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At my office window each day I watch as a determined sparrow puts the lie to my mother's advice. She would tell me, "If at first you don't succeed, try, try and try again.” That sparrow has the perseverence of a scientist. It is analytical. Some birds kill themselves by flying against window glass. They can see through it, so they figure they can fly through it. This sparrow knows better. It tries and tries and tries again. Sitting on the ledge or at the side of the window it pecks. It scrapes, and it pecks again. It can see inside, but it is blocked. By what? it wonders, as it comes back every day to keep up with its experiment.

That same bird also has the habit of sitting next to the side mirror of our car to admire itself in the mirror. That habit is annoying, as it involves leaving the space beneath the mirror polluted with excrement.

The point is the sparrow will never break through the window glass. It will never get inside. It is sad, but the bird seems not to care that it will never succeed: it refuses to give up. There is another sad fact in life. We will never again see juries seated with the authority they once had. Juries were established by the Founders of our government to be the voice of authority of the People. "We the People" speak through our honest votes in honest elections, through sitting on Grand Juries, through sitting on Petit Juries and by exercising citizens arrest. We also have the risky power of refusing to pay taxes, but that's another story.

I was called to Jury Duty. I sat through two days of the pain of boredom listening to the well intentioned judge. Her name is Dodie L. Harman. She looked to be about thirty, as she cordially smiled her way through the universally-followed Voir Dire ritual, questioning one prospective juror after another.

The young black man on trial was so small a strong wind could have blown him away. He was just barely an adult. A full eleven months earlier, the judge told us, this young man, while an inmate and a gang member at the California Youth Authority, punched a fellow inmate in the jaw, breaking it. He was on trial for assault with intent to do great bodily harm and for a couple side issues, like doing that act as a gang member and threatening verbally to kill the fellow he punched.

I calculated that this little fracas in jail cost the taxpayers of San Luis Obispo County, just for Voir Dire, at least $2,000 to pay the salaries of the nine county employees on hand for the trial: the prosecutor, the public defender, three bailiffs with guns, two court clerks, the stenographer and the judge. If the trial took the estimated five days, the total cost to the county could be between $10,000 and $15,000 to pay those salaries for this trial.

Voir Dire. Do you know what that is? In court, one use of Voir Dire is to choose a jury. In California, seventy people are summoned from their homes or work. They are called at random from lists of drivers licenses and voter records. They must appear. They believe that coming means they are serving government. Nobody bothers to tell them they are coming to the trial room to represent the People. From their number, eighteen are called forward to “speak the truth.” That's the definition of Voir Dire: speak truth. It is an old English-French expression that originally applied to juries charged with the responsibility of measuring balance between the interests of the king and the interests of the people.

In court, with plenty of spare time, I worked out a definition of VOIR DIRE that might hit a chord with you if you have ever been called for jury duty, then turned away.

That's the way juries are selected, but it is not supposed to work that way. If I have the right to be caustic in my criticism I have the duty to suggest a solution. Though I will do that, let's bring the sparrow back into the picture. The sparrow keeps pecking on the window because he is perplexed, and he is intelligent enough to want to analyze a problem when he finds one. He will never succeed, and neither will we. But that doesn't mean we should stop pecking at the window. Just as the sparrow feels compelled to solve his problem, we should try to figure out how juries can regain their authority.

A jury is supposed to be the supreme power in the courtroom. Walking into the courtroom, the candidates represent the Creators of the court. That's why the judge feels threatened The questions are not about gaining information. The judge knows the jury has more power than the judge. So the judge uses Voir Dire to impose the judge's will upon the superior jury. After all, who are these ordinary people? Did they go to law school? What can they know? All these thoughts demean the judicial order of our Republic. Our Founders decided that ordinary people, not experts, would control the judicial system. Nevertheless, the judge feels the need to take power away from the jurors. It is an issue of professional pride. The judge must persuade each juror to surrender power. The judge forces the prospective juror to speak the truth -- the "truth" that the juror promises to lie -- to go against the juror's best judgment, if necessary, during the jury's deliberations. That's the purpose of Voir Dire.

Instead, the judge should ask potential jurors, "Will you, if you become one of the twelve judges of this case, use your sense of justice and fairness to decide if the law has been properly applied to the facts of this case? Will you make your decision about the guilt or innocence of the accused in a way that you are confident the accused is guilty beyond a reasonable doubt, and if you cannot make this finding, will you come back with a not guilty verdict? Will you make your decision not simply because the accused has been found to have violated the law but because the law has been found to have been appropriately applied to the behavior of the defendant?" In other words, the jury should have the power to judge the law as well as the facts. Historically, this is called "jury nullification:" the jury's power to nullify an unjust law. Voir Dire is wrongfully used today to rip this authority from the jury and to give absolute power to the judge.

In our courtroom, the accused young man was black, but not a single one of the seventy of us even had a sunburn. So, the judge kept pounding away, “Do you see that the accused is black and nobody else here is of his race? Do you have a problem with anybody who is a member of a gang? Would you find it difficult to be fair if you discovered evidence either for or against the innocence of the accused?” All these questions are just lead-ins to the judge's primary point. The judge concludes as though singing the chorus to a song, “Will you judge this case by the law?” Is that what the judge asks? No. The judge asks, “Will you observe the law as I give it to you?” Some jurors had served on juries before. So, the judge asked them, “Will you set aside what you learned from the judge's instructions in that other case and judge this case only by the law that I give you and the facts you learn during this trial?” If we are to set aside our life experiences, what little knowledge of law we possess, our view of fairness and justice, and listen only to the judge's view of law and the judge's interpretation of the facts – what are we doing here anyhow? Help! Historically, the jury had the purpose of making sure the law should apply to the case being heard. What does a judge's instruction have to do with that job?

Judges are so threatened by the thought that a jury might come to an issue with the intelligence life has instilled in them that the judge must make sure to eliminate anybody who will not promise to become a robotic clone to the judge's orders. In our case, one prospective juror consistently replied, “I will do my best.” “I will try.” “To the best of my ability.” The judge kept saying she wanted to hear a “yes,” so the honest man was dismissed, as was the lady of Chinese heritage who is a retired engineer. She too offered an intelligent, studied reply to the judge, indicating she is an independent thinker. That meant she was not qualified to be a juror either. About half the prospective pool was eliminated by this process.

In my opinion, we should seat a jury by having the Jury Administrator summon only a couple dozen people to show up for trial: about a third as many as are now called. The judge should ask if any candidate would be economically or physically damaged by serving on the jury, then excuse them. After that, without the Voir Dire ritual, the jury should be formed by having the clerk read off the first fourteen names at random. Those people should be sworn in and the others released. It all could be done in a half hour, instead of the eight hours it took for Voir Dire in our case. By the way, if a black person is on trial, the Jury Administrator would hopefully call all blacks as jurors, and vice versa. After all, the requirement is that we be tried by “a jury of our peers.” We are to be tried by a jury, not by a jury influenced by a judge: but by people-other-than-a-judge – a jury of people just like us.

Go back to the sparrow, though. The definition of stupidity is to expect to be able to do the impossible. We need to understand that “We the People” have lost our voting rights to the Ohio-and-Florida type computer election fraud. We need to have it clear in our minds that the Grand Jury system has been overwhelmed by the power of overbearing prosecutors who use the Grand Jury only as a sounding board for their “take” on a case, and we need to know that serving on a Petit Jury is impossible unless we pledge on our honor to become little-voices of the judge of the case. The only power remaining to the People is the power of citizen's arrest.

When will we start to use that remaining power with some effect? Keep pecking away at the window of injustice. The judges and prosecutor are well-paid. They can afford to be annoyed.

Richard Palmquist, April 2006