New Jersey Supreme Court: Virtual Grand Juries Are Constitutional

New Jersey’s high court unanimously found nothing wrong with holding grand jury cases virtually during the Covid-19 pandemic, noting technological safeguards.

The Supreme Court of New Jersey, at the Richard J. Hughes Justice Complex in Trenton, N.J. (Photo via Google Maps)

TRENTON, N.J. (CN) — Virtual grand juries may continue in New Jersey during the Covid-19 pandemic, the state’s Supreme Court ruled Wednesday, noting Zoom sessions are no less constitutional than in-person proceedings.

“The Constitution must operate not just in the best of times, but also in the worst of times,” the high court’s ruling began. “The fundamental rights guaranteed by our Constitution have been stress-tested during a civil war, two world wars, and economic depression, and now a once-in-a-century pandemic.”

The state’s high court found that the state courts have the constitutional authority to make rules and procedures for all court cases, and observed that technological safeguards have kept this new system of virtual grand juries honest.

Roughly a month after New Jersey officials declared the pandemic a public health emergency in 2020, the state judiciary switched to virtual proceedings for its cases and established a working group to determine whether grand jury proceedings could proceed virtually. A pilot program for virtual grand juries began in May 2020 in Bergen and Mercer counties; two months later it was expanded to all counties in the state.

While the underlying case is nothing jaw-dropping — it involves the August 2019 arrest of Omar Vega-Larregui, who was charged with three drug-related offenses and two disorderly persons charges after he was found with cocaine near a public park — it drew attention from a couple of trial attorney groups, which filed amicus briefs claiming virtual grand juries were unconstitutional.

Each of the jurors in the case was given an orientation session and had to show they could use technology to see and hear the proceedings. They were also given the contact information for information technology staff in Mercer County. While transcripts show some technical hiccups, the case proceeded to trial.

The case took place over Zoom sessions last June and July, and jurors were required to perform “a 360-degree scan of their location to assure staff of the privacy of their environment” and were administered multiple oaths of secrecy.

Vega-Larregui last November filed a motion to dismiss the indictment, claiming the Zoom sessions were unconstitutional. The New Jersey State Bar Association and the state chapter of the Association of Criminal Defense Lawyers filed amicus briefs supporting dismissal, claiming virtual juries would unduly exclude minorities, poor people, and the elderly who didn’t have access to online devices.

Both associations also called on the state to declare a moratorium on all grand jury proceedings until they could resume in person. The ACDL stated in an August 2020 report that the accused in each case must consent to virtual jury trials during the pandemic.

In its own amicus brief, the state Attorney General claimed that virtual grand juries do not unfairly target certain cross-sections of the community and said no juror had been excluded from serving based on a technological barrier.

In the 54-page ruling, Justice Barry Albin wrote that despite various groups’ charges of unconstitutionality, “the defects attributed to the virtual format are almost wholly based on supposition and speculation.”

The suspension of in-person grand juries and jury trials “was a public health imperative — a step necessitated to protect jurors, prosecutors, and court staff from potential serious illness and death,” Albin wrote. “The suspension of grand juries, however, delays the criminal justice process with serious implications for the accused, whether detained or released pretrial, and the state.”

Prosecutors have an interest in securing testimony while witness’s memories are fresh, Albin wrote, and there is “no perfect system of verification” to prevent jurors from, say, sneaking onto their cell phones to research the case they were assigned.

The state judicial branch, and not the legislative branch, has the power to authorize virtual grand juries, Albin explained, noting the unprecedented public health emergency.

“When the court entered its first order temporarily suspending grand jury sessions, it could not know the duration of the pandemic, the death toll it would reap, or whether an effective vaccine or treatment would be developed within a year or much longer,” Albin wrote.

Albin also took issue with the complaint that elderly people would be excluded from virtual grand juries, writing that “it is not likely that vulnerable populations, such as the elderly and those with underlying conditions, would have appeared for service at the risk of their lives” for in-person grand juries.  

Further, he noted, the grand jurors in this particular case were drawn in mid-February 2020, before the pandemic had caused shutdowns in the United States, making general challenges to the virtual selection process non-applicable.

Vega-Larregui’s case is now remanded back to trial court. His attorney, John Furlong, told Courthouse News that the ruling “might be the least surprising jurisprudential event in recent New Jersey history,” but cautioned against “the slippery slope we risk riding down towards virtual jury trials, virtual sentencings, and ultimately, virtual justice.”

“‘Justice’ should not have a qualifier,” Furlong added.

In a statement, New Jersey State Bar Association president Kimberly Yonta did not comment directly on her opinions regarding the ruling, but said she wants to “return to normalcy” and reopened courthouses.

Yonta also praised the Supreme Court for providing guidance on best practices so prosecutors can remove ambiguities during proceedings and ensure an accurate record.

“Having a clear path to follow is important for everyone at every stage in the proceedings,” Yonta said.

A spokesman for the state’s Attorney General welcomed the ruling, saying it “ensures that we can continue the operation of the criminal justice system during the current public health crisis.”

Aidan O’Connor, an attorney representing the New Jersey ACDL, expressed the group’s dissatisfaction with the ruling.

“While the ACDL-NJ is disappointed that the Supreme Court ruled against our position that grand juries should meet in person to protect everyone’s constitutional rights, we are pleased that the court reiterated that virtual grand juries are a temporary measure only to be used during the pandemic’s ‘unprecedented public health emergency,’” said O’Connor, an attorney at Pashman Stein Walder Hayden.

Since the Covid-19 pandemic struck the United States, more than 6,000 cases have been presented to virtual grand juries in New Jersey. The state is not alone in that, as five other states — Alaska, Georgia, Kentucky, South Carolina and Texas — also authorized virtual grand jury proceedings during the pandemic.

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