People who are not “up to date” on their COVID-19 vaccines cannot be excluded from the jury pool for a criminal trial starting next week, a judge ruled Friday, rejecting a request by federal prosecutors in Delaware who had sought to keep out those potential jurors.
Judge Joshua Wolson ruled that the Constitution guarantees a criminal defendant the right to a trial by an impartial jury drawn from diverse segments of the population, and that the pandemic cannot be used as an excuse to weaken that right.
Prosecutors argued that limiting the jury pool to those who have received a booster shot or a recent initial vaccine would help ensure the safety of trial participants, reduce the risk of a disruption in the proceedings, and prevent jurors from having to automatically quarantine based on mere exposure.
The judge said the request carries “several potential pitfalls.”
“While it is easy to invoke the trope of ‘health’ to justify intrusions on liberty, such as limits on jury trials or the eligible members of a jury pool, the Supreme Court has indicated that the Constitution provides a bulwark against those intrusions,” Wolson wrote. The judge pointed specifically to a 2020 ruling in which the U.S. Supreme Court said ”Even in a pandemic, the Constitution cannot be put away and forgotten.”
Wolson also noted that, under federal law, “no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors,” and that the government’s request could make it more difficult to assembly a jury.
Prosecutors argued that people who choose not to get vaccinated or not to stay “up to date” by getting a booster shot are not a “distinctive group” in terms of being able to serve on a jury. Instead, according to prosecutors, they “come from a broad spectrum of races, ethnicities, and political beliefs, and have, at most, a “shared attitude.”.
According to the state’s COVID-19 website, only 35% of Delawareans 18 or older have received a booster shot. While two-thirds of people 65 and older have receive a booster shot, Wolson noted that many of those senior citizens are not part of the jury pool because of their age.
“But in any event, the numbers suggest that a vaccine requirement along the lines the government proposes would exclude nearly 2/3 of potential jurors from the jury pool,” he wrote, adding that his concerns were not only for the defendants’ rights, but for members of the public as well.
“Thomas Jefferson viewed the opportunity to serve on a jury as more important than the opportunity to vote,” Wolson noted, adding that depriving someone of that civic duty “requires a weighty showing.”
“For other proposed limits on the jury pool, courts, lawyers, and social scientists can draw on their experience to make reasonable conclusions about the effect of a proposed change,” he added. “But when it comes to this pandemic, and the way rules might ripple through society, everyone is flying blind.”
The judge also noted that attorneys for Michael Pritchett and Dion Oliver have offered statistical evidence suggesting that the vaccine restriction could have a disparate impact on minority participation in the jury pool.
“The court will assume that that showing is enough to demonstrate that the restriction is a proxy for race — though to be clear, the court does not think that the government proposed this restriction with a racial motive,” he said.
While refusing the prosecution request to limit the jury pool, the judge did not rule out the inclusion of vaccination status in questions posed to potential jurors during the jury selection process.
A spokeswoman for the U.S. Attorney’s office declined to comment on the ruling.
Pritchett and Oliver are charged with conspiracy, stalking, kidnapping and gun crimes for their alleged roles in a feud involving several Delaware men in 2017 that resulted in the kidnapping and murder of the girlfriend of a man who had been targeted for killing, according to prosecutor. The feud also resulted in a 6-year-old being left permanently disabled after he was hit in the head by a stray bullet while sitting in the back seat of his mother’s vehicle.
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