The Vaccinated Courtroom

When everyone was in lockdown, but courts realized that trials were backing up, defendants sitting in jail, civil claims languished to litigants’ detriment, accommodations were made. Trial by Zoom became “a thing.” They weren’t trials as we understood them to be, with people facing each other, jurors observing witnesses’ demeanor, the ability to examine and cross in real life to make the liars squirm as they were revealed.

But it was the best we could do, and so judges and lawyers told each other lies that it was close enough to pretend it was a real trial. After all, there was a pandemic and we had to make due, even if due was due enough.

Whether we’re now out of it or into it or somewhere in between isn’t entirely clear, but the courts march on and accommodations are still being made. In two recent federal court rulings permitting the virtual testimony of witnesses who weren’t vaccinated. In the District of Oregon, Magistrate Judge Stacie Beckerman required that everyone who appeared in person in her courtroom be vaccinated.

The Court intends to require that everyone who appears in the courtroom for trial (including parties, witnesses, counsel, and jurors) are fully vaccinated against COVID-19 at the time of trial (and will allow any unvaccinated witnesses to testify via video)….

Similarly, Middle District of Florida Judge Kathryn Kimball Mizelle granted an unopposed motion to have unvaccinated witnesses testify virtually. While neither party in the case took issue with the virtual testimony, was this because it was an acceptable alternative or because the lawyers and judge were being kind? Or was it because they were willing to forgo the loss of in-person testimony rather than be around an unvaccinated person in the courtroom?

But Mag. Beckerman’s order goes much farther, creating essentially a mandate in the courtroom for vaccination. Regardless of your feelings about the vaccines, the implications of this mandate cut deep. You have a witness that’s critical for your case, whether good or bad, but they have refused to be vaccinated. You want them in the courtroom. You want the jury to see them, to feel them. You want their testimony to have its full impact. Or you want the jury to see them twist in the wind as you shred their testimony, Whatevs.

And yet, it isn’t at all the same as they sit in the comfort of their homes, secure in their less-than-awesome surroundings, without the jury watching their body language, their legs twitch, their foot tap whenever they lied. Sure, this was testimony in the sense that someone got to ask questions and the witness answered, but its such crimped testimony that it eliminates what makes examination before a jury matter.

What about the rights of the party to present witnesses? What about the due process demands of cross-examination, “the greatest engine ever invented for the discovery of the truth,” cut off at the knees? If the defendant has a constitutional right to cross his accuser, is that satisfied by virtual cross, the questions asked and, if delay or static doesn’t do too much damage to the natural flow of interaction, answers by a talking head at best, and their toddler or puppy mugging in the background at worst. Kids and dogs happen.

What is a jury to do, limited in its credibility determination of a controversial witness when the judge, and perhaps the lawyers as well, have created an unnatural separation because the witness has refused, or can’t for some reason, be vaccinated? And then, what about the jury itself?

Much as we’re entitled to a jury of our peers to the extent such a notion is possible, what happens to those members of the venire who have decided not to be vaccinated? Are they released from jury duty so that they won’t be in the pool from which jurors are selected? Do they send them home or hold them in contempt (legally, not just morally)? Does this not rise to a constitutional deprivation for a defendant, who is denied a full panoply of public peers when the ones who are unvaccinated aren’t seated in the box?

And, for those inclined to wear a certain shade of glasses, will this not have a disproportionate impact on black and brown jurors, who have a significantly lower vaccination rate than white jurors?

The defendant didn’t have any say in whether potential jurors chose to be vaccinated, and yet the defendant will be the one to suffer their removal from the jury pool. Not because they potential jurors have refused to serve, but because the court refuses to let them into the room.

While it’s not the same as a judge refusing to let black jurors into the pool, as it’s not at all irrational to decide that unvaccinated potential jurors pose a risk of contracting covid to other potential jurors, and the vaccinated didn’t sign up to be exposed to covid because of other potential jurors’ choices, it doesn’t fix the problem. The jury pool from which a defendant’s judges of fact are to be selected has excluded people from the mix who would otherwise be seated.

Having just passed 700,000 deaths from covid, reasonable people (as well as flaming nutjobs and political partisans) can disagree about where the tipping point should be between fear of infection, fear of vaccination and the constitutional efficacy of accommodating both. We tend to be strident in support of the side we’ve taken, but that doesn’t mean that our choices must be swallowed by others, or that there aren’t very real problems associated with the side we’ve picked.

We may be on the “road to recovery,” but it’s still unclear how long that road will be. In the interim, we make accommodations as best we can to move forward with cases that have serious consequences when they languish. Which raises yet another concern as we “normalize” accommodations and rationalize why they’re not as bad as they are. Once this is behind us, assuming it ever will be, why wouldn’t the same accommodations be just as acceptable for other reasons? A witness is far away? Virtual testimony, just like covid. A juror can’t find a baby sitter or afford to travel to the courthouse? Let her watch the trial on zoom.

Once we accept excuses for inadequate trials as being sufficient to proceed, good enough to satisfy constitutional demands, is there any reason why they shouldn’t be applied under other circumstances? Or if we admit that these accommodations weren’t really good enough, how can the outcomes in these subconstitutional trials be good enough to put a man in prison?