McFreedom

David Bernstein, guest-blogging at the Volokh Conspiracy has an idea for reforming jury duty. He admits that a prerequisite for his idea is that "the officials in charge of jury pools would have to start acting like potential jurors' time is actually valuable..." In my most-recent encounter with the jury system, at the San Mateo country courthouse, in May of 2002, that was the biggest problem from my perspective.

I wrote a little on the subject at the time, but I found the whole process very disheartening and never really summed up my experiences.

This is the only county I've been called for jury duty in (twice!), so I don't know how representative this is to experiences in other jurisdictions. You begin the day in a big, overcrowded basement conference room where you are signed in and told that you'll be called in randomly selected groups. Jurors wait in and around this room (there's also a nightmarish cafeteria right next door you can go to). In this room there are a half a dozen computers and a couple of television sets; that's it for entertainment.

I was in the first group of the day called, and seventy of us made our way up to the courtroom. Outside, the bailiff (a marvelous middle-aged but very fit woman who was about 5'1" but had a very commanding presence) stood on a bench and told us the ground rules: No talking, stand when the judge enters, etc. She further informed us that it was disrespectful to read in the courtroom, since we were supposed to be paying attention, but that she knew we would anyway, so she wanted us to be discreet - no newspapers, keep your book in your lap, and don't read if you're in the front row, on one of the aisles or in the jury box.

In we filed. To "seed" the procedure, the court called out eighteen names of prospective jurors. I was one. We all shuffled up to the jury box and took our seats. Now the real fun began. The judge went down a standard set of questions, which basically boiled down to, are you in law enforcement or related to someone who is; have you ever been the victim of a crime; and have you ever sat on a jury.

It became very clear very early that it was very easy to convince the judge you were biased. In my previous jury-selection experience (I was preemptorily challenged out of that one) he quickly disposed of the bias concerns - very few jurors were considered too biased to sit - and we went straight to financial hardship, and that was where most of the effort was expended, trying to convince the judge that jury duty would be an unreasonable financial hardship for you.

For the second jury, the judge was so sensitive to the supposed biases of the prospective jurors not once did financial concerns arise Anyone who wanted to get off the jury just talked of some minor property crime that had happened fifteen years ago and how it had made them want to personally torture to death any accused criminal. In the few couple of cases there was nothing they could so twist, loud, unprovoked outbursts about how obviously guilty the defendant was did the trick. On top of which, the judge was slow in his work. My favorite part was when someone would be uncomfortable:

Judge: Have you ever been a victim of a crime?
Prospective Juror: Er, uh...
Judge: Would you be uncomfortable talking about it in open court?
Prospective Juror: Yes, your honor.

The Judge would then adjourn the court. Everyone except the court reporter, the clerk, the attorneys and the accused would file out of the courtroom and stand around in the hall until they were done, then we'd file back in.

Here is where the "no reading" in the jury box came in. I was seated in the jury box from the get-go, one of only two jurors to make it through the whole process from the first step (since, after all, it was not difficult to get out of). My questions were asked and I was done, but since it would be rude to read while the judge was interviewing other people about their personal lives, I had to sit there and stare off into space for ten hours. That's how long jury selection took. They called in seventy people to the courtroom. Fourteen remained as jurors. Nine were never called. The rest were excused. Particularly frustrating to me (and no doubt to the defense) was that the defendant was Hispanic, but every Hispanic prospective juror either didn't know English well enough or pretended to not know English well enough to sit, and got out of it.

It got slightly more interesting from there, but the overwhelming theme of the jury duty was a total lack of respect for the jurors' time. We would be instructed when to arrive for court, and, of course, if we were five minutes late, we could be charged with contempt of court. But if the judge is running half an hour late returning from lunch - as happened once - we just had to stand around in the hall. And I know for a fact it wasn't because he had emergency court business, because we'd eaten at the same restaurant and he asked me to inform the bailiff he'd be late.

The root problem in all of this is that there is absolutely no cost to the members of the court for the jurors' time. If the members of the court can save five minutes by costing the jurors forty-five minutes, that's a fine trade in their minds. I'm sure some members of the court also enjoy exercising their bureaucratic power over such people. My first thought is that it would be nice if there were some incentive to the members of the court to use our time efficiently - but, of course, no one wants "justice rushed."

One thing that was much improved over my previous jury experience was that the overall system's attitude was changed from one of "you'd better be here or we're going to put you in jail" to "we recognize that you're here because you want to be, and appreciate that." Since they almost never actually do put anyone in jail for avoiding jury duty, it was obviously an empty threat, and I think most of us were there out of some sense of civic duty, even if most of us were hoping (perhaps a little too strongly) not to be called.

On October 28, 2002, I speculated that the DC Sniper - later alleged to be John Lee Malvo - was none too bright, given his apparent plan to remove his requested $10 million from ATMs:

Even if it were possible to convince the bank or banks to go along, ATMs don't have all that much money in them. ATMs might have $36,000 when filled up, but that depletes quickly and on average if you emptied one, you'd get $18,000. That means to get your $10 million - even if any of this was even possible - you'd have to make 555 trips to the ATM. And you obviously couldn't go to the same one, twice - or even ones in the same city twice.

Now, allegedly, Mr. Malvo has told his jailers that, indeed, this was their plan, and that they hadn't even done basic research about how much money an ATM holds:

The corrections officer said Malvo told him that the sniper shootings were part of a plan to get money from the government and said "they were going to withdraw $100,000 or $200,000" at a time from a bank machine.

It's just stunning that all those people were killed by this idiot because he was carrying out a hare-brained scheme that was impossible. Apparently psychopathic idiots never heard of Google, I guess.

Randy Barnett, guest-blogging for Glenn Reynolds, has a thought-provoking article on the Second Amendment. He discusses specifically the makeup of The Militia, which is defined in Federal law by US Code Title 10, Sec. 311, "Militia: composition and classes." This law specifies that the militia is "all able-bodied males at least 17 years of age...and under 45 years of age" and goes on to note that, while the National Guard are the "organized militia," the "unorganized militia" "consists of the members of the militia who are not memebers of the National Guard or the Naval Militia." Interestingly, this is not just some remnant left over from 1776; this law was most recently amended in 1993.

So, it would seem that, under Federal law, I am a member of said Militia and that my right to keep and bear arms "may not be infringed." I believe that most gun-control proponents would, at this point, argue that simply because there is a law that states what the Militia is does not make the Militia "well-regulated," and that, hence, my right to keep and bear arms may be infringed.

Such argument misses two important points. First, while there is some argument that "well regulated" did not mean to colonial ears what it does to modern ones, even if we allow it to mean what it seems to, today - that the militia needs to be regulated by a controlling power - I would argue that this clause merely lays a duty upon the Federal government to implement this. Their failure to do so does not eliminate my right. The Third Amendment proclaims, "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." Would anyone argue that, should Congress fail to "prescribe by law" when soldiers may be quartered in private houses in time of war, that would mean that the right was eliminated? Clearly, it would mean that Congress has failed to fufill its constitutional obligation, not that homeowners lose their rights under the Third Amendment. If you believe Congress has failed to regulate the Militia well, the logical outcome is that Congress should be made to regulate the Militia better - not that "the people" be stripped of their constitutional right.

Second, who are you to determine what is "well-regulated," anyway? As I earlier alluded, there is some controversy over its meaning: It either means "functioning" (its aparrent colonial usage), or, it means what modern readers would presume - that Congress has the duty to ensure that the Militia is well-run. If the former, the "there's no Militia argument" doesn't have much meaning. The strongest pro-gun-control argument I could envision from such a reading would imply that, if a bunch of able-bodied males got together and started drilling, they would be able to have guns, but that anyone not doing so and not a male between 17 and 45 would not be able to have guns, as they would not be a member of the functioning militia. Surely encouraging rednecks to get together and practice marching isn't the primary goal of Handgun Control, Inc.

Given a more modern reading, it would presumably be up to the Supreme Court to determine whether Congress' actions regulated the Militia correctly. Such specific oversight is something the Court has been correctly reluctant to do. The argument could be made that US Code Title 10, Section 311 does a perfectly fine job of regulating the Militia, thank you very much, and I hope that the Supreme Court would not wish to meddle in Congressional affairs on this topic. Even should they, the obvious remedy is not to strip the rights from the people granted in the Second Amendment, but to compel Congress to better-regulate the Militia.

What about Congressional ellimination of the Militia simply by making it impossible to be a member? I'd think such a thing would be obviously be unconstitutional, anymore than (say) the Third Amendment could be gotten around merely by Congress passing a law stating that the Army may move into anyone's house in time of war that they wanted to. In both cases the justification is there to give guidance on how to balance competing concerns. That does not mean that one concern may be allowed to completely outweigh the other.

Mr. Barnett goes on to speculate on what the Congress might do to "well-regulate" the militia, which is an interesting thought-excercise in itself. I hope that it will be fascinating to watch the law on this topic in the coming decades. It is my opinion that we aren't fufilling our constitutional obligations: Either the Militia needs to be training more in order to be "functional," or Congress needs to regulate it better. Either way we have work to do to uphold the vision the Founders had of a society in which every citizen is a bulwark against enemies, foreign and domestic.

It's unfortunately not online for non-subscribers, by the Wall Street Journal has a poorly edited article by Dick Morris about the Gerrymandering problem. He notes, "For all the attention showered on the influence of money in electoral campaigns, almost nobody has focused on the impact of gerrymandered district lines." The cynic in me believes that is because campaign finance laws always favor incumbants, as does gerrymandering - the process of carving up district lines according to demographics to insure a predetermined result, come election day. The great irony is that the Senate - designed to be less responsive to the people than the House - has more competitive races, since you can't just redraw state lines with every new census.

This is one of the biggest problems facing the Republic, today. People already think their votes don't count. Rigging the system so that they actually don't is only going to cause a generation of Americans to completely disengage from politics. I hope that someone will finally use the California Proposition system as a force for good for a change and propose some anti-gerrymandering legislation. That is what Propositions are for: Proposals good for the health of the Republic but toxic to the careers of incumbants. Mr. Morris has positive things to say about Iowa's recent steps in this direction. Their non-partisan redistricting commission is prohibited by law from taking things like voting habits into account when drawing district lines. I would normally oppose the creation of such a commision, since it seems a target for corruption. But the process is already so corrupt, how could they do worse?

While we're in the Journal, Daniel Henninger's Wonderland column is as good ever (although I confess I still miss Gigot's column it replaced when the latter became the Editorial Page Editor). His point is that, while you may agree or disagree with the Republicans' principles, at least they seem to have them. The Democrats have devolved into a party trying to cobble together political power from minority interest groups. As has been noted elsewhere, Howard Dean is the outcome of this: the candidate most likely to get the hardcore out for the primary, but the candidate least likely to appeal to the American electorate.

I've asked this before, of all candidates, and I'll say it again while thinking about Democrats: If I believe the War on Terror is the most important thing this country is doing right now, who should I vote for? Lieberman seems to be the best they've got, but his own website is pretty mealy-mouthed about Iraq, saying that he is "...deeply critical of the Bush Administration's arrogant and unilateral foreign policy, yet believes that despite the President's serious mistakes, it was a matter of national security to demand that Saddam declare and destroy his illegal weapons of mass destruction..." He then has a heading describing how he is "Working to Remove Saddam without War," which seems a little behind the times, or perhaps I'm just a little lost in the resume tenses. Regardless, he doesn't seem to promise the firm hand on the tiller I'm looking for. I continue to search for a candidate I could vote for who isn't George W. Bush, since I disagree with him on so much else. But no luck finding him (or her!) so far...