Gibbons Attorneys Draft NJSBA Amicus Brief Challenging Jury Selection in First In-Person Trial Since Pandemic

Lawrence S. Lustberg and Michael R. Noveck, Director and Fellow, respectively, of the John J. Gibbons Fellowship in Public Interest & Constitutional Law at Gibbons P.C., researched and drafted the amicus brief filed yesterday by the New Jersey State Bar Association (NJSBA), challenging the jury selection process in the first in-person trial to resume in New Jersey since the COVID-19 pandemic state of emergency was declared. Christine A. Amalfe, Chair of the Gibbons Employment & Labor Law Department and NJSBA Secretary and member of its Pandemic Task Force, arranged for the firm to handle the matter pro bono for the bar association.

“As it has been doing for 30 years, the Gibbons Fellowship continues to tackle cutting-edge issues of justice and equality in our criminal courts,” said Patrick C. Dunican Jr., Chairman and Managing Director of the firm. “Fairness to the accused is paramount, even as courts face understandable difficulties as they try to return to normal operations while gradually emerging from the COVID crisis, which Larry and Mike argue very effectively in the NJSBA’s brief.”

The matter at issue, State v. Dangcil, is a criminal trial in Bergen County that began last week. The NJSBA argued in the brief authored by Mr. Lustberg and Mr. Noveck that the jury management office exercised its own authority to grant or deny juror requests to be excused from jury selection or to defer their service, making those decisions without standards, recordkeeping, or the presence of the parties and their attorneys. This process, the brief argued, prevented both the prosecution and the defense from being able to evaluate the truthfulness and reasonableness of the requests and to object to or advocate for any excusals. The brief also pointed out that, in failing to compile demographic information on jurors’ race, ethnicity, or genders, the Jury Management Office made it impossible to consider whether certain classes were disproportionately represented among the excused jurors.

“[The] opaque exercise of authority raises constitutional concerns regarding whether the jury pool was in fact drawn from a fair cross-section of the community and whether dismissal of jurors was based on impermissible factors such as race and gender. … The Jury Management Office’s unilateral exercise of authority to excuse jurors, without input from counsel, interferes with Defendant’s right to counsel during the jury selection process.”

The Appellate Division granted the NJSBA’s motion to participate as amicus, and the appeal is moving forward.