By Bill Wichert

Law360 (January 14, 2021, 8:56 PM EST) -- The New Jersey Supreme Court will address a constitutional challenge to the state's virtual grand jury program after a defense attorneys' group accused the justices of overstepping their power in authorizing the remote proceedings amid the COVID-19 pandemic, according to an order made available Thursday.

The Supreme Court grabbed control of that challenge raised in Mercer County Superior Court by criminal defendant Omar Vega-Larregui and backed by the Association of Criminal Defense Lawyers of New Jersey, or ACDL-NJ, in seeking to toss his virtual indictment last summer in a drug case.

The court ordered Vega-Larregui's dismissal motion "certified directly pursuant to [state court] Rule 2:12-1 for review by the Supreme Court," but limited its review to the constitutional challenge. Under that rule, "the Supreme Court may on its own motion certify any action or class of actions for appeal."

The court noted that the ACDL-NJ sought from the lower court a finding that "the Supreme Court exceeded its rulemaking authority in authorizing the virtual grand jury program and 'an immediate, statewide moratorium on the use of virtual grand juries until such time as the issues presented herein have been fully and finally litigated through the appellate process.'"

Those "requests for relief exceed what the Superior Court could order," according to the Supreme Court's order.

The association made those points in a Jan. 4 amicus brief supporting Vega-Larregui's motion, claiming the Supreme Court "encroached upon and usurped the powers of the Legislature" in authorizing the virtual grand jury program.

The qualifications for serving as a grand juror in New Jersey are outlined in a state statute, including being 18 or older and a U.S. citizen as well as being able to read and understand the English language, the ACDL-NJ noted.

In signing off on the remote proceedings, however, the court "improperly created a new 'extrastatutory' qualifying factor to becoming a grand juror that appears nowhere in the Legislature's comprehensive framework relating to grand juries — reliable internet access, technology, and technological know-how," the association said.

"The Supreme Court departed from its rule-making authority, legislated without a case properly before it, and violated the time-honored principles of separation of powers by imposing the virtual grand jury program upon criminal defendants and prosecutors in New Jersey," the ACDL-NJ said.

The technological requirements for virtual grand jury service — which the ACDL-NJ fears "will exclude minority, poor, and elderly jurors, among others" — also means defendants are stripped of their right to an indictment by grand juries "drawn from a fair cross-section of the community," according to the brief.

"In this age of reckoning about the injustices of our nation's past, criminally accused human beings in New Jersey deserve better than a grand jury system that excludes whole segments of the population from participation in the process," the ACDL-NJ said.

While the state Administrative Office of the Courts has tried "to mitigate against the digital divide by, in some instances, supplying equipment," actually using "the types of technology needed to conduct virtual grand jury proceedings still creates disparities along constitutionally impermissible lines," the association said.

"The AOC can bring a person a computer, but it cannot facilitate its seamless operation at all critical phases of the grand jury proceeding," the association said.

The ACDL-NJ further argued that technological problems "undermine the integrity and effectiveness" of virtual grand jury proceedings, and that the process leads to "a loss of grand jury secrecy."

Grand jurors could "easily record" the virtual proceedings with their cellphones "or use their mobile phones to call other people who will then be able to surreptitiously listen to the proceedings," the ACDL-NJ said.

"Allowing grand jurors to operate from their homes, if we can even guarantee that they are in their homes when participating, also does not eliminate the risk that others in the household will overhear the proceeding," the association said.

The selective implementation of the program "only in certain counties, as to only certain offenses, and not uniformly against all criminal defendants, violated Mr. Vega-Larregui's constitutionally guaranteed right to equal protection of the law," the ACDL-NJ added. The virtual grand jury proceeding occurred without Vega-Larregui's consent, the association said.

Matthew S. Adams of Fox Rothschild LLP, representing the ACDL-NJ in the matter, told Law360 on Thursday, "No public health crisis should result in the suspension and abrogation of fundamental constitutional rights. To suggest otherwise puts us on a slippery slope. As prosecutors and defense lawyers agree, there are ways to proceed without forcing the least powerful person in the criminal justice dynamic into a flawed process against their will."

"An exercise of the court's administrative rulemaking authority was not the proper procedure to rewrite a substantive constitutional right," Adams said. "There should be no Wi-Fi justice in the absence of consent from the defendant."

Vega-Larregui's attorney, Jack Furlong of Furlong & Krasny, told Law360 on Friday, "You should never throw the constitutional baby out with the bathwater, even in times of crisis."

A representative of the Mercer County Prosecutor's Office did not immediately respond to a request for comment Thursday.

The state is represented by Matthew S. Samel of the Mercer County Prosecutor's Office.

Vega-Larregui is represented by Jack Furlong of Furlong & Krasny.

Amicus curiae Association of Criminal Defense Lawyers of New Jersey is represented by Matthew S. Adams, Marissa Koblitz Kingman and Marc M. Yenicag of Fox Rothschild LLP.

The case is State of New Jersey v. Omar Vega-Larregui, case number 085288, in the New Jersey Supreme Court.

--Editing by Bruce Goldman.

Update: This article has been updated with comment from Vega-Larregui's attorney.

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