USA v. Ramesh Balwani: Jurors and Disabilities

The Americans with Disabilities Act does not apply to the federal judiciary. Even worse, federal judges and parties may legally exclude jurors with disabilities because the relevant statute, 28 U.S. Code § 1862, does not prohibit discrimination on the basis of disability. (Ironically, the statute is titled, “Discrimination prohibited.”) Only race, color, religion, sex, national origin, or economic status are included in the definition of discrimination, and I do not know whether “sex” includes “sexual orientation.” 

Meanwhile, 28 U.S. Code § 1861, "Declaration of policy," says “all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” [Emphasis added.] Taking the two statutes together, American public policy believes a fair cross section of the national community does not include jurors with disabilities, nor jurors with different sexual orientations.

On March 10, 2022, the Northern District of California excluded an Oxford and Stanford educated professor of applied statistics from Balwani’s juror pool because of a Parkinson’s-related condition requiring him to stand up and sometimes stomp his foot in order to avoid seizures. Despite the professor saying his duties and disability were “not anything overwhelming,” Judge Edward J. Davila told the parties the middle-aged man could “cause disruption” and was not a suitable juror for this trial. Neither side’s lawyers objected to the exclusion. For the next two hours, I stomped my foot several times and would have continued had I thought the brain-dead bastards in the front of the room could make a connection between their conduct and my protest. Later, I remembered a play called Stomp! and resolved to buy tickets and send them to Judge Davila with a middle finger drawn somewhere obvious. Then I realized I am bound by state bar ethical rules, so if I’m going to lose my law license, I’d rather deliver my one-fingered salutes in person. (The way this trial is going, I’m only half-joking—and if you think I’m not serious, I once flipped off two FBI recruiters and got fired for it.) In the end, I loudly asked what year some genius would manage to invent a standing desk and got a TV journalist in the room to agree with me. 

Despite the morning’s disability discrimination, jury selection was more respectful of the reasons severed trials exist. Instead of allowing the jury pool to mouth off about the details of documentaries and YouTube videos, Judge Davila cut them off, saying, “I’m not asking what you saw, only when.” In other words, how attenuated is the timing, what do you actually remember, and are you being reasonable when you say you can be impartial? Compared to yesterday’s free-wheeling, infectious discourse, today’s question-and-answer period justified a lifetime judicial appointment, not just a lifetime supply of Stomp! tickets.

As for voir dire itself, it was tame. Dr. Adam Rosendorff looks to be a central witness once again because both sides asked doctor-related questions. The government asked if anyone had negative experiences with doctors, while the defense implied ulterior motives, asking, “Can doctors make mistakes?” and “Is it possible a doctor could have other agendas besides telling the truth?” Sure, I thought to myself. After all, isn’t it possible for a judge to dismiss the only juror capable of analyzing error rates in medical testing?

© Matthew Mehdi Rafat (2022)

Bonus: though the ADA does not apply to the federal judiciary, federal courts must follow the Administrative Office Manual, which requires courts to offer accommodations. See for example, AO Manual, Guide to Judiciary Policy, Vol. 5, Ch. 2, section 255.