(RoyalPatriot.com )- Nine prospective jurors in the trial of Elizabeth Holmes, the founder of Theranos, were dismissed by a U.S. judge recently because they weren’t vaccinated against COVID-19.

Edward Davila, the U.S. District Judge presiding over the case, said he was dismissing these jurors to keep other jurors and their families safe. But, many people are already saying that his decision could significantly skew the pool of jurors.

Many critics are saying Davila’s decision, which he has the right to do, could make the trial much less fair. Holmes is on trial for fraud in California.

As jury consultant Christina Marinakis, of litigation consulting company IMS, said:

“If you excuse those (unvaccinated) people, you no longer have a representative jury.”

Reuters reported that the age, gender and ethnicity of the jurors who were excused couldn’t be determined. That being said, those Americans who are vaccinated tend to be Democrats, older, female, white and college educated.

As Reuters reported, the Kaiser Family Foundation conducted research that showed 70% of white Americans are already vaccinated, compared to only 65% of Black Americans. In addition, 71% of females are vaccinated compared to 63% of males, and 86% of Democrats are vaccinated compared to 54% of Republicans.

This is part of the reason why many people are saying the dismissals could lead to a very skewed jury pool. Valerie Hans, who is a professor at Cornell Law School, said:

“I think it’s a reasonable decision in the midst of the pandemic, but yes, the elimination of unvaccinated people is likely to affect the makeup of the jury pool.”

Many of these critics say that situations like this are likely to arise in the near future across the country. As trials begin to resume in-person more frequently, the likelihood of the vaccination question popping up increases.

In the Holmes trial, both the defense and prosecution backed the decision of the judge to excuse the unvaccinated jurors. But, it’s likely that no matter what the ultimate verdict is, the excusals could lead to grounds for a challenge of the verdict.

Kaspar Stoffelmayr is a lawyer with Bartlit Beck, and he’s already faced this situation in a separate case. Earlier in the year, he represented the Walgreens Boots Alliance over their alleged role in the opioid epidemic.

The judge in Ohio for that case initially said that all jurors had to be vaccinated. The judge ended up reversing course once defendants and Walgreens argued that the requirement would potentially result in an unfair jury.

The defendants said there would be sex and race disparities among the jurors. They also said jurors who were vaccinated would tend to be wealthier, older, more politically liberal and educated.

As Stoffelmayr explained:

“Any unusual restrictions on who is eligible to serve on the jury in a particular case could raise issues on appeal.”

So, even before Holmes trial has started, there’s already controversy and a set up for a future appeal.