Grand Ethicist

I was ready to open this post with what I thought was a very cutting description of this weekend's Ethicist column (the problem I had in past weeks where I wanted to provide alternative sources to the NYTimes version of the article to avoid their paywall has been solved. Thank you Aaron Swartz!) I was going to call it a "bizarre form of argument by authority in which the author appeals to his own authority as conclusive." The reason I was going to do this is because the first line of his response to a rather complex question is, "Ethically, yes. Legally, it's debatable." Since Randy spends the rest of the column talking about what lawyers told him, I at first thought that the rest of the column addresses the legal issues and that his entire ethical argument consisted of the word "Yes." Since I didn't see him providing any support for that argument, I reasoned that the purported support must be that he is the Ethicist and is therefore able to pronounce authoritative ethical rulings. However, having re-read the column with an eye to this idea, I realized that the attorneys he dicusses the issue with are all talking about ethics and not at all about the law.

So, if one takes the sentence "Legally, it's debatable" to mean that the law may or may not prohibit whatever the referent of "it" is, there is no support at all for that in the article, nor in any law I've ever learned. Now obviously the law isn't going to prohibit idiosyncratic grand jury assessments in the sense of punishing them with incarceration or even fines, but one might imagine that the law would provide some procedural safeguards such as allowing the evidence to be resubmitted to another grand jury or otherwise protected from the personal policy preferences of grand jury members. Now there could in fact be such procedural safeguards that I've never heard of, but the balance of what I've seen suggests that there aren't. Maybe I'll ask my Crim. professor tomorrow. As far as I can tell, both upon the evidence in the article and my limited research, there is no legal debate.

As for the ethical question at hand, it is in fact a tough one. One relevant piece of information which isn't addressed is the process one goes through before ending up on a grand jury. What if anything is a grand juror required to agree to in order to be placed on the grand jury? If they enter into an agreement such as, "Uphold and apply the law as written," or anything like that, they would have an affirmative obligation to do so. My check of the Arizona Revised Statues on Juries reveals no such obligation. The closest the statutes come is 21-413 which reads: The grand jury shall return an indictment charging the person under investigation with the commission of a public offense if, from all the evidence taken together, it is convinced that there is probable cause to believe the person under investigation is guilty of such public offense.But it doesn't provide a remedy if the grand jury fails to do this, and there is no mention that the grand jurors actually have to agree to this in order to be on the grand jury. There is a mention of a questionaire, but the statute doesn't cover what sort of questions are asked. If the questionaire asked something like, "Would you be willing to indict someone under a law which you think is bad policy or too harsh?" and the grand juror in question answered yes to that, this would suggest to me that he is obligated to indict under the conditions mentioned in the column. Finally, the grand jury may have recieved an instruction like the one at issue in US v. Navarro-Vargas (.pdf file), which stated that the grand jury may not "consider the wisdom of the laws enacted by Congress." The 7th Circuit upheld such an instruction, over vigorous dissent by Judge Kozinski.

Without any affirmative agreement, the grand juror in question has no obligation to ignore his own opinion of the validity of laws. The system is certainly not dependent on jurors checking their intuitions at the door. As Randy notes, one of the functions of a grand jury is as a check on prosecutorial discretion. This requires not only that the grand jurors prevent prosecutors from bringing a case where they don't perceive probable cuase, but also to stand in for the sense of the community in whether or not the limited resources of the prosecutor's office should be deployed in a particular matter. Finally, there is one safeguard against truly idiosyncratic grand jurors which mitigates the harm of sticking with personal preferences. Grand juries don't need to be unanimous, under Arizona law grand juries consist of between twelve and sixteen people. Only nine of them must vote to indict. This further suggests that there isn't a presumption of an ethical duty for grand jurors to adhere to existing law, since the system can function even when they don't.

I know this is really long, but I have two final points. Randy flatly contradicts himself when he says in the first paragraph, "petit jurors...must convict if the evidence warrants" and then later says, "Employing the more radical tactic of jury nullification in criminal trials, for example..." By acknowledging that jury nullification exists, Randy shows that the earlier claim is false. Whether or not jury nullification should exist or not is a very difficult issue, but it does exist. The other is that I think an argument that what the grand juror wants to do here is ethically praise-worthy because laws making viewing of pornography and possession of marijuana felonies are bad policy, while if the grand juror were to to do the same thing in refusing to indict under a law that I think is good policy, such as date rape laws, he'd be doing something wrong, can't really get off the ground. One can argue that the jurors policy preferences are pernicious, but not that he or she can't apply them.