The Fair Cross Section Requirement & The Right to Trial by Jury: Unvaccinated Need Not Apply

This is part 2 of a class paper I submitted this summer, 2022

Part 1 of this paper can be accessed here.

Footnote citations did not “paste” with the rest of the paper, but I am happy to provide them if you’re interested.

The Duren court created a three part test for establishing a prima facie violation of the fair cross section requirement under the Sixth Amendment to the Constitution.  The court in Duren does not address the JSSA.  In Duren, a Missouri law which granted women an automatic exemption from jury duty upon her bidding violated the defendant’s fair cross section right under the Constitution.  The court reversed the Missouri Supreme Court's decision upholding the statutory-based exemption because it “misconceived the nature of the fair-cross section inquiry” set forth in Taylor.  For the first prong, Duren relied on the decision in Taylor that women constituted a distinctive group in the community because they were “sufficiently numerous and distinct from men.”  For the second prong, Duren declared that the defendant must provide data about the percentage of the community the alleged underrepresented group constituted because “this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement,” (again, not mentioning the JSSA).  The petitioner in Duren provided census data of the relevant community, of which women made up 54%; roughly 15% of venires were women.  The court declared this a “gross discrepancy” and unreasonable in relation to their presence in the broader community.  For the last prong, Duren had to determine if the underrepresentation of women was due to “their systematic exclusion in the jury-selection process,” or was inherent to the jury selection procedure, and at which stage of the process the exclusion occurred.  It was at the second stage—constructing the jury—that discrepancies began to arise, with females being summoned at less than 30%.  The court concluded that the systematic underrepresentation of women “was due to the operation of Missouri’s exemption criteria,” where women who were sent the questionnaire could claim exemption or ineligibility, or were presumed such if they failed to respond to the summons.  

“The demonstration of a prima facie fair-cross-section violation by the defendant is not the end of the inquiry into whether a constitutional violation as occurred,” declared the court, again not mentioning the JSSA.  While conceding that States may “prescribe relevant qualifications” and “reasonable exemptions” for who may qualify for jury duty, “jury lists and panels” must still fairly represent the community.  More than “rational grounds” must be proffered for the excusals or disqualifications, “[r]ather, it requires that a significant state interest be manifestly and primarily advanced by those aspects of the jury-selection process… that result in the disproportionate exclusion of a distinctive group.”  Safeguarding a women’s domestic duties did not satisfy this burden.  Concluding with a cautionary note, Duren reiterates that “most occupational and other reasonable exemptions may inevitably involve some degree of overinclusiveness or underinclusiveness, [but] any category expressly limited to a group in the community of sufficient magnitude and distinctiveness…runs the danger of resulting in underrepresentation sufficient to constitute a prima facie violation of that constitutional requirement [fair cross section].”

Both Duren and Lockhart proclaim that no attempt has been made to “precisely define” who may qualify as a distinctive group, but both declare (as do a number of pandemic courts) that any inquiry into “distinctiveness” must be in light of the fair cross section principles defined in Taylor; for this reason, Taylor’s fair cross principles are quoted in full below:

The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over conditioned or biased response of a judge… Community participation in the administration of the criminal law, moreover, is…critical to public confidence in the fairness of the criminal justice system.  Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial… ‘the broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.’

As can readily be deduced, the fair-cross-section jury acts as a check against the state (in criminal proceedings) and the presiding judge, protects the public’s confidence in the laws and system of administering them, helps to guarantee impartiality in judgement, and spreads the civic duty of jury duty amongst eligible members in the community.  Although Cole, Elias, McMillon, and Nelson cite the foregoing, they do not apply the principles to their analyses, relying almost entirely on Lockhart’s reasoning that jurors who refuse to impose the death penalty — “Witherspoon-exludables” [hereinafter “W-E(s)”] — are not distinctive for fair cross section purposes.

In Lockhart v. McCree, the court ruled that the for cause removal of “death qualification” jurors at the guilt phase of a capital trial did not violate the defendant’s right to a jury selected from a fair cross section of the community because these jurors unequivocally refused to apply the death penalty, and thereby refused to uphold the law should execution be warranted.  These so-called “W-Es” were not distinctive because they are defined solely based on a shared attitude of unwillingness to perform their duty as jurors — to render judgement based on the law and evidence, which in capital cases, includes the possibility of imposing the death penalty.  The conscientious unwillingness to set aside personal beliefs and apply the law was “an attribute… within the individual’s control” and not an “immutable characteristic such as race, gender, or ethnic background,” which are wholly unrelated to a person’s competency or ability to serve as a juror in a particular case.  Denying blacks, women, or Hispanics, in contrast to W-Es, the right to sit on a jury resulted in the possibility of “arbitrarily skewing” the pool of common-sense, community-based decision-makers, raised an ‘appearance of unfairness’ due to the arbitrary nature of the exclusions, and stripped these citizens of their rights as citizens. 

  Regarding the third prong of the Duren test and systematic underrepresentation, the pandemic courts relied on one reported Second Circuit case, United States v. Rioux, which stated “undelivered” juror questionnaires due to the person moving, or “demographic shifts” generally, were external forces influencing underrepresentation of the alleged group and were not due to the inherent functioning of the jury selection system itself.  The most cited unreported case was United States v. Schulte.  For the sake of space, only examples of external forces listed therein are provided: the pandemic, which required indicting the defendant in a different courthouse (and different pool of jurors) from the court and juror pool from which he would ultimately be tried; inclement weather; Rioux examples.    

The foregoing cases make up the common law precedent primarily relied upon by the pandemic courts.  The problem of relying exclusively on common law is that the JSSA is a creature of the legislature, even if inspired by constitutional privileges and principles.  In addition, the statutory requirements are distinct and more demanding than purely constitutional standards, as recognized nearly a century earlier in U.S. v. Wood, citing, relevantly, the high court of New York: “‘While the Constitution secures the right of trial by an impartial jury, the mode of securing and impaneling such jury is regulated by law, either common or statutory, principally the latter.’”  The historical roots of regulating jury selection by fiat can be traced to the Fourteenth Amendment’s equal protection clause and disenfranchisement of newly freed slaves, hence why race is a common theme in fair cross section cases.  According to a New York federal district court in 1972, “the standards in the Act [JSSA] embrace and go beyond the constitutional requirements.”  The Guzman court, still good law as far as can be told, outlines further distinctions between challenges to the jury based on the JSSA versus the Constitution.  For example, defendants need not show they are a member of the excluded class to have standing, nor must they prove the exclusion had a harmful or prejudicial impact on the case.  The JSSA itself contains an entire section governing challenges brought under the Act; in addition, specific sections and subsections, like Section 1866(c), lay out further metrics and parameters that must be followed when invoked by the courts.  

The pandemic courts, neatly couching their analyses in the common law fair cross section requirement of Duren, conveniently skirt the strictures of the Act.  Yet, it is the Act itself, the pandemic courts declare, which granted them the great and mighty deference to exclude jurors “likely to disrupt the proceedings.”  Every pandemic court utilizes the Act to justify its actions, and every pandemic court fails to analyze its justifications under the Act.  Undoubtedly common law is relevant to an application of the JSSA, yet it is not dispositive.  The author is persuaded that the conflation of the fair cross section requirement under the Sixth Amendment with challenges brought under the JSSA regarding jury selection is error.  Because of this missing piece to the pandemic puzzle of whether unvaccinated jurors can, under the JSSA, lawfully be excluded from jury venires without substantially breaching the Act, this paper sets out to fill the gap.           

As described above in Part II supra, Section 1866(c)(2) exclusions are for persons summoned who show themselves to be incompetent to serve as juror despite qualifying under the basic statutory requirements of Section 1865(b), and not disqualified per excusals or exemptions under the local jury plan.  The H.R. Report describes (c)(2) exclusions as akin to the general qualifications under 1865(b); thus, Section 1866(c)(2) based exclusions, and particularly ones grounded in disruptiveness, are in effect additional basis of juror disqualification from sitting on a jury indefinitely because he or she is incompetent.  Using the example from the Report, if the community drunk was summoned for jury duty, the court may exclude such person on (c)(2) likely to disturb orderly processes grounds, which would remove the drunk from  this and any future consideration for jury duty.  The question becomes—are people unvaccinated against Covid-19 analogous to the community drunk?  To a hobo (Section (c)(5) grounds)?  What does case law interpreting the JSSA have to say about the community drunk and hobo categories for excluding jurors?  How have (c)(2) and (c)(5) exclusions been invoked in the past?… 

An AntiClimatic Conclusion

This paper serves as an introduction to a much larger undertaking.  The project seeks to scrutinize and analyze recent federal district court decisions that justified exclusions of unvaccinated jurors on both common law and statutory grounds.  The pandemic courts, in effect, erected a new qualification category for sitting jury in their courtrooms—Covid-19 vaccination status—and future series related to this paper will explore the various legal positions proffered in justifying this disqualification.