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NJSBA Files Amicus Brief Raising Constitutional Concerns with Jury Selection Process Used in Bergen County Criminal Trial

October 8, 2020
Contact: Kate Coscarelli
NEW BRUNSWICK – The New Jersey State Bar Association argued in legal papers that jury selection in an ongoing criminal trial in Bergen County raised constitutional concerns and should be scrapped to allow for a more transparent jury selection process that preserves the defendant’s right to participate in the process. The Association made the arguments in a brief seeking to be permitted as an amicus party in State v. Dangcil the first criminal jury trial to be held since the Judiciary shut down jury trials in March because of the COVID-19 pandemic.
The NJSBA said in its brief that the jury selection process used in the case wasn’t appropriate because the county’s jury management office exercised “unfettered and unrecorded discretion” in excusing some people from jury service. Further, it did not keep records about dismissed jurors, nor did it collect demographic data of potential jurors, meaning the defendant and attorneys on both sides couldn’t participate fully in jury selection and a representative jury may not have been selected.
“The NJSBA understands the importance of resuming jury trials after months of their suspension during COVID-19. But the pandemic does not excuse the requirement that a jury be constituted through a process that is thorough, fair and equitable, and that gives assurance to the defendant and the public that trials are adjudicated by juries drawn from pools that are sufficiently representative of the community. For the reasons described above, the selection process used for Defendant’s trial, which allowed the Jury Management Office to exercise unilateral discretion to excuse jurors for scheduling conflicts, fails to accomplish, and even undermines these goals. Amicus NJSBA therefore requests that this Court invalidate the process utilized here and allow the defendant a trial at which requests for excuses, as part of the voir dire process, occur on the record and in the presence of counsel,” stated the brief written Lawrence S. Lustberg, Director of the Gibbons Fellowship program, and Michael R. Noveck, Associate and Gibbons Fellow at Gibbons, P.C. Read it here. 
The case involves a Jersey City man on trial for attempted arson and other charges. Attorneys for Wildemar Dangcil have argued that the jury selection process under the Judiciary’s hybrid plan violates his constitutional rights. The trial has been temporarily halted while the matter is pending appeal.
The NJSBA has been closely monitoring the issues related to resuming jury trials. The Association’s Pandemic Task Force Committee on the Resumption of Jury Trials, which is composed of civil trial attorneys, criminal defense attorneys, county prosecutors and retired members of the Judiciary, spent the past several months exhaustively studying the issues related to restarting jury trials given the public health crisis. It has repeatedly expressed concerns about the Judiciary’s plan to resume criminal trials. The Committee warned the challenge of ensuring a representative jury would be a high hurdle to overcome, among many other issues. The Committee also suggested the courts start with civil trials because they can be structured in a way that allows for the safe, fair, and rational return of jury trials to New Jersey’s courthouses. Read the Committee’s reports here and here. 
In its brief, the NJSBA argued that the jury management office exercised its own authority to grant or deny juror requests to excuse them from jury selection or defer their service. It did so without any standards or recordkeeping and was performed outside the presence of the parties and their attorneys, which prevented them from being able to evaluate the sincerity and reasonableness of the request and to object to any excusals or advocate for one.
The “opaque exercise of authority raises constitutional concerns regarding whether the jury pool was in fact drawn from a fair cross-section of the community and whether dismissal of jurors was based on impermissible factors such as race and gender,” the brief states.
“The constitutional right to counsel attaches throughout the jury selection process, including during voir dire… The Jury Management Office’s unilateral exercise of authority to excuse jurors, without input from counsel, interferes with Defendant’s right to counsel during the jury selection process. Indeed, in an ordinary trial, the concerns of an eligible juror who has not been deferred or exempted from service on statutory grounds are discussed in open court, with counsel present,” the brief states.
Further, the brief states, the Jury Management Office failed to collect demographic data on jurors’ race, ethnicity, or gender, which could have revealed whether the jurors who were excused consisted disproportionately of certain classes, and thus unfairly skewed the available jury pool towards an unrepresentative sample of the public.
“The Jury Management Office should not be permitted to adjudicate jury deferral requests in its sole, unfettered, unguided, and unrecorded discretion, without counsel or the defendant present. That process, utilized in this trial, stifled Defendant’s right to fully participate, both personally and through counsel, in the jury selection process. It also fails to sufficiently protect against the risk of unconstitutionally discriminatory jury selection,” the brief states. 

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