Can an Unvaccinated Defendant Get a Fair Trial by a Fully-Vaccinated Jury?
A discussion of the exclusion of unvaccinated persons from jury duty in federal district courts.
This is a draft paper and part of a much larger undertaking by the author regarding the topic at hand. Citations forthcoming. Any feedback or commentary or suggestions on making the argument presented clearer for the lay reader are encouraged and welcomed.
If you’re unfamiliar with the “pandemic politics” that existed in the United States for the last two and half years, click here.
In federal courts across the country, concentrated in New York, Ohio, and California, district judges sought to exercise their own authority in the name of stopping Covid-19. (Two of the cases were discussed in earlier posts here and here.)
Their plan? Exclude unvaccinated jurors from the venire.
On its face, excluding unvaccinated people from the jury pool seems to conform to other measures taken against such persons in society generally. In a court of law, however, different considerations come into play than those arising in the wider community, namely—the rights of the accused, the integrity of the justice system, and public participation and respect for the rule of law. The exclusion of otherwise qualified but unvaccinated citizens from the jury touches upon all three of the foregoing principles undergirding our democratic system of justice.
Is it a proper exercise of power for judges in federal district court cases to exclude unvaccinated people from the jury in the name of public health and safety?
There is no question that safe and smooth courtroom proceedings are appropriate concerns for trial judges presiding over cases. However, the basic structure of the American system of government balks at ad hoc grants of unprecedented power or rule-making, even in the name of a public health emergency. This is particularly true when such exercises of authority affect fundamental rights and guarantees.
Concededly, trial judges are granted great discretion and deference in deciding who is or is not competent to sit jury in any given case. In fact, one of the judges’ primary roles is to oversee the jury impanelment process to ensure it results in a fair and impartial jury. This is to guarantee the basic constitutional and statutory rights of the defendant are protected, such as his right to a jury trial that is fair and decided by impartial members of the community.
The federal courts that excluded unvaccinated jurors and rendered orders or opinions thereon gave various reasons for the dismissals, and can be summarized as follows:
1. Unvaccinated jurors were more likely to get sick with Covid, which meant they were more “likely to disrupt the proceedings” than their vaccinated compatriots;
2. Proceedings would be safer and more convenient without them;
3. Because vaccinated jurors expressed they would feel anxious and fearful serving alongside unvaccinated jurors, the latter ought to be excluded to assuage the anxieties and fears of the former so that the former can fulfill their oath as jurors.
The foregoing reasons appear, on their face, valid, neutral, and well-intentioned enough. A closer look, however, reveals pernicious and fundamental flaws with the justifications, particularly in how they derail the rights afforded to the defendant under federal law and the Constitution. Particularly, they fly in the face of the common law fair cross section requirement under the Sixth Amendment and embodied in the federal Jury Selection and Service Act (JSSA).
The exclusion of unvaccinated jurors is a dubious exercise of discretion for two primary reasons: first, Covid vaccination is not a qualification criteria for jury service under the JSSA; and second, the presumption that merely being unvaccinated renders one incompetent to sit jury is not only absent from precedent, tradition, and history, but is grounded in specious, speculative, and subjective assumptions about one’s health.
Subjective criteria and non-random selection of jurors is prohibited under the JSSA, and often results in a violation of the constitutional guarantee to a jury selected from a fair cross section of the community. The fair cross section requirement under the Constitution and JSSA demands that juries be chosen from a pool of jurors that adequately reflect the community. A corollary to the fair cross requirement is that no cognizable groups be excluded from the pool, particularly when the reason for the exclusions bear little semblance to the group’s ability to fulfill their duties as a juror.
It is true that a basic qualification to sit as a juror in federal court is physical and mental soundness. However, it seems illogical and beyond the qualifications of trial judges to conclude that unvaccinated persons, as a group, are “more likely” to get sick with a disease during the finite window of the proceedings, and thereby disrupt them. Arguably, this assumption renders unvaccinated citizens incompetent to serve on a jury by reason of expected or anticipated likelihood of becoming sick with Covid-19, i.e. they will more likely become physically incompetent or infirm and ineligible to serve. Or, the judges are erecting a new qualification standard or criteria to sit jury in their courtrooms, namely, a Covid-19 vaccination requirement.
Either of these conclusions is contrary to law to which all federal district judges are bound.
By justifying the exclusions on the unusual circumstance described in Section 1866(c)(2) of the JSSA—where an otherwise qualified juror is found, upon being summoned, “likely to disrupt the proceedings”—swings wide open a narrow exception to a strict statutory scheme of jury selection in federal courts. Stated differently, the decision to exclude an entire class of jurors on such shifty grounds wholly unrelated to their ability or competency to try the case at hand, distorts, frustrates, and confuses the goals of the Act, the fair cross section principle, constitutional protections for defendants (and civil parties), and the nature of sua sponte “for cause” exclusions under Section 1866(c) and discretionary authority of trial judges generally.
If unvaccinated persons are considered within the category of people whose service as a juror would be “likely to disrupt the proceedings” because of a presumed likelihood of future sickness occurring during the trial, what other scenarios for removing otherwise qualified jurors could be concocted on such uncertain and ambiguous grounds? There is no question that this sort of subjective word play and conjecture were precisely the sorts of mischief sought to be quashed by the procedures and provisions of the JSSA and guarded against by the Bill of Rights.
The House Report on the bill that would become the JSSA gave two examples of persons likely to disrupt the proceedings or disturb the integrity of jury deliberations, respectively—the community drunk and a hobo.
Is it fair to analogize unvaccinated people with the community drunk or a hobo? (Your thoughts on this are welcomed in the comment section.)
Arguably, these federal district judges perceived the scope of their admittedly broad discretionary power to encompass public health policy and regulation-making within their courtrooms only, above and beyond the health standards set by the state and federal district court generally. The concept of separation of powers alone prohibits such arbitrary rule-making or authority. The judiciary interprets the law, it does not create the law, not even in times of public health emergencies like the Covid-19 pandemic. The decision to enact a new juror qualification in the name of public health, in apparent disregard for the rights of the defendant to a fair, impartial, and speedy jury trial (not to mention the duty, honor, and right of the public to sit on a jury), is not the sort of administrative or discretionary decision envisioned by either common law nor the JSSA for the courts, let alone isolated judges, to be making.
Regarding discretionary dismissals of jurors: only when a prospective juror demonstrates actual bias or legally-prescribed implied bias, or otherwise poses an actual threat to the integrity of the proceedings on concrete factual findings before the court, should the judge exercise his or her authority to exclude such a person from the jury pool. History, precedent, statute, and policy support this finding.
The foregoing conclusion is fortified in the context of the Covid-19 pandemic by the Supreme Court’s ruling that the federal vaccination mandate promulgated by OSHA exceeded its administrative authority under the laws and Constitution. Likewise, the judges’ decision to exclude unvaccinated jurors from the jury pool in their courtrooms exceeded the scope of their discretionary and statutory authority, and ought to be swiftly rebuked and prohibited before the rights of other defendants are tossed aside in the name of subjective notions of public health and safety.