s assertion that
American law has traditionally encouraged and expected grand jurors
to engage in nullification.
The institution of the grand jury under English law can be traced back to
the Middle Ages. 32 But until the late 1600s, the grand jury did not function as a “shield
of justice” or a buffer between the monarch and the citizenry. Rather, the grand jury
functioned primarily as a prosecutorial arm of the Crown, “oppressive and much feared
by the common people”. 33 Although grand juries were theoretically convened to screen
and impartially evaluate criminal accusations, there was significant pressure on grand
32 The Constitutions of Clarendon, enacted under King Henry II in 1164, provided in
Article 6 that “laymen [i.e., non-clergy] ought not to be accused unless through reliable and
legal accusers and witnesses in the presence of the bishop ... . And if those who are
inculpated are such that no one wishes or dares to accuse them [publicly], the sheriff, being
requested by the bishop, shall cause twelve lawful men of the neighbourhood or town to
swear in the presence of the bishop that they will make manifest the truth in this matter,
according to their conscience.” (Available online through the Yale Law School’s Avalon
Project: https://avalon.law.yale.edu/medieval/constcla.asp.)
33 United States v. Navarro-Vargas, 408 F.3d 1184, 1190 (9th Cir. 2005) (en banc),
quoting Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury ,
10 American Criminal Law Rev. 701, 709 (1972).
– 58 – 2775
----------------------- Page 59-----------------------
jurors to return indictments against whomever the Crown accused. English kings and
queens were enriched by the confiscated goods and lands of convicted felons, and the
Crown would often levy fines against grand juries if they failed to reach their quota of
34
accusations.
The first recorded instance in which a grand jury acted as a shield against
royal power was in 1681, when a London grand jury refused to indict the Earl of
Shaftesbury after King Charles II sought his indictment on a charge of treason. 35 While
the London grand jury’s refusal to indict Shaftesbury is often hailed as an early blow
against royal tyranny, the truth is more ambiguous: The grand jurors who refused to
indict Shaftesbury were hand-picked by the Sheriff of London, who was a political ally
of Shaftesbury and a political foe of King Charles II. 36
34 Ibid.
35 Id. , 408 F.3d at 1190–91. For more details, see the article “Shaftesbury, Anthony
Ashley Cooper, 1st Earl of” in the 1911 edition of the Encyclopedia Britannica, available
through en.Wikisource.org.
36 The conflict between Shaftesbury and King Charles II was an outgrowth of the
150-year-long political struggle between Protestants and Catholics in England (beginning
when Henry VIII broke with the Catholic Church in 1534). Shaftesbury, who was radically
anti-Catholic, feared that King Charles would die childless and that Charles’s brother James,
who was a Catholic, would ascend the throne. Shaftesbury therefore tried several times to
have Parliament enact laws that would exclude James from the line of succession and that
would require King Charles to divorce his childless wife (so that Charles would remarry and
produce an heir who, presumably, would be raised a Protestant). King Charles apparently
suspected that Shaftesbury’s activities included more than simply asking Parliament to enact
anti-Catholic laws, so he sought to have Shaftesbury indicted on a charge of treason.
The Sheriff of London was the official in charge of appointing all the grand jurors in
London — and he was a political and religious ally of Shaftesbury. Although there were
significant reasons to doubt the evidence against Shaftesbury, the Sheriff decided to take no
chances: he packed the grand jury with supporters of the Protestant cause. As anticipated,
(continued...)
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----------------------- Page 60-----------------------
But regardless of how one might view the Shaftesbury case, it is clear that
the grand jury underwent a major transformation in the American colonies beginning in
the late 1600s. The colonies not only adopted the institution of the grand jury; they
transformed it by expanding its powers and its sphere of authority — giving it the
authority not only to investigate crimes, but also to investigate and report on the
functioning of government institutions. This historical development was described by
the Ninth Circuit in United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005)
(en banc):
In America, ... grand juries exercised broad,
unorthodox powers[:] inspecting roads, jails, and other
public buildings; monitoring public works expenditures,
construction and maintenance; proposing new legislation; and
36 (...continued)
these hand-picked grand jurors refused to indict Shaftesbury.
The following year (1682), King Charles engineered the appointment of a new mayor
and a new sheriff in London. This new sheriff seemed sure to appoint grand jurors who
would support a renewed effort to indict Shaftesbury, so Shaftesbury fled to Amsterdam.
He died there one year later.
As it happened, the English political theorist and philosopher, John Locke, was the
long-time employee and personal physician of Shaftesbury’s family. Through Locke’s
writings, and because of the ultimate triumph of the Protestant cause in the Glorious
Revolution of 1688, the London grand jury’s refusal to indict Shaftesbury came to be seen
as a historic protection of individual liberties.
See the article “Shaftesbury, Anthony Ashley Cooper, 1st Earl of” in the 1911 edition
of the Encyclopedia Britannica, available through en.Wikisource.org; and Michael Barone’s
“Guide to Government”, Lesson 16: “Grand Jury”, available at
https://www.guidetogovernment.org/2018/06/19/lesson-16-grand-jury/ and the Wikipedia
article, “Anthony Ashley Cooper, 1st Earl of Shaftesbury”: https://en.wikipedia.org/-
wiki/Anthony_Ashley_Cooper,_1st_Earl_of_Shaftesbury.
– 60 – 2775
----------------------- Page 61-----------------------
criticizing poor administration. The colonial grand jury still
performed a quasi-prosecutorial role by accusing individuals
suspected of crimes, but ... with their expanding quasi-
legislative and quasi-administrative roles, grand juries
acquired greater popularity because they were regarded as
more representative of the people. Through presentments and
other customary reports, the American grand jury in effect
enjoyed a roving commission to ferret out official
malfeasance or self-dealing of any sort and bring it to the
attention of the public at large, becoming, as James Wilson
put it, a “great channel of communication, between those who
make and administer the laws, and those for whom the laws
are made and administered.”
Navarro-Vargas, 408 F.3d at 1191–92.
(The enduring results of this colonial American legal development are
found in present-day Alaska law. AS 12.40.030 declares that grand juries “shall have
the power to investigate and make recommendations concerning the public welfare or
safety”, and AS 12.40.060 declares that grand juries are guaranteed access “at all
reasonable times” to our state’s jails and prisons, to all public offices, and to the
examination of all public records in the state.)
Because American colonial grand juries continued to serve their historical
role as accusatory bodies, there were occasions in the mid-1700s (during the lead-up to
the American Revolution) when colonial grand juries refused to return indictments in
high-profile, politically charged cases.
One of the most celebrated examples is the case of John Peter Zenger, a
newspaper publisher who was charged with libel in 1734 after he criticized the royal
Governor of New York. Under the law at the time (which declared that the truth of a
public criticism was no defense to a charge of libel), it seems clear that Zenger was guilty
of libel. Nevertheless, successive grand juries refused to indict him — not because of
– 61 – 2775
----------------------- Page 62-----------------------
insufficient evidence, but because the grand jurors were politically opposed to the
prosecution. 37
As the Revolutionary War drew closer, the grand jury became popular in
America “at least as much from its success as a political weapon as from its role in the
criminal justice system.” 38 Not only did colonial grand juries refuse to indict people who
committed crimes against British officials and British interests,39 but they also assumed
an active public role in the political conflict between the colonists and the British
government. As explained by the Ninth Circuit in Navarro-Vargas,
Colonial grand juries publicly called for boycotts of
British goods, condemned British rule, criticized the use of
the tea tax to pay British officials’ salaries, and indicted
British soldiers for breaking and entering into the homes of
private citizens. Where the king’s grand juries had once
colluded with the king’s prosecutors, in pre-Revolutionary
America, colonial grand juries resisted the king’s
representatives in America. The historical division of
authority between grand juries and prosecutors became a
fissure exposing the political division between the colonists
and their king. Grand jurors, selected from the public,
frustrated prosecutors loyal to the king by refusing to indict
those charged under unpopular laws imposed by the Crown,
often [at] the urging of colonial judges. Grand jury present-
ments ... [also] became excellent mediums of propaganda as
37 Navarro-Vargas, 408 F.3d at 1192.
38 Ibid. , quoting Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect
the Accused, 80 Cornell Law Rev. 260, 285 (1995).
39 See Richard D. Younger, The People’s Panel: the Grand Jury in the United States,
1634–1941 (1963), p. 28, discussing how Boston grand juries refused to indict the editors of
the Boston Gazette for libeling the governor of Massachusetts, and likewise refused to indict
the leaders of the Stamp Act rebellion. (Cited in Navarro-Vargas, 408 F.3d at 1192.)
– 62 – 2775
----------------------- Page 63-----------------------
grand juries issued stinging denunciations of Great Britain
and stirring defenses of [the colonists’] rights as Englishmen.
Navarro-Vargas, 408 F.3d at 1192 (citations and internal quotes omitted).
After the American colonies won their independence and established a
federal government, grand juries would still refuse to return indictments from time to
time in politically charged cases, even when the evidence apparently justified the
accusation.
For example, in the 1790s, during Great Britain’s war with republican
France, pro-French American grand juries refused to indict Americans who aided the
French privateers who were preying on British shipping, even though such assistance
violated the federal Neutrality Proclamation. 40 And at the turn of the 19th century,
American grand juries sometimes refused to indict persons who were accused of
violating the much-reviled Sedition Act of 1798, which made it a crime to publish any
“false, scandalous and malicious writing” critical of either Congress or the President, or
to conspire “to oppose any measure or measures of the [federal] government”. 41
Two generations later, in the years leading up to the Civil War, grand juries
in the North often refused to indict persons who violated the Fugitive Slave Act — the
act which required the residents of the Northern states to aid federal authorities in the
capture and return of run-away slaves. 42
In the years following the Civil War, Southern grand juries worked to
frustrate the enforcement of Reconstruction-era laws (laws designed to ensure the rights
40 Navarro-Vargas, 408 F.3d at 1193.
41 Ibid. , and Wikipedia, “Alien and Sedition Acts”: https://en.wikipedia.org/wiki/-
Alien_and_Sedition_Acts.
42 Navarro-Vargas, 408 F.3d at 1194.
– 63 – 2775
----------------------- Page 64-----------------------
of the newly freed Black citizenry) by refusing to indict Ku Klux Klan members and
other White people who were accused of committing crimes against Black people. As
described in Navarro-Vargas, these Reconstruction-era grand juries “served as a
principal weapon of Southern whites in their struggle against [the Republican Party] and
[Black] rights.”43
Given the politicized role that grand juries played in the years leading up
to the American Revolution, it might not be surprising that grand juries occasionally
engaged in nullification during later periods of political turmoil after the Revolution.
But what is potentially surprising is that grand jurors continued to engage in nullification
even though American judges were no longer urging them to flout the law.
As explained by the Ninth Circuit in Navarro-Vargas, the judiciary’s
attitude toward grand jury nullification changed dramatically after the American colonies
won the Revolutionary War. Before the American victory, when the law to be ignored
was British law, colonial judges often encouraged grand jury nullification. 44 But this
judicial attitude changed radically after the American colonies won the their indepen-
dence and the law to be ignored was now American law. At that point, American judges
began instructing grand jurors that they must not engage in nullification — that, instead,
grand jurors had a duty to abide by the law and to return an indictment free of favoritism,
even when the grand jurors sympathized with the accused or when they disagreed with
the law they were being asked to apply. 45
43 Navarro-Vargas, 408 F.3d at 1194–95, quoting Marvin E. Frankel and Gary Naftalis,
The Grand Jury: An Institution On Trial (2nd ed. 1977), p. 14.
44 Navarro-Vargas, 408 F.3d at 1192: “[Colonial] grand jurors, selected from the public,
frustrated prosecutors loyal to the king by refusing to indict those charged under unpopular
laws imposed by the Crown, often [at] the urging of colonial judges.”
45 See Navarro-Vargas, 408 F.3d at 1193: “In many post-revolution cases, judges
(continued...)
– 64 – 2775
----------------------- Page 65-----------------------
Modern-day state and federal pattern grand jury instructions continue to
embody this view of the grand jurors’ duty. For example, the federal pattern instructions
affirmatively forbid grand jurors from basing their decisions on their individual views
about the law, or their individual views about the appropriate punishment for someone
who violates a particular law:
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 to be determined by Congress and not by
you.
Furthermore, when deciding whether or not to indict,
you should not consider punishment in the event of
conviction.
. . .
Your task is to determine whether the government’s
evidence as presented to you is sufficient to cause you to
conclude that there is probable cause to believe that the
person being investigated committed the offense charged. To
put it another way, you should vote to indict where the
evidence presented to you is sufficiently strong to warrant a
reasonable person’s belief that the person being investigated
is probably guilty of the offense charged.
45 (...continued)
instructed [grand] jurors to enforce federal laws, even if the jury thought the laws unjust or
unconstitutional. Justice Chase instructed a Philadelphia grand jury that until a law is
repealed, even if it is unconstitutional, every citizen has a duty to ‘submit to it’. Similarly,
Chief Justice Jay explained that a grand juror, just like a judge, must apply the law of the land
even if it is a subject of heated public debate[,] as the duty to enforce the law must override
‘individual scruples and misgivings.’ [This] duty to submit to the laws was a common theme
among grand jury charges contemporaneous with the adoption of the Bill of Rights [in the
early 1790s].”
– 65 – 2775
----------------------- Page 66-----------------------
Benchbook for U.S. District Court Judges (6th edition, 2013), Section 7.04 (“Grand
Jury selection and instructions”), Instructions 9, 10, & 25, pp. 249 & 252.
Many states have grand jury instructions which embody this same approach
— except that, instead of telling grand jurors that they “should” return an indictment if
the evidence supports the charge, several of these states expressly instruct grand jurors
that, if they conclude that the evidence supports the charge, they “shall” return an
indictment, or that it is their “duty” to return an indictment. 46
In other words, contrary to Smith’s assertions about American legal history,
we as a society do not encourage grand jurors to engage in nullification. Quite the
opposite.
(b) When the delegates to our constitutional convention debated
whether to enact Article I, Section 8, no delegate mentioned grand jury
nullification as a reason for preserving Alaska’s pre-statehood grand
jury requirement, nor did any of the opposing delegates mention
nullification as a danger that justified abandoning the grand jury
requirement.
When the delegates to Alaska’s constitutional convention debated Article I,
Section 8, they were not discussing a straightforward proposal to codify Alaska’s
existing territorial grand jury requirement in the new state constitution. Rather, the
delegates were debating a committee proposal to eliminate Alaska’s existing grand jury
requirement.
The committee assigned to draft Alaska’s Bill of Rights (i.e., Article I of
our constitution) concluded that, given the protections of modern criminal procedure, the
grand jury (as an institution) was antiquated and unnecessary. For this reason, the
46 Many of these state grand jury instructions (but not Alaska’s) are listed in Navarro-
Vargas, 408 F.3d at 1197.
– 66 – 2775
----------------------- Page 67-----------------------
committee proposed eliminating the requirement of a grand jury indictment in felony
cases and, instead, allowing felony prosecutions to go forward based simply on a
charging document — an “information” — filed by the prosecutor’s office.
In response to this Committee proposal, Delegate Edward Davis introduced
an amendment to restore the territorial requirement of a grand jury indictment.
During the ensuing debate, several delegates spoke approvingly of the
grand jury’s role in screening a prosecutor’s charging decisions, and of occasions where
territorial grand juries had declined to issue an indictment. Ultimately, the delegates
voted to keep the requirement of a grand jury indictment, and this right became codified
in Article I, Section 8 of our state constitution.
(The history that I am about to summarize is also recited in Wassillie v.
State, 411 P.3d 595, 605–07 (Alaska 2018).)
Smith asserts that the convention debate proves that the framers of Alaska’s
constitution endorsed the principle of grand jury nullification. I agree that the delegates’
debate helps to clarify this issue, but I draw a very different conclusion from the
delegates’ debate. Based on what the delegates said about grand juries, and also based
on what the delegates did not say about grand juries, I conclude that Article I, Section 8
was not intended to codify or otherwise endorse the practice of grand jury nullification.
(1) The context of the delegates’ debate
As I have already explained, Alaska territorial law required a grand jury
indictment in all felony prosecutions, but territorial law also required grand jurors to
make their decisions based on the evidence presented to the grand jury, without
partisanship or favor.
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Section 66-8-27 of ACLA 1949 (the last pre-statehood codification of
Alaska law) declared that “the grand jury ought to find an indictment when all the
evidence before them, taken together, is such as in their judgment would, if unexplained
or uncontradicted, warrant a conviction by the trial jury.” At the time of Alaska’s
constitutional convention, this provision of territorial law had been in effect for more
than half a century (ever since the Carter Code of 1900).
In addition, the grand jury oath mandated by territorial law (Section 66-8-3
of ACLA 1949) required grand jurors to “diligently inquire and true presentment make”
of all the matters brought before them, to decide these matters “truly and indifferently”
(i.e., impartially), to refuse to indict anyone out of “envy, hatred or malice”, and to leave
no one unindicted because of “fear, affection, gain, reward, or hope thereof”.
In sum: When the framers of our state constitution debated whether the
Alaska Bill of Rights should include a grand jury requirement, Alaska law had, for
decades, imposed duties on grand jurors that were inconsistent with Smith’s assertion
that our constitution guarantees grand jurors the unfettered discretion to refuse to return
an indictment for any reason they see fit.
(2) What the delegates said during their debate
During the debate on whether Alaska should abandon its territorial law
requirement of grand jury indictment, several convention delegates spoke in favor of
abolishing this requirement. These delegates noted that most other states had already
abolished the grand jury or had made grand jury indictment optional at the prosecutor’s
discretion. 47 These delegates also argued that the grand jury, as an institution, did not
47 Proceedings of the Alaska Constitutional Convention, Vol. 2, p. 1323 (remarks of
(continued...)
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add anything of substance to the procedural protections already afforded to criminal
suspects. Thus, these delegates argued, grand juries would be an unnecessary and costly
burden on the new state government. 48
As I noted earlier, Delegate Edward Davis was the one who introduced the
amendment to restore the territorial requirement of a grand jury indictment. Davis told
the convention that, in his experience, the grand jury did serve a useful purpose —
because grand juries could put an early stop to criminal prosecutions that were not
supported by sufficient evidence:
In some cases — not often, it is true — but in some
cases, a person against whom criminal charges have been
filed by the district attorney or by private parties is released
by the grand jury, as there does not appear to be sufficient
cause to hold [the person] for trial. That, of course, is the
purpose of [requiring an] indictment.
Proceedings of the Alaska Constitutional Convention (January 6, 1956), Vol. 2, p. 1322
(quoted in Wassillie v. State, 411 P.3d 595, 605 (Alaska 2018)).
Delegate Davis conceded that grand jury proceedings were conducted by
prosecutors whose aim, generally, was to procure an indictment. 49 Nevertheless, Davis
pointed out that grand juries did, from time to time, decline to issue an indictment.
47 (...continued)
Delegate Seaborn Buckalew), p. 1324 (remarks of Delegate Warren Taylor).
48 Proceedings of the Alaska Constitutional Convention, Vol. 2, pp. 1323 & 1325–26
(remarks of Delegate Seaborn Buckalew), p. 1324 (remarks of Delegate Warren Taylor),
pp. 1324–25 (remarks of Delegate Irwin Metcalf), p. 1325 (remarks of Delegate John
Hellenthal), p. 1333 (remarks of Delegate Dorothy Awes).
49 Proceedings of the Alaska Constitutional Convention, Vol. 2, p. 1327.
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The present grand jury [that] just finished sitting in
Anchorage has returned probably ten “no true bills”. For
those [of you] who are not lawyers, a “no true bill” means
that somebody has been charged with a crime by the district
attorney, and the district attorney, with all the control of the
proceedings before the grand jury, has presented all of his
evidence to the grand jury, and, in spite of that, the grand jury
has said that there is no cause to hold this man for trial, and
the man has been released without going through a trial to a
regular jury.
Certainly, under those circumstances, it can’t be said
that the grand jury serves no useful purpose. It serves a
distinctly useful purpose ... . It might be me, it might be you,
it might be anybody that was charged with [a] crime and was
not guilty of that crime and should be released by a grand
jury when the evidence was produced before the grand jury.
. . .
[I acknowledge that, currently, grand juries meet so
infrequently that defendants often waive their right to an
indictment, so that their cases can go forward. But] I
certainly hope that we preserve the right to have the criminal
matters investigated by a grand jury if the accused wants it
done that way.
Proceedings of the Constitutional Convention (January 6, 1956), Vol. 2, p. 1327.
Other convention delegates expressed their faith in the grand jury as an
institution that could check the government’s power to pursue felony charges in instances
where the evidence did not justify a criminal prosecution.
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For instance, Delegate Ralph Rivers argued that grand juries served a useful
purpose because “sometimes the grand jury will [return] a ‘no true bill’ ... because the
evidence is too flimsy”. 50
Similarly, Delegate Robert McNealy (a former United States attorney)
focused his comments on the adverse consequences suffered by innocent people in the
occasional case where “our appointed prosecutors become a little overzealous”.
McNealy described “four or five instances” in which “prominent citizens of the town
who were not criminally inclined” nevertheless became the subjects of criminal
investigations, but the grand jury refused to indict them, so no harm was done “to the
reputation of these few people where it was not warranted.” 51
Delegate Victor Rivers explained that he favored requiring a grand jury
indictment to make sure that “a person [who] is innocent does not [have to be]
subject[ed] to the blasting of the press that he might be [subjected] to if he goes [to trial]”
— for, “even though he be acquitted, he is bound to get a considerable amount of adverse
publicity.” 52
Delegate Marvin “Muktuk” Marston agreed that the grand jury could serve
as a useful protection for the citizenry. He described a case where a friend of his “came
afoul of the law and landed in the jail” and had no money to make bail — meaning that
“if that man had had to sit [in jail pending] trial”, he “would have lost his job” and
“wouldn’t have had the money to fight [the charge]”. But the grand jury allowed
Marston to appear before them and plead the man’s case, and the grand jury then
50 Proceedings of the Alaska Constitutional Convention, Vol. 2, pp. 1323–24.
51 Proceedings of the Alaska Constitutional Convention, Vol. 2, p. 1331.
52 Proceedings of the Alaska Constitutional Convention, Vol. 2, p. 1335.
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returned a “no true bill”. Based on that incident, Marston declared that he was going to
vote for Delegate Davis’s amendment. 53
Delegate Mildred Hermann seconded this view — explaining that, in her
twenty years of experience as a defense attorney in Alaska, she had seen “the misplaced
zeal of some of our district attorneys”, and she had “seen a great many innocent people
plead guilty rather than wait for the grand jury to meet”. (At that point in Alaska history,
grand juries generally met only once or twice a year.)
Delegate Hermann assured the other delegates that she “[didn’t] believe in
protecting the guilty”, but she “[did] believe in considering [people] innocent until they
are proved guilty”, and she declared that she had found, from her personal experience,
“that the grand jury protects the public — not the criminal nor the alleged criminal, but
the public as a whole.” For this reason, she announced her support for Delegate Davis’s
amendment. 54
Delegate Davis had the last word on his proposal to reinstate the
requirement of a grand jury indictment. He told the Convention:
I am interested in the occasional person who is charged
with crime and who is completely innocent of that crime, and
so far as I am concerned if even one person is charged with
crime, who is innocent, and who may have the matter
disposed of without having to stand trial, [then] it’s worth the
cost [of having a grand jury]. And it seems to be apparent
here, from everything that has been said, that in spite of the
fact [that] the district attorney controls the grand jury, ...
[and] in spite of the fact that the grand jury hears only one
side of the thing, the grand jury occasionally, and we might
say even frequently, finds there is not cause to hold a man for
53 Proceedings of the Alaska Constitutional Convention, Vol. 2, p. 1330.
54 Proceedings of the Alaska Constitutional Convention, Vol. 2, pp. 1334–35.
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trial who has been charged by the district attorney. That
ought to be sufficient to show that the grand jury serves a
distinct useful purpose, not for those evilly disposed, but for
you and for me and for all of us.
Following this debate, Alaska’s constitutional framers overwhelmingly
adopted Delegate Davis’s proposed amendment — language that ultimately became
Article I, Section 8 of our constitution. 55
(3) What the delegates did not say during their debate
It is important to remember that, during the debate at Alaska’s
constitutional convention, the delegates were not discussing some idealized or theoretical
version of the grand jury. Rather, the delegates were debating whether to abandon the
requirement of a grand jury indictment in felony cases or, instead, retain the grand jury
as it existed under Alaska territorial law.
At the time of our constitutional convention, Alaska territorial law declared
that grand jurors “ought to find an indictment when all the evidence before them ... , if
unexplained or uncontradicted, [would] warrant a conviction by the trial jury.” 56 This
rule had been a fixture of Alaska law since the Carter Code of 1900. 57 During the debate
over Article I, Section 8, no delegate voiced any reservation concerning, or objection to,
this longstanding Alaska law — even though this law was at odds with the notion that
grand jurors could refuse to return an indictment for any reason they saw fit.
55 Proceedings of the Alaska Constitutional Convention, Vol. 2, pp. 1336–37.
56 Section 66-8-27 of ACLA 1949.
57 Carter Code, Part Two, Section 19.
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Likewise, Alaska territorial law (beginning in 1933) required grand jurors
to take an oath that they would “diligently inquire and true presentment make” of all the
matters brought before them, that they would decide all matters “truly and indifferently”
(i.e., impartially), and that they would not leave anyone unindicted “through fear,
58
affection, gain, reward, or hope thereof”.
Again, no delegate to our constitutional convention voiced any reservations
concerning, or objections to, these precepts during the debate over Article I, Section 8
— even though these precepts, too, are at odds with the notion that grand jurors should
be authorized to refuse to return an indictment for any reason they see fit.
The fact that no delegate questioned these duties imposed by Alaska’s
existing grand jury law is significant because of the context in which the delegates
debated whether to codify a requirement of grand jury indictment in the new state
constitution. The drafting committee had recommended abolishing the requirement of
a grand jury indictment. Thus, the delegates who wished to retain the requirement of a
grand jury indictment in felony cases had to articulate affirmative reasons for keeping
this requirement.
But none of the delegates who spoke in favor of retaining the requirement
of grand jury indictment argued, or even suggested, that grand juries were necessary or
beneficial because of their power of nullification. No delegate mentioned — much less
praised — a grand jury’s power to disregard the law or to independently assess the
wisdom of the law. No delegate suggested that a grand jury’s proper role was to stop the
government from pursuing even well-founded felony charges if the grand jurors
sympathized with the defendant, or if the grand jurors felt antipathy toward the victim
of the crime.
58 Section 5167 of CLA 1933 and, later, Section 66-8-3 of ACLA 1949.
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Instead, as I have explained, the supporters of the grand jury requirement
uniformly spoke of the societal benefit of having grand jurors independently assess
whether the evidence reasonably supported the proposed felony charge — so that no one
would be forced to endure lengthy pre-trial detention, a felony trial, and the attendant
adverse effects on a defendant’s reputation, all based on flimsy evidence.
Given the context of this debate — i.e., given the fact that the delegates who
supported the requirement of a grand jury indictment had to affirmatively articulate the
reasons for keeping this requirement — the delegates’ complete silence on the issue of
nullification is starkly at odds with any assertion that the convention’s decision to
approve Article I, Section 8 represented an endorsement of grand jury nullification. It
is much more likely that, if the convention delegates considered nullification at all, they
viewed it as an unfortunate departure from the grand jurors’ duty.
(c) Conclusion
Based on this examination of the general history of the grand jury in
America, the particular history of the grand jury in Alaska, and the context and content
of the debate over the grand jury at Alaska’s constitutional convention, I conclude that
Article I, Section 8 of our state constitution was not intended to codify a grand jury’s
right to engage in nullification.
I therefore join my colleagues in holding that the superior court is not
required to affirmatively instruct grand jurors that they can engage in nullification. In
fact, in my view, it would be consistent with Article I, Section 8 if the superior court
affirmatively instructed grand jurors that they must not engage in nullification.
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V
The two sides of grand jury nullification — and why we can expect this
phenomenon to occur from time to time, regardless of what instructions the
superior court gives to grand jurors
When a grand jury refuses to issue an indictment despite the evidence, or
in defiance of the law, any assessment of the grand jury’s action will generally depend
on the political, social, or moral viewpoint of the person who is doing the assessing.
People who approve of a grand jury’s refusal to issue an indictment may well view the
grand jury’s action as a laudable instance of the citizenry standing up to government
tyranny or over-reach.
This is how modern-day Americans generally characterize the actions of
the colonial grand juries who, in the years leading up to the Revolution, refused to indict
people who brazenly violated British tax laws, or who even assaulted and terrorized the
officials whose job was to collect those taxes. 59
59 See Kevin K. Washburn, “Restoring the Grand Jury”, 76 Fordham Law Review, 2333,
2346 (2008):
[I]n the paradigmatic cases commonly discussed in the historical narrative, the
grand jury’s primary method for exercising its power was not a rigorous review of
facts, but [rather] a stubborn refusal to enforce general laws [when] the grand jurors
[disagreed] with the legislator’s right to impose such laws, or at least the prosecutor’s
decision to enforce them in a given context. So, for example, the grand jurors ... in
the [pre-Revolutionary War] tax protestor cases ... did not believe that the protesters
were being wrongly accused of [refusing to pay] their taxes. Rather, ... the grand
juries simply disagreed with the substance of these laws.
See also Richard D. Younger, The People’s Panel: The Grand Jury in the United
States, 1634–1941 (1963), p. 28 (noting a Massachusetts grand jury’s refusal to indict the
leaders of the Stamp Act riots in Boston). According to the website
(continued...)
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But for the many Americans who opposed the separation from England, or
who simply valued the rule of law and the settling of disputes through peaceful political
means, the actions of these colonial grand juries amounted to public incitements of
lawlessness and domestic terrorism.
Indeed, this is how modern-day Americans generally characterize the
actions of the post-Civil War grand juries in the South, who were notorious for their
refusal to indict White defendants accused of committing violent crimes against newly
freed Black citizens. Nowadays, most people would say that these grand juries played
a condemnable role in a decades-long campaign of racial terrorism against Black people.
But at the time, in the post-Civil War South, the actions of these grand juries “served ...
to popularize the grand jury [among White southerners] as a body which embodied and
furthered the interests of the local community against an oppressive government, ... a
bulwark of liberty.” 60
These instances of nullification are not confined to the distant past. At the
very time when the framers of Alaska’s constitution were meeting in Fairbanks, the
racially motivated murder of a Black teenager, Emmett Till, and the acts of jury and
59 (...continued)
https://www.pbs.org/ktca/liberty/popup_stampact.html, the Stamp Act rioters ransacked the
Boston home of the newly appointed stamp commissioner, Andrew Oliver — leading him
to resign his position the next day. Thereafter, threats and physical attacks on
Crown-appointed stamp commissioners became a popular tactic of tax protestors throughout
the colonies. Tarring and feathering began to appear in New England seaports in the 1760s,
and it was most often used by patriot mobs against loyalists. By November 1, 1765 — the
day the Stamp Act was officially to take effect — there was not a single stamp commissioner
left in the colonies to collect the tax.
60 Ric Simmons, “Re-examining the Grand Jury: Is There Room for Democracy in the
Criminal Justice System?”, 82 Boston University Law Review 1, 14 (2002).
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----------------------- Page 78-----------------------
grand jury nullification that thwarted all attempts to prosecute his murderers, were
making national (and international) headlines. 61
As I explained earlier, most American jurisdictions affirmatively instruct
grand jurors that they are required to follow the law, and that they are forbidden from
making their decisions based on favoritism toward the defendant or antipathy toward the
victim. So how is it that grand jury nullification continues to occur?
Instances of grand jury nullification appear to be the inevitable result of our
society’s dedication to three legal principles that guarantee the independence of grand
juries — principles whose importance outweighs the risk of occasional grand jury
nullification. These three principles are:
61 See the Library of Congress article, “The Murder of Emmett Till”, https://www.-
loc.gov/collections/civil-rights-history-project/articles-and-essays/murder-of-emmett-till/,
as well as the time-line of events published on the American Experience website,
https://www.pbs.org/wgbh/americanexperience/features/till-timeline/. See also the descrip-
tion found on the website of the University of Missouri (Kansas City) Law School,
http://law2.umkc.edu/faculty/projects/ftrials/till/tillaccount.html, the description found on the
website of American Public Media, www.apmreports.org/story/2018/06/05/all-white-jury-
acquitting-emmett-till-killers, and https://en.wikipedia.org/wiki/Emmett_Till.
On January 24, 1956 (during Alaska’s constitutional convention), Look magazine
published a post-trial interview with one of Till’s murderers, J.W. Milam. In this interview,
Milam — who was now safe from prosecution — openly bragged about torturing and
murdering Till. See “The Shocking Story of Approved Killing in Mississippi” (Look ,
January 24, 1956). At the time, Look was one of America’s most popular magazines. The
U.S. Census Bureau reported that there were 48 million households in America, and Look
had a circulation of nearly 4 million copies per issue. See https://en.wikipedia.org/wiki/-
Look_(American_magazine).
– 78 – 2775
----------------------- Page 79-----------------------
• a grand jury’s deliberations should be kept secret;
• grand jurors should not be subjected to civil or criminal sanctions based on
their service as grand jurors; and
• no government official or entity should be able to overturn a grand jury’s
decision not to indict.
While these principles guarantee the grand jury’s independence, they also implicitly
empower grand jurors to engage in nullification from time to time, especially when
political or social tensions are high.
As the Ninth Circuit observed in United States v. Navarro-Vargas, no
matter what instructions grand jurors might receive, the potential for grand jury
nullification will remain so long as our law mandates the secrecy of grand jury
deliberations and the non-reviewability of a grand jury’s decision not to indict. Grand
jurors may depart from the law by refusing to indict for violations of laws that th ey
disagree with, or by improperly taking into account the race, gender, or ethnicity of the
accused or the victim. “In all of these cases, for better or for worse, it is the structure of
the grand jury process and its function in our system that makes it independent.”
Navarro-Vargas, 408 F.3d at 1202 (emphasis in the original).
In other words, because grand juries have the power to engage in
nullification, they will occasionally exercise that power, no matter how they are
instructed by the court. But contrary to what Smith argues in this appeal, Alaska courts
are not obligated to encourage grand jurors to engage in nullification or to instruct grand
jurors that this is their proper function.
As this Court now explicitly holds, grand jurors are bound by the oath set
forth in Criminal Rule 6(e)(1) — the oath to “present all things truly and impartially”,
and to leave no one unindicted “through fear, affection, gain, reward, or hope thereof”.
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But I conclude that the grand jurors’ obligation to dispassionately apply the law is
broader than that.
As I have just discussed, the debate at Alaska’s constitutional convention
shows that the delegates viewed grand jury nullification as an aberration rather than as
a right or an essential function of the grand jury.
And as I discussed earlier in this concurrence (at pages 41 through 44), the
Alaska Supreme Court and this Court have repeatedly held that when Criminal Rule 6(r)
directs grand jurors to decide whether “the evidence ... would warrant a conviction of the
defendant”, this does not mean that grand jurors are supposed to decide whether
they personally think the defendant should be convicted of the charged crime. Rather,
Rule 6(r) requires grand jurors to decide whether, if the evidence they have heard is later
presented to an impartial trier of fact who is required to dispassionately apply the law,
that evidence would warrant that trier of fact (a trial jury or trial judge) in concluding that
the defendant was guilty of the charged crime.
I therefore conclude that Criminal Rule 6(r) means what it says: “The
grand jury shall find an indictment when all the evidence taken together, if unexplained
or uncontradicted, would warrant a conviction of the defendant.” And I also conclude
that Alaska grand jurors are expected to apply the law dispassionately in all respects
when they assess whether a proposed criminal charge is sufficiently supported by the
evidence to warrant requiring the defendant to stand trial.
As I have explained, there is no practical way to stop grand juries from
engaging in nullification from time to time. But in my view, the superior court would
act properly if it affirmatively instructed grand jurors that it is their duty to adhere to the
law and to return an indictment if they conclude that the evidence they have heard
satisfies the test set forth in Criminal Rule 6(r).
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