By Bill Wichert

Law360 (March 12, 2021, 4:43 PM EST) -- A year of rewriting the Garden State's judicial playbook amid the coronavirus outbreak will culminate Monday with a constitutional showdown before the New Jersey Supreme Court over whether judiciary officials went too far by letting grand jurors hand down criminal indictments virtually.

The highly anticipated oral argument over that remote format comes after a year of officials reimagining how the state's court system could operate during the pandemic. The measures they took have created a once unthinkable legal environment where in-person jury trials remain suspended and most court proceedings are held via video or telephone.

The virtual grand jury program, however, has presented a test of how much change is too much.

"I don't think it's inherently impossible to do it during a pandemic in a way that's constitutional," said Jenia Iontcheva Turner, a professor at Southern Methodist University's Dedman School of Law, referring to virtual grand juries. "I think the question will be, 'Did New Jersey take all the steps that it could have to make it constitutional?'"

Turner pointed out how "the law in general allows for some balancing when you have this conflict between responding to a pandemic, protecting public health and then protecting individual rights." Remote grand juries have been permitted in certain other states, she noted.

There are "reasonable limitations that can be imposed on individual rights ... to respond to an emergency, but the question is how far can you go, and there it's really hard, and we'll see what the New Jersey Supreme Court says," Turner added.

With remote grand juries, there's a tension at play when it comes to the rights and interests of the criminally accused and broader public interests that requires a complex balancing act, said Roger A. Fairfax Jr., a professor at The George Washington University Law School.

There are "individual interests in fairness and due process with the grand jury proceedings" and institutional interests such as "the safety and security of the grand jurors and the witnesses themselves ... the secrecy concerns, some of which protect the defendant and some of which protect the grand jurors and the witnesses and the integrity of the system," Fairfax said.

The battle over New Jersey's program comes as rules and customs that were developed hundreds of years ago are being applied to "a situation in modern times with the evolution of technology, but with the very real danger of a global pandemic," according to Fairfax.

"You're sort of in uncharted territory here," he added. "It's the combination of the presence of the technology and the global pandemic that have sort of surfaced these issues that the courts are now having to resolve."

The state Supreme Court grabbed the reins of the constitutional challenge after it was raised at the trial court level by criminal defendant Omar Vega-Larregui in seeking to throw out his virtual indictment last summer in a drug case.

His charges were handed down in Mercer County, one of the two counties where judiciary officials launched a virtual grand jury pilot program amid criticism from defense lawyers and county prosecutors alike. Virtual grand juries have since expanded to 19 of the state's 21 counties, but many prosecutors remain concerned about their constitutionality.

"While the majority of prosecutors do not support virtual grand juries, we are operating with the only platform the court has provided, and we believed we could no longer forestall proceedings without compromising our offices' ability to prosecute violent offenders," said Hudson County Prosecutor Esther Suarez, president of the County Prosecutors Association of New Jersey.

"We were also concerned about the length of time that some defendants were being held in jail without being indicted by a grand jury," Suarez added in a statement.

One of the prosecutors who has held off on conducting virtual grand juries is Monmouth County Prosecutor Christopher J. Gramiccioni, saying his concerns are "serious enough to give pause where I'm not going to voluntarily use the virtual format unless we're officially told by the Supreme Court that it is constitutional."

"I do believe in that concept about, in times of struggle and crisis, you need to cling to these constitutional principles rather than jettison them," Gramiccioni added.

Among his concerns is jeopardizing the secrecy of the proceedings. Gramiccioni noted that grand jurors are in different locations, potentially with other people, and could take screenshots or record video of the proceedings and text or write down the names of witnesses.

"I find it extremely difficult to be able to maintain our statutory and constitutional obligations to protect this information when it's uncontrollable," he said.

Another major concern is the "separation of powers" with respect to judiciary officials revising a grand jury structure that has been established by state lawmakers, according to Gramiccioni.

"This wasn't voted on," Gramiccioni said, adding that "there's a process for grand jury presentment that's existed under New Jersey law for a while and then, all of a sudden, this concept was just created where you can do it virtually."

Matthew S. Adams of Fox Rothschild LLP, representing the Association of Criminal Defense Lawyers of New Jersey as amicus curiae in the matter, echoed that point, saying, "The court just on its own, sua sponte, decided to legislate a way forward with grand juries that didn't exist until COVID, and that is, in our view, a clear violation of principles of separation of powers."

"This is a Pandora's box if this is an example of how fundamental constitutional rights can be changed with the stroke of a pen," Adams added.

But the New Jersey Attorney General's Office countered in an amicus curiae brief that the state constitution does not require in-person grand juries.

"Just as this court can hear oral arguments and deliberate through video conferencing, so too can grand jurors do the same," the office said. "The constitution is not a straightjacket — especially not when its text is entirely silent on the issue presented."

The absence of such an outright prohibition against virtual grand juries is "a good point for the prosecution here," said Valerie P. Hans, a professor at Cornell Law School.

"Given that there's nothing express about a prohibition, I think you have to look at what makes the grand jury function and function well," Hans said. "That's where the idea of having it drawn from the representative cross-section [of the community] is critical, ensuring secrecy is critical and ensuring a meaningful opportunity to participate in deliberation is critical."

Hans said she was impressed with certain aspects of New Jersey's program, including providing technical support to grand jurors who needed it as well as additional instructions to grand jurors regarding the secrecy of the proceedings. But one of her concerns is the impact of the remote format on the deliberative process, Hans said.

"Everybody should have opportunity to speak, to be heard, and that's kind of a different experience when it happens remotely versus in-person," Hans said.

Kimberly A. Yonta, president of the New Jersey State Bar Association, which is appearing as amicus curiae in the case, also expressed concern about "the fact that a citizen of New Jersey is going to be indicted by a virtual jury without having perhaps the most deliberative and meaningful review of evidence and deliberation."

"If you're in a large group of 26 people or more and you have to unmute yourself and ask a question, there's a lot that goes into it," said Yonta, adding that "you're probably less likely to do that than when you're in person and you just raise your hand."

Noting the potential distractions in jurors' homes, Riza I. Dagli of Brach Eichler LLC agreed that they are less likely to ask questions in such a virtual setting.

"I think that they would be distracted by other things. I think they would be potentially watching TV, potentially surfing the internet, looking up information about the case, looking up information about the witness, and nobody will know," said Dagli, a former prosecutor with the state attorney general's office.

While he said the present format of grand jurors sitting in their homes is not a good idea, Dagli added that another version of virtual grand juries might work as judiciary officials navigate the pandemic.

"I don't fault them for trying to use the technology and do something virtually," Dagli said, later adding, "I think they themselves would agree that it's a bit of an experiment to see whether it would work or not, and I think it's just a matter of working out the kinks."

--Editing by Philip Shea and Marygrace Murphy.

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