non capital crime or no crime at all based upon the same set of facts as just because in cities dissent made clear the instructions that are given seek to neutralize that discretion just as if he particularly relied upon the instruction that they cannot consider the wisdom of any law but the instruction that tells them they cannot consider punishment or should not consider punishment which is then immediately followed by the admonition that punishment is soley the pearl in the purview of the court equally constrains their discretion in addition i think the instructions  also correctly advise the grand jury of their role by repeatedly telling them that they're slowly considering with probable cause that that's their only responsibility the position that was taken to the judge hawkins dissent williams says that the grand jury is supposed to function as it traditionally did that's what the for discrimination in grand jury composition said that you know that the whole area is cured if you have a non discriminatorily composed head of the jury because if the grand jury only considers probable cause then a properly constituted headed jury when it rules it appears that because necessarily probable cause is found when you find guilt beyond a reasonable doubt that was the issue that was raised in rose versus mitchell and not addressed head on but it was addressed head on and ask his versus  versus hillary both stated one hundred year tradition of finding that that was a constitutional error but also explain why it was harmful to the defendant so that after detail in the tremendous powers that the grand jury had they were then able say that's why there is precedence in this case and they used some very specific language they said we cannot know how the indictment would be framed if there was a properly constituted grand jury well here we don't know how the indictment would have been framed if there was a properly instructed grand jury they also said that we don't know how the grand jury would perceive the need to indict if there was such a question is the need to invite you would need to ask it if your only question was to answer whether or not there was probable cause if there's alpha cation instruction that i think that these instructions could be cured by saying that the grand jury can't indict unless there's probable cause that could be cured by not repeatedly saying that probable cause i the only issue that's for the grand jury to consider and it could be cured by the leading the instructions telling them that you can't consider the wisdom of any law and that you can't consider the punishment that i think we cure the problem and i think that grand jury nullification which is another think that that's had a question and there are very good points made in the market majority opinion to really talking about policy decision the framers decided to commit those types of decisions to average everyday people and they trusted them to make good actually goes through an instruction is given in new york i think it would be permissible to give that but that's not really what the issue is that we've raised in this case we think that the grand juries and it's the grand jurors in this that are just regard improperly instructed they're not told properly what their role  and they're misled as to what their power is and the breadth of the concerns that there is well i think they're misled because the instruction tells them they cannot consider the wisdom of any law passed by congress it just is inskeep pointed out that it's practically impossible to separate evaluating the particular facts of the case from an evaluation of this than the law is for instance the let's say you have medical marijuana he's you could say those are bad facts but you could also say that a forty one's of that statute because it doesn't have an exception for that kind of what i think the harm is that a judge has told them that they cannot take those kinds of facts into consideration they cannot consider the wisdom of the law they can consider the penalty if the supreme court says they can charge a greater offense or a lesser offense capital or not capital how are they to make that kind of decision if they can't consider what the penalty is i ultimately you're actually right that some grand jurors make nor that the instruction but the fact that some grand jurors make nor that kind of instruction doesn't mean that that kind of instruction should be given because it transfers on their traditional that was signed by a prior president they only declined to enforce it and yet article two of the constitution says that the president shall not insure shall take care of the laws are faithfully executed and yet we have asked if we have an executive prerogative exercise over the grand jury so when you tell the grand jury look there are some things you just can't even think you can't think about the wisdom of the law you can't think about the penalty provisions when and when those types of instructions are given we presume that jurors gran and regular jurors follow instructions so they're specifically being told that they can't do things but the whole tradition of the grand jury is independents that as your question is pointed out and if they are so independent how is it that if this record judge has the authority to tell them what they can and can't think and that there hasn't been a single case that's been cited throughout these proceedings that throughout the litigation of this issue over a period of years in which there's never been a source of the authority to tell the grand jury what they can and can't think but we've cited cases it from the supreme court and  and then when you're talking about a greater offense or a lesser offense it's impossible to evaluate whether or not you should charge the greater the lesser if you're not allowed to consider what the punishment is in your brief use of a long standing press that exists the grand jurors may consider both the wisdom of criminal right to basically to do whatever they choose on a certain set of facts that's where the tradition comes from they are saying in that case but i started it was that i know it wasn't victim number one it wasn't victim based upon the analysis i said before because they  explain why they shouldn't abandon their automatic reversal rule when there's a grand jury composition issue but even if it is dick to this court's decision in miller vs gammy says that this court is not only bound by the supreme court's holdings but also b of analysis and its explication of the applicable legal rules well certainly that language should invest his versus hillary if it's not upholding it which i think it is it's definitely the mode of analysis and the explication of the rules that apply in that particular case yet the grand jury refuses to indict is this the government of any judicial rooty they don't have a traditional remedy but they could certainly submit the case to another in another grand jury go to court and complain that the grand jury in something they shouldn't  dual role of the grand jury first talking about probable cause and then second talking about the protective function i think that also supports our reading of vasquez versus hillary as does judge wisdom concurrence yet in the cox case i understand it grand jury is an executive charging function so if they were told that the function of the of the at the legislative branch to make the law the executive but i don't think that that that's really what this instruction says it says you can consider the wisdom of the law i mean we know where the law is this coming from but if the grand jurors are going to look at a particular case and state even though the facts seem to meet the statute we're not going to indict they can't do that if they think they're not allowed to consider the wisdom of the law they can do that they can just choose not going like but if they're going to be following the instructions which we presume that they do they would think that they could not consider the wisdom of this particular application of the law has the power to know what it's done to prepare a jury and number of ways i think the most important way is that the district court presides over the trial presides over the petit jury decides what evidence they hear what evidence they can make of it but that's not true with respect to the grand jury williams says that the court does not preside at the grand jury they consider here saying they can call their own witnesses they can do whatever they want so the grand jury is a completely different entity it's not assigned either grand sale of the executive or the judicial so they get to make their own decisions they have their traditional independence and they can make those types of decisions whereas penitentiaries are basically under the rule of the district court and they have a traditional function judge kozinski drew the distinction between the two we ha to protect the tenants due process rights we have to ensure the reliability of the sultan that's why the head of jury is so much more subject to control by the court but the grand jury is not under that control of the court and so they have basically goes to the lens that the grand jury looks to the case that it's an error analogous to sullivan in that all of the grand juries findings are subject to question because we don't know what they would have done if they believe that they had their full discretion it's very different from an era like it's their punishment and again i think the instructions to tell them slowly probable cause but in the second part of your answer is that throughout the history of the supreme court litigation about the grand jury the supreme court over and over again has said we're not going to put ourselves in the grand probable cause then any court would say what the grand jury would have done because courts are in a much better position to evaluate probable cause presumably than grand jurors so if it was just probable cause then they wouldn't be saying over and over again we can't put ourselves in the grand jury  case indicate that you know ninety and ninety nine percent over ninety nine percent of the cases you know they are there are indictments so there is plenty of room i think for some grand jury independence but no it's not it's not going to lead to  the people and then on the other hand we tell them how wonderful what government is and how they can trust everything the government and just rights activists or african americans generally i want to start off with that because this is a case where almost felt like standing up and saying i don't simply represent the united states but i represent the system of justice because this is a jury the grand jury has to return an indictment for punishment excess of one year and we can present information charging mr minors without bypassing the grand jury and as a matter of fact i think in the singer case itself if i remember correctly from reading part of it the grand jury initially refused to indict and then the government presented and information  information and the teacher you quoted what in the government's you is the purpose of the requirement of grand jury i believe the constitutional protection and the requirement is to have the defendant have his peers decide on whether he should stand trial want to charge it should not be the government should not be the u s attorney's office on a felony charge and should not be the u s attorney's thing that it does that because it's you have to protections you have also meant what you have that the cheat jury with all of the panel of constitutional rights and protections and particularly with the presumption of innocence and the requirement that government prove the case beyond a reasonable doubt but it is no small thing for a person to be charge and have to stand trial and because of that the framers put in the requirement of an independent grand jury to decide that not basically that was the first  and i think the case it was i by no means go nearly as much constitutional law history as your honor i think a couple cases spoken to the frame which i believe that's the reason for the requirement but in this particular case i think there's a couple points a very important counterpart of our of our guests here now says that the issues are the wisdom of the law and punishment and whether the grand jury was correctly struck in that regard but i do know that in the motion papers that were filed in the district court his objection up some problems and to assert how the practice should be attacked in a district court or that are going to court was that there was vouching for the prosecutor when you have the provision that talks about you know you can expect candor and honesty from the united states attorney and then they also there was a vouching for probable cause attack because they said that in the standard instruction when the grand jury is advised that basically a magistrate judge has already passed  there was no discussion in the appellate opening brief of either valjean vouching for the prosecutor or valjean by the probable cause determination nor was there the same specific reference to grand jury nullification except that it pages fourteen to sixteen is here and that's why this particular case is so important because i think it speaks to us as to what kind of system that we're going to have and what the grand jury is going to do my objection to the instruction is that the instruction doesn't go far enough not only should the grand jury be instructed that it should not consider punishment and that it cannot consider with the wisdom of the law the grand jury should be instructed that it should not consider anything that is irrelevant to probable cause that's what the instruction should be manning nine percent is a case where the government is alleging the violation of  america i'm expecting that that was what the legal requirement was at the time the constitution was adopted and that it was incorporated into them basically due process relative to that on well i think that's i mean i think the difference between the grand jury in the party jury i think they're both the conscience of the community i think the difference that they serve is that the injuries involve the protective capacity earlier and with down i think that it is in permissible for either one to do it but each one has the power to do it the distinction that i think the cases have drawn again but the problem with your health occasion i want to get back to school i think it's very important we all think that this is something that's just going to benefit a defendant i suggest you that that is not the case once the grand jury is told that it can ignore the law or  wisdom of law and being told that they should ignore the wisdom of the law is there a difference i think that there is a difference but i think that ultimately i would prefer the grand jury hundreds of times so i present a case of from the grand jury and let's say that it is a case involving a civil rights prosecution and you have something that's illegal in the united states who happens to be a member of minority group he happens to be a spanish and the government's charging a an agent with having  that that would be very good and i have rivals cases but do we want the grand jury to be told oh that's fine you can ignore that long you can disregard that law it's up to you to decide whether congress in its infinite wisdom should have minute would give you permission to go to another grand jury very well the there's a couple difficulties that i might write about what i just that can we take a case for another grand jury yes generally we can we have to we have but if i might vanish we have to ask that specific the best definition of what a no bill is as to whether that applies waste you to kadok as to the government bringing a case back in front of the grand jury or i've never seen that issue raised but it does seem to me that it raises issues that issues of that of that kind in the united states  wouldn't be there if the department had historically not felt that it was perfectly legal to do so when i served as united states attorney i'm familiar with united states attorney's manual i have never seen a case that was presented but what the point it's hard to make still is that we have a case with then probable cause or doesn't exist at all do we want to grand jury to be asking questions that will prejudice the defendant in the same way or connect injury disregard the probable cause requirement and say well this guy's really a bad man and even though we don't think there's probable cause we're going to return an indictment against him because we want to disregard that we want to make that up as it gets now that's not a request that he's making question he's making but where does it stop when you tell the grand jury that they have that's the request let me start out from this point you're trying to get us to buy into the proposition that jury nullification by the head of the jury and jur imperfectly but nonetheless served is to protect the citizens who is about to be charged from the power of the state it is not to determine whether there is the author is or there is innocence and i'm not sure the nullification is even the proper word when the grand jury is actually stashing that function the so we had a fair amount of discussion when your adversary was and as to what the proper powers were of the grand jury i'm not sure the grand jury is acting improperly as to whether to charge somebody in the first instance but do we want the grand jury advise that it can disregard the law that it can make up the law as it goes and what's to keep the grand jury then from saying evolution but the grand jury's role primary role for decades on decades has been to independently decide the probable cause which it would be impermissible for example for a grand jury to decide we think that's too low standard we want to apply as a standard and we're not we were indicted and left it's a preponderance of the evidence or clear and convincing evidence or proof beyond a reasonable doubt that would be impermissible for the grand jury to do it now if the grand jurors in secret with nobody being there if they decide to do that they can do that they have the power to do it but no one ever ever in the history of this country has sanction the giving of an instruction that says you c by first on the first i don't know when it was first given i know that i can tell you i've been practicing for twenty two years this instruction has been given ever since i've ever peered from the grand jury so it goes back at least that time period and i have no reason to think that ago you know now i i don't think that's the case your honor i could i can see of no reason why we would be using and a model instruction and other people that wouldn't the only model instruction i'm aware of is this particular this particular  yes and i think the also are different but the question remains when the grand juror i mean do we do we want to system where the judge it by says the grand jury of what the law is or not and if we probable cause to believe that he committed the offense that's how i would answer the question the same way if it's somebody the question is posed in the grand jury all the time it's not so much that in just a sense yes in the same question ninety percent of the time that person keeps it from the grand jury they want to know what somebody is criminal record what's most cases we prosecute people have criminal records they've been arrested for doing bad things they've done bad things and when the jury  it's actually irrelevant to probable cause and i won't tell the grand jury or i won't allow them to hear it and i've instructed the grand jury that i'm not going to give you that information i'm not going to let the witness answer that question because it's very relevant to probable cause and you should not hold it against that defendant was being charged in this insular crime based on something that he did before and that is why the queen jury should be instructed that it should not consider anything that doesn't go to anything that is irrelevant to probable cause but also to protect the depend on occasion so that a defendant in a thin case is not go improper for them to exercise the power to be merciful if there is probable cause that your position if i did ask the question this way if i can they have the power to do so and on occasion it is probably a good thing when they do that  lesser pound or a greater multiple counts or single count if they're told they can't consider anything but probable cause that with respect to the submission to a second grand jury there's no legal impediment so if they get a no bill there's no legal impediment to admit the case to another grand jury so there's no issue there then with respect to the other the parade of horribles what if they will indict people who shouldn't be indicted because the grand jury is prejudiced against them well that's the facts of the needs to be left alone they don't need to be told what they can't think and that's what the problem is with these instructions any public happening here as well as are some things i need to know they need to know about the probable cause requirement they need to know about a quorum think that you can tell the grand jury what they can and can't think i think that ultimately these decisions are committed to them as the conscience of the community that was the decision that was made at the time of the founding and ultimately we have to live with the good decisions as we do with the bad unfortunately but they are still in that role it's a constitutional prerequisite to an infamous crime that they have to exercise that discretion good or bad i think you know they are told you know they have to respect constitutional privilege just like the fifth amendment they're told they can't