By Celeste Bott

Law360 (August 14, 2020, 9:05 PM EDT) -- New Jersey criminal defense attorneys said Thursday that defendants' consent should be required for any partially remote jury trials during the coronavirus pandemic, issuing a formal response to a plan unveiled last month by judiciary officials to resume trials in September by combining remote jury selection with in-person proceedings.

The Association of Criminal Defense Lawyers of New Jersey on Thursday released its proposed modifications to New Jersey judiciary officials' plan to resume jury trials. While the defense attorneys said they are "not blind to the current crisis facing the courts and our clients," modified jury trials mustn't be conducted over a defendant's objection, they said, and defendants should have the right to demand bench trials without the need for the consent of the prosecution "to protect his speedy trial rights where there is no reasonable prospect for an immediate jury trial."

"As the primary organized voice for the criminal defense bar in New Jersey, we would have preferred to have been given a meaningful opportunity for input when the Administrative Office of the Courts devised its criminal jury trial resumption plan," said Matthew S. Adams of Fox Rothschild LLP, who chairs the association's pandemic task force, in a statement. "Nonetheless, we hope that the AOC now gives considered thought to our very detailed critique of its plan, and that our feedback results in meaningful modifications to a plan that values expediency ahead of the fundamental constitutional rights of defendants."

Without changes, the current plan "will no doubt result in wrongful convictions of innocent people," Adams said.

That plan, announced last month, involves mostly virtual jury selection, to which the ACDL-NJ raised strong objections, saying that while screening jurors for hardships remotely is acceptable, individual voir dire of jurors should be conducted in person in the courtroom before the final jury is selected because "video impairs the ability to successfully gauge natural human responses."

The jury must also be in the room with the parties during trial, the association said.

"This is the only way to ensure the attorney and defendant can assess the jurors during the trial and that the jurors are able to properly assess the witnesses, attorneys, and the defendant," the ACDL-NJ said. "Watching a trial through a video feed destroys the courtroom dynamic, negatively impacts the factfinder's impression of the accused and makes it even more difficult for the factfinder to judge witness credibility."

The defense attorneys also urged judiciary officials to consider trying one case at a time and to look into alternative venues such as schools, auditoriums and rented conference centers. They should also continue to explore plexiglass barriers, face shields and other options that would allow defense counsel and the defendant to sit closer together, the association urged, saying "an attorney cannot speak with her client from six feet away" and that a proposal to supply headsets to defendants and counsel is "a very imperfect solution."

Civil and criminal jury trials in the state's 15 judicial districts, or vicinages, have been suspended until further notice since March, when Gov. Phil Murphy issued widespread stay-at-home orders in regard to nonessential businesses and activities.

More than 1.4 million jurors are summoned to the state's courthouses each year, making in-person jury selection an impossibility from a public health standpoint with the pandemic still underway, according to judiciary officials.

Per the plan, jury selection will be conducted via Zoom and prospective jurors who don't have a laptop, tablet or smartphone will be provided with equipment from the courts. Attorneys and parties may participate in the courtroom with the judge or can do so remotely. The final phase of jury selection will be conducted in-person, with juror pools of no more than 30 at a time.

During trials, jurors will be seated 6 feet from each other and provided with hand sanitizer. The courts will enforce a face mask mandate and a capacity limit on elevators.

"This is a temporary solution to an unprecedented situation," Chief Justice Stuart Rabner said in July, when the plan was announced. "We cannot predict when jury trials will be able to resume in the same manner they were held pre-COVID 19. Nor can we leave them on hold indefinitely. The judiciary has a responsibility to ensure the fair and timely administration of justice, and resuming jury trials is a key part of fulfilling that responsibility."

--Additional reporting by Jeannie O'Sullivan. Editing by Jay Jackson Jr.

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