US v. Colon: Colon and his codefendant went to trial during the height of the COVID-19 Delta variant spike. As a result, the district court employed mailed in juror questionnaires to help determine strikes for cause. As part of the questionnaire, potential jurors were asked eight questions related to COVID-19, including whether they had been vaccinated. When the questionnaires were returned and a group of potential jurors answered that they were not vaccinated, the district court struck them for cause (several of them had alternative grounds for being struck as well) due to the health risks of having them come and participate in the trial. The defendants objected to their exclusion, making clear he was not making a Batson challenge, but that the district court’s decision “excludes a section of the potential jurors” and noting that the defendants themselves were not vaccinated. The defendants were convicted at trial.
On appeal, the Fourth Circuit affirmed the district court’s decision to strike the jurors. Specifically, the court concluded that the Sixth Amendment’s fair-cross-section requirement was not implicated because it does not apply to the district court’s decisions to strike jurors for cause. Distinguishing between the “jury venire” (the larger group of those summoned for jury duty in a particular case) and the “petit jury” (the jurors who actually hear the case), the court concluded that the fair-cross-section requirement applied only to the assembly of the jury venire. Because the district court’s decision to strike unvaccinated jurors occurred after that assembly (even if it happened on paper rather than in person) it could not violate that portion of the Sixth Amendment.
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