By Bill Wichert

Law360 (March 15, 2021, 6:46 PM EDT) -- The New Jersey Supreme Court on Monday seemed inclined to uphold the constitutionality of allowing grand jurors to issue criminal indictments virtually during the COVID-19 pandemic, stressing that state law does not bar the remote format and challenging the notion that the justices overstepped their authority in approving it.

During a Zoom hearing on a constitutional challenge from criminal defendant Omar Vega-Larregui over his virtual indictment in a drug case, the court pointed to the absence of such an outright prohibition and the justices' power to set court rules in pushing back on arguments from his attorney and his amicus backers.

Near the start of the hearing, Chief Justice Stuart Rabner noted there's no language in the state constitution, state statutes or case law requiring grand juries to meet in person.

"Is there any bar to the [virtual] proceeding that you can cite to us from those sources?" he asked Vega-Larregui's attorney, Jack Furlong of Furlong and Krasny.

Furlong replied: "None."

The justices later questioned the "separation of powers" argument from Matthew S. Adams of Fox Rothschild LLP, representing the Association of Criminal Defense Lawyers of New Jersey as amicus curiae in the matter. The association has claimed the Supreme Court "encroached upon and usurped the powers of the Legislature" in authorizing virtual grand juries.

Justice Barry T. Albin said there are court rules governing the practices and procedures before grand juries. He asked whether Adams concedes that grand juries are an arm of the courts and "that we have supervisory authority over the courts, that we can promulgate rules about the courts."

Adams countered that such rule-making authority is limited by the state Supreme Court's 1950 opinion in Winberry v. Salisbury , which he claimed says that "the court, without a case or controversy before it, can't use that rule-making authority to simply make a new program."

The virtual grand jury program was "done without a case or controversy, and I would respectfully submit that the limits of the court's rule-making authority were essentially eviscerated," Adams said.

Justice Faustino J. Fernandez-Vina, however, said Winberry stands for the proposition that the Supreme Court is in charge of rules of "practice and procedure," and said the remote grand jury format fits that criteria. Justice Albin soon echoed that point.

"How could it not be part of the practice and procedure of our courts to determine such things as ... how the grand jury actually performs its function?" Justice Albin asked Adams.

Adams argued that the legislature established qualifications for serving as a grand juror. Under the virtual grand jury program, "there's a new box" and "the new box is that you understand how to do it this way."

Earlier in the hearing, Justice Jaynee LaVecchia took aim at that assertion that the Supreme Court added to such qualifications, questioning Adams as to whether the court's orders "in letter or in effect amended any of the criteria for service on the grand jury."

Adams said there are now extra requirements that "there be a reliable internet connection, that there be a reliable technological mechanism by which to transmit and the technological know-how."

Justice LaVecchia noted that those criteria "are being managed and addressed by the judiciary," but Adams said "the grand jury process is so sacred that to have it be managed by the judiciary is simply insufficient."

Amid other measures over the past year to curb the spread of the novel coronavirus in the state court system, judiciary officials last summer launched a virtual grand jury pilot program in Mercer and Bergen counties. Virtual grand juries have since expanded to 19 of the state's 21 counties.

Among other provisions, technical support has been provided to grand jurors who need it, and grand jurors receive additional instructions regarding the secrecy of the proceedings. But critics of the program have claimed the remote format could threaten the confidentiality of the process and impede deliberations.

Yet the Supreme Court on Monday appeared largely unpersuaded by such criticism, questioning why the deliberative process would be different in the virtual setting and noting that secrecy concerns could equally be applied to in-person grand jury and petit jury proceedings.

With such in-person panels, there's always the risk that jurors could later reveal what transpired behind closed doors, the justices said.

"I don't think anyone would suggest that the system of grand jury and petit jury is perfect," Justice Albin said during an exchange with Furlong. "There'll always be abuses here and there — I'm not suggesting widespread — but that is typically not an argument to abandon the entire process."

The constitution "has to operate in the best and worst of times," he later added.

"What is wrong with using technology to make the system of justice work in the worst of times?" Justice Albin said.

Vega-Larregui is represented by Jack Furlong of Furlong and 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.

Amicus curiae the New Jersey State Bar Association is represented by Brian J. Neary of the Law Offices of Brian J. Neary.

The Mercer County Prosecutor's Office is represented in-house by Randolph E. Mershon III.

Amicus curiae the New Jersey attorney general's office is represented in-house by Carol M. Henderson.

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

--Editing by Adam LoBelia.

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