“Voir dire is a critical stage [of the jury selection process],” Lawrence Lustberg told the New Jersey Supreme Court in State v. Dangcil, and the jury manager’s role in administratively excusing or deferring potential jurors affects that critical stage. Arguing against the current process that allows a jury manager wide discretion in the beginning stages of empaneling a jury, Lustberg proposed the New Jersey State Bar Association’s (NJSBA) solution to the conundrum: If there’s any question as to whether somebody qualifies to be on the jury under N.J.S.A. 2B:20-1 (outlining the qualifications of jurors), or if there is any question as to their ability to serve under N.J.S.A. 2B:20-10 (outlining reasons for excusal from jury service) — if it’s a close question — the judge should make the decision, in the presence of counsel and the defendant. Lustberg argued the matter as amicus curiae on behalf of the NJSBA. He further advocated for robust documentation of actions taken by the Jury Management Office, as required by statute, so a meaningful review of those excused can be undertaken, if necessary.
The Supreme Court engaged the parties in extensive questioning regarding the method by which the jury management office excused jurors in Dangcil, which the NJSBA and Dangcil argued was skewed. Dangcil was the first defendant to face a hybrid jury selection process following a series of orders from the Supreme Court outlining the procedures for drawing a jury pool under pandemic circumstances. The Jury Management Office summoned 800 people for the jury pool, all but 265 jurors of whom were deemed unqualified to serve. Out of those jurors, the Jury Management Office then granted deferrals of service due to calendaring conflicts without collecting demographics on the jurors. The empaneled jury was ultimately predominantly white and under 50, which Dangcil questioned was reflective of a cross section of the community.
Citing constitutional infirmities in the selection process employed in Dangcil, the NJSBA argued that the process be conducted with full participation of the defendant and counsel, to ensure the right to a jury representing a fair cross section of the community can be protected. Alternatively, the statutorily required records should be kept in connection with those jurors who are administratively dismissed or excused from service. The NJSBA pointed to the failure of the Jury Management Office to collect and maintain information on gender, race or ethnicity of the jurors dismissed by the Jury Management Office, therefore making it “impossible now to determine if those excused disproportionately affected the composition of the final jury pool.” Dangcil contended that he should not be penalized for circumstances beyond his control, and asked for a new trial.
“It is important to note that numbers matter,” said Brian Neary, Dangcil’s attorney, who is also an NJSBA trustee. He argued that Dangcil faced serious charges and was entitled to the opportunity to a fair process for pre-screening jurors.
“This is the first time we ever had a universal concern of the pandemic, that all that we focused on in terms of this case and jury selection ran through the prism of COVID-19 and the pandemic and this Court’s effort to ensure public safety and the administration of justice,” Neary said. Unlike the characterization of the jury manager’s assertion that the process is consistent with past practice, Neary argued the jury selection process utilized during the pandemic did not take into account that the technical limitation of Zoom advertently or inadvertently conflated the ministerial excuses for juror disqualification regarding unavailability or disability and the discretionary disqualification excuse that should have been made before the judge and parties.
In previous reports issued by the NJSBA by the Pandemic Task Force Committee, the NJSBA raised concerns with the Judiciary’s plan for jury selection, cautioning that it foreclosed lawyers from “accessing the critical information necessary to raise constitutional issues in defense of their clients.” In its amicus curiae brief, the NJSBA urged the Supreme Court to vacate Dangcil’s conviction and that, if a hybrid jury selection process is again undertaken, requests for excuses of deferrals be required to occur on the record and in the presence of counsel.
Also appearing as amicus were the Office of the Public Defender, the Association of Criminal Defense Lawyers of New Jersey, the attorney general and the County Prosecutors Association of New Jersey. NJSBA’s brief was drafted by Lustberg and Michael R. Noveck, both of Gibbons, P.C.
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.