NJ Judge Rejects Challenge To Pandemic Jury Selection

By Bill Wichert
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Law360 (September 28, 2020, 7:41 PM EDT) -- A New Jersey state judge on Monday shot down a defense challenge to a hybrid system of selecting juries via remote and in-person proceedings as the Garden State resumes new jury trials amid the COVID-19 pandemic, saying the virtual phase went smoothly with few technological glitches.

Superior Court Judge Robert M. Vinci rejected a bid from Wildermar Dangcil's attorneys to halt his trial in an attempted arson case, finding that each of the 178 prospective jurors who were interviewed could participate virtually and that he and the parties were able to conduct thorough examinations. Sixty-three jurors were asked to return Tuesday for the in-person phase, the judge said.

"The jurors we interviewed most certainly represent a cross-section of the community and, based on our experience in this case so far, the hybrid jury selection process implemented by the [state] Supreme Court will be a success," Judge Vinci said during a hearing in his Hackensack courtroom, which was broadcast on the state judiciary website.

The judge concluded that "the selection process was fair and did not result in a pool of jurors that was materially different than the pre-COVID-19 selection process would have produced."

"The system produced a pool of jurors that reflected a fair cross-section of the community, and all eligible jurors had an equal chance of serving," Judge Vinci added.

Dangcil's trial represents the first jury trial to be conducted in New Jersey under a hybrid system that combines remote jury selection with in-person proceedings. The trial will ultimately take place in a courtroom with social distancing measures.

His attorneys argued in a Sept. 18 brief that the process is "constitutionally deficient" and that "jury trial proceedings should be stayed in this matter until normal jury selection proceedings may resume without social distancing."

The brief asserted that the arrangement improperly failed to produce a random pool of jurors, citing "the elimination of approximately 75% of the pool who did not complete jury questionnaires."

Bergen County's "implementation of electronic notifications, electronic jury questionnaire submissions, and Zoom-based voire dire has limited an entire socio-economic group's participation in jury service," according to the brief, adding, "Those who cannot afford a computer are eliminated from jury service because they cannot submit questionnaires. Others who cannot afford internet service are prevented from appearing at the initial stages of jury selection by Zoom."

The county's "focus on remote and electronic procedures substantially increases the likelihood that the jury pool will consist of individuals who are both younger in age and more economically secure," the brief said.

But Judge Vinci on Monday knocked down such arguments, saying they are based on "nothing more than conjecture and innuendo spun from inaccurate information and rumors conveyed to the defense counsel."

The defense counsel was "simply wrong" to claim that 75% of prospective jurors did not complete questionnaires, the judge said, adding that the actual response rate was 67%, not 25%, a similar rate to what occurred before the pandemic.

"There's absolutely no support for defendant's claim that any group was excluded, much less that an entire socio-economic group was excluded," Judge Vinci added.

Judiciary officials did everything possible to ensure that all prospective jurors could participate by offering to provide hardware and IT assistance to any juror who needed it, the judge noted. The one juror who required a device received it at her home.

"Nobody was excluded because they didn't have a computer, nor was anybody excluded because they needed technical assistance," Judge Vinci said.

Counsel for Dangcil declined to comment Monday. The state attorney general's office did not immediately respond to a request for comment Monday.

The state is represented by Bergen County Assistant Prosecutor Demetra Maurice and Deputy Attorney General Mike Moran.

Dangcil is represented by James R. Lisa of the Law Office of James R. Lisa and Peter A. Michael of Peter Michael Law LLC.

The case is State of New Jersey v. Wildermar Dangcil, indictment number Indictment No. 19-08-01020-I, in the Superior Court of New Jersey, County of Bergen.

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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