The New Jersey State Bar Association (NJSBA) filed an amicus curiae brief in a challenge to the hybrid jury selection process used in a Bergen County criminal trial last fall in the midst of the pandemic. In State v. Dangcil, the New Jersey Supreme Court will decide whether the jury selection process met with the constitutional mandates affording the defendant full participation in the jury section process and a jury pool that represents a fair cross section of the community.
“The NJSBA supports the New Jersey Judiciary’s formidable and laudable efforts to implement effective, safe and fair procedures for the resumption of jury trials in the face of the ongoing challenges posed by the COVID-19 pandemic,” the NJSBA said in its brief, drafted by Lawrence S. Lustberg and Michael R. Noveck, of Gibbons, P.C. “Critical to that endeavor is a jury selection process that allows parties, and their attorneys, to select an impartial jury from a representative pool of jurors.”
Dangcil was the first defendant to face the virtual grand jury process following a series of orders from the Supreme Court outlining the procedures for drawing a jury pool. The Jury Management Office summoned 800 people for the jury pool, all but 265 jurors of whom were deemed unqualified to serve. Out of these jurors, the Jury Management Office then granted deferrals of service due to calendaring conflicts without collecting demographics of those jurors. The empaneled jury was ultimately predominantly white and under 50, which Dangcil questioned was a cross-section of the community.
An earlier order to show cause to suspend the trial was denied, and the Appellate Division later ruled that the process was constitutional. That court affirmed the trial judge’s decision that there was no evidence demonstrating the exclusion of any group of people from the jury array.
Both Dangcil and the NJSBA urge the Supreme Court to consider the lack of evidence collected by the Jury Management Office on those who were dismissed. Dangcil argues that because no information about prospective jurors’ gender, race or ethnicity was collected, “it is impossible now to determine if those excused disproportionately affected the composition of the final jury pool.” Dangcil contends that he should not be penalized for circumstances beyond his control. He urges the Court to order a new trial.
The NJSBA, citing reports from its Pandemic Task Force Committee on the Resumption of Jury Trials, notes that it previously raised issues with the Judiciary’s plan for jury selection, and cautioned that it foreclosed lawyers from “accessing the critical information necessary to raise constitutional issues in defense of their clients.” The NJSBA argues that the defendant’s inability to obtain this information is now at the heart of the constitutional violation raised in this case. The NJSBA urges that the conviction at issue be vacated and that, even in a hybrid jury selection process, requests for excuses or deferrals be required to occur on the record and in the presence of counsel.
Also participating in the matter are the attorney general on behalf of the Administrative Office of the Courts and the Bergen County jury manager, and the Association of Criminal Defense Lawyers of New Jersey. Oral argument is set for June 29.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.