A high-profile federal fraud trial is about to begin, and if you’re not vaccinated, you can’t serve on that jury.
This week, the judge presiding over the criminal fraud trial of Elizabeth Holmes, the notorious founder of the now-defunct fake-medical-device firm Theranos, dismissed 9 people from the jury pool because they’re unvaccinated.
“While choosing an all-vaccinated jury may be within a court’s power to safeguard jurors, critics say it could reduce the fairness of trials,” Thomson Reuters, a Canadian media company, bleated here.
“If you excuse those people, you no longer have a representative jury,” a jury consultant whined. “I think it’s a reasonable decision in the midst of the pandemic,” a Cornell law professor retorted, but acknowledged that “yes, the elimination of unvaccinated people is likely to affect the makeup of the jury pool.”
In what way, and by how much? Thomson Reuters speculated that because vaccinated Americans “are more likely to be older, female, white, college educated and Democratic,” the judge’s decision will skew the jury in that direction. They cited data from Kaiser Family Foundation showing that “70% of white Americans have been vaccinated, compared to 65% of Black Americans; 71% of females, compared to 63% of males; and 86% of Democrats, compared to 54% of Republicans.”
If that’s the data, I don’t see any “white” skew at all. A jury is 12 people, not 120 or 1,200, and in a statistical pool that small, a 5% difference in a demographic characteristic is negligible and won’t impact the composition of the jury at all, unless you slice a juror in half (5% of 12 jurors is 0.6 juror).
The female-male disparity is only slightly larger, and again, probably insignificant. The makeup of the workforce has more effect on who serves on juries, because people with work commitments won’t be willing to serve in a trial that could take weeks. That skews juries toward retirees and women, but nobody objects to that.
The biggest impact on jury makeup of a vaccination mandate is bound to arise from the political fault line dividing vaccinated and unvaccinated citizens. Are conservatives more or less likely to convict? Are unvaccinated people more likely to be stupid (and thus, perhaps, more susceptible to b.s. defense arguments like “my boyfriend made me do it”)? I don’t know, nor would I care, if I were the judge.
As for me, I would refuse to serve on a jury with unvaccinated jurors. You can’t social distance in a jury box or jury room; you’re stuck sharing air with those people for days or weeks. Some of them probably will sit through the entire trial with their masks pulled below their noses, and take them off in the jury room. I’d walk out.
Most other intelligent, responsible people with intact survival instincts probably would feel the same way. What you’d end up with is a jury of 12 unvaccinated people. A jury of stupid idiots might be a criminal defense attorney’s dream, but that misses the point. The judge has a responsibility to keep the jurors safe, and that trumps everything else. This shouldn’t even be debatable. If that skews the jury one way or another, the answer is: GET VACCINATED.