Two years ago we posted on whether courts could exclude prospective jurors for cause because they weren’t vaccinated.  Not much precedent was then available. 

Now, with United States v. O’Lear, 2024 WL 79971 (6th Cir. Jan. 8, 2024), we get the first published appellate decision on the topic, affirming the exclusion.  (The Ninth Circuit okayed such exclusions in a couple of unpublished memoranda dispositions.)

O’Lear is a criminal case, in which the defendant was convicted by a jury of healthcare fraud (billing Medicare and Medicaid for fictitious mobile X-rays at nursing homes) and aggravated identity theft.  The defendant on appeal raised several issues, including substantive criminal law points, vindictive prosecution, and whether the “vulnerable victim” sentence increase was correctly applied.  But for our purposes here on the DDL blog, the pertinent issue is whether the trial court erred by excluding unvaccinated people from the jury pool.  

Unlike in our prior post on exclusion of the unvaccinated, in O’Lear it was the defendant, not the prosecution, who objected.  In fact, that is the posture of most cases where the composition of the jury pool is challenged.  Note that the legal issue is about whether the jury pool, not the final empaneled jury, is a cross section of the community. When a defendant argues that the jury pool is not a cross section of the community, that defendant must identify a “distinctive” group that was excluded.  As the O’Lear court explains, the word “distinctive” is, by itself “amorphous” and unhelpful. After all, felons could be considered a distinctive group, but their exclusion is (at least for now) not viewed as problematic.  

To determine whether a “distinctive” group was excluded in such a way as to make a jury pool unrepresentative, a court must inquire whether the exclusions of potential jurors were “arbitrary” and whether the exclusions posed a real risk of unfairness to the defendant. Also at issue is whether the members of the excluded group had been unfairly deprived of “their basic right of citizenship.” The defendant in O’Lear lost because, “[u]n like members of a particular race or sect, the unvaccinated do not qualify as the type of ‘distinctive group’ that can trigger Sixth Amendment concerns with excluding a ‘fair cross section of the community’ from the jury pool.” First, the exclusion was based on legitimate health and administrative concerns. The unvaccinated could disrupt the potentially lengthy trial if they became ill and exposed others to the virus. Second, the defendant did not show that the unvaccinated harbor such uniform and unique attitudes that their exclusion would dilute the representativeness of the jury. The defendant offered mere speculation about whether the unvaccinated tend to be more “antigovernment” and, therefore, more favorably disposed toward criminal defendants. Third, not one of the groups allegedly disadvantaged by barring unvaccinated jurors – those living in rural counties, young adults, and those skeptical of the government − was “historically disadvantaged” or possessed “immutable” traits.  

The alleged disparate impact on minorities (which, frankly, to us seemed to be iffy or even flat out wrong) did not rise to a constitutional violation.  To hold otherwise would implicate the widespread practice of drawing juries from lists of registered voters, as well as age limitations on jury service. 

Nor was exclusion of the unvaccinated a permanent deprivation of a citizen’s ability to serve on the jury. Citizens can freely get vaccinated whenever they choose. The prohibition imposed no absolute bar.  The exclusion was also temporary.  Clearly, Covid-19 will go away some day. Right?

Since O’Lear was a criminal case, the argument was about Sixth Amendment constitutionality. While the composition of civil trials is also subject to constitutional protections (think of Batson and peremptory challenges), courts are especially protective of criminal defendants’ Sixth Amendment rights.  Liberty is at stake in criminal cases.  The absence of that concern in civil cases makes us think that the Sixth Circuit’s ruling blessing exclusion of unvaccinated jurors probably applies a fortiori to civil cases. In other words, a civil litigant who objected to exclusion of the unvaccinated and later lost the case will likely have a tough time on appeal arguing for reversal based on the exclusion. 

While the Covid-19 urgency has possibly (?) subsided, and many courts are now less attentive to the vaccination issue, there are still courts that will exclude the unvaccinated.  Consequently, it is still a live question whether FDA-regulated defendants in product liability cases would prefer to have antivaxxers excluded from jury service. We leave that question to you and your jury consultants.