Does requiring jurors to be vaccinated raise due process concerns?

As part of their public safety planning in the wake of the pandemic, a number of courts across the United States are beginning to require that jurors for in-person trials be vaccinated against COVID-19. That is a perfectly sensible policy. But it raises complex ancillary issues about the makeup of the jury pool once unvaccinated — but otherwise eligible — citizens are excluded from jury service.

An editorial in Massachusetts Lawyers Weekly articulates the problem:

Barring unvaccinated individuals could, in some parts of the state, make it more difficult to secure enough prospective jurors. It could also skew the jury pool, leading to more homogenous and less diverse juries. 

Generally speaking, vaccinated Americans are more likely to be older, female, white, college-educated and liberal in their political leanings, while unvaccinated Americans are more likely to be younger, conservative, male or people of color. 

In Massachusetts, statistics show that in cities such as Brockton, Lowell, Springfield and Worcester the percentages of Black and Hispanic individuals who are vaccinated are well under 50 percent, and the percentages of vaccinated individuals in their 20s are significantly lower than is the case for older people. 

As the editorial further notes, there is no constitutional bar to excluding unvaccinated individuals, since they are not being denied the chance to perform jury service on the basis of race, gender, religion, or another protected category. But it could skew the jury pool away from the reasonable cross-section of the community. 

There is also the perverse satisfaction that some might take in knowing that being unvaccinated gets them out of jury service. Perhaps such jurors should still be required to serve on virtual –or even outdoor — trials, if the demand for such proceedings continues.

Should judicial compensation be tied to performance evaluation results?

Several states use judicial performance evaluation (JPE) programs to periodically evaluate state judges. In all states that use JPE, evaluation results are used to promote the development and professional growth of the evaluated judge, and to develop training programs for the judiciary more generally. In many states, JPE is also used to provide information to those charged with determining whether a judge should stay on the bench. In states where judges face retention elections, for example, JPE results are often communicated to voters in the weeks preceding the election. And in states in which the legislature or a commission decided whether the judge should be retained, JPE results are typically times to give valuable information to the decisionmaker about each judge’s strengths and weaknesses.

JPE has never been used to determine judicial salaries or benefits, and with good reason: an independent judiciary should not feel that remuneration is tied to specific outcomes. This has always seemed like such a given that I never found it necessary to mention when discussing JPE programs. But this article about a proposed salary hike for state judges in Arkansas, which felt the need to explain that “There isn’t a performance evaluation process for  judges and prosecutors in Arkansas,” made me realize that perhaps the general public perception of JPE’s purpose is different. Continue reading “Should judicial compensation be tied to performance evaluation results?”

Some Georgia courts to broadcast live trials — sort of

I got excited when I saw the headline from a Columbus, Georgia television station: City of Columbus purchasing courtroom cameras to allow public to watch jury trials. After all, one major lesson from the coronavirus pandemic has been that the presence of cameras in the courtroom is far less disruptive than some believe. To be sure, one needs to be cautious about protecting privacy and due process, but those values can coexist comfortably with video technology.

But it turns out that the Georgia court cameras will only broadcast trials into the next room, not out to the public in general. This artificially limits the number of people who can view the trials, learn about the court system, and see it in action.

It’s good, of course, that the courts are at least opening trials again for public view — and cameras are the only safe way to open courtrooms to the general public for as long as the pandemic lasts. But this strikes me as a missed opportunity to bootstrap a transparency measure and turn it into a much larger positive for the courts and the public.

ABA passes resolution on remote court proceedings

The American Bar Association House of Delegates has passed a resolution regarding the use of remote proceedings. The resolution attempts to balance the courts’ need to move forward with their dockets, parties’ entitlement to due process, and the public right to access. Some key points:

FURTHER RESOLVED, That the American Bar Association urges that any authorization of mandatory use of virtual and remote court proceedings during the COVID-19 pandemic continue for as short a time as possible and in no event longer than the duration of the declaration of emergency issued in the jurisdiction;

FURTHER RESOLVED, That the American Bar Association urges that use of virtual or remote court proceedings be permitted when litigants have consented to the use of such procedures, including being offered a delay until a safe, in-person proceeding can be held;

FURTHER RESOLVED, That the American Bar Association urges that all virtual or remote court proceedings be tailored to the needs of participants and take into account the type of case and proceeding to be conducted, the participants involved, and whether participants are likely to be represented by counsel…

FURTHER RESOLVED, That the American Bar Association urges that advance notice be provided to the public of all virtual or remote proceedings and that full and meaningful public access to such proceedings be guaranteed, while also protecting the privacy of those proceedings legally exempted from public access…

The entire resolution can be found here.

Bell on the embarrassment at the ICC

Professor Avi Bell points out the embarrassing treatment of Israel at the International Criminal Court, where due process, transparency, and moral legitimacy are nowhere to be found. Bell argues that Israel’s only reasonable response is to stop treating the ICC like a legitimate legal or juridical organization. Previously, Israel had determined to cooperate with the ICC in order to assure that its side of the story was told. But given the ICC’s absurd and open hostility to Israel, I am inclined to agree with Professor Bell’s assessment.

A fabulous look inside a “traveling court”

The Wall Street Journal has a terrific piece on the day-to-day workings of New York City’s Office of Administrative Trials and Hearings, a court that deals with nearly 1 million cases a year but remains virtually unknown. The court is charged mostly with adjudicating minor criminal offenses and regulatory violations, like errant recyclables and excessive noise. But the job is important: many people who do not address a summons promptly can later find themselves in civil court with much larger fines.

The court has taken an aggressively friendly approach to encourage the accused to show up and contest their case, advertising its existence at swimming pools and community events, and even offering tote bags. And it’s worth it to show up — almost 50% of those who do win their cases.

“We have one goal,” said Deputy Commissioner John Castelli. “To ensure people get due process.”

I absolutely love this. A taste of due process at this level ensures justice and vastly increases public appreciation for the courts and the legal system.

(Access to the story may require subscription.)