Defense lawyers pan N.J.’s plan to restart criminal trials

An association of defense attorneys is giving a thumbs-down to some of New Jersey’s plans to restart criminal trials next month using a combination of remote and in-person proceedings.

The state judiciary released guidelines last month that would allow live trials to resume in September at courthouses serving six of New Jersey’s 21 counties.

Among the conditions are that jury selection would be mostly virtual. The judiciary’s guidelines released July 22 also raised the possibility of having to enforce social distancing during trials by having jurors in a different courtroom than attorneys and defendants, connected by a video feed. But a spokesman said Friday the judiciary has determined that jurors won’t be in separate courtrooms for the limited number of trials expected.

“We thought that was critical,” Association of Criminal Defense Lawyers of New Jersey president-elect Aidan O’Connor said Friday. “That’s an improvement, but I’d like to see it in writing and see what that means.”

Criminal and civil trials have been suspended in New Jersey for nearly four months due to the COVID-19 pandemic. Roughly 5,000 defendants currently are awaiting trial.

“We cannot predict when jury trials will be able to resume in the same manner they were held pre-COVID 19,” Supreme Court Chief Justice Stuart Rabner wrote in July. “Nor can we leave them on hold indefinitely. The Judiciary has a responsibility to ensure the fair and timely administration of justice, and resuming jury trials is a key part of fulfilling that responsibility.”

In a statement released Thursday, the defense lawyers’ association wrote that lack of access to technology will unconstitutionally exclude minority, poor and elderly jurors, and that pre-screening for certain medical conditions will disproportionately exclude those groups as well. It also wrote that defendants should have the right to decide whether they want a jury trial under the existing guidelines or a bench trial, involving a judge but no jury.

“These men and women are in the difficult position of choosing between an indefinite period of incarceration during a global pandemic that is ravaging correctional facilities and the prospect of an imperfect, partially remote jury trial,” the group wrote.

New Jersey has already experimented with virtual grand juries in two counties and will use knowledge gained from that pilot program for criminal trial jury selection, according to the state judiciary.

“The plan to resume jury trials is centered on conducting trials fairly for all involved, while following all public health guidelines,” judiciary spokesman Pete McAleer said in an email Friday. “As the Judiciary implements the plan, we will continue to make refinements to best serve the parties, witnesses, jurors, and the overriding public interest in fair and open proceedings.”

In May, a court in the Dallas suburbs held what was believed to be the first online jury trial, in a lawsuit involving an insurance claim. This week, a different court in Texas conducted what was believed to be the first criminal trial using a virtual jury. The panel returned a guilty verdict against an Austin woman for speeding in a construction zone and ordered her to pay a $50 fine and court costs.