State v. Wildemar A. Dangcil (085665) (Bergen County & Statewide) ( 2021 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Wildemar A. Dangcil (A-56-20) (085665)
Argued June 29, 2021-- Decided August 16, 2021
SOLOMON, J., writing for the Court.
The Court considers defendant Wildemar A. Dangcil’s contentions that the hybrid
jury-selection process implemented by the Judiciary in response to the COVID-19
pandemic (1) deprived him of his rights to presence and representation and (2) failed to
ensure him a jury drawn from a representative cross-section of the community.
Jury selection for defendant’s trial was scheduled for April 20, 2020, but was
adjourned in light of the pandemic. On July 22, 2020, in coordination with
representatives from the Attorney General’s Office, Office of the Public Defender,
County Prosecutors Association of New Jersey, and New Jersey State Bar Association,
the Court established a plan to resume criminal and civil jury selections using a hybrid
process intended to maintain the core components of pre-pandemic jury operations
modified to protect the health and safety of jurors, attorneys, parties, and all court users.
Under the predominately virtual selection process, jurors were to be summoned
consistent with pre-pandemic practices, except that they were to receive a summons
notice informing them of both the virtual jury-selection process and socially distanced
trials. Prospective jurors also received a COVID-19 questionnaire. Court administration
and assignment judges were tasked with prescreening jurors for technological access and
knowledge, and with providing devices and broadband access as necessary. Judiciary
staff prescreened jurors for trial availability, medical inability, and other considerations
consistent with pre-pandemic protocols. All case-specific questioning was conducted
during virtual voir dire before a judge, counsel, and the parties. Following virtual voir
dire, a fraction of prospective jurors reported in person to courts for the final phase of
selection with facemask and social-distancing precautions observed.
New Jersey’s first jury trial under the plan was set to begin in Bergen County on
September 21, 2020, and defendant’s was selected as the first trial to be conducted.
During pretrial conferences, defense counsel advised that defendant intended to challenge
the hybrid jury-selection process, but no such challenge was filed. On the morning of
September 21 -- after thirteen prospective jurors were interviewed over the course of two
hours -- defense counsel filed a challenge of the array.
1
Brian McLaughlin, manager of jury programs for the Administrative Office of the
Courts (AOC), attested that the same Jury Management System used to generate jury
pools and send out summonses and questionnaires pre-pandemic was used in the hybrid
process, with the exception of added COVID-19 related materials and the temporary
disablement of the juror self-deferral option. As they did pre-pandemic, jury managers
addressed requests for disqualification, excusals, and deferrals in a standardized pre-
screening process that did not include trial-specific information. Also consistent with
pre-pandemic practices, juror demographic information including race, ethnicity, and
gender was not collected.
Regarding defendant’s case, Lourdes Figueroa, jury manager for the Bergen
County Vicinage, certified that 800 jurors were summoned. Of that list, 197 did not
respond, 70 summonses were returned as “undeliverable,” 178 prospective jurors did not
qualify for service under statute, 90 were excused based on statutory factors, and 58 were
deferred due to calendar conflicts; in the end, 207 potential jurors remained. Only two
prospective jurors required court-supplied equipment in order to participate; one accepted
a tablet and one refused a device, which required that individual’s juror service to be
rescheduled. The juror yield for pools summoned beginning on September 21, 2020 was
comparable to the Bergen Vicinage’s February 2020 yield.
Defense counsel attacked the hybrid process, claiming a lack of transparency and
of juror demographic data; the purportedly unclear standards with which prospective
jurors were excused and deferred; and the possibility that prospective jurors who were
older, of modest means, and/or lacking in technological access were disproportionately
excluded. The trial court rejected defendant’s contentions both as time-barred under ---
Rule
1:8-3(b) and on the merits, opining that the pre- and post-pandemic selection processes
were substantially similar, and that defendant’s arguments were “based on nothing more
than conjecture and innuendo spun from inaccurate information and rumors.”
After the Appellate Division affirmed, defendant was convicted of and sentenced
for resisting arrest/eluding, terroristic threats, attempted aggravated arson, and attempted
aggravated assault. The Court granted direct certification “limited to defendant’s
challenge to the hybrid virtual/in-person jury selection procedure.” 246 N.J. 212 (2021).
HELD: *The pre-voir dire disqualification, excusal, or deferral of jurors is not a
stage at which defendant is entitled to be present or be represented, and defendant has
failed to support his representative-cross-section claim.
*In recognition of the important issues raised, but not nearly substantiated,
in this appeal and to better assist New Jersey courts in preventing potential
underrepresentation and irregularities stemming from the hybrid process and other
facially neutral selection procedures, the Court directs the AOC to begin collecting
jurors’ demographic information.
2
1. The trial court correctly determined that defendant’s filed challenge was untimely.
Rule 1:8-3(b) directs that “[a] challenge to the array shall be decided before any
individual juror is examined.” Relaxation of that time-bar is granted only upon a prima
facie showing of actual prejudice to defendant’s right to a fair and impartial jury. Here,
defendant waited for two hours and through the questioning of thirteen prospective jurors
before filing his challenge, and counsel’s reliance on notice of a likely challenge to the
jury pool is unpersuasive. Further, defendant does not set forth a prima facie claim of
actual prejudice warranting relaxation of Rule 1:8-3(b)’s time-bar. (pp. 17-19)
2. Defendant argues that he was deprived of his constitutional rights to be present and
represented by counsel during the pre-voir dire disqualification, excusal, and deferral of
jurors. A defendant’s right to be present at trial and during critical stages of the
adversarial process is guaranteed by the Sixth Amendment and by Article I, Paragraph 10
of the State Constitution. Reviewing the statutes that set the criteria for disqualifying
jurors and that repose discretion for excusals or deferrals in the assignment judges or their
designees, the Court notes that the process employed here was substantially the same as
the pre-pandemic process. (pp. 19-21)
3. Federal circuit courts have concluded that routine administrative procedures such as
the statutory disqualification, excusal, or deferral of prospective jurors are not part of the
true jury impanelment process and thus not a critical stage of the trial during which the
parties and counsel must be present. The Court agrees. Defendant fails to provide a
persuasive reason why he was entitled to be present and represented during the process of
statutory qualification, excusal, and deferral set in place long prior to the pandemic.
Further, defendant fails to articulate what vital information he and counsel may have
gleaned from participation, given that disqualifications, excusals, and deferrals precede
the revelation of any case-specific information. Nor does the Court see why an excusal
based on COVID-19 should be distinguished from one based on -- for example --
impending surgery. The Court joins courts from other states in concluding that the pre-
voir dire process of disqualifying, excusing, and deferring prospective jurors is not a
stage at which defendants and counsel are entitled to be present. (pp. 21-24)
4. In State v. Vega-Larregui, the Court considered whether the right to a fair grand jury
is violated by a virtual format allegedly limiting the participation of racial minorities,
older citizens, and those of modest means. See 246 N.J. 94, 117 (2021). The Court
rejected the defendant’s representative-cross-section claim, citing a lack of substantiation,
similar pre- and post-pandemic practices, and attestation that the number of potential
grand jurors available was “not significantly different” than pre-pandemic. Id. at 127-28.
The Court also concluded that the virtual process likely increased the participation of
members of vulnerable demographic groups. Id. at 129. Here, the processes challenged
-- pre-voir dire excusals and deferrals -- were in place pre-pandemic, and defendant’s
opposition to the hybrid selection process is actually a challenge to long-standing
procedures now presented through the “prism” of the COVID-19 crisis. (pp. 24-26)
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5. A criminal defendant’s right to be fairly tried by an impartial jury is protected by both
the Federal and the State Constitutions. Under the latter, defendants have “the right to
trial by a jury drawn from a representative cross-section of the community.” State v.
Andujar, ___ N.J. ___, ___ (2021) (slip op. at 26-27). To challenge whether a jury pool
was drawn from a representative cross-section of the community, a defendant is required
to “(1) identify a constitutionally-cognizable group . . . ; (2) prove substantial
underrepresentation over a significant period of time; and (3) show discriminatory
purpose.” State v. Dixon, 125 N.J. 223, 232 (1991). (pp. 26-30)
6. Defendant asserts that, because nationwide COVID-19 statistics show
disproportionate transmission rates and serious complications among minority
populations, the disparity must have manifested itself in a skewed jury pool. The
argument is analogous to one rejected in State v. Coyle, 119 N.J. 194, 213 (1990). One’s
likelihood of contracting and falling seriously ill due to COVID-19 may have correlative
ties with race and ethnicity worthy of consideration, but it does not follow that those
particularly susceptible to, or who have contracted, COVID-19 themselves make up a
cognizable class under a representative-cross-section analysis. As to technology-based
arguments, the Court rejected in Vega-Larregui a similar unsupported contention, noting
-- as was the case here -- that prospective jurors were provided the equipment necessary
to participate. 246 N.J. at 127-29. Defendant has failed to make a showing that any
cognizable group -- however identified or classified -- has been excluded from the jury
venire in this case, and the Court therefore does not reach the question of whether age or
financial means, for example, might be a cognizable group for purposes of a challenge to
a jury venire. Second, defendant failed to demonstrate substantial underrepresentation
over a significant period of time. Third and finally, the jury-selection procedure
employed here was facially neutral and defendant has not shown that it was applied in a
discriminatory manner. Defendant fails to meet the requirements of Dixon. (pp. 30-35)
7. The validity of a jury-selection process is not static, and the exercise of special care in
unusual circumstances is of the utmost importance. Defendant contends that excusal and
deferral records have not been maintained as required by N.J.S.A. 2B:20-9(b) -- a claim
that cannot be substantiated as such records were never requested. Suffice it to say, those
records should be kept. Further, in recognition of the important issues raised, but not
nearly substantiated, in this appeal and to better assist New Jersey courts in preventing
potential underrepresentation and irregularities stemming from the hybrid process and
other facially neutral selection procedures, the Court directs the AOC to begin collecting
jurors’ demographic information. Disclosure should be voluntary and cover a juror’s
identified racial identity, ethnicity, and gender categories. (pp. 35-36)
AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s opinion.
4
SUPREME COURT OF NEW JERSEY
A-56 September Term 2020
085665
State of New Jersey,
Plaintiff-Respondent,
v.
Wildemar A. Dangcil,
Defendant-Appellant.
On appeal from the
Superior Court, Law Division, Bergen County.
Argued Decided
June 29, 2021 August 16, 2021
Brian J. Neary argued the cause for appellant (Brian J.
Neary, of counsel and on the briefs, and Lois De Julio, on
the briefs.)
Jaimee M. Chasmer, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Jaimee M. Chasmer, of counsel and
on the briefs).
Joseph E. Krakora, Public Defender, argued the cause for
amici curiae Public Defender of New Jersey and
American Civil Liberties Union of New Jersey (Joseph E.
Krakora, Public Defender, and American Civil Liberties
Union of New Jersey Foundation, attorneys; Joseph J.
Russo, Deputy Public Defender, Alison Perrone, First
Assistant Deputy Public Defender, John P. Flynn,
1
Assistant Deputy Public Defender, Jeanne LoCicero, and
Alexander Shalom, on the brief).
Lawrence S. Lustberg argued the cause for amicus curiae
New Jersey State Bar Association (Gibbons and New
Jersey State Bar Association, attorneys; Lawrence S.
Lustberg, Michael R. Noveck, and Domenick
Carmagnola, President, New Jersey State Bar
Association, on the brief).
Marissa Koblitz Kingman argued the cause for amicus
curiae Association of Criminal Defense Lawyers of New
Jersey (Fox Rothschild, attorneys; Matthew S. Adams, of
counsel and on the brief, and Marissa Koblitz Kingman
and Arrianna T. Diamantis, on the brief).
Lila B. Leonard, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Andrew Bruck, Acting Attorney General, attorney; Lila
B. Leonard, of counsel and on the brief, and Valeria
Dominguez, Mercedes Robertson, Jeffrey Olsen, and
Jesse Magliulo, Deputy Attorneys General, on the brief).
Linda A. Shashoua, Special Deputy Attorney
General/Acting Assistant Camden County Prosecutor,
argued the cause for amicus curiae County Prosecutors
Association of New Jersey (Esther Suarez, President,
County Prosecutors Association, attorney; Linda A.
Shashoua, of counsel and on the brief).
JUSTICE SOLOMON delivered the opinion of the Court.
Defendant Wildemar A. Dangcil was awaiting trial when the COVID-19
pandemic hit and altered how we live, work, and conduct criminal trials.
Defendant’s trial was adjourned for five months and, in the interim, the
2
Judiciary implemented a primarily virtual, hybrid jury-selection process with
the aim of balancing public health and defendants’ constitutional rights, while
preserving the majority of pre-pandemic practices and procedures.
Defendant’s trial was Bergen County’s first to utilize the hybrid process.
During the virtual phase of jury selection, defense counsel filed an Order to
Show Cause challenging the array as not being drawn from a representative
cross-section of the community. The trial court rejected the challenge. After
the Appellate Division affirmed and remanded for resumption of the trial,
defendant was convicted of multiple offenses, including attempted aggravated
arson. He was sentenced to an aggregate eighteen-year term of imprisonment.
We granted direct certification, and before us defendant contends that
the hybrid jury-selection process deprived him of his rights to presence and
representation and failed to ensure him a jury drawn from a representative
cross-section of the community. Though the challenge is to the new hybrid
process, it is also directed at pre-pandemic practices -- most notably pre-voir
dire juror excusals and deferrals -- that have remained largely unchanged
during the COVID-19 crisis.
We are asked to consider those longstanding practices through the new
“prism” of COVID-19. We hold that the pre-voir dire disqualification,
excusal, or deferral of jurors is not a stage at which defendant is entitled to be
3
present or be represented and that defendant has failed to support his
representative-cross-section claim. We therefore affirm.
I.
A.
Following a domestic incident not relevant to this appeal, defendant was
charged in an August 2019 Bergen County indictment with second-degree
resisting arrest/eluding, contrary to N.J.S.A. 2C:29-2(b); fourth-degree
contempt for violating an order entered under the Prevention of Domestic
Violence Act of 1991, contrary to N.J.S.A. 2C:29-9(b); third-degree terroristic
threats, contrary to N.J.S.A 2C:12-3(a); second-degree attempted aggravated
arson, contrary to N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:17-1(a)(1); and first-
degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3.
Jury selection for defendant’s trial was scheduled for April 20, 2020, but
this Court suspended new jury selections and trials on March 12, 2020 in
response to the COVID-19 pandemic. See Sup. Ct. of N.J., Notice -- COVID-
19 Coronavirus -- Status of Court Operation -- Immediate and Upcoming
Plans, at 1 (Mar. 12, 2020). Defendant’s case was adjourned until the
resumption of jury trials.
On July 22, 2020, this Court established a plan to resume criminal and
civil jury selections using a hybrid process intended to “maintain[] the core
4
components of pre-pandemic jury operations . . . modified to protect the health
and safety of jurors, attorneys, parties, and all court users.” Sup. Ct. of N.J.,
Order -- Resuming Criminal and Civil Jury Trials, at 1-2 (July 22, 2020).
Under the predominately virtual selection process, jurors were to be
summoned consistent with pre-pandemic practices, except that they were to
receive a summons notice informing them of both the virtual jury-selection
process and socially distanced trials. Id. at 4. Prospective jurors also received
a COVID-19 questionnaire. Ibid. Court administration and assignment judges
were tasked with prescreening jurors for technological access and knowledge,
and with providing devices and broadband access as necessary. Id. at 2-3.
Judiciary staff prescreened jurors for trial availability, medical inability,
and other considerations consistent with pre-pandemic protocols, with COVID-
19 concerns “not related to substantiated medical inability” brought before a
judge and all case-specific questioning conducted during virtual voir dire
before a judge, counsel, and the parties. Id. at 4-5. Following virtual voir
dire, a fraction of prospective jurors reported in person to courts for the final
phase of selection with facemask and social-distancing precautions observed.
Id. at 2, 5. The plan was produced in coordination with the Judiciary’s Post-
Pandemic Stakeholder Coordinating Committee, which included
representatives from the Attorney General’s Office, Office of the Public
5
Defender (OPD), County Prosecutors Association of New Jersey (CPA), and
New Jersey State Bar Association (NJSBA). Sup. Ct. of N.J., Notice --
Resuming Criminal and Civil Jury Trials, at 3 (July 22, 2020).
Additional guidance was provided several weeks later, specifying that
jurors who did not meet the disqualification criteria of N.J.S.A. 2B:20-1 or
were seeking excusal under N.J.S.A. 2B:20-10 were required to contact the
Jury Management Office and supply substantiating documentation. Sup. Ct. of
N.J., Notice -- COVID-19 -- Update on Resumption of Criminal and Civil Jury
Trials; Next Steps, at 1-2 (Sept. 11, 2020). Jurors were contacted regarding
the virtual format and related safety precautions and advised that they needed
to submit a note from a healthcare provider to substantiate claims of medical
inability to report. Id. at 2. Jurors were also prescreened for technological
capability, including familiarity with virtual conferencing platforms, access to
a private internet connection, and possession of a device with a functioning
web camera, speaker, and microphone. Id. at 2-3. The Judiciary provided
tablets and broadband to prospective jurors as necessary. Id. at 3. New
Jersey’s first jury trial was set to begin in Bergen County on September 21,
2020. Ibid.
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B.
Defendant’s trial was selected as the first to be conducted in Bergen
County. During pretrial conferences on September 16 and 18, defense counsel
advised that defendant intended to challenge the hybrid jury-selection process,
but no such challenge was filed. Finally, on the morning of September 21 --
after thirteen prospective jurors were interviewed over the course of two hours
-- defense counsel filed an Order to Show Cause challenging the array and
sought a stay. A hearing was scheduled for September 28, but selection
continued over four days with 178 prospective jurors interviewed and sixty-
three selected for in-person questioning to be conducted on September 29.
In advance of the hearing, Brian McLaughlin, manager of jury programs
for the Administrative Office of the Courts (AOC), and Lourdes Figueroa, jury
manager for the Bergen Vicinage, presented certifications. McLaughlin
attested that the same Jury Management System used to generate jury pools
and send out summonses and questionnaires pre-pandemic was used in the
hybrid process with three exceptions: (1) juror summons documents were
modified to inform jurors of the virtual format and related requirements, (2)
the juror self-deferral option 1 was temporarily disabled -- requiring prospective
1
Typically, jurors are able to reschedule their own service via New Jersey’s
Juror eResponse Portal by opting to “Defer Service” and selecting a specific
future date, provided that they do so more than a week prior to their reporting
7
jurors to contact Jury Management to request deferrals, and (3) additional
standardized COVID-19-related communications were sent to jurors, including
a COVID-19 questionnaire. In keeping with pre-pandemic practices, jury
managers addressed requests for disqualification, excusals, and deferrals in a
standardized pre-screening process that did not include trial-specific
information such as familiarity with the parties or counsel. McLaughlin
reported that, also consistent with pre-pandemic practices, juror demographic
information including race, ethnicity, and gender was not collected.
Regarding defendant’s case, Figueroa certified that 800 jurors were
summoned. Of that list, 197 did not respond or complete the summons, 70
summonses were returned as “undeliverable,” 178 prospective jurors
substantiated that they did not qualify for service under N.J.S.A. 2B:20-1, 90
were excused based on substantiated N.J.S.A. 2B:20-10 factors, and 58 were
deferred due to calendar conflicts; in the end, 207 potential jurors remained.
Only two prospective jurors required court-supplied equipment in order to
participate; one accepted a tablet and one refused a device, which required that
individual’s juror service to be rescheduled. A spreadsheet memorializing all
232 responses to the COVID-19 questionnaire, including duplicates, was
date. See Frequently Asked Questions About Juror Service in New Jersey, at
7, https://www.njcourts.gov/jurors/assets/juryfaq.pdf.
8
provided to the trial court in advance of selection. The juror yield -- the
number of qualified responsive jurors divided by summonses issued -- for
pools summoned beginning on September 21, 2020 was 22.38%, according to
Figueroa, comparable to the Bergen Vicinage’s February 2020 yield of
28.37%.2
During the hearing, defense counsel sought to question Figueroa and
attacked the hybrid process based on a claimed lack of transparency and lack
of juror demographic data; the purportedly unclear standards with which
prospective jurors were excused and deferred; and the possibility that
prospective jurors who were older, of modest means, and/or lacking in
technological access were disproportionately excluded. Counsel
acknowledged that prospective juror demographic data had never been
collected or shared in the past, but noted that the hybrid process itself was
2
Juror-yield data provided to the Court by the AOC for February 2020,
September 2020, and June 2021 differs from the figures in the record .
Additionally, Bergen County’s yield rate surpassed the state rate in each month
-- 32.95% to 27.27% in February 2020, 27.97% to 13.24% in September 2020
with only three counties reporting, and 29.90% to 23.73% in June 2021. In
limited instances, juror-yield rates have increased from February 2020 to June
2021, most notably in Camden County where the rate has moved up by nearly
a percentage point -- 33.02% to 33.82%. This data does not detail the
representativeness of these juror pools, but it supports the general proposition
that although Bergen County’s yield has decreased by several percentage
points under the hybrid model, those yields still exceed the pre-pandemic
statewide average.
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new, stating, “I’m not saying that the process was defective. . . . All we know
is that we got a certification from Ms. Figueroa, and I believe a certification
from counsel, saying this is what happened. I don’t know that for certain. I
don’t know what went into those numbers.”
The trial court rejected defendant’s contentions both as time-barred
under ----
Rule 1:8-3(b) and on the merits, opining that the pre-pandemic and post-
pandemic selection processes were substantially similar, and that defendant’s
arguments were “based on nothing more than conjecture and innuendo spun
from inaccurate information and rumors.” The court noted that prospective
jurors were provided with technological equipment and access as necessary,
that jury managers had not made determinations previously addressed by
judges on the record, that the demographic information sought by defendant
had never been collected, and that -- far from secret -- details concerning the
hybrid plan had been made public months in advance. The court reported that
technological issues were infrequent and readily addressed to ensure that each
prospective juror was able to participate. As for the demographic makeup of
the pool, the trial court stated
I have not heard a word from defense counsel about the
demographic makeup of the jurors that we interviewed
during the virtual phase of jury selection in this case.
We didn’t hear it, because there isn’t a basis for
objection. It would have been entirely without merit.
The jurors we interviewed most certainly represented a
10
cross-section of the community and, based on our
experience in this case so far, the hybrid jury selection
process implemented by the Supreme Court will be a
success.
Defendant’s application was denied in its entirety along with his request
to stay proceedings. The Appellate Division granted defendant’s emergent
application claiming that the hybrid process lacked transparency and failed to
ensure a jury pool drawn from a representative cross-section of the
community, affirmed the trial court’s denial, and remanded for resumption of
the trial. The Appellate Division agreed that defendant’s challenge was
untimely under Rule 1:8-3(b) and that he had failed to show actual prejudice
permitting relaxation of the time bar. On the merits, the Appellate Division
concluded that defendant failed to rebut the presumption that jury selection
was valid and produced no evidence that the selection was non-random or
excluded any constitutionally cognizable group.
We denied defendant’s motion for emergent relief pursuant to Rule 2:9-8
without prejudice to defendant’s right to file a post-trial motion for direct
certification. Defendant’s trial resumed on October 19, and he was convicted
on October 23 of second-degree resisting arrest/eluding, third-degree
terroristic threats, second-degree attempted aggravated arson, and third-degree
attempted aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2), as a lesser-
included offense to attempted murder.
11
Defendant, again, sought emergent relief under Rule 2:9-8 and we,
again, denied without prejudice to defendant’s right to file a motion for direct
certification following entry of a judgment of conviction. In March of this
year, defendant was sentenced to an aggregate eighteen-year term, with nine
years -- those attributable to defendant’s attempted-aggravated-arson
conviction -- subject to the No Early Release Act, N.J.S.A. 2C:43-7.2(c).
Defendant thereafter filed a motion for direct certification pursuant to
Rule 2:12-2. We granted certification “limited to defendant’s challenge to the
hybrid virtual/in-person jury selection procedure.” 246 N.J. 212 (2021). We
also granted leave to participate as amici curiae to the Attorney General, CPA,
NJSBA, OPD, American Civil Liberties Union of New Jersey (ACLU), and
Association of Criminal Defense Lawyers of New Jersey (ACDL).
II.
A.
1.
Defendant contends that the pool from which the jury for his case was
selected likely did not represent a cross-section of the community because of
the disproportionate effects COVID-19 has had on racial and ethnic minorities
and women. He points to Centers for Disease Control and Prevention (CDC)
data showing that Black and Hispanic Americans have been significantly more
12
likely to contract, require hospitalization for, and die from COVID-19 than
Caucasian populations as evidence that it was “probable” that a
disproportionately low number of Black and Hispanic Americans were
available for jury service in his trial. Similarly, defendant cites a study
detailing how women have disproportionately borne additional childcare
demands during the pandemic, presumably impacting the ability of women to
serve on juries.
Defendant acknowledges that he is unable to demonstrate an actual lack
of representation, but attributes that inability to Jury Management’s failure to
maintain demographic records, the denial of his discovery request, and the
absence of trial counsel during the excusal process. To the latter point ,
defendant further argues that the processing of hardship excusals and deferrals
outside his and counsel’s presence denied him of both his Sixth Amendment
right to counsel during a critical stage of his proceedings and his own
constitutional right to be present at all stages of his trial -- including jury
empanelment.
2.
Amici curiae NJSBA, ACDL, OPD, and ACLU all support defendant’s
general position. The NJSBA asserts that juror excusals and deferrals outside
the presence of defendant and counsel infringed on defendant’s right to
13
participate and deprived defense counsel of a valuable opportunity to assess
jurors. It adds that temporarily disabling the self-deferral option provided Jury
Management with additional discretion with respect to deferrals -- the scope of
which cannot be ascertained because records are not maintained.
The ACDL asserts that the hybrid process places an additional
requirement on prospective jurors -- reliable internet access -- that cannot be
satisfied simply by providing devices and broadband and that inadequately
accounts for COVID-19’s disparate impact on older and minority populations.
The ACDL adds that the hybrid process should be used only upon the informed
consent and knowing waiver of a defendant and argues that defendant is
entitled to juror data and that, if none exists, the trial court must restart the
process and collect such data.
The OPD and ACLU, in their joint appellate brief, advance two proposed
safeguards: having judges rule on all COVID-19-related excusals and
requiring the collection of prospective juror demographic information. 3
3
The ACDL, OPD, and ACLU also assert that the Attorney General’s
representation of the AOC is a conflict of interest, an issue not raised by the
parties and therefore not considered by the Court. See State v. O’Driscoll, 215
N.J. 461, 479-80 (2013) (“[A]s a general rule, an amicus curiae must accept
the case before the court as presented by the parties and cannot raise issues not
raised by the parties.” (alteration in original) (quoting State v. Lazo, 209 N.J.
9, 25 (2012))).
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B.
1.
The State counters that defendant relies only on the “likely”
disproportionate effect of COVID-19 on minority and female prospective
jurors -- a position the State characterizes as contrary to the observations of the
trial court, the prosecutor, and even defense counsel during the Order to Show
Cause hearing. The State adds that defendant’s argument that he had a right to
be present and represented during excusals and deferrals should both be
deemed waived for failure to raise the objection below4 and rejected in the
same manner that numerous other jurisdictions have declined to recognize a
right to presence and representation during the production of a jury venire.
2.
The Attorney General and CPA echo the State’s arguments and each
other’s. With respect to defendant’s representative-cross-section challenge,
4
“Generally, an appellate court will not consider issues, even constitutional
ones, which were not raised below,” State v. Galicia, 210 N.J. 364, 383 (2012),
however “the limitation on the scope of appellate review is not absolute,” State
v. Robinson, 200 N.J. 1, 20 (2009). If “[t]he issue is an important one of
public concern and ought be considered; there is no question as to our power to
do so.” City of Newark v. Pulverman, 12 N.J. 105, 108 (1953); see also
Brown v. Shaw, 174 N.J. Super. 32, 39 (App. Div. 1980). We acknowledge
the importance of a defendant’s right to presence and representation and thus
choose to address the issue on the merits.
15
the Attorney General rebuts defendant’s claim of underrepresentation due to
technological access by noting that the hybrid plan provides prospective jurors
with necessary equipment. Defendant is unable to demonstrate that any
disparity stemming from hardship excusals and deferrals was unreasonable
over a sufficient period of time or the result of systematic efforts to exclude
cognizable populations, according to the Attorney General. The CPA concurs,
finding defendant’s representative-cross-section claim to be speculative and
reliance on CDC data lacking in any causal tie between minority COVID-19
rates and substantiated grounds for excusal.
As for defendant’s argument that he had a right to be present and
represented during excusals and deferrals, the Attorney General submits that
defendant waived the argument below. With regard to the merits of the claim,
such excusals -- made under set statutory criteria -- are administrative and
have been handled by assignment judges and designees pre- and post-
pandemic. The CPA adds that a defendant’s right to be present is not absolute,
excusals are generally granted or denied prior to any disclosure of case-
specific information, and the hybrid plan’s removal of the self-deferral option
likely increased -- rather than decreased -- the number of prospective jurors.
16
III.
A.
As an initial matter, the trial court correctly determined that defendant’s
Order to Show Cause was untimely. Rule 1:8-3(b) directs that “[a] challenge
to the array shall be decided before any individual juror is examined.” Accord
State v. Butler, 155 N.J. Super. 270, 271 (App. Div. 1978). As this Court has
explained, relaxation of Rule 1:8-3(b)’s time bar is to “be granted only where
there is a prima facie showing of actual prejudice to defendant’s right to a fair
and impartial jury.” State v. Simon, 161 N.J. 416, 481 (1999). Otherwise,
“time limitations are ‘strictly enforced’ because to do otherwise would
‘impede the orderly administration of [the] criminal justice system.’” Ibid.(alteration in original) (quoting State v. Gerald, 113 N.J. 40, 128 (1988)).
Here, defendant waited for two hours and through the questioning of
thirteen prospective jurors before filing his Order to Show Cause. Counsel’s
contention that the State and trial court were on notice of a likely challenge to
the jury pool is unpersuasive. To agree with defendant would make courts and
opposing parties responsible for what a defendant may do, including the filing
of untimely challenges. Such a system would be ripe for abuse and no doubt
impede the efficient functioning of our courts. Cf. H.C. Equities, LP v.
County of Union, ___ N.J. ___ (2021) (slip op. at 29) (rejecting an
17
interpretation of the New Jersey Tort Claims Act that “would require counsel
for a public entity to review every letter, e-mail, or other communication
received from counsel for a potential claimant and determine whether any such
communication, when combined with other communications, might constitute
notice of a tort claim”); State v. Irving, 114 N.J. 427, 433 (1989) (“The
purpose of a notice of alibi is ‘to avoid surprise at trial by the sudden
introduction of a factual claim [that] cannot be investigated unless the trial is
recessed to that end.’” (alteration in original) (quoting State v. Garvin, 44 N.J.
268, 272-73 (1965))); State v. Wyles, 462 N.J. Super. 115, 122 (App. Div.
2020) (“The reciprocal discovery provision in [Rule] 3:13-3 . . . . entitle[s]
[the State] to know in advance what evidence a defendant intends to use at trial
so that it may have a fair opportunity to investigate the veracity of such proof.”
(alterations and omission in original) (quoting State v. Williams, 80 N.J. 472,
478 (1979))).
Further, defendant does not set forth a prima facie claim of actual
prejudice warranting relaxation of Rule 1:8-3(b)’s time bar. To the contrary,
defense counsel specifically clarified at the Order to Show Cause hearing that
he was “not saying that the process was defective.” As discussed infra, we
conclude that defendant’s right to a fair and impartial jury was not infringed by
the hybrid selection process.
18
B.
We first address defendant’s claim that he was deprived of his rights to
be present and represented by counsel during the pre-voir dire disqualification,
excusal, and deferral of jurors. We conclude that the process of whittling
down the jury pool based on statutory criteria and scheduling conflicts does
not implicate a defendant’s substantive rights.
A defendant’s right to be present at trial is guaranteed by the Sixth
Amendment of the United States Constitution and Article I, Paragraph 10 of
the New Jersey Constitution. State v. Tedesco, 214 N.J. 177, 189 (2013). This
right is buttressed by our court rules, which state that “[t]he defendant shall be
present at every stage of the trial, including the impaneling of the jury . . . ,
unless otherwise provided by Rule.” R. 3:16(b). The Sixth Amendment
similarly guarantees defendants the right to counsel during “critical stage[s]”
of the adversarial process, State v. Harris, 181 N.J. 391, 440 (2004), and
Article I, Paragraph 10 of our State Constitution “is ‘consonant with the
Federal Constitution on the issue of when the right to counsel is triggered ,’”
State v. A.O., 198 N.J. 69, 82 (2009) (quoting State v. P.Z., 152 N.J. 86, 110
(1997)).
We have held that jury voir dire is a stage that triggers a defendant’s
right to be present and to be represented by counsel. See State v. Colbert, 190
19
N.J. 14, 21 (2007) (presence); State v. McCombs, 81 N.J. 373, 377-78 (1979)
(counsel). However, a defendant’s right to be present “is not absolute,” State
v. Luna, 193 N.J. 202, 210 (2007), and the right to counsel is limited to
“‘critical stage[s]’ of the prosecution,” meaning stages “in which the
substantial rights of the accused may be affected,” A.O., 198 N.J. at 82.
In the context of jury selection, prospective jurors are disqualified from
service by statute if they are under the age of eighteen, unable to read or
understand English, or have a mental or physical disability preventing their
service, among other factors. N.J.S.A. 2B:20-1. Also, qualified prospective
jurors may seek to be excused if they are age seventy-five or older or if service
would create a medical, financial, or similarly “severe” hardship. N.J.S.A.
2B:20-10. Upon the denial of a request to be excused, the vicinage assignment
judge may direct that the prospective juror’s service be deferred. N.J.S.A.
2B:20-11. Excusals and deferrals are uniquely within the discretion of
assignment judges or their designees. See N.J.S.A. 2B:20-9.
The process employed here was substantially the same as that followed
before the COVID-19 pandemic. Minor adjustments included the temporary
disabling of the automatic-deferral option, leaving Jury Management to
address such requests consistent with N.J.S.A. 2B:20-11. A COVID-19-
specific questionnaire -- asking prospective jurors whether they had tested
20
positive for, or been exposed to, COVID-19 and whether they had concerns
relating to COVID-19-related precautions, among other similar questions --
was also distributed as permitted by statute. See N.J.S.A. 2B:20-3(a) (“The
Assignment Judge may direct that questionnaires be sent to potential jurors ,
requesting that they provide pertinent information concerning their
qualifications for jury service, and any claims for exemption or deferral.”).
Our courts have not previously considered whether the statutory
disqualification, excusal, or deferral of prospective jurors by an assignment
judge or designee is a stage at which a defendant is entitled to presence and
representation, but federal circuit courts have concluded that such “routine
administrative procedures relating to jury selection are not part of the true jury
impanelment process in which parties and counsel have a right to participate.”
United States v. Greer, 285 F.3d 158, 167 (2d Cir. 2002); accord, e.g., United
States v. Moreland, 703 F.3d 976, 982-83 (7th Cir. 2012). In Moreland, the
defendants challenged the excusal of several potential jurors in advance of voir
dire due to vacation plans, business commitments, and employment obligations
that would have created hardships if they were selected to serve on a lengthy
trial. 703 F.3d at 982. The Seventh Circuit rejected the defendants’ argument
that the excusals violated their right to presence under Rule 3:16(b)’s federal
analogue, Fed. R. Crim. P. 43(a)(2), reasoning that excusal requests and
21
related actions preceded the jury empanelment at which defendants had a right
to be present and that it was “difficult to see what the defendant could have
added” to the “general qualification of the jury.” Id. at 982-83 (quoting
Henderson v. Dugger, 925 F.2d 1309, 1316 (11th Cir. 1991)). Likewise, in
Greer, the Second Circuit reaffirmed its prior holdings that “hardship
questioning is not a part of voir dire -- and thus not a critical stage of the trial
during which the parties and counsel must be present.” 285 F.3d at 167-68(reviewing cases).
We find that the same principles hold true here. Defendant fails to
provide a persuasive reason why he was entitled to be present and represented
during the process of statutory qualification, excusal, and deferral set in place
long prior to the pandemic. Indeed, it is difficult to envision how defendant
and counsel could have meaningfully participated in a process in which jurors
were removed based on substantiated hardships, scheduling conflicts, and
similar considerations. Further, defendant fails to articulate what vital
information he and counsel may have gleaned from participation, given that
disqualifications, excusals, and deferrals precede the revelation of any case-
specific information. To recognize this process as a critical stage would
require the participation of countless sets of parties and counsel on the off
chance that one of the prospective jurors will be directed to a particular case.
22
Alternatively, defendant and amici suggest that the importance of the
stage may depend on whether the excusal or deferral is related to COVID-19.
But basing a right on the unknowable answer of a prospective juror creates a
litany of practical complications, and we strain to see why an excusal based on
-- for example -- impending surgery would be less constitutionally significant
than an excusal due to having recently contracted COVID-19. See Moreland,
703 F.3d at 983 (deciding that “[p]racticality dictates” finding that the excusal
process precedes jury empanelment).
We therefore decline defendant’s invitation to recognize a new critical
stage in the prosecution of a criminal defendant. Rather, we join sister courts
in other states in expressly concluding that the pre-voir dire process of
disqualifying, excusing, and deferring prospective jurors is not a stage at
which defendants and counsel are entitled to be present. See Orme v. State,
896 So. 2d 725, 737 (Fla. 2005); Commonwealth v. Barnoski, 638 N.E. 2d 9,
13-14 (Mass. 1994); Davis v. State, 767 So. 2d 986, 992 (Miss. 2000); State v.
Sanders, 13 P.3d 460, 467-68 (N.M. 2000); State v. Hyde, 530 S.E. 2d 281,
291-92 (N.C. 2000).
Having determined that defendant and counsel were not entitled to be
present during the excusal and deferral process, we turn to defendant’s final
23
contention: that the hybrid selection process nonetheless failed to ensure a
jury drawn from a representative cross-section of the community.
C.
1.
Earlier this year we had occasion to consider an issue similar to the one
before us: whether a criminal defendant’s right to a fair grand jury is violated
by a virtual format allegedly limiting the participation of racial minorities,
older citizens, and those of modest means. See State v. Vega-Larregui, 246
N.J. 94, 117 (2021). In Vega-Larregui, as in this appeal, certifications were
submitted from statewide and county officials stating that the grand -jury
process had “remained largely unchanged,” with disqualifications, excusals,
and reschedulings handled in the same standardized manner as they had been
before, and with the Judiciary providing technological equipment and training
to prospective jurors to facilitate full participation. Id. at 109-10. We rejected
the defendant’s representative-cross-section claim, citing a lack of
substantiation, markedly similar pre- and post-pandemic practices, and
attestation that the number of potential jurors available for virtual grand juries
was “not significantly different” than were available pre-pandemic. Id. at 127-
28. To the contrary, we concluded that the virtual process likely increased --
24
rather than decreased -- the participation of members of vulnerable
demographic groups. Id. at 129.
We recognize here the limited applicability of Vega-Larregui -- most
notably the fact that the defendant’s grand jury was selected pre-pandemic -- to
our case, but we are nonetheless informed by our discussion there.
We also find that the specific processes challenged here -- pre-voir dire
excusals and deferrals -- were in place pre-pandemic and that defendant’s
opposition to the hybrid selection process is actually a challenge to long-
standing procedures now presented through the “prism” of the COVID-19
health crisis. The certifications from McLaughlin and Figueroa and our own
directives evidence that jurors were/are selected through the hybrid process in
substantially the same way that they were selected pre-pandemic, save for
modified summons documents, disabled juror self-deferral, and additional
standardized communications including the COVID-19 questionnaire. Jurors
were required to appear before a judge or designee before being excused or
deferred for COVID-19 concerns “not related to substantiated medical
inability,” see Order -- Resuming Criminal and Civil Jury Trials, at 5, and
Judiciary staff prescreened prospective jurors for technological capabilities
and provided equipment as necessary to ensure full participation. We note that
25
amici NJSBA and OPD were among the stakeholders whose input was elicited
in crafting those adaptations.
To compare the practical effects of those adjusted practices, defendant
relies largely on general CDC data that is not specific to New Jersey, let alone
Bergen County, and juror-yield statistics for only Bergen County -- and for
only February 2020 and part of September 2020. Those statistics, as detailed,
differ by just a few percentage points and do not reveal the over- or
underrepresentation of any specific group.
It is with that guidance and having recognized those limitations that we
proceed to consider defendant’s representative-cross-section claim.
2.
A criminal defendant’s “constitutional right to be fairly tried by an
impartial jury” is protected by both the Sixth Amendment of the United States
Constitution and Article I, Paragraph 10 of the New Jersey Constitution. State
v. Little, 246 N.J. 402, 414 (2021) (quoting State v. Williams, 93 N.J. 39, 61
(1983)). That right under Article I, Paragraph 10 of the State Constitution, in
conjunction with Paragraphs 5 and 9, guarantees “defendants ‘the right to trial
by a jury drawn from a representative cross-section of the community.’” State
v. Andujar, ___ N.J. ___, ___ (2021) (slip op. at 26-27) (quoting State v.
26
Gilmore, 103 N.J. 508, 524 (1986)); 5 see also Taylor v. Louisiana, 419 U.S.
522, 528 (1975) (“[T]he selection of a petit jury from a representative cross
section of the community is an essential component of the Sixth Amendment
right to a jury trial.”). Thus, “in all criminal prosecutions the defendant is
entitled to trial by an impartial jury without discrimination on the basis of
religious principles, race, color, ancestry, national origin, or sex.” Gilmore,
103 N.J. at 524. The representative-cross-section requirement “appl[ies] both
to the initial selection of the venire and to the selection of the petit jury from
the venire.” State v. Fuller, 182 N.J. 174, 195 (2004).
Jury-selection processes are presumed valid and a defendant challenging
a jury-selection process “must show by a preponderance of the believable
evidence that the attacked process is fatally flawed.” State v. Long, 204 N.J.
Super. 469, 485 (Law Div. 1985). To challenge whether a jury pool was
drawn from a representative cross-section of the community, a defendant is
required to
(1) identify a constitutionally-cognizable group, that is,
a group capable of being singled out for discriminatory
treatment; (2) prove substantial underrepresentation
over a significant period of time; and (3) show
5
Following oral argument, defendant and the NJSBA filed submissions under
Rule 2:6-11(d), citing Andujar as support for their contentions. Andujar
involved a specific prospective juror at a distinct stage of jury selection , and
we therefore find our decision there to be largely inapplicable to the case at
bar.
27
discriminatory purpose either by the strength of his
statistical showing or by showing the use of racially
non-neutral selection procedures to support the
inference of discrimination raised by substantial
underrepresentation.
[State v. Dixon, 125 N.J. 223, 232 (1991).] 6
If a defendant establishes all three prongs, the burden then shifts to the State,
which must show “that a significant state interest is manifestly and primarily
advanced by those aspects of the jury selection process that result in
disproportionate exclusion of the distinctive group.” State v. Ramseur, 106
N.J. 123, 216-17 (1987).
6
Dixon cited State v. Ramseur, 106 N.J. 123 (1987), for the proposition that a
defendant’s burden is the same under both a representative-cross-section and
equal-protection claim. See Dixon, 125 N.J. at 232. Ramseur, however,
actually bifurcated the second and third prongs of the analyses based on United
States Supreme Court cases that appeared to suggest that an equal-protection
claim required a greater showing than a Sixth Amendment representative-
cross-section claim. See 106 N.J. 215-16. We interpret Dixon to confirm that,
despite the subtle apparent differences, the two claims require identical
showings and are to be treated as congruous. In considering defendant’s
representative-cross-section claim, therefore, we rely on the more recent,
stringent standard of Dixon, which shares important characteristics with the
United States Supreme Court’s more recent articulation of the relevant
standard. See Berghuis v. Smith, 559 U.S. 314, 327 (2010) (“To establish a
prima facie violation of the fair-cross-section requirement, . . . a defendant
must prove that: (1) a group qualifying as ‘distinctive’ (2) is not fairly and
reasonably represented in jury venires, and (3) ‘systematic exclusion’ in the
jury-selection process accounts for the underrepresentation.” (quoting Duren
v. Missouri, 439 U.S. 357, 364 (1979))).
28
Our rules and statutes pertaining to jury selection “are designed to
pursue the goal of producing a jury in each case that is ‘as nearly impartial as
the lot of humanity will admit.’” State v. Tinnes, 379 N.J. Super. 179, 183
(App. Div. 2005) (quoting Williams, 93 N.J. at 60). The objective is to
“produce a pool of jurors that truly reflect community standards and in which
all have an equal chance of serving.” Long, 204 N.J. Super. at 485 (footnote
omitted).
“Equal chance” is the operative phrase because the representative-cross-
section requirement does not guarantee proportional representation of each
demographic group within a community. Fuller, 182 N.J. at 195. The
representative-cross-section requirement serves to “make[] possible a diversity
of perspectives that fosters an ‘overall impartiality of the deliberative
process,’” ibid. (emphasis added) (quoting Gilmore, 103 N.J. at 525), “not to
guarantee proportional representation of every diverse group on every jury, let
alone to mandate disproportional representation by setting aside a spot for
every discrete group on every jury,” Gilmore, 103 N.J. at 525; see also
Ramseur, 106 N.J. at 216 (“[A] defendant has no right to a jury that includes
members of his own race.”). At the same time, however, “[t]he fair cross-
section principle . . . is designed to achieve results, not just assure
opportunities; thus ‘“compilers of jury lists may drift into discrimination by
29
not taking affirmative action to prevent it.”’” Ramseur, 106 N.J. at 227(quoting People v. Harris, 679 P.2d 433, 446 (Cal. 1984)).
3.
Having identified the hurdle standing between defendant and the relief
he seeks, we conclude that he fails to clear it. We analyze the facts and
considerations before us under Dixon in the interest of providing guidance for
future challenges.
First, with respect to identifying a constitutionally cognizable group, we
have found such groups to “at minimum . . . include those defined on the basis
of religious principles, race, color, ancestry, national origin, and sex.”
Gilmore, 103 N.J. at 526 n.3; see also State v. Bellamy, 260 N.J. Super. 449,
456-57 (App. Div. 1992) (“[T]o be classified as cognizable under Gilmore, a
group must be one that has been historically excluded, on the basis of
stereotypical prejudices, from full participation in the significant duties and
privileges of American citizenship.” (synthesizing guidance from Gilmore and
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985))).
We note at the outset that -- contrary to prior similar challenges --
defendant here provides no useful data for us to consider. Rather he asserts
that, because nationwide COVID-19 statistics show disproportionate
transmission rates and serious complications among minority populations , the
30
disparity must have manifested itself in a skewed jury pool. The argument is
analogous to one we rejected in State v. Coyle, in which the defendant argued
that two municipalities were underrepresented in three jury panels . See 119
N.J. 194, 213 (1990). We determined that the defendant’s argument was not,
in fact, that members of a cognizable group were excluded. Id. at 213-14.
One’s likelihood of contracting and falling seriously ill due to COVID-19 may,
similar to the municipality in which they live, have correlative ties with race
and ethnicity worthy of consideration, but it does not follow that those
particularly susceptible to, or who have contracted, COVID-19 themselves
make up a cognizable class under a representative-cross-section analysis.
As to technology-based arguments, we rejected in Vega-Larregui a
similar unsupported contention that the virtual process led inexorably to an
unrepresentative jury pool, noting -- as was the case here -- that prospective
jurors were provided the equipment necessary to participate. 246 N.J. at 127 -
29; see also Weeks v. State, 396 S.W.3d 737, 742-45 (Tex. App. 2013)
(dismissing the defendant’s challenge to an “e-juror” selection process). Age-
based groups have not been recognized as constitutionally cognizable by either
the Appellate Division, see Bellamy, 260 N.J. Super. at 456-57, or federal
courts, see, e.g., Silagy v. Peters, 905 F.2d 986, 1010-11 (7th Cir. 1990)
(declining to adopt the petitioner’s position that individuals over the age of
31
seventy represent a cognizable group). Federal courts have also declined to
recognize those of modest means as a cognizable group. See United States v.
Gonzalez-Velez, 466 F.3d 27, 39 (1st Cir. 2006) (finding no support for the
defendant’s claim that public-housing residents are a cognizable group);
United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir. 1977) (“[N]either
non-high school graduates, non-working people, nor the young are cognizable
classes.”). Nor have they discerned a representative-cross-section violation in
the exclusion of minority jurors due to illness. See United States v. Dunnican,
961 F.3d 859, 880 (6th Cir. 2020) (rejecting the defendant’s representative-
cross-section claim premised on the removal and replacement of a lone Black
juror due to illness).
Importantly, defendant has failed to make a showing that any cognizable
group -- however identified or classified -- has been excluded from the jury
venire in this case. Therefore, we do not have to determine here whether age
or financial means, for example, might be a cognizable group for purposes of a
challenge to a jury venire.
Second, even if defendant has identified a constitutionally cognizable
group, he fails to demonstrate substantial underrepresentation over a
significant period of time. “[M]embers of a cognizable group, like all
potential jurors, may be excused for reasons not rising to the level of removal
32
for cause.” Fuller, 182 N.J. at 201. What constitutes substantial
underrepresentation varies from case to case, and we have declined to adopt a
particular standard for analyzing such claims. See Ramseur, 106 N.J. at 217-
222. Here, defendant has provided no data for comparison other than juror-
yield statistics that are comparable to Bergen County’s pre-pandemic yields.
Likewise, defendant is unable to demonstrate underrepresentation over a
significant period of time by applying general, nationwide CDC data to his one
jury pool. See Dixon, 125 N.J. at 235 (finding uncompelling a dated survey of
500 jurors, in part, because it covered an insufficient period of time); Coyle,
119 N.J. at 214 (“Whatever a significant period of time might be, it surely is
not three weeks.”).
Third and finally, we conclude that the jury-selection procedure
employed here was facially neutral and defendant has not shown that the
neutral procedure was applied in a discriminatory manner. See Coyle, 119
N.J. at 214. As has been repeatedly referenced, the hybrid process of jury
selection is substantially similar to pre-pandemic practices, and defendant has
failed to demonstrate that application of those same practices through the
“prism” of COVID-19 amounts to discriminatory intent. See State v.
Hightower, 120 N.J. 378, 401 (1990) (finding that a county’s “facially neutral”
practice of compiling petit-jury lists from motor-vehicle and voting records
33
rebutted the defendant’s representative-cross-section and equal-protection
claims). As in Gerald, we find that, here, “the methods used were chosen out
of a commitment to improve the juror-selection process rather than an attempt
to undermine or to inject invidious discrimination into it.” 113 N.J. at 132; see
also Ramseur, 106 N.J. at 226 (noting New Jersey’s efforts toward achieving
greater juror representativeness, including the addition of Department of Motor
Vehicle lists in compiling jury pools).
The hybrid process was intended to balance public health and safety with
the “the fundamental rights established by the United States Constitution and
the New Jersey State Constitution, including meaningful participation by
attorneys and parties in the jury selection process,” see Order -- Resuming
Criminal and Civil Jury Trials, at 2, and we find success in the similarity
between pre- and post-pandemic juror yields. Facets complained of, such as
removal of the automatic-deferral option, logically increased the size and
representativeness of jury pools, and prospective jurors were doubtlessly more
likely to be willing and able to participate with additional precautions like
limiting the number of in-person jurors to accommodate social distancing. See
Vega-Larregui, 246 N.J. at 129 (determining that virtual grand-jury procedures
increased representation).
34
Because we find that defendant fails to meet the requirements of Dixon,
we need not consider the State’s interest in the hybrid selection process. We
close by recognizing that the validity of a jury-selection process is not static,
and the exercise of special care in unusual circumstances is of the utmost
importance. Defendant, for instance, contends that excusal and deferral
records have not been maintained as required by N.J.S.A. 2B:20-9(b) -- a
claim that cannot be substantiated as such records were never requested by
defense counsel in this case. Suffice it to say, records should be kept. Our
courts, jury managers, and stakeholders must remain vigilant in the event that
the facially neutral practices we approve of here result in underrepresentation
of a cognizable group despite all best efforts. See Ramseur, 106 N.J. at 227(“[J]ury officials may not sit by idly in the belief that no constitutional
complaint may be lodged against a random selection mechanism” because
exclusive reliance on “facially ‘neutral’” approaches that nonetheless permit
systematic underrepresentation can themselves “become constitutionally
suspect”). Irregularities may result from imperfect application of measures
aimed at improving the selection process. See Gerald, 113 N.J. at 133.
In recognition of the important issues raised, but not nearly
substantiated, in this appeal and to better assist our courts in preventing
potential underrepresentation and irregularities stemming from the hybrid
35
process and other facially neutral selection procedures, we direct the AOC to
begin collecting jurors’ demographic information. Disclosure should be
voluntary and cover a juror’s identified racial identity, ethnicity, and gender
categories. “Perfection may not be attainable but its pursuit should be
relentless.” Long, 204 N.J. Super. at 486.
IV.
The judgment of the trial court is affirmed.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE
SOLOMON’s opinion.
36