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As New Jersey Courts Adapt to COVID-19, Attorneys Voice Concerns

Criminal defense attorneys and county prosecutors across the state have publicly raised concerns over how the virtual grand jury proceedings are playing out and the long-term consequences the new process could have.

by Joe Atmonavage, NJ Advance Media Group / July 16, 2020
Shutterstock/Zolnierek

(TNS) — The coronavirus pandemic has upended how the criminal justice system operates, turning routine face-to-face hearings into virtual adventures.

The latest courthouse procedure to go virtual in New Jersey? Grand jury proceedings.

The state’s Administrator of the Courts recently launched a virtual grand jury pilot program in an effort to speed up the criminal justice process and limit gatherings in courthouses in Bergen and Mercer counties. So far, nearly 50 indictments have been handed up since June 18.

“Given that we have no way of knowing when this health crisis will end, virtual grand juries are our best alternative if we are to move cases forward in a manner that allows all citizens to participate in the jury process,” Judge Glenn A. Grant, acting administrative director of the court, said in a statement last week. “Justice cannot be served if the criminal justice process is stalled.”

But criminal defense attorneys and county prosecutors across the state have banded together and publicly raised concerns over how the virtual grand jury proceedings are playing out and the long-term consequences the new process could have on defendants. A grand jury decision is the first step in the criminal justice process after a complaint is filed.

“The sanctimony of the criminal justice system is under attack,” Matt Adams, vice president of the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ), said about the virtual grand juries.

In a statement released this week, the County Prosecutors Association of New Jersey (CPANJ), whose prosecutors present evidence to a grand jury, echoed the concerns raised by the ACDL-NJ, which called virtual grand juries “unconstitutional and simply wrong” earlier this week.

Both organization raised three main concerns:

Virtual grand juries limit the cross-section of jurors selected because some residents may not have access to technology because of social and economic inequities.

The secrecy of a grand jury proceeding is undermined when held virtually.

The technological issues and glitches that often arise on a video conference could impact the presentation and the jurors understanding of the case.

“There are certain lines in the administration of justice that cannot be crossed,” the county prosecutors said in a statement. “Given our sworn obligation to seek justice, we cannot stand by and fail to advocate for the protection of Constitutional rights, privacy rights, and the safety of all participants in our criminal justice system, including defendants and victims.”

Prosecutors in both counties where the pilot program is being utilized are members of the county prosecutors organization who denounced virtual grand juries, though their offices continue to convene them.

A spokeswoman for Bergen County Prosecutor Mark Mussella said the county will continue to present cases to a virtual grand jury “as requested by the judiciary.” She said the prosecutor’s office had not encountered any issues presenting cases virtually.

Mercer County Prosecutor Angelo J. Onofri, who is the president of the organization, did not respond to a request for comment.

The Administrative Office of the Courts (AOC) said a number of safeguards were put in place to make sure the proceedings continued lawfully, but also efficiently in its new virtual setting.

In the pilot program, the court system has provided jurors with tablets that have broadband access or with web cameras in order to not exclude those without the proper technology from sitting on a grand jury. No jurors were turned away because they lacked the space or technological equipment to participate, according to the AOC. Jurors access the virtual proceeding through a secure login and are given headphones to wear so others in the home do not hear the proceedings.

Additionally, the court has supplemented its standard grand jury charge and secrecy oath with an oath that “specifically addresses the requirements of participation in a virtual proceeding.”

“Just as we do with live grand juries, we rely on virtual grand juries to honor the oath they are sworn to follow,” Judge Grant said.

Grand juries have long been a staple of the criminal justice system. In New Jersey, before a criminal case moves forward, every defendant has a right to have their case heard by a grand jury. A grand jury is made up of 23 people who determine whether there is sufficient evidence to bring criminal charges against a person. In a typical year, grand juries across New Jersey return nearly 27,000 indictments in criminal cases, according to the Attorney General’s office.

The state Supreme Court authorized in May that the AOC could hold grand jury proceedings virtually with the intent of speeding up the process for more than 1,800 defendants in county jails awaiting indictment while also not crowding courthouses with potential jurors.

Originally, virtual proceedings were to be conducted for defendants who consented to them being held virtually “to assist in identifying early cases for presentation to a grand jury,” said Peter McAleer, a spokesman for the AOC.

However, no defendant consented to a virtual grand jury. The county prosecutors organization said the lack of consent should have been a “red flag” for the judiciary and it expects defendants to “consistently” challenge indictments returned by a virtual grand jury.

The courts proceeded with the virtual grand juries without the defendant’s consent, as they would have proceeded with grand juries pre-pandemic. Judge Grant said the courts had to “explore the best immediate option for restarting our criminal justice process.”

Under the pilot program 47 indictments have been secured through virtual grand juries in Bergen and Mercer counties as of July 13. In three cases, the grand juries declined to indict on all of the proposed charges, McAleer said.

The ACDL-NJ is describing the process as “Wi-Fi indictments” that has stripped down the extensive grand jury process to “expedite cases at the expense of the least powerful party involved.”

“Make no mistake, the pandemic is being used as an excuse to fundamentally reshape the entire landscape of the criminal justice system in a way that diminishes rather than enhances the protections of human beings in the state of New Jersey,” said attorney Michael Baldassare, a member of ACDL-NJ.

Both the ACDL-NJ and the county prosecutors organization have urged the AOC to shut down the virtual grand jury proceedings and come up with a strategy to hold in-person grand juries in larger spaces where social distancing is possible, which other jurisdictions across the country have instituted.

“Given that we have no way of knowing when this health crisis will end, virtual grand juries are our best alternative if we are to move cases forward in a manner that allows all citizens to participate in the jury,” McAleer said.

The pilot program will next be expanding to state grand juries, as requested by Attorney General Gurbir Grewal, who has been working with the judiciary to expand the virtual pilot program.

“We cannot indefinitely halt the criminal justice process and allow a backlog of cases to develop while individuals are detained and the memories of witnesses fade,” a spokeswoman for Grewal said. “This situation requires that we act boldly and creatively to safeguard our criminal justice system during this difficult time.”

Adams said if the virtual grand juries continue, the ACDL-NJ will explore all options, including litigation, in order to stop the program that he said has altered the first step of the criminal justice process in a way that defense attorneys and prosecutors have said is not an appropriate way for grand juries to be held.

©2020 NJ Advance Media Group, Distributed by Tribune Content Agency, LLC.

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