SAN FRANCISCO - A federal appeals court will untangle the knotty legal question of whether federal grand jurors have the power of nullification - to refuse to indict simply because they object to a law passed by Congress.
A majority of the 26 active judges on the 9th U.S. Circuit Court of Appeals voted to reconsider a May ruling in a marijuana smuggling case, according to an order issued late Wednesday.
In May, a divided three-judge panel refused to invalidate the standard grand jury instruction "you cannot judge the wisdom of the criminal laws enacted by Congress."
The defense unsuccessfully argued the indictment should have been dismissed because the instruction violates the defendant's Fifth Amendment right to the unfettered judgment of grand jurors.
At least 14 judges voted to put the question before an en banc, 11-judge panel for reconsideration.
The original decision rejected the constitutional challenge by Steve Navarro-Vargas, who drove into the United States from Mexico through Tecate in 2002 in a car carrying 65 kilograms of marijuana, U.S. v. Navarro-Vargas, 2004 DJDAR 5337.
Vargas pleaded guilty in 2002 and was sentenced to 21 months but with the condition he could pursue the challenge to the grand jury instructions.
Judge Alex Kozinski, who issued a strong objection in the May decision, said, "I can find no source of authority for the district court to impose such a limitation on the grand jury. I believe the instruction constitutes an unauthorized substantive interference by the district court with the grand jury's traditional discretion."
Kozinski argued that grand jurors act as the community's conscience. "The grand jurors must decide whether conduct that appears to fall within the prohibitions of a particular statute does indeed merit criminal punishment," Kozinski wrote.