South Carolina Lawyers Weekly
By Nick Hurston
A federal district court didn’t violate the Sixth Amendment right of criminal defendants to a jury of their peers when it struck potential jurors who were unvaccinated against COVID, the 4th U.S. Circuit Court of Appeals has held.
The defendants — unvaccinated due to sincerely held beliefs — objected that striking jurors based on vaccination status wouldn’t produce a representative sample of their peers. The district court overruled their objection.
Judge A. Marvin Quattlebaum Jr. affirmed the district court’s ruling.
“The fair-cross-section requirement applies to jury venires, not petit juries,” the judge explained. “And the district court’s decision to strike unvaccinated jurors based on their perceived inability to serve without creating unnecessary safety risks affected the composition of the petit jury for this particular case, not the individuals represented in the venire from which the petit jury is selected. So, we affirm.”
Judges G. Steven Agee and Allison Jones Rushing joined Quattlebaum in United States v. Cruz-Colon (VLW 023-2-100).
COVID concerns
Jose Cruz Colon and his wife, Natassja Lopez-Alvarado, were indicted for drug trafficking and money laundering in the Eastern District of Virginia. Their September 2021 trial coincided with the emergence of the Delta variant of COVID.
Concerned about safety in advance of trial, U.S. District Judge David J. Novak ordered the defendants to file a joint position as to their own COVID vaccination status and whether they would agree to strike unvaccinated jurors.
The defendants said they were unvaccinated due to their “sincerely held beliefs” but they agreed to be tested before and during trial. They also objected to striking unvaccinated jurors for cause. The government took no position.
The court sent a questionnaire to a venire of 110 prospective jurors for the parties to make strikes without having the individuals physically present. In addition to background and case specific questions, there were eight questions related to COVID risk and vaccination.
Neither defendant objected to the vaccination questions. At a pretrial conference, the parties discussed which prospective jurors to strike for cause based solely on the questionnaires. The stricken jurors wouldn’t be required to appear for jury selection.
Novak struck all potential jurors who weren’t vaccinated, as well as several others for typical reasons, such as the burden on a single parent with children. The judge found alternative reasons to strike all but one of the unvaccinated individuals for cause.
Given an opportunity to explain their objection to striking jurors based solely on vaccination status, defense counsel explained that “[t]he thought process is that it may [not] include a representative sample of the jury. For instance, in this case, our clients are not vaccinated.”
The jury wouldn’t know whether the defendants were vaccinated, Novak responded. Defense counsel said the issue was “whether there was a jury of their peers,” which Novak construed to be a Batson challenge for discriminatory strikes.
After pointing out that being vaccinated isn’t a protected class, Novak explained that he would strike unvaccinated jurors due to the COVID risk with the Delta variant and jurors eating lunch together without masks.
They weren’t raising a Batson challenge, the defendants clarified. Instead, they argued that striking unvaccinated individuals excluded a section of potential jurors and pointed out that the court didn’t know whether vaccinated individuals interacted with the unvaccinated.
Overruling the defendants’ objection, Novak cited statistics showing that unvaccinated people were 11 times more likely to die from COVID that the vaccinated. Another unvaccinated juror was discovered and struck during voir dire over the defendants’ objections.
After ultimately being convicted of multiple crimes, the defendants appealed.
Shared attitudes
The defendants said the district court’s use of for cause strikes to exclude unvaccinated jurors established a prima facie violation of their Sixth Amendment right to have their case heard before a “fair cross section of the community.”
Before addressing the defendants’ prima facie case, however, Quattlebaum focused on a threshold issue — whether the Sixth Amendment’s fair-cross-section requirement applied to the district court’s decision to strike the unvaccinated potential jurors for cause related to COVID safety risks.
“We hold that it does not,” the judge wrote.
The U.S. Supreme Court “ha[s] never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large,” Quattlebaum noted, citing the 1986 holding in Lockhart v. McCree.
He added that “Lockhart explained that ‘any … group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement.”
And, looking to 1990’s Holland v. Illinois, Quattlebaum said the Supreme Court rebuffed an attempt to extend “the fair-cross-section requirement from the venire to the petit jury.”
In the instant case, the district court’s use of voter registration lists to choose a venire has been expressly approved by the Fourth Circuit, the judge wrote. The master jury wheel included the unvaccinated individuals, as did the qualified jury wheel and the list of prospective jurors used to assemble the jury venire.
Qauttlebaum acknowledged that the lower court’s “categorical strikes” of jurors who hadn’t been vaccinated took place in a fairly unusual manner.
“In order to limit the number of individuals in the courtroom, the district court struck the jurors at a pre-trial conference after the venire was assembled but before the clerk of court assembled panels from which the parties conducted voir dire,” Quattlebaum wrote. “That, however, does not mean the ‘limited scope’ of the fair-cross-section requirement applies to the use of strikes for cause based on vaccination status.”
Again, citing Lockhart, the judge said the “fair-cross-section requirement applies only where groups are excluded ‘for reasons completely unrelated to the ability of members of the group to serve as jurors in a particular case.”
The jurors in Lockhart were excluded based on their view of the death penalty, rather than “immutable characteristics” — such as race, gender or ethnic background — and historically disadvantaged groups weren’t deprived of their right to serve.
The same was true here, Quattlebaum wrote.
“While the district court’s strikes of unvaccinated jurors were based on COVID-19 safety risks rather than strongly held views about the subject matter of the case, those safety reasons related to the potential jurors’ ability to serve in this particular case,” he explained. “More specifically, the court felt that seating unvaccinated jurors in the midst of a global pandemic unnecessarily jeopardized the safety of the parties, the witnesses, the jurors and court personnel.”
Because the for-cause strikes affected the petit jury, not the venire, the Fourth Circuit held that the Sixth Amendment’s fair-cross-section requirement didn’t apply.
