In United States v. O’Lear, No. 22-3835 (6th Cir. Jan. 8, 2024), the Sixth Circuit holds that a criminal defendant was not deprived of a representative jury under the Sixth Amendment when the district court excluded panel members who had not been vaccinated against COVID-19, though that panel adds an important qualifier.
Defendant O’Lear, who ran a radiology business, was convicted of Medicare and Medicaid fraud. “From late 2015 to 2017, O’Lear filed hundreds of fraudulent claims with Medicare and Medicaid on behalf of his company . . . . All told, a statistical expert opined that Portable Radiology Services obtained an estimated $1.989 million from the Medicare and Medicaid programs based on fraudulent claims.”
“Before O’Lear’s trial, the district court announced that it planned to allow individuals to serve on the jury only if they had been fully vaccinated against COVID-19. O’Lear objected that the district court’s order would violate his Sixth Amendment right to have a jury pool made up of a fair cross section of the Northern District of Ohio.”
The Sixth Circuit affirms the conviction. Among other errors, the defendant raised the jury issue. The panel notes that to establish a Sixth Amendment violation, a defendant must identify “a ‘distinctive’ group in the [broader] community,” “show that the ‘representation, of this group in the jury pool does not fairly and reasonably match the representation of the group in that community,” and “prove that the jury-assembly process creates the complained-of ‘underrepresentation’ by systematically excluding the group from jury pool.”
The panel holds that the defendant fails to identify a “distinctive group” in unvaccinated persons. Under the controlling Supreme Court authority, groups are distinctive “only when they share[] an ‘immutable’ trait,” principally sex and race. “Because the relevant trait (sex or race) does not affect a person’s ability to serve, . . . sex- and race-based exclusions risk[] ‘arbitrarily’ biasing the ‘common-sense judgment’ of the jury,” create an “appearance of unfairness,” and deprive “historically disadvantaged groups” of the opportunity of jury service.
“[I]ndividuals who have not been vaccinated against COVID-19 do not qualify as a ‘distinctive’ group for Sixth Amendment purposes . . . . First, no evidence suggests that the district court excluded the unvaccinated to ‘arbitrarily skew’ the jury pool so that it contained individuals biased against O’Lear . . . . [The district court judge] explained that the unvaccinated could disrupt O’Lear’s potentially lengthy trial if they became ill or exposed others to COVID-19.” While the defendant conjectured that such jurors might be more skeptical of the government, “individuals have declined COVID-19 vaccinations on a number of grounds. These grounds include government skepticism, medical complications, or religious objections.” Thus, they lacked the uniqueness and uniformity that would risk diluting the “representativeness” of the jury pool.
“Second, the district court’s order excluding unvaccinated individuals from O’Lear’s trial does not create an ‘appearance of unfairness’ . . . . An individual’s decision about whether to get vaccinated (like an individual’s opinion about the death penalty) is largely ‘within the individual’s control.’”
“Third, the district court’s order excluding unvaccinated individuals did not permanently bar ‘them from serving as jurors in other criminal cases’ and so did not deprive them of ‘their basic rights of citizenship’ . . . . . Rather, the court imposed a short-term order at the height of the pandemic. The court also highlighted the special need for the order in O’Lear’s case because his trial could last for several weeks.”
The panel closes by noting, though, that “O’Lear has raised only a Sixth Amendment challenge. We thus need not consider any other constitutional or statutory challenge to the court’s order. For example, we do not consider whether the [district] court had an adequate statutory basis to issue it.”
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