United States v. Elias

579 F.Supp.3d 374

UNITED STATES of America

v.Matthew ELIAS and Latiff Thompson, Defendants.

18-CR-33 (S-2) (NGG)

United States District Court, E.D. New York.

Signed January 13, 2022

Jennifer M. Sasso, Dana Rehnquist, James P. McDonald, Jonathan Edgar Algor, IV, Government Attorneys, United States Attorney's Office, Brooklyn, NY, for United States of America.

Karloff Cylton Commissiong, Adams & Commissiong LLP, Royce Russell, R-Square, Esq. PLLC, New York, NY, for Defendant Matthew Elias.

Bernarda Villalona, Villalona Law, PLLC, Brooklyn, NY, Gary S. Villanueva, Gary S. Villanueva, Attorney at Law, New York, NY, for Defendant Latiff Thompson.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

To facilitate the safe administration of in-person proceedings, the court has proposed excluding individuals who are not fully vaccinated against COVID-19 from the jury venire for the upcoming trial of Defendants Matthew Elias and Latiff Thompson. Defendants object to this proposal. For the reasons explained below, Defendants’ objections are overruled.¹

I. BACKGROUND

The COVID-19 pandemic has reshaped New York City for nearly two years. The recent spread of new, highly transmissible mutations of the virus—the Delta and Omicron variants—has led to increased rates of infection and hospitalization,² and it has made the implementation of stricter safety protocols a day-to-day necessity.³ Unlike during the pandemic's first year, vaccinations against COVID-19 are now widely available,⁴ and, at the time of publication, more than 80% of adult New Yorkers have been fully inoculated against the virus.⁵ The Centers for Disease Control and Prevention (the "CDC") encourages individuals to get fully vaccinated⁶ and reports that vaccinations "protect people from COVID-19, slow transmission, and reduce the likelihood of new variants emerging."⁷

Within the legal system, the ongoing surge in Delta and Omicron transmission has exacerbated the logistical challenges that the pandemic has introduced. Many civil proceedings, and some criminal ones, are being conducted adequately online. However, fundamental fairness principles require many proceedings, including criminal trials, to be conducted in person. The pandemic has made that task extraordinarily difficult. Trials, in particular, are uniquely complex, as they require involvement not only of parties, counsel, and the court, but also, potentially, of court reporters; courtroom artists; United States Marshals; Courtroom Security Officers; technicians; and venire and petit jurors, among others. Plainly, the number of participants in the courtroom during trial inherently introduces heightened risk of COVID-19 exposure, as does the reality of jury deliberations—which require potentially prolonged discussions in relatively close quarters in a jury room to reach a verdict—if unvaccinated individuals are present.

The administrative complexity of holding trials during the pandemic has made it difficult to advance these cases, contributing to a growing backlog of both civil and criminal matters. It concerns the court that Mr. Elias and Mr. Thompson have been detained, pre-trial, for approximately two and a half years.⁸ And it further concerns the court that they have been detained under unreasonably and unusually harsh conditions, which have been described in other litigation as "more punitive" during the pandemic than before—"essentially the equivalent of either time and a half or two times what would ordinarily be served." Sentencing Tr. at 17:17-18:5, United States v. Gonzalez , No. 18-cr-699 (JPO) (S.D.N.Y. April 16, 2021) (Dkt. 250).

Lockdowns—typically a measure that is used to punish disciplinary infractions—have become a frequently pulled lever to mitigate the risk of transmission at the Metropolitan Detention Center (the "MDC"). The Federal Defenders of New York have reported extensively on systemic problems at the MDC, including electrical blackouts; broken sewage systems; inadequate food supplies; and rates of COVID-19 infection among detainees and staff that far exceed transmission levels outside of the facility. See, e.g. , Status Rep. by Fed. Defenders, Federal Defenders of New York, Inc. v. Federal Bureau of Prisons , No. 19-cv-660 (MKB) (PK) (E.D.N.Y. October 13, 2021) (Dkt. 240). Recently, the court has been alerted to the ongoing barriers to accessing testing and treatment; limitations on access to the library to review discovery and handle other litigation matters; and the cessation of in-person legal visits, which is purportedly a temporary response to Omicron.⁹ (See, e.g. , Defense Counsel Ltr. (Dkt. 580) at 1-2 (reporting on January 5, 2022, that "the MDC has been shuttered to attorney-client visitation since the Christmas Holiday, due to the spread of the new COVID-19 variant")); see also Jan. 8, 2022 Min. Entry, Federal Defenders of New York, Inc. , No. 19-cv-660 ("Due to the rise in staff and inmate COVID-19 cases at the MDC, the MDC suspended all visitation at the facility on December 27, 2021, with plans to reopen after the number of cases drops. Since the suspension of visitation, the facility has experienced challenges with the completion and rescheduling of legal calls and videoconferences."). And yet, COVID continues to spread within its walls: On January 4, the MDC reported that it had identified at least 250 infected inmates and 157 infected staff members, Status Report by Federal Defenders at 2, Federal Defenders of New York, Inc. , No. 19-cv-660 (E.D.N.Y. Jan. 5, 2022) (Dkt. 273), and the court receives frequent requests to adjourn scheduled proceedings on account of detained defendants testing positive or experiencing symptoms of the virus.

The court can help lessen this backlog by advancing trial-ready cases, subject to the best available COVID-19 safety protocols. ¹⁰

If it does not do so, then in-custody criminal defendants will continue to endure prolonged pre-trial detention, under unreasonably punitive conditions of custody, as new cases add to the court's backlog and compound the existing strain on the Bureau of Prisons.

The court, which has a responsibility to respond to the problems introduced by the pandemic, has discretion to implement "reasonable response[s] to the problems and needs confronting the court's fair administration of justice." Dietz v. Bouldin , 579 U.S. 40, 45, 136 S.Ct. 1885, 195 L.Ed.2d 161 (2016). Because a policy of excluding unvaccinated individuals from the jury venire would facilitate the court's ability to hold trials by reducing health risks and the likelihood of disruption, the court considers the constitutional and statutory implications of that policy below.

II. APPLICABLE LAW

Criminal defendants have a well-established right to a jury pool drawn from a fair cross-section of the community. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed"); 28 U.S.C. § 1861 (codifying the right to "juries selected at random from a fair cross section of the community in the district or division wherein the court convenes"); Taylor v. Louisiana , 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) ("[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.").¹¹ This right applies to the jury pool but does not extend to the petit jury. Lockhart v. McCree , 476 U.S. 162, 174, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

In Duren v. Missouri , 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court established the framework for evaluating claims that jury selection procedures violate the fair cross-section requirements safeguarded by the Constitution and the Jury Selection and Service Act (JSSA), 28 U.S.C. § 1861 et seq. Under the Duren framework, the movant bears the initial burden of establishing a prima facie case for a violation by showing:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systemic exclusion of the group in the jury-selection process.

Duren , 439 U.S. at 364, 99 S.Ct. 664. If the movant satisfies this prima facie showing, then the burden shifts to the non-movant to demonstrate that the violation was justified because "a fair cross section [would] be incompatible with a significant state interest." Id. at 368, 99 S.Ct. 664.

Absent a constitutional or statutory violation, district courts have "broad discretion" in selecting a jury. See generally United States v. Torres , 128 F.3d 38, 43-44 (2d Cir. 1997).

III. DISCUSSION

The court has proposed excluding jurors who are not fully vaccinated against COVID-19 from the jury pool to mitigate risks of transmission and trial disruption caused by the virus, and it has asked the parties for their positions on that proposal. Defendants objected. The court, applying the Duren analysis, concludes that a policy of excluding jurors who are not fully vaccinated against COVID-19 does not violate Defendants’ fair cross-section rights, and is within its inherent authority to respond to the challenges created by the pandemic. See Dietz , 579 U.S. at 45, 136 S.Ct. 1885 ; see also United States v. Liberto , No. 19-cr-0600, 2021 WL 4459219, at *8 (D. Md. Sept. 29, 2021) (overruling defendant's objection to asking prospective jurors about vaccination status during voir dire , finding that "asking the vaccination status of potential jurors is in keeping with this Court's policy in the face of the COVID-19 Pandemic").

A. The Duren Analysis

1. The Prima Facie Case for a Violation

The threshold question under Duren is whether individuals who are not vaccinated against COVID-19 qualify as a distinctive group for fair cross-sec...