566 F.Supp.3d 217
W.D.N.Y.2021Background
- Defendant George Moses indicted on multiple counts; trial set for October 12, 2021 and expected to last seven–eight weeks.
- Court proposed excusing all prospective jurors who are not fully vaccinated against COVID-19; Moses agreed and waived any fair-cross-section objection to excluding unvaccinated jurors.
- The United States (Gov't) objected, arguing blanket exclusion of unvaccinated people could violate the Sixth Amendment fair-cross-section requirement and the Jury Selection and Service Act (JSSA).
- At the time of the decision, community transmission in the counties supplying jurors was high and adult vaccination rates varied across counties; vaccinated persons need not quarantine after exposure but unvaccinated persons must quarantine for 10 days per state guidance.
- Court highlighted trial length, courtroom configuration (no feasible social distancing), and the risk that unvaccinated jurors would be more likely to contract COVID-19 or trigger quarantines that would disrupt this and other trials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether excluding all unvaccinated prospective jurors violates the Sixth Amendment/JSSA fair-cross-section requirement | Gov't: blanket exclusion would improperly remove a segment of the community and may violate fair-cross-section/JSSA | Moses: waived any fair-cross-section objection; a fully vaccinated jury is preferable for safety | Court: No violation; unvaccinated are not a "distinctive" group under Duren and exclusion is permissible here |
| Whether unvaccinated status is a "distinctive group" for Duren purposes | Gov't: vaccination status identifies a group that may be underrepresented and tied to protected characteristics or viewpoints | Moses/Court: vaccination status is mutable, heterogeneous, and within individual control; membership shifts and lacks cohesion | Court: Not distinctive; Duren prong not met |
| Whether vaccination status is a proxy for race or a protected viewpoint | Gov't: lower vaccination rates in some racial groups could make exclusion a proxy for race or viewpoint | Moses/Court: government offered no meaningful, sworn evidence; available data incomplete and inconsistent | Court: Speculative and insufficient to establish proxy relationship |
| Whether JSSA permits excluding jurors whose service would likely disrupt proceedings | Gov't: argued fair-cross-section/JSSA concerns | Moses/Court: JSSA authorizes exclusion of persons "likely to disrupt"; unvaccinated jurors are more likely to become infected or require quarantine, causing disruption given trial length and local transmission | Court: Exclusion fits JSSA §1866(c)(2) in these circumstances |
Key Cases Cited
- Duren v. Missouri, 439 U.S. 357 (1979) (establishes three-part test for fair-cross-section challenges)
- Lockhart v. McCree, 476 U.S. 162 (1986) (attributes within individual control are less likely to form a distinctive group)
- Taylor v. Louisiana, 419 U.S. 522 (1975) (purposes of fair-cross-section requirement and community participation rationale)
- Berghuis v. Smith, 559 U.S. 314 (2010) (Sixth Amendment guarantee of impartial jury drawn from fair cross section)
- United States v. Guzman, 337 F. Supp. 140 (S.D.N.Y. 1972) (framework for what constitutes a cognizable distinctive group)
- United States v. Salamone, 800 F.2d 1216 (3d Cir. 1986) (shared attitudes alone do not make a distinctive group)
- United States v. LaChance, 788 F.2d 856 (2d Cir. 1986) (Duren test governs JSSA and Sixth Amendment challenges)
- United States v. Walsh, 884 F. Supp. 2d 88 (S.D.N.Y. 2012) (explains heterogeneity undermines distinctiveness)
- Silagy v. Peters, 905 F.2d 986 (7th Cir. 1990) (articulating the purposes of the fair-cross-section requirement)