By Bill Wichert

Law360 (January 20, 2021, 10:55 PM EST) -- The New Jersey Supreme Court seemed to signal support Wednesday for a bid from advocacy groups to free certain pretrial detainees from jail because of the suspension of criminal jury trials in the state as a result of the COVID-19 pandemic.

During a Zoom hearing on an application from the American Civil Liberties Union of New Jersey and the state public defender's office, Chief Justice Stuart Rabner zeroed in on whether the suspension of trials could provide grounds for reopening detention hearings under statute N.J.S.A. 2A:162-19(f) of the state's 2014 Criminal Justice Reform Act.

Under that statute, a detention hearing may be reopened "if the court finds that information exists that was not known to the prosecutor or the eligible defendant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process."

"Is there a simpler argument to be advanced that the suspension of jury trials with no clear end in sight is itself a change in circumstances that could ... potentially warrant the reopening of hearings?" Justice Rabner asked ACLU-NJ attorney Alexander Shalom.

Shalom agreed and said, "The reason it's a change of circumstances is because ... we can't cabin that change of circumstance only to those changes that bear on the defendant's likelihood of pretrial misbehavior."

"That's too narrow a window and that's the one that trial courts have tended ... to force us to look through, to say if this doesn't make the person more likely to show up in court or less likely to commit a crime, then it is not a change of circumstance [which is] material and justifying a new hearing," Shalom added.

Less than three weeks after the Supreme Court reinstituted a suspension of jury trials amid surging coronavirus cases in the Garden State, the ACLU-NJ and the public defender's office on Dec. 4 filed the joint request seeking the release of certain pretrial detainees.

The advocacy groups called for releasing defendants who have been detained under the CJRA for six months or longer and whose most serious pending charge is a second-degree offense or lower, court documents state. Shalom said Wednesday that 1,100 detainees would fit that criteria.

Under the advocates' proposal, the release of such detainees would be subject to objections from prosecutors and decisions by judges or special masters, court documents state.

The advocates also requested new detention hearings for all individuals in pretrial custody on first-degree charges and "who have a presumption of release and who seek a new hearing," court documents state.

In challenging the application, the County Prosecutors Association of New Jersey and the New Jersey Attorney General's Office have argued that the Supreme Court could not grant the request without finding the CJRA is unconstitutional and that such a ruling would be improper.

"There's no basis to rewrite the governing CJRA standards wholesale, which this court has already found constitutional and remains so to this day," Deputy Attorney General Claudia Joy Demitro said during Wednesday's hearing.

But public defender Joseph E. Krakora countered Wednesday that an unconstitutional finding is not a prerequisite for granting the application. He also pointed to a "pretrial detention crisis" in the state with about 5,000 detainees behind bars with "no reasonable expectation of a jury trial in the near future."

The pretrial detention system involves balancing the risks associated with releasing a defendant with the "liberty interests" of that individual, Krakora noted. But he stressed that "the longer and the more indefinite and the more extended that period of detention becomes, we have to be prepared to acknowledge that the system will gradually have to tolerate a higher level of risk."

"At some point, it simply shouldn't be acceptable that we're going to hold people indefinitely ... hostage in detention with no end in sight," Krakora said.

But Justice Anne M. Patterson later questioned whether granting such individualized relief requires reading into the CJRA "legislative intent that if the going gets very tough in terms of inability to move the criminal justice system along for whatever reason — this happens to be a pandemic — that the public is expected to bear a higher level of risk of reoffense."

The justice also noted that members of the public "may actually be exposed to higher danger because their housing is not as secure as it was, they're out of a job, they're confined, they're taking care of people, they're ill."

"Those countervailing risks may exacerbate, I would suggest, the risk of a given defendant's release ... to the public in a particular area," Justice Patterson said.

Krakora replied, "I don't know that it follows, your honor, that someone poses a greater risk [of] public injury because people in the public are going through difficult times financially and otherwise."

The ACLU-NJ is represented in house by Alexander Shalom and Jeanne LoCicero. The public defender's office is represented in house by Joseph E. Krakora, Joseph J. Russo, Alison Perrone, Laura B. Lasota and Elizabeth C. Jarit.

County Prosecutors Association of New Jersey is represented by Anthony Robinson, Jessica Marshall, Paul H. Heinzel and John McNamara Jr.

New Jersey Attorney General's Office is represented by Deputy Attorneys General Claudia Joy Demitro, Jennifer E. Kmieciak and Mercedes N. Robertson.

The case is In The Matter Of The Request To Release Certain Pretrial Detainees, case number 085186, in the New Jersey Supreme Court.

--Editing by Jill Coffey.

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