New Jersey is planning to start resuming jury trials as early as September, using mostly virtual jury selection and even multiple courtrooms and plexiglass barriers to maintain social distancing during the trial.
The process is to begin later this month with the mailing of juror summonses and will continue with piloted jury selection and trials in Bergen and Atlantic/Cape May vicinages, the New Jersey judiciary announced at a press conference Wednesday.
“We do not have the option of shutting down. The critical work of the court needs to continue,” said Judge Glenn A. Grant, acting administrative director of the courts. He said approximately 4,700 pre-trial defendants are sitting in the state’s county jails, though nearly half of them are not near the trial phase. There are also civil cases that just need to be tried, he said.
The announcement comes a day after the Association of Criminal Defense Lawyers (ACDL) of New Jersey held a virtual town hall to call for legislative hearings on the plans, as well as the state’s virtual grand jury hearings being piloted in Bergen and Mercer counties. The association is among those in the legal community raising concerns over possible constitutional and logistical issues with the work arounds the court is proposing.
Like courts around the nation, New Jersey’s state courts have been facing an ever-growing backlog of cases that have been unable to resolve since the courts closed in March due to the coronavirus.
While the court has held tens of thousands of other hearings virtually since then, including detention hearings, pleas and sentencings, trials present a unique challenge for several reasons, including the defendant’s right to face and question his or her accusers.
The court’s plan calls for the initial stages of jury selection to be done virtually, while the judge, attorneys and defendants participate from the courtroom. The final round of jury questioning and empaneling will take place in person with only a limited number brought before the judge at a time.
For trials in courthouses with large courtrooms, all parties including jurors will be in the room but maintain six feet of distance, said Jessica Lewis-Kelly, of the Administrative Office of the Courts. In courthouses with small courtrooms, jurors may need to be in another courtroom watching the proceedings on a video feed, she said.
In some courthouses, that will mean only one trial can go on at a time, Lewis-Kelly said.
The first courthouses to restart criminal trials will be Bergen and Atlantic/Cape May vicinages, followed by the Cumberland-Salem-Gloucester vicinage. Grant said defendants will not be able to opt out of such a trial.
Lewis-Kelly said it isn’t clear when trials of more complex civil matters will restart.
Asked by reporters during the press conference, Grant dismissed criticism from members of the legal community, including that social distancing requirements will impede communication between defendants’ and their attorneys during trial, even with stopgap solutions like ear buds.
“We have to start jury trials. We are willing to work with the bar, work with the judges to design strategies to meet all their concerns,” Grant said.
Matthew Adams, chairman of the ACDL’s Pandemic Task Force, said the fact that the court has not worked out that problem — implicating a defendant’s constitutional right to effective legal counsel — is just one example of why the plan is “fundamentally flawed.”
The ACDL is calling for the assembly and senate judiciary committees to hold public hearings on the plans before they go into effect. The group also implored the court to slow down its plans so the parties could work out such issues, Adams said.
“Instead of doing that, they’re running ahead,” he said.
Kimberly Yonta, president of the New Jersey State Bar Association, said the association’s pandemic task force did submit recommendations to the judiciary about virtual jury selection, including some that apparently were adopted. The association had not reviewed the judiciary’s plan as of Tuesday afternoon and did not have an official comment.
“I can say as a criminal defense lawyer, there are some concerns for me,” she said. “It would seem to me there are significant constitutional concerns with having them watching in another room. You’re talking about determining the veracity of witness testimony without being able to be in the same room with the parties while the evidence is being presented.”
Jennifer Sellitti of the state Office of the Public Defender said that it’s likely public defenders represent most of those who are jailed and awaiting trial, so she appreciates the need to resume in-person trials. But she does have concerns about juries being in separate rooms, being able to communicate with clients, the thoroughness of jury questions online and the ability for the court to be flexible given the mandates.
“I’m hoping that because it was kind of rolled out quickly — input from stakeholders was taken, but this is very clearly the [Administrative Office of the Courts’] plan — I hope that they are going to empower judges to make decisions on a case-by-case basis by working with the parties in the room,” she said.
One obvious issue with virtual jury selection is the likelihood that potential jurors will not have the physical technology or internet access needed. To try to alleviate that, the courts will provide whatever is necessary for every potential juror to be part of the virtual juror orientation and questioning by the judge over Zoom, Grant said.
When summoned, potential jurors will fill out a questionnaire and jury management staff will contact them for prescreening and to determine if they need technology.
It won’t be cheap or easy. The court has purchased 2,000 Samsung tablets for $600,000, some of which have already been used in virtual grand juries, plus additional computers that will be distributed to courthouses for use by prospective jurors. The judiciary said it may cost anywhere from $100,000 to $200,000 for network costs for homes that don’t have internet access.
That doesn’t include the $750,000 the courts spent on its Zoom accounts for the year for all court proceedings.
Even with those plans, Adams said he believes the jury selection process will still unlawfully exclude those jurors who have limited technology. It’s the same issue both the ACDL and the County Prosecutors Association of New Jersey have raised in objecting to virtual grand juries.
Adams said it will have a disparate impact on people of lower socioeconomic means and people of color. “And in a time in our country when we are supposed to be moving forward and progressing in the aftermath of the murder of George Floyd we are, as a criminal justice system in New Jersey, taking giant leaps backward,” he said.
Members of the media or the public who would like to watch a trial will have to contact the court to get information on how to watch it via Zoom, Grant said.