New Jersey Supreme Court Upholds Virtual Jury-Selection Process

In State v. Dangcil (A-56-20/085665) (Decided August 16, 2021), the Supreme Court of New Jersey rejected defendant Wildemar A. Dangcil’s challenges to the hybrid jury-selection process implemented by the New Jersey Judiciary in response to the COVID-19 pandemic. The court unanimously held that the process did not deprive him of his rights to presence and representation or fail to ensure him a jury drawn from a representative cross-section of the community. However, in recognition of the important issues raised, and to “better assist New Jersey courts in preventing potential underrepresentation and irregularities stemming from the hybrid process and other facially neutral selection procedures,” the Court ordered the collection of jurors’ demographic information going forward.

Facts of State v. Dangcil

Defendant Wildemar A. Dangcil was awaiting trial when the COVID-19 pandemic hit trial was adjourned for five months and, in the interim, the Judiciary implemented a primarily virtual, hybrid jury-selection process with the aim of balancing public health and defendants’ constitutional rights, while preserving the majority of pre-pandemic practices and procedures.

Defendant’s trial was Bergen County’s first to utilize the hybrid process. During the virtual phase of jury selection, defense counsel filed an Order to Show Cause challenging the array as not being drawn from a representative cross-section of the community.

In response, Brian McLaughlin, manager of jury programs for the Administrative Office of the Courts (AOC), attested that the same Jury Management System used to generate jury pools and send out summonses and questionnaires pre-pandemic was used in the hybrid process, with the exception of added COVID-19 related materials and the temporary disablement of the juror self-deferral option. As they did pre-pandemic, jury managers addressed requests for disqualification, excusals, and deferrals in a standardized pre- screening process that did not include trial-specific information. Also consistent with pre-pandemic practices, juror demographic information including race, ethnicity, and gender was not collected.

Regarding defendant’s case, Lourdes Figueroa, jury manager for the Bergen County Vicinage, certified that 800 jurors were summoned. Of that list, 197 did not respond, 70 summonses were returned as “undeliverable,” 178 prospective jurors did not qualify for service under statute, 90 were excused based on statutory factors, and 58 were deferred due to calendar conflicts; in the end, 207 potential jurors remained. Only two prospective jurors required court-supplied equipment in order to participate; one accepted a tablet and one refused a device, which required that individual’s juror service to be rescheduled. The juror yield for pools summoned beginning on September 21, 2020 was comparable to the Bergen Vicinage’s February 2020 yield.

The trial court rejected defendant’s contentions both as time-barred under Rule 1:8-3(b) and on the merits, opining that the pre- and post-pandemic selection processes were substantially similar, and that defendant’s arguments were “based on nothing more than conjecture and innuendo spun from inaccurate information and rumors.” After the Appellate Division affirmed and remanded for resumption of the trial, defendant was convicted of multiple offenses, including attempted aggravated arson. He was sentenced to an aggregate eighteen-year term of imprisonment.

NJ Supreme Court’s Decision in State v. Dangcil

The New Jersey Supreme Court unanimously upheld the conviction. “We conclude that the jury-selection procedure employed here was facially neutral and defendant has not shown that the neutral procedure was applied in a discriminatory manner,” Justice Lee Solomon wrote.

The court first held that that the pre-voir dire disqualification, excusal, or deferral of jurors is not a stage at which defendant is entitled to be present or be represented. “We conclude that the process of whittling down the jury pool based on statutory criteria and scheduling conflicts does not implicate a defendant’s substantive rights,” Justice Solomon wrote.

In support, the court highlighted that the process employed in the case was substantially the same as that followed before the COVID-19 pandemic. It also noted that federal circuit courts have concluded that such “routine administrative procedures relating to jury selection are not part of the true jury impanelment process in which parties and counsel have a right to participate.” United States v. Greer, 285 F.3d 158, 167 (2d Cir. 2002); accord, e.g., United States v. Moreland, 703 F.3d 976, 982-83 (7th Cir. 2012).

“[I]t is difficult to envision how defendant and counsel could have meaningfully participated in a process in which jurors were removed based on substantiated hardships, scheduling conflicts, and similar considerations,” Justice Solomon wrote. “Further, defendant fails to articulate what vital information he and counsel may have gleaned from participation, given that disqualifications, excusals, and deferrals precede the revelation of any case specific information.”

The court also found that Dangcil failed to “articulate what vital information he and counsel may have gleaned from participation, given that disqualifications, excusals, and deferrals precede the revelation of any case-specific information.” Justice Solomon added: “To recognize this process as a critical stage would require the participation of countless sets of parties and counsel on the off chance that one of the prospective jurors will be directed to a particular case.”

The New Jersey Supreme Court next found that the defendant has failed to support his representative-cross-section claim. As Justice Solomon explained, to challenge whether a jury pool was drawn from a representative cross-section of the community, a defendant is required to (1) identify a constitutionally-cognizable group, that is, a group capable of being singled out for discriminatory treatment; (2) prove substantial underrepresentation

over a significant period of time; and (3) show discriminatory purpose either by the strength of his statistical showing or by showing the use of racially non-neutral selection procedures to support the inference of discrimination raised by substantial underrepresentation

Here, the New Jersey Supreme Court found that even if Dangcil “has identified a constitutionally cognizable group, he fails to demonstrate substantial underrepresentation over a significant period of time,” he can’t “demonstrate underrepresentation over a significant period of time by applying general, nationwide CDC data to his one jury pool.”

The court further concluded that the jury-selection procedure employed here was facially neutral and defendant has not shown that the neutral procedure was applied in a discriminatory manner. “As has been repeatedly referenced, the hybrid process of jury selection is substantially similar to pre-pandemic practices, and defendant has failed to demonstrate that application of those same practices through the ‘prism’ of COVID-19 amounts to discriminatory intent,” Justice Solomon wrote.

In recognition of the “important issues raised, but not nearly substantiated, in this appeal and to better assist our courts in preventing potential underrepresentation and irregularities stemming from the hybrid process and other facially neutral selection procedures,” the New Jersey Supreme Court directed the AOC to begin collecting jurors’ demographic information. According to the court, disclosure should be voluntary and cover a juror’s identified racial identity, ethnicity, and gender categories.

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