By Nick Muscavage

Law360 (April 28, 2021, 4:12 PM EDT ) The New Jersey Supreme Court on Wednesday upheld the constitutionality of the state's virtual grand jury program after various groups claimed the remote format violated the secrecy requirements of grand juries and that its implementation was an overreach.

The state's high court, however, found that the justices did not exceed their power when they signed off on the virtual format amid the COVID-19 pandemic.

"We reject the contention that this Court's authorization of a virtual format for the selection of grand jurors and grand jury presentations during a lethal pandemic violates our State Constitution's separation of powers," the justices wrote in their unanimous opinion Wednesday.

The opinion validating the constitutionality of virtual grand juries comes more than a year after in-person grand juries were suspended following Gov. Phil Murphy's state of emergency declaration in March 2020.

On May 14, 2020, the Supreme Court issued an order authorizing a virtual grand jury pilot that was expanded to the rest of the state two months later. Since then, more than 6,000 cases have been presented to virtual grand juries, the justices wrote in the opinion.

The appeal before the Supreme Court stemmed from the August 2019 arrest of Omar Vega-Larregui, who was charged by the Trenton Police Department with three drug-related offenses and two disorderly persons charges.

The grand jury in Vega-Larregui's case convened in person in February 2020, but the sessions were later canceled because of the pandemic, according to the opinion.

The grand jury reconvened on the case through a virtual format using Zoom and were required by the court to perform a 360-degree scan of their location and take a supplemental oath of secrecy reiterating the consequences for exposing grand jury information to remind them of the "gravity of their obligation," according to the opinion.

After deliberation, the grand jury returned a four-count indictment against Vega-Larregui, who pleaded not guilty.

In an effort to dismiss the indictment, Vega-Larregui claimed the virtual grand jury did not "adhere to constitutional norms" and that the Supreme Court "exceeded its constitutional rulemaking authority by convening a virtual grand jury," according to the opinion.

Vega-Larregui's claims were supported by the New Jersey State Bar Association, or NJSBA, and the Association of Criminal Defense Lawyers of New Jersey, or ACDL, which each argued before the court in amicus briefs.

The groups agreed with Vega-Larregui and asserted that virtual grand juries are not fair representations of the community "because minority, poor, and elderly populations are less likely to have access to internet devices, thereby creating an intolerable 'digital divide.'"

The Supreme Court's virtual grand jury order, however, called for the provision of laptops or tablets "to any grand juror who is able to participate in virtual proceedings but requires technological support" and also trained the grand jurors on the virtual courtroom process, the justices noted in their opinion. By the end of January 2021, the judiciary provided over 150 tablets with internet access to jurors so they could participate in virtual grand jury sessions and selections.

The groups also argued that the oath required to be taken by grand jurors during the virtual format does not go far enough in terms of secrecy. They raised concerns over grand jurors participating from home and feared they could ignore the court's instructions by conducting their own research using smartphones, recording the proceedings or allowing others to have access to the hearing.

They also claimed a case could be jeopardized because of the possibility of technological issues during a virtual grand jury session.

Both the NJSBA the ACDL called on the Supreme Court to declare a moratorium on grand jury proceedings until they can return to an in-person format.

The Supreme Court, in its opinion, provided some guidance in response to the concerns regarding the technology and said that in order "to remove any doubt about a virtual grand juror's response to a question, the prosecutor should require a clear indication for the record, such as an audible response or a showing of hands."

NJSBA President Kimberly A. Yonta told Law360 Pulse in an email Wednesday that she respects the challenges faced by the court in "balancing the conditions imposed by the public health emergency against the importance of the continued operation of the courts, including the critical work of grand juries."

"Our priority has always been to ensure that the rights guaranteed by our Constitution are preserved, regardless of how the proceedings are fashioned," she said. "Viewing the opinion through that lens, we appreciate that the Court provided some guidance on best practices prosecutors should follow in order to remove ambiguities in proceedings, ensure grand jurors can fully see and hear the presentation, and an accurate record is produced."

In contrast, the state — along with the state attorney general's office, which argued in an amicus brief — said that the virtual grand juries were only convened in response to the pandemic and have kept the criminal justice system in operation, according to Wednesday's opinion. They disagreed with Vega-Larregui and contended that the way the remote format was rolled out "honored the dictates of our State Constitution and notions of fundamental fairness."

Peter Aseltine, a spokesman for the state attorney general's office, told Law360 Pulse on Wednesday that the Supreme Court's ruling is important and "ensures that we can continue the operation of the criminal justice system during the current public health crisis."

"The Court's opinion affirms that the temporary use of virtual grand juries until in-person proceedings can be safely resumed is constitutional and fundamentally fair," he said. "COVID-19 has required that we find virtual adaptations for so many essential jobs and functions, and prosecutors and grand jurors deserve great credit for meeting this challenge and serving justice during this unprecedented emergency."

Hudson County Prosecutor Esther Suarez, who serves as the president of the County Prosecutors Association of New Jersey, said prosecutors will refer to the Supreme Court's opinion for future cases.

"We have reviewed the Supreme Court's decision, and we will honor that decision and move forward accordingly with virtual grand juries," she told Law360 Pulse on Wednesday on behalf of the Mercer County Prosecutor's Office, which is handling the case against Vega-Larregui.

John Furlong, who represented Vega-Larregui in his appeal, said he was not "remotely" surprised by the Supreme Court's opinion and called virtual justice a "slippery slope."

"We are now conducting all court matters virtually, with the exception of jury trials, and I fear that jury trials will be next," he told Law360 Pulse in an email Wednesday. "The court's authority to craft its own rules of operation has never been in doubt."

In their opinion, the justices said that the "criminal and civil justice system cannot stand still" because of a pandemic or other outside circumstances.

"The Judiciary has endeavored to maintain all the essential attributes of the grand jury in the virtual format, so that the grand jury retains its high, preferred place in our constitutional framework," they wrote. "As millions of New Jersey residents continue to receive vaccinations, we look forward in the near future to a return to normalcy and to reopened courthouses — and to grand jurors sitting together in the same room where testimony is taken."

The state is represented by Randolph E. Mershon III of the Mercer County Prosecutor's Office.

Vega-Larregui is represented by Jack Furlong of Furlong & Krasny.

Amicus curiae Association of Criminal Defense Lawyers of New Jersey is represented by Matthew S. Adams, Marissa Koblitz Kingman and Marc M. Yenicag of Fox Rothschild LLP.

Amicus curiae New Jersey State Bar Association is represented by Brian J. Neary of the Law Offices of Brian J. Neary, Kimberly A. Yonta of Yonta Law LLC and Christopher J. Keating of Wilentz Goldman & Spitzer PA.

Amicus curiae Attorney General of New Jersey is represented by Carol M. Henderson of the state attorney general's office.

The case is State of New Jersey v. Omar Vega-Larregui, case number 085288, in the New Jersey Supreme Court.

--Additional reporting by Bill Wichert. Editing by Gemma Horowitz.

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