The Supreme Court of New Jersey recently intervened in New Jersey v. Omar Vega-Larregui. The closely-watched case involves a constitutional challenge to the state’s virtual grand jury program, which was established in response to the COVID-19 pandemic.
Virtual Grand Juries
By Order dated May 14, 2020, the Court authorized a pilot program for virtual grand juries, starting in Bergen and Mercer Counties. The Court-approved Virtual Grand Jury Program requires that technology (including Broadband) be provided to grand jurors as necessary. It also requires a supplement to the grand jury charge and the oath of secrecy to address virtual proceedings. Virtual grand jury proceedings (sessions and selection) are conducted using a secure Zoom platform.
Constitutional Challenge
Defendant Omar Vega-Larregui sought to dismiss his indictment based on several grounds, including constitutional challenge to the Grand Jury proceedings that were conducted remotely pursuant to the Virtual Grand Jury Program. The Association of Criminal Defense Lawyers of New Jersey (ACDL) submitted a brief in support of defendant’s motion in which it sought, from the Superior Court, a finding that the Supreme Court exceeded its rule- making authority in authorizing the Virtual Grand Jury Program and “an immediate, statewide moratorium on the use of virtual Grand Juries until such time as the issues presented herein have been fully and finally litigated through the appellate process.”
In an amicus brief supporting Vega-Larregui’s motion to dismiss, the ACDL argued that the New Jersey Supreme Court’s Virtual Grand Jury Program “improperly created a new ‘extrastatutory’ qualifying factor to becoming a grand juror that appears nowhere in the Legislature’s comprehensive framework relating to grand juries — reliable internet access, technology, and technological know-how.”
The ACDL argued that the new high-tech format of conducting grand juries will exclude minority, poor, and elderly jurors, among others. “In this age of reckoning about the injustices of our nation’s past, criminally accused human beings in New Jersey deserve better than a grand jury system that excludes whole segments of the population from participation in the process,” the ACDL-NJ added.
According to the ACDL, the New Jersey Supreme Court also exceeded its authority in creating the Virtual Grand Jury Program. “The Supreme Court departed from its rule-making authority, legislated without a case properly before it, and violated the time-honored principles of separation of powers by imposing the virtual grand jury program upon criminal defendants and prosecutors in New Jersey,” the ACDL wrote.
Issue Before the New Jersey Supreme Court
On January 13, 2021, the New Jersey Supreme Court issued an Order that Vega-Larregui’s dismissal motion be “certified directly pursuant to [state court] Rule 2:12-1 for review by the Supreme Court.” Under Rule 2:12-1, “the Supreme Court may on its own motion certify any action or class of actions for appeal.”
The New Jersey Supreme Court will consider the following question: “Should the indictment against defendant be dismissed on constitutional grounds, specifically on the basis that it was returned by a Grand Jury proceeding conducted remotely, pursuant to the Virtual Grand Jury Program adopted in response to the COVID-19 pandemic?” Oral arguments will be held during the March 15-16 session, although no date has been set. Please check back for updates.