The Fair Cross Section Requirement & The Right to Trial by Jury: Unvaccinated Need Not Apply
This is part 1 of a class paper I submitted this summer, 2022
Footnote citations did not “paste” with the rest of the paper, but I am happy to provide them if you’re interested.
Photo courtesy of Bustle.
July 29, 2022
Vaccine Law, Class Paper
The Fair Cross Section Requirement & The Right to a Trial by Jury:
Unvaccinated Need Not Apply
Abstract
As the Covid-19 pandemic continues unabated in the United States, a number of federal district court judges have dismissed potential jurors who are unvaccinated against Covid-19 from sitting jury in various civil and criminal cases [hereinafter pandemic courts]. Upon a party’s objection to the dismissal of unvaccinated jurors, the courts were obliged to consider whether their “for cause” exclusions violated the fair cross section requirement under the Sixth Amendment to the U.S. Constitution and the federal Jury Selection and Service Act of 1968 (JSSA), codifying same. The exclusions test the outer limits of an admittedly broad grant of judicial discretion during voir dire and jury selection generally.
Virtually unanimously the courts concluded that excluding unvaccinated jurors would not violate the fair cross section requirement nor the JSSA. Applying the test laid down in Duren v. Missouri, the courts determined that unvaccinated persons did not constitute a distinctive group in the community thereby failing the first prong of the inquiry. Further, the courts found ground for the exclusion in the JSSA itself, which allows judges to dismiss potential jurors deemed “likely to disrupt the proceedings.” By summarily deciding both the VI amendment and JSSA challenges under the Duren test, the courts skirted any substantive discussion of the more encompassing principles undergirding the JSSA, namely—random selection and objective criteria for juror qualification. And judges reviewing their own exercise of discretion for abuse are unlikely to be of a redemptive quality or nature.
This is the first part of what hopes to be a multi-series project analyzing the pandemic court cases and their exclusions of prospective jurors who are unvaccinated against Covid-19 [hereinafter unvaccinated/vaccinated]. The position taken herein is that the pandemic courts misinterpreted the explicit provisions and intended purpose of the Jury Selection and Service Act, specifically Section 1866(c), and the principles repeated throughout common law precedent regarding the fair cross section and trial by jury. The courts’ sua sponte exclusions of unvaccinated persons on Section 1866(c) grounds were improper and constitute a manifest abuse of discretion. Further, 1866(c) exclusions are a piece of the jury selection process as defined under the Act, and therefore, a proper and thorough fair cross section analysis under Duren was warranted.
The Pandemic Backdrop, An Introduction
The novel Covid-19 virus swept across the globe in early 2020 shuttering life as we had known it, and continues to disrupt life two and half years later. The United States court system was not immune to the havoc wreaked by the virus, which caused the wheels of justice to come screeching to a virtual halt. Fifteen days to slow the spread turned into 30, then into months. The practical and legal consequences of such a disruption hardly need elucidating, but the rights of defendants under the federal and state constitutions became a serious concern for the courts.
Throughout 2020, fear and uncertainty surrounding the virus, and lack of a vaccine or other effective treatment, did not make returning to in-person proceedings simple or comfortable for many people. As courthouses trepidatiously reopened across the country, measures like social distancing, mask wearing, and temperature checks added to the difficulty of bringing justice to beleaguered defendants (and a troubled public, generally). Virtual court helped ease the backlog of delayed hearings, but was not a tenable long-term alternative to live trials.
The emergence of an emergency-approved Covid-19 vaccine in December 2020 was viewed as the dawn of a new day in the seemingly never-ending pandemic playbook. As many Americans lined up for the jab, others were hesitant to receive the Covid-19 vaccine due to its warped-speed creation and truncated review and approval. The hope that a vaccine would lead to the beginning of the end of the pandemic proved to be wishful thinking as new variants and waves emerged throughout 2021 and continue into 2022.
People were becoming impatient with vaccine holdouts whom were blamed for the continued spread of the disease. From the White House to CNN, unvaccinated people were portrayed as obstinate, virus-spreading imbeciles who refused to “do their part” to end the pandemic. In an order cancelling a scheduled trial, a federal district judge in Miami, Florida minced no words in explaining his position toward unvaccinated people: “It is the Court’s belief that the vast majority of unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic.”
The political and social tumult following President Joe Biden’s vaccine mandates added fuel to the pandemic fire. In a September 2021 speech, President Biden expressed his frustration with the unvaccinated. A substantial segment of the speech is replicated below to stress the tense zeitgeist of the time:
Many of us are frustrated with the nearly 80 million Americans who are still not vaccinated, even though vaccine is safe, effective, and free. While the vaccines provide strong protections for the vaccinated… we hear about… hospitalized people, people on their death beds, among the unvaccinated… This is a pandemic of the unvaccinated… The vast majority of Americans are doing the right thing. Nearly three quarters of the eligible have gotten at least one shot, but one quarter has not gotten any… And in a country as large as ours, that’s 25 percent minority. That 25 percent can cause a lot of damage — and they are. The unvaccinated overcrowd our hospitals, are overrunning the emergency rooms and intensive care units, leaving no room for someone with a heart attack, or pancreatitis, or cancer… what makes it incredibly more frustrating is that we have tools to combat Covid-19, and a distinct minority of Americans — supported by a distinct minority of elected officials [it was understood he was referring to Republicans, such as Florida Governor Ron DeSantis]—are keeping us from turning the corner. These pandemic politics… are making people sick, causing unvaccinated people to die. We cannot allow these actions to stand in the way of protecting the large majority of Americans who have done their part and want to get back to life as normal… This is not about freedom or personal choice. It’s about protecting yourself and those around you… The bottom line: We’re going to protect vaccinated workers from unvaccinated co- workers. We’re going to reduce the spread of Covid-19 by increasing the share of the workforce that is vaccinated in businesses all across America [announcing vaccine mandates for federal workers, the healthcare industry, and workplaces with 100 or more staff]…We’ve been patient, but our patience is wearing thin. And your refusal has cost all of us. So, please, do the right thing… For the vast majority of you who have gotten vaccinated, I understand your anger at those who haven’t gotten vaccinated…
Wowza. It goes without saying that people unvaccinated against Covid-19, at least in the minds of many of their vaccinated compatriots and President Biden, were seen as the walking plague, threatening everyone in their path and prolonging the pangs of the pandemic.
Further efforts to get people vaccinated included the emergence of the vaccine passport in cities like New York and Los Angeles, where only those persons with proof of vaccination could enter gyms, theaters, sports venues, and the like. Many private businesses followed suit by demanding their workers be vaccinated in order to keep their job. Universities made vaccination against Covid-19 an enrollment prerequisite. However, these measures were not universal. The great federalism-inspired patchwork of the United States meant an unvaccinated person could move about freely in Florida yet be denied access to dining in New York City. It was around the time President Biden gave the above-quoted speech that courts and judges began ‘doing their part’ to slow the spread of Covid-19 in the form of excluding unvaccinated jurors from sitting jury in their courtrooms. It is this phenomena to which this paper will now turn.
Part I: The Fair Cross Section Requirement & The Right to Trial by Jury:
Constitutional and Statutory Dimensions
“It is part of the established tradition in the use of juries as instruments of public justice
that the jury be a body truly representative of the community.”
Smith v. Texas, 311 U.S. 128, 130 (1940)
Described as “the glory of the English law,” trial by jury was adopted as an immutable right of citizenship in the newly constituted United States, and expressly preserved in the Bill of Rights. “The guarantees of jury trial… reflect a profound judgment about the way in which law should be enforced and justice administered.” The protections afforded by the common sense judgement of a jury of one’s peers were fiercely recognized in America’s early days “to guard against the exercise of arbitrary power.” As a hedge against arbitrary action and unchecked power, selecting a jury representative of the community was seen as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”
Excluding identifiable members of the community from jury duty is considered “at war with our basic concepts of a democratic society and a representative government.” Further, eliminating otherwise qualified residents from the jury pool jeopardizes defendants’ constitutional right to an impartial jury. The mode of trial by jury and the right to sit on a jury serve ends beyond that of protecting the rights of the defendant. The right and duty to participate as a juror is a means for ordinary citizens to participate in the process of governing:
Jury service preserves the democratic element of the law, as it guards the rights of the parties and ensures continued acceptance of the laws by all of the people… Indeed… for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.
The Eastern District of New York’s website describes the opportunity to serve as a juror in federal court as one that comes “but once in a lifetime.”
The fair cross section requirement is a term of art derived from the right to trial by jury under the Sixth Amendment to the Constitution, and later codified under federal law in the Jury Selection and Service Act (JSSA). The term embodies the principal that in order to protect the right to trial by jury and secure an impartial jury, potential jurors must be randomly selected from the community where the alleged crime occurred. By selecting jurors from every walk of life within the relevant community, the defendant is given the fairest possible trial in an adversarial, state-run system. “[T]he exceptional genius of the jury system is that it collects and harmonizes the experiences of people from every walk of life… the jury makes decisions through its vital collective wisdom, bringing practical judgement accumulated through diverse experiences to bear on the messy realities of human life.”
The Jury Selection and Service Act was a response to a long-recognized problem in federal district courts — lack of uniformity in jury selection procedure and uncertainty regarding proper roles and duties of judges and jury commissioners. Two overriding principles undergird the JSSA: random selection of names and objective qualification standards. The former demands that potential jurors be selected at random from voter lists, or some other similar source, of the relevant community or district. Voter rolls replaced various state practices such as the key man system, where special interest groups supplied courts with lists of verified members in the community eligible to serve. This produced divers problems such as unrepresentative pools that resulted, intentionally or not, on impermissible discriminations based on wealth, race, or political party affiliation, and affected mostly minority representation on juries.
The latter principle requires qualifications and disqualifications, excuses, exemptions, and exclusions be based on objective and statutory-limited criteria only. Section 1865(b) of the Act lists the basic, objective minimum qualifications to sit jury that every federal court must enforce. They include age, U.S. citizenship, mental and physical capacity, and literacy as necessary qualifications for jury duty, where persons who cannot speak English or are mentally deranged, for example, would be disqualified per the Act. This was to establish a uniform set of standards for the federal court jury selection system, and to address the problem of local courts imposing additional qualifications on jurors beyond those prescribed by Congress. Subjective-based exclusions or exemptions such as “‘good character, approved integrity, sound judgement and fair education’” produced discriminations effecting largely poor and minority representation on juries.
The H.R. Report on the JSSA bill describes section 1866 as “the final stages of the selection process,” which preserves traditional methods for weeding out biased or unfit jurors such as good cause and peremptory challenges, and permits local court jury plans to erect reasonable excusals, exemptions, and exclusions for hardship, community need, or incapacity. Subsection 1866(c)(2) provides additional particularized grounds on which the court may dismiss individual jurors otherwise qualified but who show themselves incompetent to sit jury after being summoned. Clause two of subsection 1866(c)(2) allows the court to exclude a juror if “his service as a juror would be likely to disrupt the proceedings,” and subsection 1866(c)(5) permits exclusions for two “other kinds of disruption” — “his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations. No more than “one per centum” of persons who return completed juror qualification questionnaires may be excluded under subsection 1866(c)(5). The Report states that exclusions on “likely to disrupt” grounds would result in that candidate being “prohibited from sitting on other juries.” Section 1866(c) exclusions are narrow in scope and intended for use on an individualized basis. “These principles provide the best method for obtaining jury lists that represent a cross section of the relevant community and for establishing an effective bulwark against impermissible forms of discrimination and arbitrariness.”
The statute offers little guidance as to what constitutes behavior “likely to disrupt the proceedings.” The 89th Congress explained that it intended “disrupt the proceedings” to encompass “only physical disruptions of the proceedings” and someone likely to “disturb orderly processes in the jury room.” As if adding the word physical made the muddy plain, the sole example provided of a prospective juror likely to physically disrupt orderly processes was ‘the community drunk.’ In the most seriousness of tones, the House Report offers two further examples of potential disruptive jurors under Section 1866(c)(5): “a notorious underworld figure” guilty of crimes but evading indictment is likely to threaten the secrecy of grand jury proceedings, and “the hobo who cannot be trusted to appear each day in court” may “adversely affect the integrity of jury deliberations.”
The sanctity and integrity of the jury selection process is properly in the hands of the presiding judge, who is best able to make decisions about juror competency, and such, is granted discretionary powers to exclude or dismiss jurors for cause. Ensuring the integrity and impartiality of the jury is essential to securing the rights of the defendant. The impetus for exercising this discretion ought to be the “zealous” protection of the accused’s rights, and when it is exercised, it is “subject to the essential demands of fairness.” As with any grant of authority, it is not without limits; and the primary concerns of the court when granting or exercising for cause challenges to dismiss prospective jurors are the competency and impartiality of the juror, and whether he or she is capable and willing to follow the law.
Consideration of a juror’s bias or competence cannot be based on “extreme and fanciful tests.” The Third Circuit reaffirmed that, “Jury competence is an individual rather than a group or class matter,” and for cause challenges may only stand on “narrowly specified, provable and legally cognizable” grounds of partiality. The presiding trial judge is imbued with significant discretion, and the responsibility, to sua sponte dismiss jurors for cause if it appears a juror is likely to jeopardize a fair and impartial proceeding. The perceived bias must be based on information gathered during voir dire and rise above “the realm of speculation to the realm of fact.” By way of example, the lower court judge in Salamone invented a new group or category of exclusions (NRA members) without any individualized or particularized inquiry into each juror’s potential biases. In rebuking the lower court’s “cursory disqualifications,” the Third Circuit reiterated the standard: “Absent the requisite nexus—that the challenged affiliation will ‘prevent or substantially impair’ a juror’s impartiality—no juror may be excluded for cause” solely because of an external association or membership to an organization. The “arbitrary and irrational” exclusions were an abuse of discretion and out of accordance with proper standards of fairness.
Part II: The Pandemic Courts
As early as June 2021, federal district court judges jumpstarted their own efforts to combat Covid-19 by enforcing additional mitigation measures in their courtroom, namely, a Covid-19 vaccination requirement. The cases collected for this project are concentrated in federal district courts in New York, Ohio, and California, with only a handful found from other jurisdictions. These cases exhaust those published in West Law and Lexis related to the topic of this paper as of July 23, 2022, although it is likely more courts across the country experimented with the unvaccinated exclusion criteria but went unchallenged.
As far as it can be discerned, the decision to exclude unvaccinated prospective jurors occurred sometime after qualified jurors were summoned, such as in pretrial conferences, or during voir dire. In all cases, the exclusions were proposed by the courts. Two deductions can be made from this fact: 1.) By nature of being summoned, all potential jurors were qualified to sit jury according to statutory and jury plan parameters for qualification, and 2.) for cause excusals at this stage must be grounded in a juror's incompetency or partiality, or inability to carry out the duties and oath of a juror.
The decisions discussed in this first paper involve the pandemic courts’ responses to pre-trial objections to the venire and the exclusion of unvaccinated from it. With few or minor deviations, the courts rely upon the same legal theories and positions, and many of the same cases, as those promulgated in one of the earliest decisions, hereinafter Moses, justifying the exclusion of unvaccinated jurors. Little substance is added in each successive case. All are in harmony regarding their motivation for the sua sponte excusals—the Covid-19 pandemic (hence pandemic courts). All responded to challenges from either the plaintiff, government, or defendant that the exclusion of unvaccinated jurors violates the fair cross section requirement under the Constitution and JSSA. All courts find support for their exclusion in the JSSA itself, namely, Section 1866(c)(2), which states that a juror may be excused by the court if its finds “that his service as a juror would be likely to disrupt the proceedings.” Other grounds for discretionary excusals include undue hardship and inconvenience, good cause and peremptory challenges, or upon a finding that the juror’s service would either threaten the confidentiality of the proceedings or the integrity of jury deliberations. While not referencing it specifically in most cases, all of them describe grounds for excusal that arguably fit under Section 1866(c)(5) (juror threatens integrity of proceedings) (for example, the courts site vaccinated jurors’ fears of serving alongside unvaccinated jurors, thereby jeopardizing the vaccinated peoples’ ability to fulfill their oath).
Justifications for this exercise of discretion, and the alleged likelihood of unvaccinated jurors to disrupt the proceedings, will be summarized below. All of the courts began their orders or decisions with a sort of “pandemic manifesto” of the current state of the pandemic, Covid cases, deaths, and general problems caused by the pandemic. This ‘manifesto’ sits at the basis of all of the following justifications proffered by the pandemic courts: 1.) due to a high rate of Covid transmission in community, unvaccinated jurors are "substantially more likely to get Covid and to transmit it,” 2.) their presence threatens the safety of everyone in the proceedings, 3.) the unvaccinated have heightened quarantine and social distancing requirements, 4.) vaccinated jurors’ fears of being around unvaccinated jurors, 5.) anxiety caused by fear of unvaccinated persons is likely to disrupt the vaccinated juror’s ability to fulfill his or her duty as juror, 6.) logistical efficiencies and increased certainty of trial schedule if only vaccinated allowed, and last but not least, 7.) to reduce the risk of Covid-19 transmission. What is crystal clear from the foregoing is that the pandemic courts presumed unvaccinated persons, regardless of age, prior infection, or general state of physical health, were “more likely” to catch Covid during the duration of the trial and disrupt courtroom procedure than vaccinated persons.
All of the pandemic courts apply the Duren test to determine whether excluding unvaccinated jurors violates the defendant’s right to a jury drawn from a fair cross section of the community, and for this reason, the test is quoted in full:
the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
As previously discussed, the courts rely upon each other’s arguments, and later pandemic court decisions simply repeat the positions of earlier pandemic court decisions. Applying the first prong of the Duren test to unvaccinated persons, all courts found that the unvaccinated did not constitute a distinctive group in the community for the following reasons: 1.) “merely having ‘shared attitudes’ [regarding vaccination; a speculative assumption] does not qualify a group as distinctive (citing Salamone), 2.) people unvaccinated become vaccinated daily, so group membership is highly fluid, 3.) vaccination status is not an immutable characteristic like race, gender, or ethnicity, 4.) the attribute (vaccination status) is ‘within the individual’s control,’” (citing Lockhart), 5.) being un-inoculated is not a proxy for race, gender, ethnicity, or political ideology, which are constitute groups historically, 6.) lack of “‘a basic similarity in attitudes or ideas or experience’ that ‘defines and limits the group,’” (citing Guzman).
Interestingly, almost all of the pandemic courts skip step two of the Duren test (underrepresentation of group in venire is unreasonable in relation to presence in community). If it is addressed, the court analyzes it in relation to vaccination status as a proxy for race, gender, or ethnicity, and completes the underrepresentation analysis in terms of demographics of vaccinated versus unvaccinated persons in the community (“Moreover, the objecting Defendants do not expressly argue or present evidence that the excusal of the seven unvaccinated prospective jurors has the effect of underrepresenting a historically cognizable distinctive group, such as gender, racial or ethnic group, from the jury pool.”). Or, if the party objecting to the exclusion of unvaccinated persons failed to include ‘complete data’ about a disparity based on a proxy, the court would summarily move on to the third prong of the test (“This data—though incomplete—does not suggest that excluding unvaccinated jurors would proximately exclude individuals based along historically disenfranchised lines. Nor does it suggest that they would be disproportionately underrepresented in violation of the second element of the Duren test.”). The reason for the courts’ conflation of the underrepresentation analysis with the proxy assertions is unclear.
Step three of the Duren test requires the moving party to prove that the group’s underrepresentation in the venire is due to their “systematic exclusion” caused by the jury selection system itself as opposed to some external force. Moses fails to address the third prong of the test. Joffe and others determined that the pandemic was the external cause of the underrepresentation of unvaccinated persons, not the jury selection system itself, relying mostly on unpublished cases from other recent district court decisions.
The Duren court offered a caveat for the state should the moving party satisfy the test and show a prima facie violation of the fair cross section requirement—a compelling and overriding state interest incompatible with achieving a fair cross section jury pool. The pandemic courts were sure to cover this prong of the test, concluding that even if unvaccinated persons qualified as a distinctive group they were justified by an overriding and compelling state interest to mitigate Covid-19 transmission and prevent the disruption of the proceedings (the JSSA justification and Duren’s compelling state interest were often based on the same Covid-related concerns).
The pandemic courts found two (if not three) legal grounds for justifying their sua sponte exclusions, as described above and summarized here: unvaccinated persons are not a distinct group, thereby failing the Duren test; even if they were distinct under Duren, the state/court has a compelling interest to mitigate the pandemic and ensure smooth, uninterrupted proceedings; the JSSA authorizes the court to exclude jurors “likely to disrupt the proceedings”; lastly, trial courts have a long-established grant of discretion generally in jury selection and procedure. The veracity of these legal positions and arguments will now be addressed, beginning with controlling and cited precedent.
Part III: Controlling Precedent v. Pandemic Courts:
Is Excluding Unvaccinated Jurors Supported by Law, Policy, and Precedent?
…..
Part II coming soon!