A new fault line has emerged in President Joe Biden’s America in which those not vaccinated against the coronavirus will be banned from participation — this time, in jury service.
This week, U.S. District Judge Edward Davila of California kicked nine unvaccinated potential jurors out of the jury pool in the fraud case of Theranos founder Elizabeth Holmes, according to Reuters.
According to KGO-TV, Holmes is charged with defrauding investors and patients after Theranos claimed a blood test it created could diagnose a wide range of ailments.
Davila, with lawyers on both sides consenting, said he acted to protect the health of jurors in a trial that could last four months.
You know where this will eventually go when the legal system has begun using the terminology ‘The elimination of unvaccinated people’.https://t.co/uUaBoo6xEW
— The Real Joker (@EvilArthurFleck) September 4, 2021
I am not seeing the problem here. Excluding the unvaccinated just means that sensible people will get to decide the merits and demerits of an important matter. As it should be always!Via @Reuters #Theranos #BadBlood #Covid19 #vaccinationhttps://t.co/r12c2xW5x5
— Kudakwashe Kanhutu 🇿🇼 (@KudaZim7) September 2, 2021
But if this sets a precedent and becomes commonplace, some experts said the real loser will be justice.
Should the judge have dismissed these jurors?
“If you excuse those [unvaccinated] people, you no longer have a representative jury,” said Christina Marinakis, a jury consultant with litigation consulting company IMS.
Americans who have not been vaccinated tend to hold more critical views of the government and corporate America, she said.
“The trend we’ve found consistently across jurisdictions is that people who are unvaccinated tend to have more anti-corporate attitudes,” she said. “Those jurors tend to be distrustful of government bodies, tend to feel things aren’t always what they seem.”
Data has shown there are demographic differences between those who are vaccinated and those who are not, as well as differences in political orientation.
Valerie Hans, a professor at Cornell Law School, said the judge’s action makes sense, but the ripple effects cannot be denied.
“I think it’s a reasonable decision in the midst of the pandemic, but yes, the elimination of unvaccinated people is likely to affect the makeup of the jury pool,” she said.
Kaspar Stoffelmayr, of the law firm Bartlit Beck, said restrictions on a jury pool could lay the groundwork for an appeal, but said in this case it might not matter.
“I would not assume that demographic differences, or differences in personal beliefs and attitudes, between vaccinated and unvaccinated jurors would necessarily favor one side or the other in the Holmes case,” he said.
Some courts are taking unique approaches. In the Northern District of Mississippi, jurors are asked to volunteer their vaccination status and asked about their willingness to serve with those who are not vaccinated.
“Restricting the jury pool to persons who are fully vaccinated may make it more difficult to secure enough prospective jurors to select juries. Along with the coronavirus’ differential impact on people of color, public health experts have noted ongoing challenges in making vaccine distribution accessible to these communities, including higher rates of vaccine hesitancy in these communities,” the office said.
“Excluding persons who are not fully vaccinated may make the jury pool less likely to reflect a fair cross section of the community, which in turn may also increase the risk of jury challenges.”