Judges can require potential jurors be vaccinated, appeals court rules

A jury of one’s peers does not have to include the unvaccinated ones, at least in the 4th Circuit.

A Hampton Roads husband and wife, found guilty in September 2021 of trafficking heroin and cocaine, had challenged their convictions because the federal judge in Virginia excluded unvaccinated people from the jury pool.

A panel of Republican appointees in the U.S. Court of Appeals for the 4th Circuit, two of which were nominated by President Donald Trump, ruled against them Tuesday, saying that Judge David J. Novak did not exclude potential jurors “based on immutable characteristics like race, gender or ethnic background,” but based on “perceived inability to serve without creating unnecessary safety risks.”

The defendants declined to be vaccinated because of “sincerely held beliefs,” according to the court record. They were tested for the coronavirus both days the trial was held, and their attorneys argued that unvaccinated jurors could have been screened the same way.

Novak responded he didn’t have the power to force jurors to take tests or to limit their exposure and was concerned about a higher risk of transmission by unvaccinated jurors of the delta variant of the coronavirus spreading at the time.

“My job is not just to give them a fair trial, which they are going to get. My job is to — it is my responsibility to make sure everybody is healthy,” the judge said before trial, according to the transcript. “People who are conscripted to come to this courthouse to serve their civic duty, I’m not exposing them to COVID for that reason.”

A majority of courts have allowed the exclusion of unvaccinated jurors during the pandemic, according to the American Bar Association. The U.S. Supreme Court has allowed vaccination requirements for health-care workers but struck down a broader federal mandate from the Biden administration.

The three-judge panel on Tuesday left open the possibility of a different challenge, saying their ruling applied only to the jury pool and did not consider whether the jury itself was chosen in a discriminatory way. In a different case, the Justice Department argued for seating unvaccinated jurors on the grounds that failing to do so would be racially biased; that argument was rejected by a federal judge in New York as unsupported by data.