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The COVID-19 pandemic caused virtually all federal courts to close in March of 2020. Nevertheless, the process of criminal justice did not come to a halt. People continued to commit crimes and were arrested, and statutes of limitations continued to run. At first, courts maintained bare-bones operations to deal with arraignments, detention, and other urgent issues. But as the pandemic has worn on, it has become increasingly untenable for criminal cases to remain on pause. A defendant’s right to a speedy trial, enshrined in the Sixth Amendment and codified in 18 U.S.C. § 3161, does not allow the criminal justice process to be delayed indefinitely.
However, the primary concern of the pandemic—the need to avoid large gatherings in enclosed spaces to limit the virus’s spread—makes resuming criminal cases exceedingly difficult. The American criminal justice system is founded on community participation in a process at which the defendant and all key participants must be personally present.
Courts have begun taking steps to restart the criminal justice process by implementing procedures to minimize the risk that in-person proceedings will expose the participants to COVID-19. These changes in standard criminal practice implicate the constitutional rights of criminal defendants in a variety of ways. Some of the most important changes are the modifications, formal and informal, to the jury selection process.
Jury Selection: Basics
Under the Jury Selection and Service Act (JSSA), 28 U.S.C. § 1861 et seq., each federal district court is required to devise a plan for the random selection of grand and petit jurors. 28 U.S.C. § 1863. Technical violations of the plan do not constitute failure to comply with the JSSA if they do not interfere with the requirements that (1) the jury represent a fair cross section of the community and (2) excuses from service be made on an objective basis. United States v. Savides, 787 F.2d 751, 754 (1st Cir. 1986); United States v. Gregory, 730 F.2d 692, 699 (11th Cir. 1984); United States v. Bearden, 659 F.2d 590, 601 (5th Cir. 1981). Jury plans must set forth categories of people who may be automatically excused, as well as provide the clerk, under the court’s supervision, with discretion to excuse jurors on an individual basis. 28 U.S.C. §§ 1863(b)(5), 1866(c).
Coronavirus-Related Juror Excusals
As courts have resumed selecting grand and petit juries, they have made formal and informal changes to their method for excusing jurors. Some districts have adopted formal modifications to their jury plans that provide automatic excuses based on factors specific to COVID-19. See, e.g., Emergency Amendment to Jury Plan (D. Mass. July 7, 2020) (adding to automatic excuses those who are at high risk for severe illness from COVID-19, residents of nursing homes or long-term care facilities, and health-care providers who may come in contact with COVID-19 patients). Most districts have also informally provided their clerks with discretion to excuse prospective jurors who express COVID-related concerns, such as age, need to supervise school-age children who are at home, at-risk health conditions, job-related concerns, or general anxiety over attending proceedings in an enclosed space with a large number of people for an extended period of time.
These informal and formal changes to jury selection procedures create the possibility that the grand or petit jury pool will not reflect a fair cross section of the community. In particular, because older people are more likely to die or have serious consequences from contracting COVID-19, they are likely to request, and be granted, an excuse from service. In addition, numerous studies have documented that minority communities, particularly Black and Hispanic communities, suffer disproportionately severe outcomes from contracting COVID-19. See Health Equity Considerations and Racial and Ethnic Minority Groups, CDC.gov (updated July 24, 2020). Therefore, it is possible that a disproportionate number of people from these communities will request and be granted a valid excuse from jury service. Finally, allowing excusal for anyone who expresses anxiety over coming to the courthouse raises the specter of the jury pool consisting of only those who want to serve, rather than drawing a truly random pool from the community. See United States v. Branscome, 682 F.2d 484, 485 (4th Cir. 1982) (selecting volunteers to serve on grand jury violated JSSA because procedure “introduces a subjective criterion for grand jury service not authorized by the Act” and “results in a non-random selection process”).
Challenging the Jury Selection Process
A defendant may challenge the process used to select the grand or petit jury in his case by following the procedures set forth in 28 U.S.C. § 1867. Under that section, the defendant may move to dismiss the indictment for defects in the process of selecting the jury pool, including that the pool does not constitute a fair cross section of the community or that the court did not properly formulate or follow its jury plan. 21 U.S.C. § 1867(a); see United States v. Hernandez-Estrada, 749 F.3d 1154, 1158 (9th Cir. 2014) (en banc); United States v. Green, 742 F.2d 609, 612 (11th Cir. 1984); United States v. Manbeck, 514 F. Supp. 141, 144 (D.S.C. 1981).
In connection with such a motion, the moving party has an unqualified right to request the “records or papers” used in the jury selection process. 28 U.S.C. § 1867(f); Test v. United States, 420 U.S. 28, 30 (1975) (an “unqualified right to inspection is required not only by the plain text of the statute, but also by the statute’s overall purpose of insuring ‘grand and petit juries selected at random from a fair cross section of the community’” (quoting 28 U.S.C. §1861)); United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986). The defendant need not show probable success on the merits of the motion, but only that she is preparing to file a motion challenging the jury pool’s composition. United States v. Royal, 100 F.3d 1019, 1025 (1st Cir. 1996) (“Because the right of access to jury selection records is ‘unqualified,’ a district court may not premise the grant or denial of a motion to inspect upon a showing of probable success on the merits of a challenge to the jury selection provisions.”).
To preserve issues regarding the composition of the venire for appeal, trial counsel should, at a minimum, request any modifications to the jury plan; any instructions to the clerk of the court regarding discretionary excuses; and demographic data concerning the summonses sent to prospective jurors, excuses and postponements granted and denied, and the ultimate composition of the venire. Trial counsel should ensure that these materials are made part of the record by including them as attachments to a motion to dismiss, request for judicial notice, or other filing.
Any motion to dismiss must be filed before voir dire or within seven days of when the defendant discovered, or could have discovered, the grounds for his motion. 28 U.S.C. § 1867(a). Some courts have interpreted this requirement as mandating that a motion challenging the composition of the grand jury, as opposed to the petit jury, be filed within seven days of indictment. See United States v. Dean, 487 F.3d 840, 849 (11th Cir. 2007); United States v. Saipov, 2020 WL 915808, at *6–7 (S.D.N.Y. Feb. 26, 2020) (collecting cases).
The procedures set forth in section 1867 are the “exclusive means” to challenge the composition of a jury pool as not representing a fair cross section of the community or as having been selected in violation of a district’s jury plan. 18 U.S.C. § 1867(e). Nevertheless, a loophole has been left for challenges based on “discrimination on account of race, color, religion, sex, national origin or economic status” in selection of the grand or petit jury venire. Id. Therefore, a motion that is not made within the time limits of section 1867(a) and that is not based on discrimination is untimely and may be denied. Dean, 487 F.3d at 849.
Appeals Process for Denial of Motion to Dismiss
Denial of a motion to dismiss an indictment based on the composition of the jury pool may be reviewed either in an appeal following conviction or by a petition for mandamus. See In re United States, 426 F.3d 1, 5 (1st Cir. 2005) (finding mandamus “wholly appropriate” to review district court’s deviation from jury plan after finding plan resulted in racial disparity in jury pool); United States v. Shinault, 147 F.3d 1266, 1271 (10th Cir. 1998) (reviewing de novo defendant’s challenge to district court’s jury plan). Trial may be stayed pending resolution of a mandamus petition. In re United States, 426 F.3d at 4.
In addition to the typical process of “supervisory mandamus,” some circuit courts may consider such a challenge under the guise of “advisory mandamus.” Advisory mandamus is available “to settle critical questions of law that affect multiple cases and warrant immediate resolution.” In re United States, 426 F.3d at 5. Jury venire composition issues in the age of COVID-19 fit neatly within this justification.
In fact, because these experiments with jury selection procedures are being implemented systematically and not piecemeal, it would be wise for appellate courts to become involved early and to render decisions expeditiously. Trial courts are creatively experimenting with how to balance a criminal defendant’s right to a speedy resolution of his case against his right to a jury selected from a fair cross section of the community using neutral and objective criteria. Early and thorough guidance from appellate courts will help establish the boundaries in which these experiments may proceed.
Kirstin Ault is an attorney at the California Appellate Law Group in Los Angeles, California.
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