No Immediate Supreme Court Review of Challenge to COVID-19 Criminal Jury Trial Procedures, But Direct Certification After Trial Looks Likely

As described in an Order of Disposition of Emergent Application in State v. Dangcil, the Supreme Court was presented with a motion “seeking leave to appeal from the judgment of the Superior Court, Appellate Division, affirming the trial court’s denial of defendant’s order to show cause (OTSC) challenging the hybrid-virtual jury selection procedure adopted in response to the COVID-19 pandemic.” The Court concluded that defendant had not made a sufficient showing to obtain emergent relief, and that his trial, scheduled to begin today, would proceed. But that was not the end of the matter, as the Court went on to say.

“At the same time, the Court recognizes the importance of the issue raised by defense counsel. The Court’s denial of defendant’s interlocutory request for review and for a further stay of trial proceedings is without prejudice to defendant’s filing of a motion for direct certification of the issue to the Court post-trial. The Court would entertain such an application on an expedited basis together with a request to sever any appeal as to the jury selection process from any appeal on other issues raised in direct appeal, which issues could be considered by the Appellate Division in the ordinary course. In addition to the parties’ participation, leave to appear in any post-trial application to the Court is granted to the Public Defender, the American Civil Liberties Union of New Jersey, the New Jersey State Bar Association, and the Association of Criminal Defense Lawyers of New Jersey, should they wish to continue to participate in this case. No other entity may appear without permission of the Court.”

The Court has thus signaled that it would consider the issues raised once trial is concluded, and would do so on an expedited basis, through direct certification. The issues presented certainly are of broad public importance, as they affect criminal trials throughout the justice system for as long as the COVID-19 pandemic persists.