By Bill Wichert

Law360 (June 29, 2021, 5:47 PM EDT) -- The New Jersey Supreme Court appeared likely Tuesday to sign off on a hybrid system of selecting criminal juries remotely and in person amid the coronavirus pandemic, challenging a convicted man's stance that a pre-screening process was flawed for shutting out him and his lawyers.

In reviewing the first Garden State trial under that hybrid format — which led to an 18-year prison sentence for Wildemar A. Dangcil — the court expressed skepticism over his attorney's argument that court officials improperly excused certain potential jurors without Dangcil's participation as part of a process that included questions related to COVID-19.

The so-called "COVID questionnaire" is "the elephant in this room," Dangcil's attorney, Brian J. Neary, said in urging the justices to overturn his convictions last fall in an attempted arson case during oral argument in Trenton, which was broadcast on the state judiciary's website.

That form invested in the jury manager a discretion that, "for this set of circumstances, was inappropriate," said Neary, later adding that "we don't know what the exercise of that discretion was" both for granting deferrals to potential jurors or excusing them.

But the justices questioned the scope of involving defendants in such a process.

Chief Justice Stuart Rabner acknowledged Neary's argument that it represents a "critical stage" in which a defendant and counsel have a right to be present, but noted that the process involves whittling down a large pool of potential jurors to serve on multiple jury trials in a courthouse at the same time.

Given that dynamic, "is the logical extension of your argument that all of the defendants, all the defense attorneys and all the prosecutors have the right to be present as the pre-screening takes place for all the trials that panel will then be used for?" Justice Rabner said.

Neary indicated that the answer would be no if all such trials are at issue, but said "the problem here is it's singular."

"It's one case," Neary said. "It's one test."

Justice Jaynee LaVecchia soon pointed out that the COVID-19 questionnaire was prepared to be used for trials in vicinages across the state.

"How are we going to practically give you the kind of relief that you're asking for?" Justice LaVecchia said.

Picking up on questions from Justice Rabner, Justice LaVecchia asked, "Would we have civil lawyers and criminal lawyers both chiming in on whether or not a particular deferral or excuse should be able to be granted in the pre-screening process? How do you reconcile those various views?"

Neary stressed that his argument is "singular to this trial."

The Supreme Court also pushed back on Neary's related argument that the jurors in Dangcil's case were not drawn from a "fair cross-section of the community."

To back up that alleged constitutional violation, Neary would need to show "substantial underrepresentation over a significant period of time," Justice Rabner said. The justice asked Neary to explain how he had met that requirement.

After Neary began his response with a general focus on the pandemic, Justice Barry T. Albin pressed him to answer the question.

"The question you had been asked — 'What are your proofs?' — just state them," Justice Albin said.

Neary said "the proofs are none," and "the totality is that we don't know." He said "we don't know what discretion — if there was discretion — was exercised by jury management," and "there's no record with regard to it."

Justice Albin later told Neary, "You have no record. You're coming here. 'I have no record. Can't tell you any proofs at all. Rely on speculation.' That's what you're saying."

Neary said "the retort always has been, 'This is all speculation.'"

"If counsel were there, it wouldn't be speculation," Neary added.

Dangcil is represented by Brian J. Neary.

The state is represented by Jaimee M. Chasmer of the Bergen County Prosecutor's Office.

Amicus curiae Public Defender of New Jersey and American Civil Liberties Union of New Jersey is represented by Public Defender Joseph E. Krakora.

Amicus curiae New Jersey State Bar Association is represented by Lawrence S. Lustberg of Gibbons PC.

Amicus curiae Association of Criminal Defense Lawyers of New Jersey is represented by Marissa K. Kingman of Fox Rothschild LLP.

Amicus curiae Attorney General of New Jersey is represented in-house by Lila B. Leonard.

Amicus curiae County Prosecutors Association of New Jersey is represented by Linda A. Shashoua of the Camden County Prosecutor's Office.

The case is State of New Jersey v. Wildemar Dangcil, case number 085665, in the New Jersey Supreme Court.

--Editing by Bruce Goldman.

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