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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA, 

 Appellant, 

 v. 

TARA LEIGHTON, 

 Appellee. 

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) Court of Appeals No. A-11389

 Trial Court No. 4FA-11-4262 CR 

 O P I N I O N 

 No. 2431— October 24, 2014 

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Petition from the Superior Court, Fourth Judicial District, 

Fairbanks, Randy M. Olsen, Judge. 

Appearances: Tamara E. de Lucia and Timothy W. Terrell, 

Assistant Attorneys General, Office of Special Prosecutions and 

Appeals, Anchorage, and Michael C. Geraghty, Attorney 

General, Juneau, for the Appellant. Wendy M. Doxey, Law 

Offices of William R. Satterberg Jr., Fairbanks, for the 

Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, 

District Court Judge.* 

Judge HANLEY. 

* Sitting by assignment made pursuant to article IV, section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

In this appeal, we are asked to decide whether the grand jury clause of the 

Alaska Constitution (article I, section 8) requires grand juries to be instructed that they 

have absolute discretion to refuse to return an indictment, even when the State presents 

sufficient evidence to support the accusation. In this case, the superior court ruled that 

grand juries must be instructed in this fashion. For the reasons explained here, we 

reverse that decision. 

Underlying facts and the superior court’s ruling 

Tara Leighton was indicted on five counts of first-degree sexual abuse of 

a minor for engaging in sexual penetration with a thirteen-year-old girl who played on 

a sports team that Leighton coached. Leighton moved to dismiss her indictment, arguing 

that the grand jurors should have been instructed that they could refuse to return the 

indictment even though the State’s evidence was sufficient to justify the charges. 

The Alaska Supreme Court has recognized that the grand jury acts “as both 

a shield and [a] sword of justice.”1 On the one hand, the grand jury is an accusatory and 

investigative body “tasked with determining whether criminal proceedings against the 

accused should be instituted.”2 But the grand jury also plays a protective role, 

“operat[ing] to control abuses by the government and protect[ing] the interests of the 

accused.”3 

In accordance with this law, the presiding judge of the Fourth Judicial 

District instructed Leighton’s grand jury that its duty was two-fold: 

1 Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).
 

2 Id. (citing United States v. Calandra, 414 U.S. 338, 343-44 (1974)).
 

3 Id. (alterations in Cameron) (quoting Preston v. State, 615 P.2d 594, 602 (Alaska
 

1980) (internal quotation marks omitted)). 

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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 

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. 

The presiding judge then gave the instruction that is at issue in this case. We have 

italicized the language that Judge Olsen believed was improper: 

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. 

Judge Olsen concluded that the above-quoted three sentences did not 

properly convey the grand jury’s “absolute, unfettered discretion” under the Alaska 

Constitution to refuse to return a true bill. 

The judge acknowledged that the word “should” means something different 

from the word “shall” — that “should” does not convey a command, but rather “an 

expectation of what ought to be done, with some inherent flexibility as to the actor’s 

ability to depart from the expectation.” 

Nevertheless, Judge Olsen concluded that “should” did not sufficiently 

convey the grand jury’s complete and unfettered discretion to refuse a proposed 

indictment. The judge ruled that the presiding judge was required to use the word “may” 

when describing the grand jury’s authority to return a true bill because this was the word 

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used in article I, section 8 of the state constitution: “The grand jury shall consist of at 

least twelve citizens, a majority of whom concurring may return an indictment.”4 

Judge Olsen further concluded that this error in instructing the grand jury 

could not be harmless because no one could predict how any particular grand jury might 

exercise this absolute discretion in any particular case. 

After the superior court denied the State’s motion for reconsideration, the 

State filed this petition for review. 

Why we conclude that the superior court’s ruling is based on a 

misinterpretation of the grand jury clause of the Alaska Constitution 

Judge Olsen’s ruling that the grand jury should be instructed that it “may” 

return an indictment was based on a misreading of the grand jury clause of the Alaska 

Constitution (article I, section 8). This clause provides, in pertinent part: 

The grand jury shall consist of at least twelve citizens, a 

majority of whom concurring may return an indictment. 

As the State points out in its brief, the first part of this sentence fixes the 

minimum number of citizens required to form a grand jury, while the second part of this 

sentence defines the minimum number of grand jurors — “a majority” of the entire grand 

jury — who must concur in an indictment before the grand jury is allowed to indict 

someone. 

In this sentence, the phrase “may return an indictment” stands for the 

concept of “is authorized to return an indictment.” This phrase does not refer to the legal 

test for when an indictment is justified, nor does this phrase refer to the grand jury’s 

power to refuse to endorse a proposed indictment. 

4 Emphasis added. 

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There is nothing in the language of this sentence, and nothing in the 

discussions in the Alaska Constitutional Convention pertaining to this sentence,5

 to 

suggest that the purpose of this language was to create or acknowledge a grand jury right 

of “nullification” — a right to refuse to indict someone for any reason the grand jurors 

might see fit. 

Moreover, to the extent that grand juries in Alaska have a power of 

nullification (an issue we do not decide), the instruction used by the presiding judge 

adequately conveyed this concept. As we explained earlier, the presiding judge told the 

grand jurors that if at least ten of them believed that the State’s evidence met the standard 

for issuing an indictment, “the indictment should be endorsed ‘a true bill’ and signed by 

your foreperson.” 

Judge Olsen himself acknowledged that the word “should” did not convey 

a command, but only an “expectation of what ought to be done” — and that this word 

conveyed to the grand jurors “some inherent flexibility ... to depart from the 

expectation.”6 

To support his ruling, Judge Olsen additionally relied on a statute, 

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.” While this statute uses the word “may,” it does not address the grand 

jury’s discretion to refuse to return an indictment. Rather, the statute addresses a 

different issue: the grand jury’s authority to return an indictment on charges that the 

5 6 Proceedings of the Alaska Constitutional Convention 63-64, 71 (Dec. 15, 1955). 

6 See United States v. Navarro-Vargas, 408 F.3d 1184, 1204 (9th Cir. 2005) (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”). 

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State has not proposed, if the evidence justifies the charges. 7 Again, the word “may” is 

being used in the sense of “is authorized to.” 

In sum, neither Judge Olsen nor Leighton has offered us a convincing basis 

for concluding (1) that grand jurors have absolute discretion to refuse to return an 

indictment — for any reason, or for no reason at all — and (2) that the superior court is 

prohibited from instructing grand jurors that they “should” return an indictment if the 

evidence justifies it. 

We acknowledge that the assistant district attorney who presented 

Leighton’s case to the grand jury gave the grand jurors additional instructions that 

arguably contradicted the presiding judge’s instructions. But Judge Olsen’s ruling in this 

case was based solely on the wording of the presiding judge’s instructions, and that is 

the only ruling before us. 

Conclusion 

The superior court’s decision is REVERSED, and the indictment against 

Leighton is REINSTATED. 

7 See Sleziak v. State, 454 P.2d 252, 261 & n.30 (Alaska 1969). 

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